The Resource Management (Foreshore and Seabed) Amendment Act 2004
The Resource Management (Foreshore and Seabed) Amendment Act 2004 relates to:
- protection of customary rights orders
- provision for management plans prepared in respect of foreshore and seabed reserves to be accommodated in policy statements and plans prepared under the RMA
- subdivisions
- reclamations.
A major change introduced by the legislation relates to the vesting of land at the time of subdivision.
Section 237A(1) of the RMA was amended so that any part of a subdivided allotment that is within the coastal marine area will vest in the Crown when the land is subdivided. Previously, vesting could only occur with the agreement of the Minister of Conservation.
Access and navigation can continue to be restricted in accordance with existing statutes, bylaws, and other rules. These may include the following:
- restrictions on access around port areas, under maritime legislation;
- restrictions on vehicle access, in regional coastal plans and by-laws; and
- restrictions on access to parts of conservation areas, to protect sensitive wildlife.
The Act creates public access rights in, on, over and across the public foreshore and seabed, to enable its continued use and enjoyment by all New Zealanders. However, it also allows Ministers to restrict access to protect waahi tapu and sites of significance associated with a customary rights order from inappropriate public access.
The Act only creates public access rights over the public foreshore and seabed. It does not provide for access to the public foreshore and seabed across private land.
Protection of Customary Rights Orders
The effect of a customary rights order is that the activity, use or practice specified in the order is protected under the RMA. Activities carried out under a customary rights order are called recognised customary activities. The Resource Management (Foreshore and Seabed) Amendment Act amends the RMA in order to:
- recognise and provide for the protection of recognised customary activities as a matter of national importance in all decision-making under the RMA. This includes during the development of policy statements and plans and in determining applications for resource consents
- enable the exercise of a recognised customary activity without a resource consent and despite rules in plans prepared under the RMA
- require a consent authority to decline a resource consent for a proposed activity that it considers would have a significant adverse effect on a recognised customary activity, unless the holder of the customary rights order has given its written approval. Exceptions are provided for the maintenance of, and new consents for, existing infrastructure works and associated operations, and
- enable the Minister of Conservation, in consultation with the Minister of Maori Affairs, to impose controls on the exercise of a recognised customary activity where it will have a significant adverse effect on the environment. These controls cannot prevent the exercise of a recognised customary activity.
Existing lawful activities will not be affected by customary rights orders. However, upon expiry of a resource consent, a local authority will not be able to grant a new resource consent if it considers that the activity has a significant adverse effect on a recognised customary activity, unless the holder gives written approval.
Foreshore and Seabed Reserve
If a foreshore and seabed reserve is established, the applicant group and representatives of the relevant regional council and the Crown will agree on the appointment of a board and a charter to administer the reserve. The functions of the board include the development of a management plan for the area. Local authorities will then have to recognise and provide for that management plan in relevant policy statements and plans prepared under the RMA. Regional councils will be obliged to undertake a review of relevant policies and plans after a management plan is finalised. If local authorities decide to change their plans to recognise and provide for a management plan, they will need to publicly notify the proposed changes and consider public submissions.
Subdivisions
If a section of land which includes foreshore and seabed land is subdivided, ownership of that part of the land that is within the foreshore and seabed will be vested in the Crown. Depending on the size of the subdivision, compensation may be payable by the Crown.
Reclamations
The Resource Management (Foreshore and Seabed) Amendment Act 2004 amends s355 of the RMA which deals with the vesting of reclaimed land. The Minister of Conservation cannot transfer freehold title over reclaimed land. There are some limited exceptions to this:
- where a resource consent to carry out a reclamation has been granted before 25 November 2004, and
- if there is a specific statute or legal agreement providing for the vesting of the reclaimed land.
For all other parties, only lesser rights can be vested. Of these, port companies may have an automatic right of renewal on leases over reclaimed land necessary for port infrastructure. Port companies and other holders of leases over reclaimed land that are due to expire will also have their applications considered first.
