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John Mansell[1]
New Zealanders, by geographical necessity and choice, are coastal dwellers who place high cultural and historical values upon the foreshore, seabed and coastal waters. Their attitudes towards the marine environment, which have been shaped by their location and by international environmental events, are limited to their visible horizon and do not generally have regard for the environmental and management issues concerning their vast maritime area of jurisdiction. They have led the world in environmental management of their land, waterways and coastal marine area but have been slow to recognise or accept the need to integrate the oceans with these regimes.
Maori, in particular, place very high spiritual and cultural values upon the coastline and these values, along with those of all New Zealanders, have been belatedly recognised through law and through the development and consultative processes carried out to date in the formulation of an oceans policy. That policy development is currently stalled due to indigenous issues of customary title to the foreshore and seabed. The journey towards a fully integrated management regime for the land and the sea cannot be successfully accomplished until all New Zealanders accept one of the fundamental tenets of the draft oceans policy: that it is bound by the Treaty of Waitangi.
The voyage towards a fully integrated management regime for the waters under New Zealand jurisdiction has been long and slow, and is still to reach its destination. The history of this voyage from its international departure points on the far side of the world is traced and the important environmental waypoints en route are identified and discussed. The relevance of the Law of the Sea Convention (LOSC) as the guiding beacon for any oceans policy is recognised, and the significant historical and cultural waypoints along the coastal voyage towards a New Zealand oceans policy are identified and discussed. Development of environmental law in New Zealand, and its roots in international soft law, is summarised, as is the central and fundamental role of the Treaty of Waitangi.
The important role that coastal values and issues play in the psyche of all New Zealanders is explained in their cultural, historical, legislative and political contexts. It is argued that recognition and harmonisation of all these aspects must be achieved if a successful oceans policy is to be developed. Indigenous issues concerning the foreshore and seabed are identified before determining that the voyage towards an oceans policy is currently firmly aground on these issues.
The conclusion is reached that completion of a successful voyage towards a fully integrated oceans policy for New Zealand may have been jeopardised due to politically expedient handling of indigenous issues.
2 Departure and International Waypoints
In plotting the course taken towards a New Zealand oceans policy it is necessary to identify the events that shaped the views of New Zealanders (and people around the world) to environmental issues, and in particular towards the marine environment; events that were to slowly change the paradigm of a vast empty ocean that could absorb anything and everything, to appreciation of the fragility of this ecosystem.
The single event that brought home to many the threat posed to the marine environment from the operation of increasingly large tankers was the spilling in 1967 of 117,000 tons of crude oil into the waters off Lands End, England, by the grounding of the tanker Torrey Canyon. This environmental disaster brought about a flurry of activity within the International Maritime Organisation (IMO) and development of a tranche of Conventions dealing with pollution from ships, along with associated liability and intervention issues.[2]
This development of hard international environmental law was soon followed by a series of major environmental waypoints. They included the United Nations Conference on the Human Environment (UNCHE) in Stockholm in 1972, and UNCLOS III which carried out its work by a unique process of consensus over the period from 1973 until 1982. [3]
Although pollution of the ocean from land-based sources was not specifically addressed in the Stockholm Declaration it was clearly identified in the LOSC, reflecting the fact that, at the time, it was estimated to represent 54% of all sources.[4] The United Nations Environment Programme (UNEP) started addressing this issue in 1982 resulting in the 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-based Sources.[5]
One of the guiding principles from Stockholm, sustainable development, was addressed by the Brundtland Report of the World Commission on Environment and Development, 1987: Our Common Future, which produced the most commonly accepted definition:
Development which meets the needs of the present without compromising the ability of future generations to meet their own needs,
and also reminded the UN of the need to carry out a stocktake of the environment twenty years after Stockholm. Accordingly, the UN General Assembly’s 1989 decision to convene an Earth Summit resulted in the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992.[6]
The vexed question of land-based pollution, which was estimated to have increased to 70% of all sources by 1992, (with ship-sourced pollution having reduced to 12%) was further addressed by the UNEP through the 1995 Washington Conference and subsequent Global Plan of Action (GPA). [7]
One of the two most significant waypoints on the international voyage towards an oceans policy for New Zealand was the entry into force of the LOSC on 16 November 1994; an importance reflected in the following statement from the Oceans Policy Stocktake in 2002:
UNCLOS is the overarching international policy framework for all oceans policies. Countries that have ratified are bound by its 320 articles and 9 annexes. This is critical as the Convention itself establishes a key policy principle in its objectives of providing for the optimum utilization of living resources (among other objectives) and access to them in terms of specified rights according to the spatial dimensions of the territorial sea, contiguous zone, exclusive economic zone, continental shelf and area beyond the EEZ.[8]
The LOSC was ratified by New Zealand in 1996.[9]
The most recent international environmental waypoint, and one of lesser significance to
the marine environment, was that of the
World Summit on Sustainable Development (WSSD) convened by the United Nations in Johannesburg in September 2002 to measure progress since Brundtland, Rio and Stockholm.
A considerable amount of effort, international consultation and standard setting on environmental matters had therefore taken place in the generation between the Torrey Canyon disaster of 1967 and Johannesburg, 2002. A raft of international and regional treaties had come into force, along with passionate declarations concerning humanity, the environment and sustainable development emanating from world environmental summits. The consciousness of the world to increasing threats from pollution had been raised, and had begun to change people’s perception of the world’s oceans from bottomless sinkholes to extremely fragile ecosystems under great threat. And the Law of the Sea Convention had played an early, prescient and pivotal role in providing a framework for oceans policies which is as valid today as it was in the far simpler world of the 1970s.
The LOSC encapsulates in a few short articles the major issues which are still relevant regarding protection and preservation of the marine environment, and provides a robust and timeless template for integrated management of such issues through a concept that was still evolving when the Convention was being drafted: national oceans policies.
Acceptance by New Zealanders of a need for a management policy to protect the ocean, an Oceans Policy, has been slow to gain traction and is currently beset by problems. Before discussing these issues it is useful to gain an appreciation of the role played by the coastline and ocean in the psyche of all New Zealanders, indigenous and otherwise.
Isolated in a temperate and wind-swept zone of the southwest Pacific between Latitudes 33 and 48 degrees South, New Zealand, even though it has a total land area of 268,000 square kilometres, is a relatively small land mass centered in vast pool of 3,100,000 square kilometres of wider maritime jurisdiction. Sixteen hundred kilometres in length from the ‘northern tip of Maui’s Fish to the base of Aoraki’s Canoe,’ the coastline, which is an integral feature of the New Zealand way of life, totals 19,883 kilometres. [10]
Of the four million inhabitants, the great majority live on or near the coastline, with the remainder never far from one of the hundreds of lakes or rivers throughout the country.[11] However, in spite of their passion for ‘going to the beach’ and for water-related activities, both fresh and salt, the marine environmental concerns of most New Zealanders extend only to the foreshore and its visible horizon. The vast area of ‘New Zealand’ beyond that horizon does not generally enter their consciousness. In an attempt to understand why this might be it is necessary to consider the cultural values placed upon the ocean, coastal waters, and the interface between the land and the sea by the two predominant races: Maori and European (Pakeha).
When the two races first came into contact, and conflict, on the foreshore in 1769 there were an estimated 100,000 Maori living in New Zealand.[12] They had long lost the ocean navigation skills that had been necessary for them to complete their epic migration from the islands of East Polynesia five to seven centuries earlier but coastal waters and the foreshore retained a vital and central place in their culture and way of life. Fish was identified by Cook as one of their chief diets; Maori view the resources of the sea as gifts from the sea god, Tangaroa, and had developed complex management systems (tikanga) to prevent over-exploitation. [13]
There is evidence that South Island tribes exported greenstone (jade) and argillite to the North Island in the fifteenth century, with a reverse trade in fine-grained obsidian from the Bay of Plenty to the South Island.[14] To achieve this Maori had successfully made the transition from oceanic to coastal navigation and had mastered the difficult art of traversing New Zealand’s turbulent and unpredictable coastal waters, which, along with the foreshore and seabed were, and still are, of particular importance for the gathering of kai moana, or food from the sea. [15] Stretches of coastline were clearly acknowledged and recognised as belonging to, and being defended by, a particular tribe (iwi) and, although there has since been widespread urbanisation of Maori, strong cultural connections and ties with the coast remain.
Over the period from Cook’s landfall in 1769 to the organized arrival of European settlers from 1840 the impacts of the ‘discovery’ of New Zealand and its rich natural resources were confined largely to the coast. The insatiable demands for timber and flax, caused by wars in Europe, were fed by the stands of trees noted by Cook as being ideal for ships masts, and the ample supply of native flax was ideal for ropes and canvas sails. [16] Hugely abundant colonies of fur seals in southern waters were over-exploited between 1790 and the 1820s. New Zealand became a base for whaling vessels over the same period and shore-based whaling stations were established all around the coast from the 1820s.[17] Although there were many depredations of natural resources over this period, there was little impact upon the natural features of the coastline, foreshore and seabed until the advent of large-scale organised colonisation from Europe from 1840.
Any cultural sensitivities these European settlers may have had about the natural resources of their new homeland were subsumed by a fervour to clear native forests for pasture, to reclaim land from the sea, or to build breakwaters to create harbours. These activities were usually undertaken with little regard to the values of the original inhabitants of the land. However, even in those days of Victorian industriousness regard began to be paid to resultant adverse impacts upon the land and coastal waters, and zeal steadily became tempered by a plethora of legislative requirements, although the requirement to take indigenous views and values into account did not feature in these laws and regulations. [18]
By contrast modern day values placed by all New Zealanders upon the marine environment, which have been gathered as part of the public consultation process for development of an oceans policy, include, inter alia, ‘their cultural and historical connection with the ocean as a source of national identity’, ‘the unique relationship Maori have with the ocean’ and ‘their ready individual access to the sea and coastline’.[19]
It was not until relatively recent times in the history of this young country that awareness of the ocean moved beyond the coastline and visible horizon; a change in outlook brought about by emerging concepts in international law of expanded sovereignty and jurisdiction, and concomitant economic possibilities and obligations. While these concepts, as captured by the LOSC, were awaiting international recognition, radical changes were taking place in national environmental law; changes which would take account of Maori values, and which some, but certainly not all, see as a model for management of the oceans as well as the land.
Along with the LOSC the other most significant waypoint on the journey towards a fully integrated oceans policy was the Resource Management Act (RMA) 1991, which has been described as the ‘most dominant and most important piece of environmental legislation in New Zealand.’ [20]
The RMA clearly reflects the Brundtland and Stockholm waypoints in that its purpose is ‘…to promote the sustainable management of natural and physical resources’. An essential feature is the emphasis upon the ‘effects’ of activities in various zones; the precautionary approach. As one commentator has observed:
the use of the term ‘sustainability’ in our law is unique and New Zealanders can be rightly proud of being the first nation to accept and respond to environmental imperatives in this way.[21]
The RMA requires the Government to put in place a National Policy Statement, and for local government to then develop regional policy statements and regional plans.[22] Of particular interest to the present oceans policy debate is the requirement for formation of a New Zealand Coastal Policy Statement that is underpinned by regional coastal plans, along with processes for granting coastal permits where the coastal plan identifies restricted activities within the coastal marine area (CMA).[23]
Before the RMA there was little requirement for decision-makers to pay any regard to Maori interests in resource management, environmental or conservation matters. Reflecting increased awareness and acknowledgement of indigenous issues, the Act makes it very clear that all persons exercising functions and powers are under a duty to:
• As a matter of national importance, ‘recognize and provide’ for the relationship of Maori to their ancestral lands, water, sites, waahi tapu and other taonga[24]
• Have ‘particular regard’ to kaitiakitanga (guardianship of resources)[25]
• ‘Take into account’ the principles of the Treaty of Waitangi[26]
In preparing district or regional plans or policies local authorities are also required to ‘consult’ with tangata whenua (people of the land) and to ‘have regard’ to any relevant planning document of an iwi authority.[27]
Many Pakeha, however, believe that excessive weight is given to Maori opinion and feedback to a current review of the RMA has identified a concern that the Act may well have raised expectations unreasonably, particularly amongst Maori.[28]
There is also widespread suspicion, particularly amongst local communities and environmental groups, that the current ‘tune-up’ (as described by the Minister) of the RMA is more of a ‘re-bore’ to give the Government power to push major energy and infrastructure initiatives through in the ‘national interest’ without having to consult with local communities. Concerns have also been expressed about the lack of an Environmental Protection Agency and Environmental Ombudsman.[29]
Regardless of the outcome of this review, and the resultant amendments to the RMA that will be passed before the end of 2004, these principles of resource management remain central to environmental management in New Zealand. The challenge that remains is how to integrate this system, and these values and principles, into a seamless environmental regime for all territory under New Zealand jurisdiction, including the oceans.
When considering oceans management New Zealand has two unique advantages deriving from its lack of common borders or jurisdictions, and its national, rather than federal, system of government. [30]
The problem of land-based pollution has led New Zealand to adopt a different approach to that of either Canada or Australia in that a fully integrated management regime for the oceans is being drafted which includes the effects upon the oceans of land-based pollution; a challenge which, whilst daunting, is simplified due to the two unique advantages explained above.[31] Including this issue, the other existing issues
in existing oceans management are the same
as those facing most States. They can be summarised as:
• Inadequate and fragmented environmental management and performance
• Poor reconciliation of competing uses and provision for new uses of the oceans
• Lack of coordination and generation of information
• Lack of recognition of indigenous rights and expectations.
The building blocks for meeting these challenges were the Resource Management Act 1991, the resultant National Coastal Policy Statement, and ratification of the Law of the Sea Convention in 1996.[32] However, even with these foundations in place the two main issues of fragmented and uncoordinated legislation and ‘lack of integration between all of the different controls on ocean activities’ did not appear to be on the Government’s radar screen.[33]
The impetus for change, as in Australia, came from the academic, scientific and non-governmental communities who could clearly see the opportunities and benefits that could ensue from a fully integrated management regime for the oceans.[34] In 1998 the Environment and Conservation Organisations of New Zealand (ECO) organised a conference to discuss ocean governance.[35] In March the following year three relevant Cabinet Ministers accepted the challenge and instructed officials to ‘investigate current arrangements for the management of New Zealand’s marine environment’.[36]
The academic community ensured the momentum was maintained through a conference on Our Oceans, organised by the Centre for Advanced Engineering at the University of Canterbury in October 1999. A report that had been prepared by the Parliamentary Commissioner for the Environment was tabled before a new Government in December 1999, one of the recommendations of which was ‘to develop a long-term strategy for the marine environment’.[37]
The new Labour government, elected in October 1999, tasked the Minister for the Environment in March 2000 with responsibility for development of an Oceans Policy which would provide ‘an overarching framework for managing all aspects of our use of, and interaction with, the marine environment’.[38] An ad hoc group of six Cabinet Ministers was established to oversee the development and an Oceans Policy Secretariat was formed.[39] In September 2000 the scope of the project was approved by Cabinet:
To focus on issues associated with managing the marine environment within the jurisdiction of New Zealand and the interaction between land management and the status and quality of the marine environment and the inter-tidal zone, but will not address issues relating to New Zealand’s management of or involvement in the Southern Oceans or the wider Pacific.[40]
Of particular interest is the emphasis upon ‘land management’ and the ‘inter-tidal zone’, clear references to land-based pollution of the marine environment and to the foreshore.[41]
A key policy consideration was that
Treaty [of Waitangi] principles must be reflected in both the policy development process and content. Under Article II of the Treaty, Maori claim management rights to the seabed and fisheries.[42]
The importance of this recognition of indigenous rights is given further weight in a draft oceans policy options paper which emphasises the special relationship that Maori have with the ocean and recalls that the accepted basis for the relationship between Maori and the Crown is the Treaty of Waitangi, which has a significant effect upon Government’s activities. The need for both Crown and Maori to ‘find ways to act together in a way that best recognizes these unique relationships’ is stressed in the context of oceans, as is the need for ensuring that Maori are involved at all levels of participation; particularly poignant pleas in light of subsequent events surrounding the foreshore and seabed where these values were noticeably absent.
Cabinet directed that the project be carried out in three stages with the first being extensive consultation to determine the values New Zealanders placed upon the marine environment, Defining the Vision; the second to develop the framework, Design the Vision; and the final stage to Deliver the Vision.
To achieve the first stage a Ministerial Advisory Committee on Oceans Policy was appointed to undertake nationwide public consultation.[43] The resultant report was presented to the Ministers in September 2001.[44]
Its main finding was that there was
a widespread endorsement of the need for an Oceans Policy and common ground that the water quality was important and that what happened on land was an important feature of what happened in the water.
After consideration of the report Cabinet agreed to a vision for the waters under New Zealand jurisdiction:
Healthy Oceans: New Zealanders understand marine life and marine processes and accordingly, take responsibility for wisely managing the health of the ocean and its contribution to the present and future social, cultural, environmental and economic wellbeing of New Zealand.
A timetable was put in place for completion of the following two stages, to be finalised through an Oceans Act and a New Zealand Coastal Policy Statement, and it was recognised that the bounds that limit the choices that could be made about use of the oceans were the ‘natural capacity of the ocean ecosystems’, the ‘Treaty of Waitangi’ and ‘international law’.
Unfortunately the voyage then came to an abrupt halt, firmly aground on indigenous issues of customary title to the foreshore and seabed. To put this fraught issue squarely into context it is necessary to go back in time to 1840, and to issues surrounding the signing of a treaty which is considered to be the founding document for New Zealand.
The Treaty of Waitangi (Te Tiriti O Waitangi) was initially signed in the Bay of Islands on 6 February 1840 between representatives of the British Crown and of Maori.[45]
It was intended to guarantee the authority of Maori chiefs and to provide for protection of Maori land and resource rights, in return for acceptance of British sovereignty.
The Treaty, which was originally written in English, was translated into Maori for the signing ceremony after which it was translated back into English. However, the surviving English and Maori texts do not mean quite the same thing and this has been the cause of much misunderstanding and confusion over subsequent generations, down to the present day.[46]
The Second of three Articles of the Treaty is of particular significance to current indigenous issues concerning the foreshore and seabed. The translation back into English states, inter alia:
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their resources.
Professor Sir Hugh Kawharu’s opinion is that:
unqualified exercise, or tino rangitiratanga, of the chieftainship would emphasise to a chief the Queen’s intention to give them complete control according to their customs and, that treasures, or taonga, refers to all dimensions of a tribal group’s estate, material and non-material heirlooms, sacred places, ancestral lore, and genealogies.[47]
This view, and the importance, for example, of traditional fishing rights under the Treaty, and participation in the management of fishing resources, has been recognised through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.[48] As well as making better provision for Maori non-commercial traditional and customary fishing rights and interests, and for Maori participation in the management and conservation of New Zealand’s fisheries, this Act allocated 20% of total allowable commercial catch to Maori, and provided a sum of money sufficient for Maori to purchase a half share of the country’s largest deepwater fishing company.[49]
Maori have also used Treaty settlements to invest heavily in the burgeoning aquaculture industry, particularly in the South Island. Some of the most important decisions of the Waitangi Tribunal have dealt with associated matters such as pollution of rivers and the sea, and reclamations, with concern about decline in the in-shore fishery and with pollution effects upon traditional food gathering sites around the South Island.[50] Such issues, and arguments over customary title and the right to manage these resources, have led to the current debate on the foreshore and seabed, and consequent complications for development of an oceans policy.
Centuries of occupation, (mana), and use of the foreshore and seabed, (rangitiratanga), form the basis of the current dispute between Maori and the Crown. The Government has vowed to legislate against a Court of Appeal decision of June 2003 which ruled that Maori are entitled to seek exclusive title over the foreshore and seabed in the Maori Land Court. It is useful to explain these issues as they are symptomatic of the high values that all New Zealanders place upon the coastline.
The Government, politically acutely aware that the public would not tolerate the idea of exclusive Maori ownership of the foreshore and seabed, have drafted the Foreshore and Seabed Bill which proposes to vest the foreshore and seabed in the Crown for all New Zealanders for perpetuity, to guarantee full public access, and to ensure that the foreshore and seabed cannot be sold. ‘Customary title’ is ignored in the Bill, but there is provision for ancestral connection and customary rights for Maori and non-Maori. Views upon the effects and outcomes of these measures inevitably differ.
The Maori view is that the issue is one of sovereignty and that they should be allowed to own parts of the foreshore and seabed whilst undertaking never to sell them, and guaranteeing free access. Maori believe the provisions of the Bill amount to confiscation and that they have a right, which is being denied to them through the Bill, to pursue their claims in the Maori Land Court.
Concerns of non-Maori are that any ability for Maori to obtain freehold title to the foreshore will inevitably lead to restrictions of cherished access. There is a general view, supported by the Government’s stance through the Bill, that the foreshore ‘belongs’ to all New Zealanders regardless of ethnicity.
It has been observed that proper legal process has been followed by Maori who pursued their claim to the foreshore and seabed all the way to the Court of Appeal. The Court determined that their common-law right to title remained, and that they had the right to take their claims to the Maori Land Court which might establish a customary title, which could then be converted to freehold title.[51]
A learned commentator disputes the view that customary title could then convert to a freehold title and believes that the Foreshore and Seabed Endowment Re-vesting Act 1991 specifically disallows this.[52]
Taking into account that, ‘under common law, ownership of the foreshore and seabed (whether by the Crown, Maori or anyone else) had to be subject to public rights of fishing and navigation,’ his preference for provision of clarity is through legislation which recognises that customary title may exist, ensures that public rights are protected, and prevents conversion of customary title to freehold title.
The 1994 amendment to the Foreshore and Seabed Endowment Re-vesting Act 1991 clearly states that the foreshore and seabed within the coastal marine area ‘shall be land of the crown…and shall be administered by the Minister’. The provenance of this concept can be traced to the Territorial Sea, Contiguous Zone, and Exclusive Zone Act 1977 which vested the bed of the territorial sea and internal waters in the Crown. This Act was a direct output of negotiations at UNCLOS III, and what was to become Article 2 of the LOSC, which extended the sovereignty of the coastal State ‘beyond its land territory and internal waters…to an adjacent belt of sea, described as the territorial sea’.
Another commentator agrees with comments from the major South Island iwi, Ngai Tahu, that the Government is welshing on its claim to the United Nations Commission on Human Rights that Maori enjoy the same rights and protections as everyone else, and believes they suffer badly in comparison with the indigenous peoples of Australia and Canada re the Mabo and Calder cases. [53]
Regardless of differing views, perceptions, beliefs, cultural values or the outcome of the current select committee process, the unfortunate result of this dispute is that New Zealand’s nascent oceans policy has been brought up all-standing, and the all-inclusive approach encouraged by that policy development has been badly, and possibly irreparably, damaged.[54] It is vital for the success of the oceans policy process that these issues be resolved, and that there be absolute clarity of jurisdiction at the narrow interface between the land and the sea; particularly for a management regime which is to fully integrate land-based and oceans environmental management issues.
New Zealand has been slow off the mark in development of an oceans policy for the waters under its jurisdiction but has firm foundations in place in national law, which reflect international soft and hard environmental law. The bold initiative has been taken to develop an oceans management system which is fully integrated with existing land-based and coastal law, and to bring this framework into effect through an Oceans Act.
The challenges that lie ahead are to solve existing indigenous issues surrounding title to the foreshore and seabed, and to restore the faith of all parties in the development of an oceans policy.[55] The need also exists to raise the awareness of all New Zealanders regarding environmental management of the vast oceans that lie beyond their visible horizon, and for local and central government to accept the challenges posed by the clearly established link between land-based and marine pollution.
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Belich, J, Making Peoples, Allen Lane, The Penguin Press, 1996.
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[1] John Mansell is the General Manager, Maritime Operations, in the New Zealand Maritime Safety Authority. He recently completed a Master of Maritime Policy degree at the University of Wollongong.
[2] International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention), Brussels, 29 November 1969;
International Convention on Civil Liability for Oil Pollution Damage (CLC Convention), Brussels, 29 November 1969;
International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, (Fund Convention) Brussels, 18 December 1971;
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, (London Dumping Convention), London, 29 December 1972;
International Convention for the Prevention of Pollution from Ships, (MARPOL), London, 2 November 1973.
[3] The Third United Nations Conference on the Law of the Sea, convened in accordance with General Assembly resolution 3067 (XXVIII) on 16 November 1973.
[4] LOSC, Art. 194(3)(a), Art. 207. Ship-sourced pollution was estimated at 35% and other marine sources at 11%.
[5] A Chircop, Marine Pollution from Land-Based Activities: Legal Regimes and Management Frameworks ‘These were proposed purely as a set of guidelines and broad framework to assist governments in the process of developing appropriate bilateral, regional and multilateral agreements and national legislation, and are consequently of a recommendatory nature.’
[6] Of significance to the marine environment was the resultant Chapter 17 of Agenda 21, Programme Area B of which encourages a preventative, precautionary and anticipatory, rather than reactive, approach to marine environmental protection. It also requires, inter alia, environmental impact assessments, full integration of marine environmental protection measures, the ‘polluter pays’ principle and assistance to improve the living standards of developing States’ coastal populations so as to contribute to reducing the degradation of the coastal and marine environment. UNCED also resulted in the Convention on Biological Diversity (CBD) 1992, an important waypoint in the development of hard environmental law.
[7] See Report of the United Nations Conference on Environment and Development (UNCED), Rio de Janiero, 1992, and [Report on the] 1995 Conference to adopt a Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, Washington, DC, USA, 23 October – 3 November 1995. ‘The GPA is designed to be a source of conceptual and practical guidance to be drawn upon by national and/or regional authorities in devising and implementing sustained action to prevent, reduce, control and/or eliminate marine degradation from land-based activities’ UNEP Website. In spite of the best intentions of the 108 Governments and the European Commission at Washington the very difficult problem of land-based pollution remains and, accepting the very real challenges this issue poses to both developing and developed States, and the inescapable complexities and difficulties in dealing with the problem at a national level, there is little hope that a binding Convention can be negotiated. The only lights on the horizon are increasing awareness of the issue and the hope that it will be addressed via fully integrated national Oceans Policies.
[8] LOSC, op. cit.
[9] Through the United Nations Convention on the Law of the Sea Act 1996. The objective of this Act is to complete the process of bringing the Law of the Sea Convention into effect in New Zealand.
[10] M King, The Penguin History of New Zealand, 2003, p. 61.
[11] The most distant point from the sea in New Zealand is only 120 kilometres, and 98% of New Zealanders live within 40 kilometres of a beach.
[12] Abel Tasman was the first European to come into contact, and conflict, with Maori when four of his men were killed in ‘Murderer’s Bay’ in 1642. Tasman immediately departed and sailed up the west coast of the North Island but did not land upon the shores of New Zealand. Lieutenant James Cook ‘re-discovered’ New Zealand when he made landfall at Young Nick’s Head in Poverty Bay on 8 October 1769, JC Beaglehole, (ed.), The Journals of Captain James Cook, 1968, p. 169; King, op. cit., p. 49.
[13] Beaglehole, p. 282; Department of Conservation website, http://www.doc.govt.nz
; Beaglehole, p. 283. Cook also comments upon their ‘great ingenuity and good workmanship in the building and framing of their Boats or Canoes’, marvelling at their size and carrying capacity of up to 100 fully armed men, and noting his belief that they were built ‘wholly for war’.
[14] King, pp. 88 & 89.
[15] See J Bellich, Making Peoples, 1996, p. 41. ‘Like the first Europeans in America, Aotearoa’s first settlers would have adopted old concepts to cope with the new world. It is useful to suppose that they approached the country as a huge archipelago of “island” – patches of useful land separated by patches of less useful land, and best accessed by sea. At first they might have focused only on the very richest islands, over quite a wide area. There was no need to accept second-best in an empty country, and a sea-voyage of a few days between islands was nothing to people who had just crossed an ocean.’ The importance of fishing to Maori, and of their customary right to gather food from the sea, the seabed and the foreshore was belatedly recognised through the Fisheries Act 1983 but, when a Quota Management System was introduced through an amendment to that Act in 1986 which excluded Maori from fisheries management, the matter was taken to the Court of Appeal. In an attempt to resolve the matter the Government introduced the Maori Fisheries Act 1989 ‘to make better provision for the recognition of Maori fishing rights secured by the Treaty of Waitangi’. This Act provided for the transfer from the Crown to the Maori Fisheries Commission of quota totalling 10% of the Total Allowable Commercial Catch. This allocation did not entirely solve the grievance and the Crown, in the preamble to the subsequent Treaty of Waitangi (Fisheries Claims) Settlement Act of 1992 acknowledged that; ‘there has been uncertainty and dispute between the Crown and Maori as to the nature and extent of Maori fishing rights in the modern context as to whether they derive from the Treaty or common law or both (such as by customary law or aboriginal title or otherwise) and as to the import of section 88(2) of the Fisheries Act 1983 and its predecessors.
[16] Beaglehole, pp. 206-7 & 277.
[17] The last shore-based whaling station, at Te Awaiati in the Marlborough Sounds, ceased operations in 1964.
[18] See Handbook of Environmental Law, Royal Forest and Bird Protection Society Inc., Wellington, 1993, p. 34. ‘A century or so later when the revolutionary Resource Management Act 1991 and the Crown Minerals Act 1991 were introduced they jointly repealed over 60 Acts and amended more than 150 others and ‘transformed a legal mosaic into a more integrated regime for the management of New Zealand’s land, air and water.’
[19] For a full list of goals, values and principles identified through Stage One of policy development for an Oceans Policy see http://www.oceans.govt.nz/ policy/stage 1.html.
[20] The Resource Management Bill was brought before the house in 1990 but a change of government stalled its path into law. The new government, elected in October 1990, reviewed the Bill and separated out law concerning Crown-owned minerals into the Crown Minerals Act 1991. The RMA came into effect in October 1991. Fisheries management is excluded from the RMA and is covered by the Fisheries Acts of 1983 and 1996. Royal Forest and Bird Society Inc., op. cit., p. 34.
[21] Royal Forest and Bird Society Inc., op. cit., p. 39.
[22] RMA s.45(1). ‘The purpose of national policy statements is to state policies on matters of national significance that are relevant to achieving the purpose of this Act.’
[23] The CMA coincides with the territorial sea and is marginally wider as it includes the strip of foreshore between the MHWS and MLWS marks. The RMA, s. 12, has ‘restrictions relating to the discharge of contaminants into the CMA … and discharges are usually illegal unless permitted by a regional plan, regulation or through a discharge permit’. Activities in the CMA that require a coastal permit, if they are not ‘permitted’, include reclamations, encroachments, drainage distribution deposition or removal of spoil, and damaging of habitats.
[24] Resource Management Act 1991 s.6(e).
[25] ibid., s.7(a).
[26] ibid., s.8.
[27] ibid., cl.3(1)(d), First Schedule, see app. 1; and ibid., ss.61(2)c66(2), 74(2) see app. 7.
[28] Ministry for the Environment website; Summary of written feedback about improving the RMA http://www.mfe.govt.nz/issues/resource/feedback/summary.html.
[29] loc. cit.
[30] There are maritime boundary issues with Australia regarding delimitation of respective continental shelves off Norfolk Island in the Tasman Sea. These issues revolve around the constitutional status of the island, i.e. whether it is Australian territory or a country in free association with Australia. Negotiations are ongoing. The federal and state/provincial jurisdictional and boundary tensions which arise in both Canada and Australia do not exist. This is not say that there are not tensions between local and central government in New Zealand but the advantage of having one legislature when attempting to coordinate a management regime which is intended to include many Government departments – a ‘whole-of-government approach’ – cannot be over emphasised. The importance of the inclusion of local government has been recognised, particularly regarding land-based pollution issues, by inclusion of a local government representative on the Oceans Policy Secretariat.
[31] The Department of Conservation website identifies that, ‘A phenomenal 290 million tonnes of sediment are washed from the New Zealand mainland into the sea each year.’ It is believed that New Zealand is the first State to attempt this fundamental, but ambitious, challenge.
[32] In particular the system of precautionary controls that these documents require for any activities in the Coastal Marine Area.
[33] Draft Oceans Policy Options Working Paper issued by the Oceans Policy Secretariat, 2 July 2003, p. 11, ‘There are currently 22 different laws in place to manage the range of different activities and resources in the oceans.’
[34] See EN Eadie, ‘Evaluation of Australia’s Oceans Policy as an example of public policy-making in Australia’, Maritime Studies, no. 120, Sept.-Oct. 2001, p. 4, for a summary of the ‘precursors’ to an Australian Oceans Policy.
[35] The Seaviews – Marine Ecosystems Management Obligations and Opportunities Conference 1998.
[36] CM Risk, Office of the Hon. Pete Hodgson, Parliament Buildings, Wellington, Carolyn.risk@parliament. govt.nz
An Oceans Policy for New Zealand: Why, What, How? p. 2.
[37] Setting Course for a Sustainable Future – The Management of New Zealand’s Marine Environment, Report prepared by the Parliamentary Commissioner for the Environment, 1999.
[38] ibid.
[39] ibid., ‘Cabinet also agreed that the Oceans Policy should clearly identify clear goals and principles for managing the oceans and provide an integrated framework within which to undertake management of human impacts on the marine environment.’ The Oceans Policy Secretariat is not a discreet unit but is a group of officials who continue to work in their respective agencies and are coordinated by the Minister for the Environment’s office.
[40] ibid., pp. 2, 3. The concern to avoid any misunderstandings within the wider South Pacific region as to the extent of the policy was reflected through the clarification regarding the Southern Oceans and the wider Pacific stating that the scope only included waters ‘within the jurisdiction of New Zealand.
[41] ibid., p. 3, The Oceans Policy Secretariat made it very clear that ‘it was not credible to set out to address issues of marine management as though the only things relevant to the quality of the marine environment were those things that actually happened in the marine environment.’
[42] Oceans Policy – Policy Considerations, 14 May 2004. http://www.oceans.govt.nz/policy/policy-considerations.html.
[43] ibid., p. 8, ‘…it held 47 public meetings and 24 Hui [consultations with Maori people (ed.)] throughout New Zealand (including Stewart Island and the Chatham Islands) and received 1,160 written submissions.’
[44] Healthy Sea: Healthy Society – Towards an Oceans Policy for New Zealand. A full copy of the report, and an analysis of submissions, is available at www.oceans.govt.nz.
[45] http://www.treatyofwaitangi.govt.nz
‘The treaty has never been made a formal part of the New Zealand constitutional system. Many statutes, however, refer to it and, in 1975, Parliament enacted the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal [a standing Commission of Enquiry] as a means of inquiring into Maori claims relating to breaches of the Treaty.’ Copies of the Treaty were made and distributed throughout New Zealand. More than 500 Maori chiefs (in addition to the 40 who signed at Waitangi) have their signatures or marks on one or other of the nine signed copies of the Treaty that have survived.
[46] ibid. See the Treaty of Waitangi website for an analysis of the differences between the English and Maori texts by the distinguished Maori scholar Professor Sir Hugh Kawharu. This confusion over interpretation is reinforced by the preamble to the Treaty of Waitangi Act 1975 which succinctly summarises this issue when it states, inter alia: ‘WHEREAS on the 6th day of February 1840 a Treaty was signed between Her late Majesty Queen Victoria and the Maori people of New Zealand. And whereas the text of the treaty in the English language differs from the text of the Treaty in the Maori language.’
[47] ibid.
[48] Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Preamble paras. (a) and (k) which recalls that ‘By the treaty of Waitangi the Crown confirms and guarantees to the Chiefs, tribes and individual Maori full exclusive and undisturbed possession and te tino rangitiratanga of their fisheries’ and also ‘recognizes that traditional fisheries are of importance to Maori and that the Crown’s Treaty duty is to develop policies to help recognize use and management practices and provide protection for and scope for exercise of rangitiratanga in respect of traditional fisheries.’
[49] $150,000,000.
[50] For further information see Waitangi Tribunal Reports: Motunui Report, Wai-6, March 1983; Kaituna Report, Wai-4, November 1984: Manukau Report, Wai-8, July 1985; Mangonui Sewerage Report, Wai-17, August 1988; Muriwhenua Fishing Report, Wai-22, June 1988; Ngai Tahu Report, Wai-27, 1991 (3 vols).
[51] B Ansley, “Stakes in the Sand”, comments of Professor Jim Evans, New Zealand Listener, p. 19, 1 May 2004.
[52] Professor Emeritus Jock Brookfield of Auckland University, Letters to the Editor, New Zealand Listener, 22 May 2004, p. 8. ‘When the Foreshore and Seabed Endowment Re-vesting Act 1991 first became law it applied only to foreshore and seabed controlled by harbour boards and local authorities. With the introduction of the Resource Management Act 1991 a number of provisions in the Harbours Act were withdrawn, including the restraints on the transfer of ownership of foreshore and seabed. To safeguard foreshore and seabed the Act has been amended, declaring all foreshore and seabed a special category of land of the Crown. Foreshore and seabed are therefore no longer subject to the Land Act 1948. They can only be sold or disposed of in accordance with provisions in the Resource Management Act 1991 (vesting of reclaimed land) or by special Act of parliament.’ Department of Conservation website, http://www. doc.govt.nz.
[53] Geoff Lane, Law Lecturer, Canterbury University, as stated in ‘Stakes in the Sand’, New Zealand Listener, p. 20, 1 May 2004. In the Mabo case (in Australia) the courts overruled Queensland government legislation that had extinguished without compensation rights to land held by Torres Strait islanders. The Calder case recognised native title in Canada in 1973.
[54] Draft Oceans Policy Options, 2 July 2003, p. 18, ‘Maori have a special relationship with the ocean that is important to Maori culture and identity. The Treaty of Waitangi is the accepted basis for the relationship between the Crown and Maori. It significantly affects how government operates. In the context of oceans, the Crown and Maori must find ways to act together in a way that best recognizes these unique relationships.’
[55] The Government, whose Associate Minister of Maori Affairs resigned over this issue and formed a new political party to contest the Maori vote, announced on 18 June 2004 its intention to allocate 20% of all water space for marine farming to Maori in line with the principles of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
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