So what exactly is the foreshore? How much land are we talking about when we discuss the seabed and why has this suddenly become an issue?
The common law position and the position in the Crown Grants Act 1908 is that the foreshore is the inter-tidal zone; the land between the high water mark and the low water mark historically. The Resource Management Act 1991 and the current Foreshore and Seabed Bill 2004 expand the foreshore, moving it up the beach to the line of mean spring tides. The foreshore is a substantial area in New Zealand obviously varying in size in different coastal areas.
The seabed currently is the area between the low water mark and the outer limits of the territorial sea (being the 12 nautical mile limit). Land within the territorial sea is part of the land mass of New Zealand and is fully within the jurisdiction of New Zealand Courts.
So why are these areas suddenly such an issue? Simply put, the Native Title to the foreshore specifically has never been extinguished by statute.
It has been recognised by law since 1962 that the Crown cannot simply claim Title to the foreshore by virtue of being the Crown. This is a legal problem which has been known for many years following a Court of Appeal decision in 1962.
The closest parallel to this situation is that of gold and silver. For many years the Crown acted as if it owned gold and silver in New Zealand but there was no certainty as to the ownership until a law was passed in 1971.
The matter of the seabed is different from the foreshore in that the Territorial Sea and Fishing Zone Act 1965 states that “the seabed is to be and always to have been vested in the Crown”.
The Court of Appeal deemed that this Act did not go far enough in that the legislation did not clearly and plainly extinguish Native Title (this being the standard test as recognised in Canadian, Australian and New Zealand Case Law).
The Government has drafted the Foreshore and Seabed Bill 2004 in order to clearly state the foreshore and seabed are not Maori land.
The necessity of this legislation is worth at least questioning given that there are a number of lakes in New Zealand which are owned by Maori but to which public access is permanently protected.
Large parts of Lake Taupo can be included in this category. There appears to be no logical reason why lakebed is deemed to be different from seabed.
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