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OCEAN LAW Little change 4 MONTHS after new act introduced BY JUSTINE INNS M ore than four months has passed since the Marine and Coastal Area (Takutai Moana) Act (MACAA) became law. The MACAA was intended to right the wrongs of the 2004 Foreshore and Seabed Act, and put the controversy it created behind us. It might not have seen 25,000 people march in parliament in protest, but the MACAA was - just like its predecessor - a catalyst for the formation of a breakaway political party, divisive billboards and who knows how many hours of talkback radio debate. But what has actually changed in the months since the Marine and Coastal Area Act became law? In practice, the answer must be, not much. No barricades or tollbooths have been erected on the beaches, no marine farmers or other occupiers of coastal waters have been evicted, and no blanket claims have been made regarding ownership of those waters. In late May, the media reported that two iwi/hapu were seeking to negotiate with the government over their claims to customary marine title in their traditional territories. Both were in discussions with the government on the same issues under the previous regime. THE CONCEPT OF THE "COMMON MARINE AND COASTAL AREA" HAS OFFERED A TANTALISING PROSPECT As the architect of the current act, the attorney general, Chris Finlayson, commented at the time, it is hardly surprising they would seek to continue that process. Finlayson also made it clear that those iwi should not expect any progress to be made in respect of their claims until after the election. Can we take that as a hint the fl oodgates might open after the election? Well, if not a single iwi that wasn't in the negotiations queue prior to the passage of the MACAA has yet sought to join that queue, it seems somewhat unlikely. Meanwhile, the one agreement reached under the 2004 regime – with Nga -ti Porou on the East Cape – still awaits the passage of legislation to give it effect. That legislation has been in parliament since 2008. None of this lack of activity appears to have placated those who worried that the act would result in dramatic changes in managing and governing our coastal waters. The Coastal Coalition, headed by the former Act Party MP Muriel Newman, has launched a citizens' initiated referendum calling for the MACAA to be "replaced by legislation that restores Crown ownership of the foreshore and seabed". No doubt similar rhetoric will be heard from some political parties on the election trail. Meanwhile, by creating the concept of the "common marine and coastal area" (CMCA) the MACAA has offered a tantalising prospect to marine farmers. The CMCA is that part of the coastal marine area (between marine high water springs and the 12-mile limit) not covered by a pre-existing private title, or a customary marine title. The MACAA itself and the imminent reform legislation for aquaculture limit the powers of local authorities in those areas that fall outside the MACAA in a couple of interesting ways. Firstly, the MACAA provides that local authorities can only levy coastal occupation charges in respect of the CMCA, not areas of seabed covered by a private or customary title. Secondly, the aquaculture reform package will limit the powers of local authorities to tender or otherwise allocate the right to occupy space for the purposes of aquaculture to the CMCA. Of course, the planning and resource consenting regime of the Resource Management Act will still apply to areas outside the CMCA, just as they do in respect of privately owned dry land, but the distinction is still interesting, at least in theory. Imagine operating a marine farm located on an area of seabed held in private or customary title and being exempted from the coastal occupation charges neighbouring farms in the CMCA have to pay. Or being in a region where demand for occupation of coastal space is suffi ciently high that the council opts to manage it through tendering or some other allocation mechanism, but discovering that the perfect site for your marine farm is subject to a private or customary title. There are said to be more than 12,000 areas of foreshore and/or seabed covered by public title, but the vast majority of these are likely to be in tidal or shallow water of little or no value for marine farming. The prospect of any iwi or hapu being able to meet the MACAA's high tests for proving customary marine title (tests which apply equally, irrespective of whether claims are litigated in the High Court or negotiated with the Crown) seem even more remote. Nice idea, though … Justine Inns is a partner at Oceanlaw. She previously spent more than a decade as an advisor to various iwi (tribes), including several years with Ngai Tahu. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 10 ■ NZ AQUACULTURE ■ SEPTEMBER/OCTOBER 2011