“access rights has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“adverse effects assessment means an assessment carried out—

• “(a) by the Minister of Conservation under Part 1 of Schedule 12; or

• “(b) by a regional council under section 17B(1)(a), in accordance with Part 2 of Schedule 12

“adverse effects report means a written report prepared—

• “(a) by the Minister of Conservation in accordance with Part 1 of Schedule 12; or

• “(b) by a regional council under section 17B(1)(b), in accordance with Part 2 of Schedule 12

“board, in relation to a foreshore and seabed reserve, has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“customary rights order has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“foreshore and seabed reserve has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“holder, in relation to a customary rights order, has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“management plan, in relation to a foreshore and seabed reserve, has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“public foreshore and seabed has the same meaning as in section 5 of the Foreshore and Seabed Act 2004

“recognised customary activity is an activity, use, or practice carried on, exercised, or followed under a customary rights order”.

“regional council —

• “(a) has the same meaning as in section 5 of the Local Government Act 2002; and

• “(b) includes a unitary authority within the meaning of that Act”.

• “(g) the protection of recognised customary activities.”

“Recognised customary activities

“17A Recognised customary activity may be exercised in accordance with any controls

• “(1) A recognised customary activity may be carried out despite—

  • “(a) sections 9 to 17; or

  • “(b) a rule in a plan or a proposed plan.

  “(2) Subsection (1) applies to a recognised customary activity only if that activity is carried out—

  • “(a) in accordance with any controls imposed by the Minister of Conservation under Schedule 12; and

  • “(b) by any member of the whanau, hapu, or iwi or of the group, as the case may be, entitled to do so under section 52 or section 76 of the Foreshore and Seabed Act 2004; or

  • “(c) by a person authorised by the holder of the customary rights order to carry out the activity under section 53(1)(a) or section 77(1)(a) of the Foreshore and Seabed Act 2004.

“17B Adverse effects assessment

• “(1) For the purposes of any controls that may be imposed on a recognised customary activity under Part 1 of Schedule 12, a regional council must, if directed by the Minister of Conservation at any time, and may of its own initiative in the circumstances set out in clause 6(2) of Schedule 12,—

  • “(a) carry out an adverse effects assessment of the effects on the environment of a recognised customary activity in its region; and

  • “(b) complete, and give to the Minister an adverse effects report based on that assessment.

  “(2) Part 2 of Schedule 12 applies to the assessment carried out and to the report prepared under this section.

  “(3) In this section, regional council includes the Chatham Islands Council.”

• “(e) carrying out his or her functions under Schedule 12.”

• “(c) the exercise of a recognised customary activity in its region—”.

• “(ga) making a decision on any controls to be imposed under Schedule 12 on a recognised customary activity:”.

• “(e) in the case of a regional council, the exercise of a recognised customary activity in its region, including any controls imposed under Schedule 12 on that activity,—”.

• “(jb) in the case of a regional council, records of every customary rights order relating to its region; and”.

• “(6) In subsections (2)(e) and (5)(jb), regional council includes the Chatham Islands Council.”

• “(d) the Minister of Conservation, for all matters while carrying out his or her functions under Schedule 12.”

• “(c) compliance with controls imposed under Schedule 12 on a recognised customary activity.”

• “(ga) national priorities for maintaining and enhancing public access to and along the coastal marine area:

• “(gb) the protection of recognised customary activities:”.

• “(2A) A regional council, when preparing or changing a regional policy statement, must—

  • “(a) take into account any relevant planning document recognised by an iwi authority, and lodged with the council, to the extent that its content has a bearing on resource management issues of the region; and

  • “(b) recognise and provide for the management plan for a foreshore and seabed reserve located in whole or in part within its region, once the management plan has been lodged with the council.”

• “(b) the resource management issues of significance to—

  • “(i) iwi authorities in the region; and

  • “(ii) the board of a foreshore and seabed reserve, to the extent that those issues relate to that reserve; and”.

• “(4A) A coastal occupation charge must not be imposed on any person occupying the coastal marine area if the person is carrying out a recognised customary activity in accordance with section 17A(2).”

• “(2A) A regional council, when preparing or changing a regional plan, must—

  • “(a) take into account any relevant planning document recognised by an iwi authority and lodged with the council, to the extent that its content has a bearing on resource management issues of the region; and

  • “(b) recognise and provide for the management plan for a foreshore and seabed reserve located in whole or in part within its region, once the management plan has been lodged with the council.”

• “(2A) A territorial authority, when preparing or changing a district plan, must—

  • “(a) take into account any relevant planning document recognised by an iwi authority and lodged with the territorial authority, to the extent that its content has a bearing on resource management issues of the district; and

  • “(b) recognise and provide for the management plan for a foreshore and seabed reserve adjoining its district, once the management plan has been lodged with the territorial authority, to the extent that its contents have a bearing on the resource management issues of the district.”

“79A Circumstance when further review required

• “(1) Section 79B applies if, after a foreshore and seabed reserve has been set apart and established under section 43 of the Foreshore and Seabed Act 2004, a management plan for the foreshore and seabed reserve is—

  • “(a) prepared and approved by the board of the foreshore and seabed reserve in accordance with section 44 of the Foreshore and Seabed Act 2004; and

  • “(b) lodged with the regional council.

  “(2) Within 6 months of a management plan for a foreshore and seabed reserve being lodged as required by subsection (1)(b), the regional council that has responsibility for the area where the reserve is located must commence a full review of its regional policy statement and each regional plan.

  “(3) Section 79(4), (5), and (6) applies to a review required by this section.

“79B Consequence of review under section 79A

• If a regional council, after reviewing a policy statement or plan under section 79A, considers that the policy statement or plan—

  • “(a) requires change in order to recognise and provide for all or part of a management plan for a foreshore and seabed reserve, it must change the policy statement or plan in the manner set out in the First Schedule and this Part:

  • “(b) can remain without change, it must give public notice of that decision.”

“82A Dispute relating to review under section 79A

• “(1) This section applies if there is a dispute between a local authority and the board of a foreshore and seabed reserve as to whether a policy statement or plan reviewed under section 79A(2) should be changed in order to recognise and provide for the management plan for the reserve.

  “(2) The board may refer a dispute to the Environment Court for a decision resolving the matter.

  “(3) If, after considering the matter referred to it under subsection (2), the Environment Court considers that there should be a change to the policy statement or plan to recognise and provide for the relevant management plan for the foreshore and seabed reserve,—

  • “(a) the Environment Court must order the regional council responsible for the policy statement or plan to initiate a change to that policy statement or plan in the manner set out in Schedule 1; or

  • “(b) if the Environment Court considers that the dispute relates to a matter of minor significance that does not affect the general intent and purpose of the policy statement or plan, the Environment Court may allow that policy statement or plan to remain unchanged.”

“Plan must not allow activity that prevents recognised customary activities

“85A Plan or proposed plan must not include certain rules

• A plan or proposed plan must not include a rule that describes an activity as a permitted activity if that activity will, or is likely to, have a significant adverse effect on a recognised customary activity carried out under section 17A(2).

“85B Process to apply if plan or proposed plan does not comply with section 85A

• “(1) If the holder of a customary rights order considers that a rule in a plan or proposed plan does not comply with section 85A, the holder may—

  • “(a) make a submission to the local authority concerned under clause 6 or clause 8 of Schedule 1; or

  • “(b) request a change under clause 21 of Schedule 1; or

  • “(c) apply to the Environment Court in accordance with section 293A(3) for a change to a rule in the plan or proposed plan.

  “(2) A local authority or the Environment Court, as the case may be, in determining whether or not a rule in a plan or proposed plan complies with section 85A, must consider the following matters :

  • “(a) the effects of the proposed activity on the recognised customary activity; and

  • “(b) the area that the proposed activity would have in common with the recognised customary activity; and

  • “(c) the degree to which the proposed activity must be carried out to the exclusion of other activities; and

  • “(d) the degree to which the recognised customary activity must be carried out to the exclusion of other activities; and

  • “(e) whether the recognised customary activity can be exercised only in a particular area.”

• “(4) However, the holder of a customary rights order must be treated as being adversely affected if, in the opinion of the consent authority, the grant of a resource consent may adversely affect a recognised customary activity carried out in accordance with section 17A(2).”

• “(4) A rule included in a plan under subsection (3) does not waive the need to serve an application if, in the opinion of the consent authority, the grant of a resource consent may adversely affect a recognised customary activity carried out in accordance with section 17A(2).”

• “(c) grant a resource consent contrary to—

  • “(i) section 107 or section 107A or section 217:

  • “(ii) an Order in Council in force under section 152:

  • “(iii) any regulations:

  • “(iv) a Gazette notice referred to in section 26(1), (2), and (5) of the Foreshore and Seabed Act 2004:”.

“107A Restrictions on grant of resource consents

• “(1) A consent authority must not grant an application for a resource consent to do something that will, or is likely to, have a significant adverse effect on a recognised customary activity carried out in accordance with section 17A(2), unless written approval is given for the proposed activity by the holder of the relevant customary rights order.

  “(2) In determining whether a proposed activity will, or is likely to, have a significant adverse effect on a recognised customary activity, a consent authority must consider the following matters:

  • “(a) the effects of the proposed activity on the recognised customary activity; and

  • “(b) the area that the proposed activity would have in common with the recognised customary activity; and

  • “(c) the degree to which the proposed activity must be carried out to the exclusion of other activities; and

  • “(d) the degree to which the recognised customary activity must be carried out to the exclusion of other activities; and

  • “(e) whether the recognised customary activity can be exercised only in a particular area; and

  • “(f) whether an alternative location or method would avoid, remedy, or mitigate any significant adverse effects of the proposed activity on the recognised customary activity; and

  • “(g) whether any conditions could be included in a resource consent for the proposed activity that would avoid, remedy, or mitigate any significant adverse effects of the proposed activity on the recognised customary activity.

  “(3) Despite sections 77B(2)(a) and 104A, subsection (1) may prevent the grant of an application for a resource consent for a controlled activity.

“107B Provision for certain infrastructure works and related operations

• “(1) Section 107A does not prevent the grant of a resource consent to carry out—

  • “(a) an infrastructure work and its associated operations if—

    • “(i) the infrastructure work and its associated operations were lawfully established before the commencement of Part 3 of the Foreshore and Seabed Act 2004; and

    • “(ii) any significant adverse effects of the proposed activity on the recognised customary activity will be, or are likely to be, the same or similar in character, intensity, and scale to those that existed before the application for the resource consent was made:

  • “(b) maintenance work on, to, or in respect of an infrastructure work and its associated operations that were lawfully established before the commencement of Part 3 of Foreshore and Seabed Act 2004, so long as any significant adverse effects of the maintenance work on the recognised customary activity are temporary in nature.

  “(2) In this section, infrastructure work and its associated operations is limited to any infrastructure works and associated operations that are owned, operated, or carried out by 1 or more of the following:

  • “(a) the Crown, as defined in section 2(1) of the Public Finance Act 1989:

  • “(b) a local authority:

  • “(c) a network utility operator:

  • “(d) an electricity generator as defined in section 2(1) of the Electricity Act 1992:

  • “(e) a port company as defined in section 2(1) of the Port Companies Act 1988 or a port operator as defined in section 650J(6) of the Local Government Act 1974:

  • “(f) the Maritime Safety Authority of New Zealand.

“107C Circumstances when written approval for resource consent required from holder of customary rights order

• “(1) This section applies if—

  • “(a) the holder of a customary rights order gives written approval under section 107A(1) for a resource consent for a proposed activity; and

  • “(b) the carrying out of the proposed activity under the resource consent would have the effect of suspending or cancelling, in whole or in part, the relevant customary rights order.

  “(2) The holder of the customary rights order must acknowledge in writing that the effect described in subsection (1)(b) will occur.

  “(3) Both the written approval given under section 107A(1) and the written acknowledgement given under subsection (2)—

  • “(a) form part of the application for a resource consent for the proposed activity; and

  • “(b) if a resource consent is granted, form part of the resource consent for that activity.

“107D Process to apply if grant of resource consent has effect of cancelling customary rights order

• “(1) If the effect of carrying out the proposed activity under a resource consent granted in the circumstances contemplated by section 107C would be permanently to cancel the customary rights order, in whole or in part,—

  • “(a) the holder of the customary rights order must apply to cancel the order, in whole or in part, under section 60 or section 87 of the Foreshore and Seabed Act 2004; 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 determined in accordance with the Foreshore and Seabed Act 2004 and all appeal rights have been pursued.

  “(2) However, if an application to cancel a customary rights order is declined, the relevant resource consent must be treated as if it were declined by the consent authority.”

• “(6) The Minister of Conservation must not grant a coastal permit for a restricted coastal activity if the activity is contrary to—

  • “(a) section 107 or section 107A or section 217:

  • “(b) an Order in Council in force under section 152:

  • “(c) any regulations:

  • “(d) a Gazette notice referred to in section 26(1), (2), and (5) of the Foreshore and Seabed Act 2004.”

• “(b) show as vesting in the Crown any part of the allotment that is in the coastal marine area.”

“293A Determinations relating to customary rights orders made under Foreshore and Seabed Act 2004

• “(1) This section applies to a determination made by the Environment Court on—

  • “(a) an appeal relating to—

    • “(i) a submission made in reliance on section 85B(1)(a):

    • “(ii) a request made in reliance on section 85B(1)(b):

  • “(b) an application made under section 85B(1)(c).

  “(2) The Environment Court must—

  • “(a) determine the matters referred to in subsection (1) in accordance with clause 15 of Schedule 1; and

  • “(b) consider the matters set out in section 85B(2).

  “(3) An application made under section 85B(1)(c) must be—

  • “(a) made in accordance with section 291; and

  • “(b) without limiting the discretion as to service under section 291, served on every relevant local authority.”

• “(4) This Part does not apply to a recognised customary activity carried out in accordance with section 17A(2).

• “(5) However, sections 310 to 313 and sections 330 to 337 apply to the exercise of a recognised customary activity.”

• “(d) any control imposed under Schedule 12 on a recognised customary activity is being complied with.”

• “(1A) Subsection (1) applies for the purpose of assessing the effects on the environment of a recognised customary activity.”

• “(ab) must describe the right, title, or interest vested; and”.

“355AA Effect of Foreshore and Seabed Act 2004 on vesting of reclamations

• “(1) If an application is made under section 355(1) that relates to land reclaimed from the public foreshore and seabed, the Minister of Conservation may vest in the applicant a right, title, or interest in the relevant land under section 355(3).

  “(2) However, subsection (1) applies only if, before the commencement of section 13(1) of the Foreshore and Seabed Act 2004,—

  • “(a) a coastal permit has been granted to carry out the reclamation; or

  • “(b) the Minister of Conservation has entered into a written agreement with the applicant to vest a right, title, or interest in the relevant land; or

  • “(c) an enactment has provided for a right, title, or interest in the relevant land to be vested in the applicant.

  “(3) If subsection (1) does not apply, the Minister of Conservation—

  • “(a) must not vest an estate in fee simple in the relevant land; but

  • “(b) may vest in the applicant a lesser right, title, or interest in the reclaimed land.

  “(4) Subsection (3)(b) applies,—

  • “(a) in the case of a port company or port operator referred to in section 107B(2)(e),—

    • “(i) for a leasehold interest granted to it, so long as that interest does not exceed 50 years (though it may include a perpetual right of renewal on the same terms as the original lease, to the extent that the land continues to be used for port facilities):

    • “(ii) for any other interest granted to it, so long as that interest, together with any rights of renewal, does not exceed 50 years; and

  • “(b) in the case of any other entity, so long as the interest granted to it, together with any rights of renewal, does not exceed 50 years.

  “(5) In vesting an interest in reclaimed land under subsection (4), the Minister of Conservation may impose encumbrances or restrictions on the right, title, or interest in order to—

  • “(a) control the use to which the land may be put:

  • “(b) protect access rights in the coastal marine area, subject to any limits imposed by or under any enactment.

“355AB Application for renewals

• “(1) The holder of a right, title, or interest granted under section 355AA(3)(b)—

  • “(a) may apply to the Minister of Conservation, not later than 3 months before the expiry of the existing right, title, or interest, for a renewal of the right, title, or interest in the same, or part of the same, relevant land; and

  • “(b) has the right to have the application considered and determined before any other application may be considered for a right, title, or interest in the same land.

  “(2) If an application is made under subsection (1), the holder may continue to operate under the existing right, title, or interest until the application is determined.”

• “(2) A proposed regional coastal plan must be prepared by the regional council concerned in consultation with—

  • “(a) the Minister of Conservation; and

  • “(b) iwi authorities of the region; and

  • “(c) the board of any foreshore and seabed reserve in the region.”

• “(e) the board of any foreshore and seabed reserve in the area.”

• “(g) the board of any foreshore and seabed reserve in the area.”

• “(g) the board of any foreshore and seabed reserve in the area.”

“1A Matters that must be included in an assessment of effects on the environment

• An assessment of effects on the environment for the purposes of section 88 must include, in a case where a recognised customary activity is, or is likely to be, adversely affected, a description of possible alternative locations or methods for the proposed activity (unless written approval for that activity is given by the holder of the customary rights order).”

• “(h) the holder of a customary rights order who, in the opinion of the consent authority, may be adversely affected by the grant of a resource consent or the review of consent conditions.”