6.5.4 Rivers, lakes and the sea
Ownership of rivers themselves is variable in the common law tradition, which generally applies in New Zealand outside Treaty of Waitangi obligations,with two main sources of ownership rights.[53] The first is from the Crown’s prerogative rights in relation to the sea, which extend to the point at which the river ceases being tidal. Beyond that point the Crown, and the general public enjoy the right to fish, bathe and travel upon the river. The second source is the ad medium filum aquae rule where ownership of land adjoining a non-tidal river also includes with it ownership of the bed of the river to its mid-point. The bed is therefore privately owned but subject to the public’s fishing and navigation rights.
Natural lakebeds generally are in Crown ownership under the common law principle that the English Crown held sovereign title to all lands underlying navigable waters.[54] In the case of artificial lakes, the landowner retains rights to the lakebed, and under common law generally also owns the right of use of the surface.
Aquatic property rights frequently relate to occupation and use (eg, access and withdrawal rights as noted in Table 4) rather than ownership, with the latter seldom alienated by the state.[55] Occupation of space, such as for telecom cables, mining, fishing, aquaculture or simply sailing or swimming may relate only to all the surface, the water column or the seabed (rather than the entire bundle) and is not always extractive or exclusive.
Ownership of the seabed raises separate issues from rivers and lakes due to the constraints of international law, and can also differs between parts of the seabed such as the foreshore, territorial waters, the exclusive economic zone and the continental shelf.
The foreshore, between Mean High Water Spring (MHWS) and Mean Low Water Spring (MLWS), or the high and low tide marks, is in New Zealand normally owned by the Crown and New Zealand has full sovereignty in this area.[56] The area above MHWS (ie, dry land) is primarily administered under the RMA by territorial authorities, with specific environmental responsibilities handled by regional councils.
The territorial sea lies between the low tide mark and the traditional 12 nautical mile limit.[57] In New Zealand the seabed, water column and surface in this area is owned by the Crown. New Zealand has full sovereignty in this area, subject to rights of innocent passage between MLWS and the 12 nautical mile limit.
The coastal marine area (CMA) is defined in the RMA as lying between MHWS and the territorial limit, with exceptions where rivers meet the sea (ie, the CMA includes the foreshore and the territorial sea). Management of this area is by regional councils with the Minister of Conservation rather than by territorial authorities.
The contiguous zone lies between 12 and 24 nautical miles from shore.[58] In this area New Zealand has the rights that apply within its EEZ and can exercise control to prevent and punish any infringements in its territory or territorial sea.
The Exclusive Economic Zone (EEZ) lies between 12 and 200 nautical miles from shore. In this 188 nautical mile wide area New Zealand has a sovereign right to use and manage resources of the seabed and water column.[59]
Continental shelf boundaries between nations beyond the EEZ are being delimited under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Nations have the right to explore and exploit seabed resources on the continental shelf, subject to sharing revenue from parts of the shelf beyond the EEZ.[60] Where the shelf extends beyond the EEZ New Zealand does not have jurisdiction over the water column or the surface which are part of the high seas.
The high seas are the water column, including the surface, beyond the EEZ. The area is the seabed and subsoil beyond continental shelves and is administered by the International Seabed Authority (ISA).
The RMA does not apply outside territorial waters, so there is no basis for authorising aquaculture or for considering the impact of seabed mining on the environment and other users. The Continental Shelf Act 1964 deals with prospecting and mining of petroleum (through the Crown Minerals Act) and minerals, and with sedentary species (through the Fisheries Act), but does not provide for processes for issuing licences, or for public participation, environmental assessment or monitoring.[61]
6.6 Other natural resources
Specific property regimes in New Zealand are strongly focused on natural resources, as evidenced by the discussions above on water, fisheries, land and land use. This is presumably because other forms of property are adequately covered by general law or intellectual property law and because of the common or open access nature of many natural resources. Two other forms of natural resources where specific regimes exist are minerals (where deposits often cross surface property boundaries) and radio frequencies (in limited supply and subject to interference).
In New Zealand, the Crown owns by statute a significant proportion of minerals, and issues prospecting, exploration and mining permits for them, based on first application.[62] Mining permits give exclusive rights to the permit holder, with their consent required before another permit for a different mineral (except petroleum) can be granted over the same area, but royalties to the Crown apply.[63] Non-Crown owned minerals are normally owned by the surface land owner. Much land is open to exploration without consent (Johnson, 1992), thereby limiting property rights in land, although access for mining is subject to general law.[64] The RMA controls use of land for prospecting, exploration and mining, with resource consents normally required other than for prospecting.
Use of radio spectrum for transmission is excludable but rival; ie, access to transmission rights can be legally controlled, but use of a particular piece of spectrum can affect other uses of the same or neighbouring spectrum. Use of spectrum for reception on the other hand is excludable, through encoding, but can be non-rival; ie, reception of a signal by one person does not necessarily affect reception by another person (eg, broadcasts are non-rival) Spectrum is generally non-homogenous, finite, non-depletable and non-storable.
Radio frequency rights are used for a range of services, including TV, radio, mobile phones, cordless phones, remote controls etc. The purpose of regulation is presumably to maximise the net public benefit from use of the limited spectrum resource through allocation to highest value uses. Radio spectrum was initially sold in New Zealand using second price then first price tender systems, however in 1996 an Internet based computer system was developed for the sale of spectrum by auction.[65] It is currently a multiple ascending round auction making all lots available for bidding at the same time.
Notes
- [53]There is at least one Treaty of Waitangi claim outstanding in relation to a river bed, the Whanganui River claim.
- [54]The bed of Lake Taupo (61,417ha) is vested in the Tūwharetoa Maori Trust Board along with the beds of its tributaries. Te Arawa Māori Trust Board have a claim to the beds of 14 lakes (see list in the Native Land Amendment and Native Land Claims Adjustment Act 1922).
- [55]The general US legal principle has been the public trust doctrine where foreshore and underwater lands up to the tide-line (submerged lands) are held in trust for the benefit of the public, who generally have the right to swim, fish, and walk along the shoreline and a right of access between high and low tide lines (though not necessarily the right to cross private land to reach that area). In the colonial era a number of royal charters and patents conveyed title to the land under water in eastern states to towns or private owners. In some cases states and towns also conveyed title to private owners. “An environmental land trust has turned its sights to the nation's oceans, acquiring 11,000 acres of Long Island bay bottom that once held some of the finest oyster beds on the East Coast. In Long Island, an English lord purchased the Great South Bay oyster beds from Chief Tobaccus in 1694 for the less than princely sum of 10 pounds . … underwater lands are owned, by and large, by states in the West and by a patchwork of state, county and private owners in the East.” Washington Post, 22 October 2002 “In N.Y., Conservation Goes Underwater”
- [56]The foreshore can also be defined as the area between the water and cultivated or developed land (Concise Oxford Dictionary) which would overlap with the Queen’s Chain concept as noted above. Land previously vested in Harbour Boards or local authorities, or illegally reclaimed, was revested in the Crown by the Foreshore and Seabed Endowment Revesting Act 1991.
[57]12 nautical miles equals 13.8 miles (approximately) or 22.224 kilometres (exactly).
200 nautical miles equals 230 miles (approximately) or 370.4 kilometres (exactly).
[58]These distances are all measured from the baseline which is normally MLWS but has exceptions for rivers, bays, islands, fiords, harbour works etc. Waters to landward of the baseline are called internal waters with full New Zealand sovereignty.
New Zealand has the fourth largest EEZ in the world of 405 million hectares or 4 million square kilometres. The continental shelf may cover another 1.5 million square kilometres.
- [59]All states also have the rights of innocent passage through territorial waters, and freedom of navigation, over-flight, cable and pipeline laying and peaceful marine research within an EEZ.
- [60]UNCLOS does not deal with the actual ownership of the seabed, the water column or any living resources beyond territorial waters.
- [61]There is also the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 but no regulations have been made under it.
- [62]Crown owned minerals in New Zealand include all petroleum, gold, silver, and uranium existing in its natural condition in land and any other mineral existing in its natural condition in land alienated from the Crown after passage of the Crown Minerals Act 1991 (except pounamu [greenstone], see Ngai Tahu (Pounamu Vesting) Act 1997), and every mineral reserved in favour of the Crown by any enactment notwithstanding the repeal of that enactment.
- [63]For mineral permits where production is valued at more than $100,000 per year there is a requirement to pay a royalty to the Government of either 1% of sales revenue (ad valorem royalty or AVR) or 5% of profits (accounting profit royalty or APR), whichever is the greater in any given year. Where revenues are less than $1 million per year, the APR royalty does not need to be paid as only the AVR royalty applies. <http://www.med.govt.nz/crown_minerals/index.html>
- [64]Mining in New Zealand includes greenstone, (pounamu), petroleum, gold, silver, coal, ironsand, aggregate, limestone, clay, dolomite, marble, pumice, salt, serpentinite, and zeolite.
- [65]The Radiocommunications Act 1989 enabled the creation of property rights for spectrum and also the use of market driven allocation mechanisms for the distribution of the newly created rights, but did not specify any particular allocation mechanism. For details of New Zealand’s radio spectrum management regime see <http://www.med.govt.nz/pbt/rad_spec.html>.
