Marine And Coastal Area (Takutai Moana) Act 2011

7

7 Treaty of Waitangi (te Tiriti o Waitangi)

In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing,—

(a)        in subpart 1 of Part 3, for the participation of affected iwi, hapū, and whanau in the specified conservation processes relating to the common marine and coastal area; and

(b)        in subpart 2 of Part 3, for customary rights to be recognised and protected; and

(c)        in subpart 3 of Part 3, for customary marine title to be recognised and exercised.

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Special status of common marine and coastal area

(1)        The common marine and coastal area is accorded a special status by this section.

(2)        Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time

to time after the commencement of this Act.

(3)        On the commencement of this Act, the Crown and every local authority are divested of every title as owner, whether under any enactment or otherwise, of any part of the common marine and coastal area.

(4)        Whenever, after the commencement of this Act, whether as a result of erosion or other natural occurrence, any land owned by the Crown or a local authority becomes part of the common marine and coastal area, the title of the Crown or the local authority as owner of that land is, by this section, divested.

(5)        The special status accorded by this section to the common marine and coastal area does not affect—

(a)        the recognition of customary interests in accordance with this Act; or

(b)       any lawful use of any part of the common marine and coastal area or the undertaking of any lawful activity in any part of the common marine and coastal area; or

(c)        any power to impose, by or under an enactment, a prohibition, limitation, or restriction in respect of a part of the common marine and coastal area; or

(d)       any power or duty, by or under an enactment, to grant resource consents or permits (including the power to impose charges)  within any part of the common marine and coastal area; or (e) any power, by or under an enactment, to accord a status of any kind to a part of the common marine and coastal area, or to set aside a part of the common marine and coastal area for a specific purpose; or

(f)      any status that is, by or under an enactment, accorded to a part of the common marine and coastal area or a specific purpose for which a part of the common marine and coastal area is, by or under an enactment, set aside, or any rights or powers that may, by or under an enactment, be exercised in relation to that status or purpose.

(6)      In this section, enactment includes bylaws, regional plans, and district plans.

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Roads located in marine and coastal area

(1)        Any road, whether formed or unformed, that is in the marine and coastal area on the commencement of this Act is not part of the common marine and coastal area.

(2)        A certificate signed and dated by the responsible Minister may state, in respect of an unformed road to which subsection (1) applies,—

(a)        that the formation of the road has commenced; or

(b)       that the Minister believes that the formation of the road is intended to be commenced, having regard to any evidence that the Minister considers relevant, including, without limitation, any resource consent or other authorisation for that formation or any application or proposed application for such consent or authorisation.

(3)        If, on the day before any quinquennial anniversary, an unformed road to which subsection (1) applies continues in existence as an unformed road, then that road is deemed to be stopped, and becomes part of the common marine and coastal area on that anniversary, unless a current certificate has been signed and dated in respect of that road.

(4)        If a road to which subsection (1) applies continues to be unformed for at least 15 years after the commencement of this Act, the road is deemed to be stopped, and becomes part of the common marine and coastal area, on the date that the responsible Minister, in his or her discretion, signs and dates a certificate stating that—

(a)        the formation of the road has not commenced; and

(b)       the Minister believes that there is no longer an intention to commence the formation of the road.

(5)        An unformed road that, after the commencement of this Act, comes into existence in the marine and coastal area is part of the common marine and coastal area.

(6)        However, if a road to which subsection (5) applies is formed, the road ceases to be part of the common marine and coastal area on the day on which its formation is completed.

(7)        In any case where a road in the marine and coastal area is not part of the common marine and coastal area, the ownership, management, and control of the road is determined and governed by the enactments that apply to the road.

(8)        Nothing in this section (except subsection (7)) and in section 15 applies to a private road.

(9)        In this section,—

current certificate means a certificate under subsection (2) that is dated not earlier than 6 months before the relevant quinquennial anniversary;

formationand form have the same meaning as in section 2(1) of the Local Government Act 1974;

private road has the same meaning as in section 315(1) of the Local Government Act 1974;

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Rights of owners of structures

(1)        This section applies to any structure that is, on or after the commencement of this Act, fixed to, or under or over, any part of the common marine and coastal area.

(2)        Each structure to which this section applies—

(a)        is to be regarded as personal property and not as land or as an interest in land; and

(b)       does not form part of the common marine and coastal area.

(3)        A person who, immediately before the commencement of this Act, had an interest in a structure to which this section applies continues to have that interest in the structure as personal property until the person’s interest is changed by a disposition or by operation of law.

(4)        A person is presumed, unless the contrary is shown, to own a structure to which this section applies if the person holds a resource consent for the occupation of the part of the common marine and coastal area in which the structure is located.

(5)        Any authority, in force immediately before the commencement of this Act, by which the Crown, a Minister, an officer, an employee, a department, an instrument of the Crown, or a local authority is authorised to exercise and perform powers, duties, or functions in respect of a structure to which this section applies continues to be in force according to its tenor until it is changed or ceases to have effect by a lawful direction, disposition, or by operation of law.

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Crown deemed to be owner of abandoned structures

(1)        The Crown is deemed to be the owner of any structure that is abandoned in the common marine and coastal area.

(2)        For the purposes of this section, a structure is abandoned if the regional council with statutory functions in the part of the common marine and coastal area in which the structure is located has, after due inquiry, been unable to ascertain the identity or the whereabouts of the owner of the structure.

(3)        Where the ownership of a structure in the common marine and coastal area is uncertain, the regional council must undertake an inquiry under subsection (2) if there is no current resource consent in respect of the structure.

(4)        Every inquiry under subsection (2) must be undertaken in accordance with regulations made under section 118.

(5)        Nothing in this section makes the Crown liable—

(a)        for any breaches committed, in respect of a structure, before the Crown became the deemed owner of the structure; or

(b)       for any effects attributable to anything done or omitted, in respect of a structure, before the Crown became the deemed owner of the structure; or

(c)        to comply with any requirement in respect of the structure that does not relate to a matter of health or safety or to a significant adverse effect on the environment.

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Act does not affect existing resource consents or lawful activities

Nothing in this Act limits or affects—

(a)        any resource consent granted before the commencement of this Act; or

(b)        any activities that can be lawfully undertaken without a resource consent or other authorisation.

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Effect of protected customary rights on resource consent applications

(1)        This section applies if an application for a resource consent for an activity to be undertaken wholly or in part within a protected customary rights area is lodged on or after the date that—

(a)        a protected customary rights agreement comes into effect under section 96(1)(a); or

(b)       a protected customary rights order is sealed in accordance with section 113.

(2)        A consent authority must not grant a resource consent for an activity (including a controlled activity) to be carried out in a protected

customary rights area if the activity will, or is likely to, have adverse effects that are more than minor on the exercise of a protected customary right, unless—

(a)        the relevant protected customary rights group gives its written approval for the proposed activity; or

(b)       the activity is one to which subsection (3) applies.

(3)        The existence of a protected customary right does not limit or otherwise affect the grant of—

(a)        a coastal permit under the Resource Management Act 1991 to permit existing aquaculture activities to continue to be carried out in a specified part of the common marine and coastal area,—

(i)         regardless of when the application is lodged or whether there is any change in the species farmed or in the method of marine farming; and

(ii)        provided that there is no increase in the area, or change to the location, of the coastal space occupied by the aquaculture activity for which the existing coastal permit was granted; or

(b)       a resource consent under section 330A of the Resource Management Act 1991 for an emergency activity (within the meaning of section 63) undertaken in accordance with section 330 of that Act, as if the emergency activity were an emergency work to which section 330 applies; or

(c)        a resource consent for an existing accommodated infrastructure (within the meaning of section 63) if any adverse effects of the proposed activity on the exercise of a protected customary right will be or are likely to be—

(i)         the same or similar in character, intensity, and scale as those that existed before the application for the resource consent was lodged; or

(ii)        if more than minor or temporary in nature; or

(d)       a resource consent for a deemed accommodated activity (within the meaning of section 65(1)(b)(i)).

(4)        In the case where a deemed accommodated activity within the meaning of section 65(1)(b)(i) applies, the consent authority must, when considering applications for a resource consent relating to that activity, have particular regard to the nature of the protected customary right.

(5)        The provisions of Part 1 of Schedule 1 apply for the purposes of subsections (2) and (3).

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Interpretation

In this section and in sections 64 and 65,

accommodated infrastructure means infrastructure (including structures and associated operations) that is—

(a)        lawfully established; and

(b)        owned, operated, or carried out by 1 or more of the following:

(i)         the Crown, including a Crown entity;

(ii)        a local authority or a council-controlled organisation;:

(iii)       a network utility operator (within the meaning of section 166 of the Resource Management Act 1991);

(iv)       an electricity generator (as defined in section 2(1) of the Electricity Act 1992);

(v)        a port company (as defined in section 2(1) of the Port Companies Act 1988);

(vi)       a port operator (as defined in section 650J(6) of the Local Government Act 1974); and

(c)        reasonably necessary to—

(i)         the national social or economic well-being; or

(ii)        the social or economic well-being of the region in which the infrastructure is located

associated operationsmeans activities that are necessary for the functioning of an accommodated infrastructure, including—

(a)        an activity carried out under a resource consent granted under the Resource Management Act 1991 to permit existing accommodated infrastructure to continue in the same location; and

(b)        maintenance, remedial, and restoration work; and (c) the upgrading of existing infrastructure, but only if the effects on the environment of the upgraded infrastructure, assessed at the date when an application is made to upgrade the existing infrastructure, are to be the same or similar in character, intensity, and scale as the effects of the infrastructure that is being upgraded; and

(d)        the replacement of a part of existing infrastructure by a new part of the same or similar nature; and

(e)        the relocation of existing infrastructure, if—

(i)         that is necessary for the continuing operation of the infrastructure; and

(ii)        the effects on the environment of the new location, assessed at the date when an application is made to relocate the existing infrastructure, are the same or similar in character, intensity, and scale as the effects of the infrastructure in its previous location; and

(f)         dredging as part of the ongoing operation of a port.

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Accommodated activities

(1)        An accommodated activity—

(a)        may be carried out in a part of the common marine and coastal area despite customary marine title being recognised in respect of that part under subpart 1 or 2 of Part 4; and

(b)       is not limited or otherwise affected by the exercise of an RMA permission right or a conservation permission right; but

(c)        does not limit or otherwise affect the exercise of any other right referred to in section 62(1).

(2)        For the purposes of this subpart, accommodated activity means any of the following activities, to the extent that they are within a customary marine title area:

(a)        an activity authorised under a resource consent, whenever granted, if the application for the consent is first accepted by the consent authority before the effective date;

(b)       an activity that may be carried out under a resource consent, whenever granted, for a minimum impact activity (as defined in section 2(1) of the Crown Minerals Act 1991) relating to petroleum (as defined in section 2(1) of that Act);

(c)        accommodated infrastructure;

(d)       the management activities for which a resource consent is required in relation to—

(i)         an existing marine reserve;

(ii)        an existing wildlife sanctuary;

(iii)       an existing marine mammal sanctuary;

(iv)       an existing concession;

(e)        an activity carried out under a coastal permit granted under the Resource Management Act 1991 to permit existing aquaculture activities to continue to be carried out in a specified part of the common marine and coastal area,—

(i)         regardless of when the application is lodged or whether there is any change in the species farmed or in the method of marine farming; but

(ii)        provided that there is no increase in the area, or change of location, of the coastal space occupied by the aquaculture activities for which the existing coastal permit was granted;

(f)        an emergency activity;

(g)       scientific research or monitoring that is undertaken or funded by—

(i)         the Crown;

(ii)        any Crown agent;

(iii)       the regional council with statutory functions in the region where the research or monitoring is to take place;

(h)        a deemed accommodated activity.

(3)        Subsection (4) applies if, in relation to whether an activity is an accommodated activity, there is a dispute between—

(a)        a customary marine title group; and

(b)       the person who owns, operates, or carries out the activity that is the subject of the dispute.

(4)        Either party to the dispute may refer the dispute to the Minister for Land Information for resolution.

(5)        The decision of the Minister is final.

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Deemed accommodated activities

(1)        For the purpose of section 64(2)(h) and Schedule 2, the following activities are deemed to be accommodated activities:

(a)        the construction or operation of any proposed infrastructure that—

(i)         is within the meaning of paragraph (b) of the definition of accommodated infrastructure; and

(ii)        cannot practicably be constructed or operated in any location other than within a customary marine title area; and

(iii)       is essential for—

(A)       the national social or economic well-being; or

(B)       the social or economic well-being of the region in which the infrastructure is located; and

(iv)       in any case where the construction of infrastructure is to take place at any time after the commencement of this Act, that construction is either—

(A)       agreed in principle in accordance with Part 1 of Schedule 2 (subject to all necessary consents being obtained) by the group that holds a customary marine title order in the area relevant to the proposed infrastructure; or

(B)       classified by the Minister for Land Information as a deemed accommodated activity (subject to all necessary resource consents being obtained) in accordance with Part 1 of Schedule 2;

(b)       any activity—

(i)         that, at any time after the commencement of this Act, is necessary for, or reasonably related to, prospecting, exploration, mining operations, or mining (as those terms are defined in section 2(1) of the Crown Minerals Act 1991) for petroleum under a privilege; and

(ii)        for which an agreement or an arbitral award has been made under Part 2 of Schedule 2;

(c)        any activity—

(i)         that, at any time after the commencement of this Act, is necessary for, or reasonably related to, the exercise of a privilege in existence immediately before the effective date and of the rights associated with that privilege, as provided for in section 84(1); and

(ii)        for which an agreement or arbitral award has been made under Part 2 of Schedule 2.

(2)        Nothing in subsection (1)(a) or (b) limits the discretion of a consent authority—

(a)        to decline an application for a resource consent; or

(b)       to impose conditions on the resource consent.

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Scope of Resource Management Act 1991 permission right

(1)        An RMA permission right applies to activities that are to be carried out under a resource consent, including a resource consent for a controlled activity, to the extent that the resource consent is for an activity to be carried out within a customary marine title area.

(2)        A customary marine title group may give or decline permission, on any grounds, for an activity to which an RMA permission right applies.

(3)        Permission given by a customary marine title group cannot be revoked.

(4)        An RMA permission right does not apply to the grant or exercise of a resource consent for an accommodated activity.

(5)        An RMA permission right, or permission given under such a right, does not limit the discretion of a consent authority—

(a)        to decline an application for a resource consent; or

(b)       to impose conditions.

(6)        In this section, consent authority includes the Minister of Conservation and the Minister for the Environment exercising the powers of a consent authority under the Resource Management Act 1991.

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Procedural matters relevant to exercise of RMApermission right

(1)        A person seeking to carry out an activity (the applicant) to which an RMA permission right applies—

(a)        must make a request for permission by notice to the relevant customary marine title group; and

(b)       may do so at any time before the relevant resource consent may commence.

(2)        The customary marine title group must—

(a)        notify in writing its decision on a request for permission to—

(i)         the applicant who gave notice under subsection (1); and

(ii)        the relevant consent authority; and

(b)       if permission is given, specify—

(i)         the activity for which permission is given; and

(ii)        the applicant who is to have the benefit of the permission; and

(iii)       the duration of the permission.

(3)        Unless the customary marine title group has already notified its decision to the applicant under subsection (2), it must do so not later than 40 working days after it receives a notice from the applicant that the applicant has been granted the relevant resource consent (whether or not the applicant had previously notified the customary marine title group of the application).

(4)        The customary marine title group is to be treated as having given permission for the resource consent, for its duration, if notice of its decision is not received by the applicant in accordance with subsection (3).

(5)      In subsection (3), the grant of a resource consent means that the consent has been granted and any appeal rights exhausted, and that the resource consent would, but for the requirement for the permission of the customary marine title group, commence under section 116 of the Resource Management Act 1991.

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Effect of RMA permission right

(1)        The holder of a resource consent for an activity in a customary marine title area to which an RMA permission right applies must not commence the activity to which the consent applied unless—

(a)        permission has been given by the relevant customary marine title group under section 66(2) for that activity; and

(b)       the permission covers the activity to which the resource consent applies.

(2)        To avoid doubt, a decision of a customary marine title group to give or to decline permission for an activity is not subject to—

(a)        a right of appeal; or

(b)       a right of objection under section 357 or 357A of the Resource Management Act 1991.

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Compliance

(1)  A local authority that has statutory functions in the location of a wāhi tapu or wāhi tapu area that is subject to a wāhi tapu protection right must, in consultation with the relevant customary marine title group, take any appropriate action that is reasonably necessary to encourage public compliance with any wāhi tapu conditions.

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Obligation on local authorities

(1)        This section applies if a planning document is lodged with a local authority that has statutory functions in the district or region where the customary marine title area is located.

(2)        On and after the date that a planning document is registered, the local authority must take the planning document into account when making any decision under the Local Government Act 2002 in relation to the customary marine title area.

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Obligationson regionalcouncils in relation to planning documents

Preliminary obligations

(1)      A regional council with functions in a region where 1 or more planning documents are registered in accordance with section 86 must, until the requirements of subsection (5) have been completed, attach the planning documents to copies of its relevant regional

documents that it makes publicly available.

Identification and application of resource management matters included in planning document

(2)        Between the time that a planning document is lodged under section 86(1) and the time it is deemed to be registered under section 86(2), a regional council must identify the matters in the planning document that relate to resource management issues within its functions  under the Resource Management Act 1991, to the extent that those matters are relevant within—

(a)        the customary marine title area to which the planning document relates; and

(b)       any parts of the common marine and coastal area to which the planning document relates other than the customary marine title area.

(3)        When considering, under section 104 of the Resource Management Act 1991, a resource consent application for an activity that would, if the consent were granted, directly affect, wholly or in part, the area to which the planning document applies, a consent authority of a regional council must have regard to any matters identified under subsection (2).

(4)        The obligation under subsection (3) applies only to the matters in respect of which a regional council is able to exercise discretion.

(5)        The obligation under subsection (3) continues until—

(a)        a regional document, altered in accordance with this section, becomes operative in accordance with Schedule 1 of the Resource Management Act 1991; or

(b)       30 working days after the date that the customary marine title group is informed of the decision under subsection (11) that no alterations are to be made to the relevant regional documents.

Obligationswith respect to relevant regional documents

(6)        A regional council must initiate a process to determine whether to alter its relevant regional documents, if and to the extent that any alteration would achieve the purpose of the Resource Management Act 1991, in order to—

(a)        recognise and provide for any matters identified under subsection (2)(a); and

(b)       take into account any matters identified under subsection (2)(b).

(7)        The process required by subsection (6) may be commenced—

(a)        at any time after a planning document is registered; but

(b)       not later than the first proposed change to, or variation or review of, any provision in a relevant regional document that applies to a customary marine title area.

(8)        In making a determination under subsection (6), a regional council must consider the extent to which alterations must be made to its relevant regional documents to—

(a)        recognise and provide for the matters in a planning document that relate to the customary marine title area; and

(b)       take into account the matters in a planning document that relate to the parts of the common marine and coastal area other than the customary marine title area.

(9)        The obligations on a regional council under subsection (8) must be carried out in accordance with the requirements and procedures that relate to regional documents in—

(a)        Part 5 of the Resource Management Act 1991; and

(b)       Schedule 1 of that Act.

(10)      A regional council may decide, in conducting the process required by subsection (6), not to alter its relevant regional documents, but only on the grounds that the matters in the planning document—

(a)        are already provided for in a relevant regional document; or

(b)       would not achieve the purpose of the Resource Management Act 1991; or

(c)        would be more effectively and efficiently addressed in another way.

(11)      If a regional council determines that no alterations should be notified in a proposed policy statement or plan that is notified under clause 5 of Schedule 1 of the Resource Management Act 1991, it must inform the customary marine title group in writing and provide reasons for its decision within 5 working days of that decision.

(12)      If an application is made to a regional council under Part 2 of Schedule 1 of the Resource Management Act 1991 for a private plan change that includes a customary marine title area in respect of which a planning document has been lodged,—

(a)       the provisions of Part 2 of that schedule apply to the application, subject to the regional council having regard to any matters in the planning document when making a decision under clause 25 of that schedule; and

(b)        if the private plan change is not rejected or treated as a resource consent application, the regional council must adopt the request and initiate the process required by subsection (6).

Schedule 1

Resource consents and controls in protected customary rights area

clause 3

Process if grant of resource consent has effect of cancelling protected customary right

(1)        If the effect of carrying out an activity under a resource consent granted in the circumstances contemplated by clause 2 would be permanently to cancel a protected customary rights order or agreement, in whole or in part,—

(a)        the protected customary rights group must apply, as the case requires,—

(i)         to the High Court under section 111 to vary or cancel the order; or

(ii)        to the responsible Minister to vary or cancel an agreement; and

(b)       a decision by the consent authority to grant a resource consent for the proposed activity is of no effect until the application referred to in paragraph (a) has been—

(i)         determined by the High Court under section 111 and all appeal rights have been pursued, and registered under section 114; or

(ii)        agreed to by the responsible Minister as if it were an application for an agreement to which sections 95, 96, and 114 apply.

(2)      If the High Court or the responsible Minister, as the case requires, declines an application to cancel a protected customary rights order, the relevant resource consent must be treated as if it were declined by the consent authority.

clause 4

Assessment of effects of exercise of protected customary rights

(1)        An enforcement officer authorised in writing for the purpose by a local authority may do any of the following for the purpose of assessing the effects on the environment of the exercise of a protected customary right:

(a)        carry out surveys, investigations, tests, or measurements;

(b)       take samples of any water, air, soil, or vegetation;

(c)        enter or re-enter land (except a dwelling house).

(2)        These powers may be exercised—

(a)        at any reasonable time; and

(b)       with or without assistance, vehicles, appliances, machinery, or equipment reasonably necessary for the purpose.

Schedule 2

Process by which certain new activities in customary marine title area become deemed accommodated activities