Winter 2011 In a Seashell: The Marine and Coastal Area (Takutai Moana) Act 201
On 24 March 2011, the Marine and Coastal Area (Takutai Moana) Act 2011 (the “Act”) was enacted to repeal and replace the Foreshore and Seabed Act 2004.
The call for change has been motivated by an independent Ministerial Review of the Foreshore and Seabed Act 2004, which deemed the 2004 Act unfair, as it failed to recognise the rights of all New Zealanders and was discriminatory against Maori.
The new Act is the product of approximately two years of consultation between the Attorney General, on behalf of the Government, and iwi groups. According to the Attorney General Hon. Christopher Finlayson, the new Act is a “just and durable resolution to the issue, and recognises the rights of all New Zealanders in the common marine and coastal area:”
“Marine and coastal area” is defined in s9 of the Act and broadly encapsulates the area that is bounded by the line of mean high-water springs and the outer limits of the territorial sea. It also includes the beds of rivers, airspace, subsoil, bedrock and other matter which are part of the coastal marine area.
The new Act repeals the 2004 Act as it grants courts the jurisdiction to recognise customary rights where such rights can be proven under the Act. However, the granting of a customary title under the Act is distinguished from a private (fee simple) title, as the land comprised under a customary title is subject to public access and cannot be sold.
- applies to the area formerly known as the foreshore and seabed, which will be known in the future as the marine and coastal area,
- creates a common space in the marine and coastal area (the common marine and coastal area) which allows the interests and rights of all New Zealanders in the marine and coastal area to be recognised in law,
- does not affect existing private titles in the marine and coastal area,
- guarantees and, in some cases, extends existing rights for navigation, ports, fishing and aquaculture,
- provides tests for applicant groups to meet to demonstrate customary marine title in areas where they have had exclusive use and occupation since 1840 without substantial interruption.
This recognition will include the right to apply to the High Court (or negotiate an out-of-court settlement with the Crown) to seek customary marine title for areas with which groups such as iwi and hapu have a longstanding and exclusive history of use and occupation.
Similar to private (fee simple) title, customary marine title gives rights to: permit activities requiring a resource consent, some conservation activities, protection of wahi tapu, ownership of taonga tuturu (Maori objects) found in that space, and ownership of non-Crown minerals. It also gives the customary title holder the right to create a planning document setting out objectives and policies for the area.
Groups such as iwi, hapu and whanau may also be able to gain recognition and protection for longstanding customary rights which continue to be exercised. Their association with the common marine and coastal area in their rohe (home territory of a specific iwi) will also be recognised through a right to participate in conservation processes which formalise existing best practice in coastal management.
Sleeping on the Job
Philip Dickson worked for Idea Services Limited (an IHC subsidiary) as a community service worker providing care and support to people with disabilities living in community homes. Mr Dickson was required to sleep overnight in the home so he could deal with any issues which arose during the night, and for security purposes. He was paid $34.00 per sleepover, and $17.66 per hour for any time during which he was required to be actively working and tending to the needs of the residents. If there were any issues arising during the night Mr Dickson would receive $34.00, which amounted to between $3.40 and $4.30 per hour depending on the length of the sleepover.
Mr Dickson claimed that he was entitled to the minimum wage prescribed under the Minimum Wage Act 1983 (the “Act”) for every hour of his sleepover. This claim was upheld at both the Employment Relations Authority and the Employment Court, but these decisions were appealed.
The Court of Appeal considered whether sleepovers constitute “work” for the purposes of s6 of the Act which states: “every worker who belongs to a class of workers in respect of whom a minimum rate of wages has been prescribed under this Act, shall be entitled to receive from his employer payment for his work at not less than that minimum rate.” The Court of Appeal agreed with the Employment Court that three factors must be considered in order to determine whether the sleepover constituted “work”:
- the constraints placed on the employee’s freedom to do as he or she pleases,
- the nature and extent of responsibilities placed on the employee, and
- the benefit the employer receives from having the employee perform the role.
Mr Dickson had significant restraints placed on him when sleeping over, important responsibilities he had to attend to with respect to both the home and the residents, and the employer derived a correspondingly significant benefit. The Court of Appeal agreed that in this instance all of these factors applied to a significant degree and Mr Dickson’s sleepovers constituted work for the purposes of the Act.
The Court of Appeal rejected Idea Services Limited’s alternative argument that the Act was breached only if the employee’s average rate of pay over a pay period was less than the prescribed minimum.
This decision will have a great impact on the disability services sector. Ralph Jones, chief executive of Idea Services Limited is quoted as saying this decision would cost the organisation about $176 million in back payments. Idea Services Limited has lodged an application for an appeal against the Court of Appeal decision, and the outcome is likely to be newsworthy.
Sarah Jury provides comprehensive legal advice to both employers and employees. Phone Sarah on (09) 407 0176.
Spam Spam, Spam!
Once upon a time Spam was a food. Then it was in your inbox. Now it comes to your mobile phone as well. Don’t despair! Just as you can click “unsubscribe” on unwanted emails, you can do the text equivalent on your phone. Text messages for marketing purposes are covered by the Unsolicited Electronic Mail Messages Act 2007, in the same way email messages are. Text marketers must include details of who the sender is and you may reply by text to opt out.
However, emergency text messages were sent by Telecom, Vodafone, and 2Degrees to all Canterbury customers at the request of Civil Defence in March. SMS messaging was similarly used to contact New Zealand customers in Japan when the Sendai earthquake struck, at the request of the New Zealand Ministry of Foreign Affairs and Trade. Moves are afoot in the USA to allow the sending of emergency warnings nationwide if a terrorist attack or other national emergency is threatened. These messages override systems and cannot be stopped.
Changes to Property Owners’ Insurance
Property insurance has been the subject of comment and interest across New Zealand in recent months, largely due to issues highlighted by the Christchurch earthquakes. It is clear that premiums will rise as the insurance industry (which is a worldwide network to spread the risk) has taken a battering with the seismic events in New Zealand and Japan, the Queensland floods and cyclone, and the damage caused by tornados in the US. If we are all paying more, we should take care to ensure the money is well spent and we have sufficient cover so that the risks we think we are insured for are actually included in our policies.
One of the shortcomings identified by many Christchurch policyholders is the short period of time for which policies reimburse the cost of alternative accommodation (if at all). Many homeowners will not be able to return to their homes within the three to six months stated as maximum reimbursement periods in their policies and they are now facing the double whammy of rent plus mortgage payments on unsafe and uninhabitable homes.
Business owners are also finding gaps in their insurance. Many business interruption policies are for limited periods or provide no insurance where the premises for the insured business are sound but are within the red zone. Those business owners may be paying rent on premises they cannot access legally, but have found they have no insurance in these circumstances. The legal issues around insurance of all types are very specialised and complex. Use a well informed broker and don’t hesitate to ask questions if the small print looks daunting.
For legal advice about insurance, contact Graeme McLelland on (09) 407 0179.
Graeme McLelland and Shirley Rundle and her family joined the enthusiastic crowd of 600 or so cyclists celebrating the opening of the first stage of the coast to coast cycle way on 29 May. This project will dovetail in with the Okiato to Russell walkway (see boiwalkways.co.nz) giving both locals and visitors a wonderful experience.