Much of the historical and contemporary debate concerning the law that applies or ought to apply to the foreshore and seabed has focused on the degree to which it is a unique legal area.
Definition of foreshore and seabed
The seabed comprises land that is completely submerged under water.
The foreshore is land that is regularly submerged beneath the sea’s tidal ebb and flow. Very simply, it is the wet part of the beach.
The legal definitions of both the foreshore and seabed include the space occupied by the air and water above the land, and the soil and rock beneath it.
However, actual identification of the foreshore poses difficulties. There can be considerable variation in the foreshore as the sea encroaches or recedes during long-term changes. Nor is the legal definition uniform. In English common law (law from precedent rather than statute), the foreshore has been generally defined as land that is below the high water mark of ordinary tides. That excludes the highest tides of a given month (the spring tides) and the lowest high tides, which occur at the neaps. Land covered during the high spring tides was presumed not to form part of the foreshore but to belong to the owner of the adjoining land.
New Zealand statute may use different definitions from the common law. Under the Resource Management Act 1991, the foreshore ‘means any land covered and uncovered by the flow and ebb of the tide at mean spring tides’. Section 5 of the Foreshore and Seabed Act 2004 indicates that the foreshore is bounded ‘on the landward side by the line of mean high water springs’. 1
English common law conventionally held that the Crown is presumed to be the original owner of the beds of coastal waters and tidal rivers, and the foreshore. With submerged land, it is clear that in 1840 the British administration in New Zealand initially focused on asserting sovereign jurisdiction over the coastal seas to at least three miles offshore, rather than ownership of the seabed. This focus related to the law of nations, rather than any municipal law.
However, from the mid-19th century, grants of land below the high water mark (including parts of the seabed) were made on the assumption that the Crown was the owner. This was particularly, but not universally, the case where it had bought adjoining dry land from Māori. A fee simple grant (permanent and absolute ownership) of the seabed under the Crown’s prerogative was made as early as 1845 during Robert FitzRoy’s governorship.
Owner of the beach
Herman Merivale, of the British Colonial Office, said in 1849: ‘[I]t may be taken for granted that according to maxims of English common law the Crown is in strictness owner of the beach between high and low water mark in the colonies as well as in England, subject only to the rights of the public to use it for landing’. 2
In short, the introduced common law in New Zealand’s early colonial history recognised the Crown as the owner of the foreshore and seabed, able to grant private property interests subject only to public rights of fishing and navigation. This came to be accepted early on by New Zealand settlers. For instance, in 1855 the Ngāti Whātua tribe demanded a rent for the use of a shellfish bed in the Kaipara Harbour. However, the settlers opposed them on the grounds that the land under the sea belonged to the Crown.