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.
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.
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.
The assumption of Crown ownership under common law (law from precedent rather than statute) overlooked the place of Māori customary interests in the foreshore and seabed. Many Māori communities are coastal, and their long traditions of fishing have been widely recognised by New Zealanders.
Yet Māori use has historically been more than just fishing. The lands under the water were used for the landing of canoes, recreation, as battlegrounds, burial grounds and for the collection of seaweed. People were at times stopped from using tidal areas by rāhui (prohibitions) in response to a drowning or to preserve shellfish stocks.
In 1885 Hōri Ngātai of the Ngāi Te Rangi tribe said that the land below high water immediately in front of where he lived on Tauranga Harbour was ‘part and parcel of my own land … as being part of my own garden’. He explained: ‘From time immemorial I have had this land … The whole of this inland sea has been subdivided by our ancestors, and each portion belongs to a proper owner.’ 1
From 1840, the Crown – through its officers, orders and, eventually, legislation – gradually intruded on and disturbed the varying degrees of customary (including spiritual) association that Māori communities had with the foreshore and seabed.
With respect to dry land, Māori ownership interests were recognised. There were debates about the nature and extent of such interests but, in general, the existence of customary property was accepted. There were formal processes of purchase and transfer of ownership. The Crown did not presume to have ownership by right. But with respect to the seabed and foreshore (excluding fisheries), there was either indifference to, or unawareness of, Māori property interests in general legislation and the way in which it was applied.
There were occasions where the Native Land Court acknowledged Māori customary interests in the foreshore, but only in the form of fishing rights. A number of cases claiming property rights were taken to the Land Court, although control of the fisheries (including valued fishing grounds) was an important motivation for litigation in respect of both the foreshore and seabed.
There is further complexity to the issue of rights to the foreshore and seabed. The foreshore is a border land, where goods and people move between sea and dry land. It is pre-eminently a space for exchange and carriage. As early as 1608, Hugo Grotius, the Dutch jurist, addressing the law of nations using Roman sources, said with reference to sea and air: ‘that which cannot be occupied, or which never has been occupied, cannot be the property of anyone, because all property has arisen from occupation’. 1 Grotius did, however, recognise that inlets of the sea, the shore and fishing ponds might be enclosed from the sea and occupied as private property.
In New Zealand, the history of human interaction with the landscape began on the beaches (including the foreshore). In an island nation such as New Zealand, the seas conveyed human voyagers and migrants to its shore, and the foreshore and adjacent waters nourished settlement through fisheries and transoceanic trading routes. Parts of the coastline have an indelible cultural and historical significance. This may have created a general interest in public access to the areas linking dry land and sea, and made claims of ownership, whether from individuals or groups, Māori or non-Māori, contentious.
European New Zealanders also came to believe that one of the ways their country was distinguished from the old world was the open access to waterways, beaches and fisheries. The growing use of the beach as a site for public recreation from the early 20th century intensified the sense of the beach and foreshore as public space.
How to reconcile particular claims to control of the foreshore with public or strategic interest in open access has been an ongoing challenge. However, apart from particular legislation or specific usage in an area, English common law held that there was no legally enforceable general right of public access to the foreshore from the landward side.
The Court of Appeal confirmed this situation in New Zealand in 1868 in a case about a provincially regulated landing service at the port of Timaru. There were public rights of navigation and of fishing. Any property in the seabed, for instance, whether fee simple (in permanent and absolute ownership) or not, remained subject to such rights. Yet the belief that the public have a legal right of access to the foreshore is actually a myth.
Equally mythological is the so-called ‘Queen’s chain’, said to be a 20-metre (or one chain) strip along the edge of waterways and coasts (and therefore above the high water mark or foreshore). This is believed to give a universal right of public access. Queen Victoria’s instructions to Governor William Hobson in 1840 certainly asked that places along the sea coast and navigable streams be reserved ‘for the recreation and amusement of the inhabitants’. But neither statute nor common law consistently established this as a universal right.
Public access has always been partial (about 70% of land abutting New Zealand's coast is in public ownership). Where it has been legally secured it has been predominantly via formed roads abutting the coastline, reservations of land from sale or other transfers of land, as well as various forms of reserve, such as road reserves and esplanade reserves.
The growing appreciation of the potential resources of the seabed in the late 20th century, through new technologies making it increasingly possible to exploit mineral deposits, and through bio-prospecting and aquaculture, for instance, made the legal issue of ownership more urgent. The granting of consents to occupy the seabed for aquaculture occurred on the premise that the submerged land belonged to the Crown. It was conflict over shellfish farming that sparked fierce debate in the early 2000s.
In 1997, eight iwi (tribes) of the northern South Island, spurred on by their failure to be awarded rights for mussel farming, applied to the Māori Land Court to have a determination of the foreshore and seabed of the Marlborough Sounds as Māori customary land. While the Māori Land Court decided that it could consider the issue, the High Court ruled amongst other things that once the adjoining dry land had been purchased by the Crown, the Māori customary interest in the foreshore was lost, while the seabed below the low water mark was owned by the Crown in common law.
In 2003 the Court of Appeal overturned this and unanimously decided that the Māori Land Court did have jurisdiction under the Te Ture Whenua Māori Act 1993 to determine whether the foreshore and seabed had the status of Māori customary land.
While it affirmed the Māori Land Court’s jurisdiction, the court noted that this decision did not actually constitute a ruling on the Ngāti Apa claim. Māori customary land was statutorily defined as ‘land held in accordance with tikanga Māori’ (customary values and practices). The Crown argued unsuccessfully that the Māori Land Court’s jurisdiction did not extend to the seabed.
In 2003 Chief Justice Sian Elias stated: ‘It may well be that any customary property will be insufficient to permit a vesting order with the consequence of fee simple title. But that does not seem to me to be a reason to prevent the applicants proceeding to establish whether any foreshore or seabed has the status of customary land. I consider that the Māori Land Court has jurisdiction to entertain the application.’ 1
Some commentators claimed they were not surprised by the Court of Appeal’s decision. Customary land status under the Te Ture Whenua Māori Act 1993 was not equivalent to fee simple title (permanent and absolute ownership) – ownership of the land could not be freely transferred, for example. However, Māori customary land status on dry or submerged land (whether in lakes or in the sea) could amount to a potent right of property, including the possibility of allocating space to third parties and controlling access. Presumably, the status would have been subject to public rights of navigation and fishing where relevant.
The passing of the Foreshore and Seabed Act precluded any detailed examination of particular facts about the issues raised by the ‘Ngāti Apa’ case.
Widespread public concern about the Court of Appeal’s ruling led the government to propose new legislation. There was general acceptance of the need for a clear understanding about public access to the foreshore. The ensuing Foreshore and Seabed Act 2004:
In 2009 the National-led government, as part of a November 2008 confidence-and-supply agreement with the Māori Party, undertook a review of the Foreshore and Seabed Act 2004. In response to the review the Marine and Coastal Area (Takutai Moana) Act 2011 was passed, repealing the 2004 act. The new law replaced Crown ownership of the foreshore and seabed with a ‘no ownership’ regime, and restored the right of iwi to seek customary rights and title in court.
The act recognised that Māori may have exclusive customary interests in otherwise public areas of the foreshore and seabed. However, those interests cannot prevent existing rights and uses such as public access, navigation, fishing, aquaculture and mining.
The act addresses two types of customary interests in particular:
Whānau, hapū and iwi need to apply to the court or negotiate directly with the Crown to obtain legal recognition of protected customary rights or customary marine title.
To be awarded customary marine title to a specified area, an applicant group must prove that it:
In establishing customary marine title, matters to be considered include whether the applicant group or its members exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day.
Customary marine title is inalienable – the area cannot be sold. Customary marine title recognises the relationship that has existed and will continue to exist between iwi and the foreshore and seabed. It allows for continued public access and recreation, while allowing local iwi, hapū or whānau to exercise certain rights set out in the Marine and Coastal Area (Takutai Moana) Act 2011, including the ownership of minerals (other than petroleum, gold, silver and uranium in their natural condition) within the customary marine title area.
By December 2014 seven applications for recognition of customary title and customary rights under the act had been confirmed. No applications had yet been granted.
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Charters, Claire, and Andrew Erueti. Māori property rights and the foreshore and seabed: the last frontier. Wellington: Victoria University Press, 2007.
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