Background - Foreshore & Seabed

Last updated: 5 November 2009

Introduction

The Foreshore and Seabed Act 2004 (the Act) is arguably the most significant piece of legislation affecting Māori in recent history. The reform process saw:

Over 25,000 people march on Parliament opposing the Act;
The United Nations repeatedly find that the Act discriminated against Māori because it extinguished property rights without consent or compensation; and
The Government announces a major review of the Act.

The Act was reviewed by an independent panel which made a number of recommendations to government.

On Monday 2 November 2009 the Prime Minister indicated that the Foreshore and Seabed Act was to be repealed but not until a decision is made on what will replace it.

It is expected that iwi and hapu consultations will now be held. To assist you in participating in this process it may be useful to read the background below.

Where did the Foreshore and Seabed Act Come From?
What did the Foreshore and Seabed Act Do?
Why did Māori oppose the Foreshore and Seabed Act?
What was the Foreshore and Seabed Review?

Where Did The Foreshore and Seabed Act Come From?

The issue started with an application by the iwi of Te Tau Ihu to the Māori Land Court, asking for a finding that the iwi held customary title over the foreshore and seabed in their rohe moana. One of main reasons the iwi took the case was because they were dissatisfied with poor management of the marine environment, particularly decisions on the allocation of space for marine farming. It was thought that a finding of customary title could provide the iwi with an additional point of leverage to influence management and decision making over management of the marine environment.

The case made its way to the Court of Appeal, by which time, only a technical legal point was being considered: whether the Māori Land Court could actually hear the case. The Court of Appeal found that the Māori Land Court could hear cases on whether Māori have property rights in the foreshore and seabed, but it did not find that Māori actually have property rights in the foreshore and seabed.

The government of the day responded to the Court of Appeal decision by enacting the Foreshore and Seabed Act.

What Did The Foreshore and Seabed Act Do?

The Foreshore and Seabed Act effectively overruled the Court of Appeal decision, and created a new framework for property and customary rights in the foreshore and seabed. The key changes the Act made were to:

Vest ownership of the foreshore and seabed in the government;
Extinguish any Māori property rights in the foreshore and seabed that existed before the Act became law;
Create rules and processes for recognising Māori and non Māori customary rights in the foreshore and seabed;

Two types of Māori customary rights are provided for in the Act:

Territorial Customary Rights Orders (TCRs) – that are designed to recognise property rights that existed before the Act. To get a TCR, applicants have to prove that they have had unbroken ownership of the land next to the foreshore and seabed they are claiming since 1840 and satisfy tests about the strength of their connection to the foreshore and seabed. If an applicant gets a TCR, they can create a trust that manages the use of that area of the foreshore and seabed.
Customary Rights Orders (CROs) – that are designed to recognise customary practices occurring on the foreshore and seabed. To get a CRO, applicants have to prove that they have an unbroken tradition of doing the particular customary practice and that it is important tikanga for them to continue doing it. If an applicant gets a CRO, it will be recognised under the Resource Management Act (RMA) as a nationally important consideration and taken into account when people apply for a resource consent under the RMA.

Non-Māori can also apply for CROs.

Why Did Māori Oppose The Foreshore And Seabed Act?

Māori strongly opposed the Act for a number of reasons including that:

The Act extinguished Māori property rights in the foreshore and seabed without the consent of Māori or compensation for the loss;
That the extinguishment was discriminatory because non-Māori property rights were not affected by the Act;
The government should not have created an Act before the full court process had finished because there are constitutional principles which mean that the due process of the courts should be seen to completion. This would have meant that the Māori Land Court could hear the Te Tau Ihu case, and make a decision on whether or not they did have customary title over the foreshore and seabed;
The rules and processes for obtaining TCRs and CROs undermined mana whenua mana moana because they reduce and restrict the relationship iwi, hapū and whānau have with the foreshore and seabed;
The rules for TCRs and CROs are unfairly strict, and will mean that few iwi, hapū and whānau can obtain the orders;
The protections and rights that holders of TCRs and CROs get are inadequate because they do not give iwi, hapū and whānau any greater protection than what is already available under the RMA and Treaty Settlements;

What Was The Foreshore And Seabed Review?

The Foreshore and Seabed Review was an independent process that made recommendations to government, including a key recommendation to repeal the Act.

The review was conducted by an independent panel made up of Justice Durie, Richard Boast and Hana O'Regan.

The review considered the following questions (paraphrased);

What are the nature of the relationship, rights and responsibilities that iwi, hapū and whānau have with the foreshore and seabed?
How could the government have provided for these relationships, rights and responsibilities (instead of passing the Foreshore and Seabed Act)?
Does the Foreshore and Seabed Act appropriately recognise and protect these relationships, rights and responsibilities?
If the Foreshore and Seabed Act doesn't appropriately recognise and protect these relationships, what alternatives could be put in place?

View the report of the Review Panel » [PDF 260KB]

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