Marine and Coastal Area (Takutai Moana) Act 2011

The Marine and Coastal Area Act was created to replace the Foreshore and Seabed Act 2004.

In 2009 the National-led government, as part of a November 2008 confidence-and-supply agreement with the Māori Party, undertook a review of the Foreshore and Seabed Act 2004. In response to the review the Marine and Coastal Area (Takutai Moana) Act 2011 was passed, repealing the 2004 act. The new law replaced Crown ownership of the foreshore and seabed with a ‘no ownership’ regime, and provides for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area.

This has resulted in a massive number of claims for customary title to the foreshore and seabed. Contrary to assurances given by the government, the claims include not only remote areas of the coast, but every inch of the common marine and coastal area of New Zealand. Over 580 applications have been lodged for the recognition of customary rights and customary marine title over 10 million hectares of the foreshore and seabed out to 12 nautical miles (22 kilometres), including harbours, estuaries and river mouths, the airspace above and many of the minerals below.

What kinds of customary rights can be recognised under the Act?

The Act recognises three levels of statutory rights and interests which can be held and exercised subject to the guarantees in sections 27, 28 and 29.

Protected Customary Right.

This is basically about use and activities. These rights can be granted for customary activities like collecting hāngi stones or launching waka in the common marine and coastal area (CMCA). Holders of Protected Customary Rights (PCR) do not need resource consent to carry out customary activities, and local authorities cannot grant resource consents for other activities that would have an adverse effect on that PCR. With respect to the CMCA this is defined as a right which has been exercised since 1840, continues to be exercised in accordance with tikanga, (whether in the same way, or a way which has evolved over time), and is not extinguished as a matter of law (Section 53). Holders of protected customary rights can delegate or transfer such rights in accordance with tikanga, and derive commercial benefits from such rights, including selling gravel etc. They do not, however, have title over the land (Section 56). There is a particular status for PCR holders within the RMA framework (Section 57), including a veto power on most adverse activities (essentially save existing ones).
An applicant group does not need to have an interest in land in or abutting the specified part of the CMCA in order to establish PCR, (Section 51 (3)).

Customary Marine Title. (Sections 58-60)

Obviously the most important and extensive of the rights, is basically about some of the elements of ownership and exclusive possession (that is, the right to possess the area to the exclusion of all other people), but the rights are conditional. For example, the group cannot sell the area, i.e. it cannot be alienated, save in accordance with tikanga to other persons in the same iwi or hapū. Nor can members of the public be excluded (Section 26), subject to any wāhi tapu conditions that have been included in a government agreement or High Court order recognising Māori customary rights under the Act (Section 79).

Title can be recognised if the applicant group holds the specified area in accordance with tikanga, and has “exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption” (Section 58) – or received it since 1840 in accordance with tikanga from a group which itself had exclusive use and occupation since 1840 (Section 60). There is no requirement to hold abutting or contiguous land, but this may be taken into account when determining whether customary marine title (CMT) exists. If a group has CMT recognised over an area, their rights will include the following:

  • a Resource Management Act permission right which allows the group say yes or no to activities that need resource consents or permits in the area - in effect the right to veto any proposed development;
  • a conservation permission right which allows the group say yes or no to certain conservation activities in the area;
  • the right to be notified and consulted when other groups apply for marine mammal watching permits in the area the right to be consulted about changes to Coastal Policy Statements (Section 77);
  • a wāhi tapu protection right, which lets the group seek recognition of a wāhi tapu and restrict access to the area, thereby creating public no-go zones, (Ss 78 and 79). Trespassers can be fined of up to $5,000, (Section 81(2));
  • the ownership of all minerals which are found in the area, other than petroleum, gold, silver and uranium. For example, where CMT is vested in an iwi or hapū over an area with iron sand deposits, those deposits would belong to that iwi or hapū. The group is entitled to receive any royalties due to the Crown in respect of such minerals from the date on which an application for title is first lodged (Section 84(3)(b)).

While the Act guarantees access to the coastline, without charge, for individuals, the Act does not prohibit CMT holders from charging groups or commercial users for access, (Section 26(1)).

Resource consent applications, permit or approvals in the common marine and coastal area are already affected.

With immediate effect from the lodging of claims to CMT, anyone now seeking resource consent for an activity within the common marine and coastal area must:

The third right is for all affected iwi, hapū or whānau to participate in consultation processes in the CMCA. Affected iwi, hapū and whānau are those which exercise kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga (Sections 48 to 52). The Director-General of Conservation must have particular regard to the views of such affected parties in making conservation decisions (Section 51).

Applying for the recognition of customary rights.

There were two pathways for iwi, hapū or whānau to have their customary interests recognised at law - either by direct engagement with the Crown, (Section 95), or by applying to the High Court (Section 100). Groups could apply through both pathways. The deadline for applications closed on 3 April 2017.

It is estimated the over 580 competing claims will tie the courts up for decades, costing the country tens, if not hundreds of millions of dollars in claimant funding, policy advice and legal fees.

To prove that it has customary marine title for a particular area that should be recognised, a Māori group must have “exclusively used and occupied it from 1840 to the present day without substantial interruption” (Section 58).

Our courts depend on an adversarial process – they are poorly equipped to test claims and evidence when there is no adversary – so it is important that members of the public provide historical and contemporary evidence to prove areas under claim have been used by others. This evidence can be as simple as offering statements showing where and when they, too, had swum, fished, boated and walked the beach etc. without restriction, thereby proving that the claimants have not had exclusive use and occupation, and therefore the do not meet the legal test.

How to oppose (or support) a claim made to the High Court

To oppose or support a claim, any interested party may appear and be heard on an application for a recognition order if that person has, by the due date, filed a ‘Notice of Appearance’. In due course the interested party will be called on to give evidence. (You can simply state what time periods you have had unrestricted use of that area, and for what purpose). Interested parties can register as individuals, as family groups, as groups of like-minded people, as a business, a club or any other organization. The High Court has provided advice for those wishing to become involved in the process, available at this address.

You need to register your intention with the High Court without delay, the deadline is 26th of February 2018.

Alternatively, register with organizations such as the Council for Outdoor Recreational Associations of NZ (CORANZ), and the New Zealand Centre for Political Research (NZCPR). CORANZ has registered Notices of Appearance for every claim. You can become involved by adding your name to the NZCPR ‘Countering the Claims’ register, which can be found at this address.

The time limit to register as an interested party was thought to be 20 working days from the date of the publication of the public notice for each claim made in the High Court. However, the Wellington High Court advises that the closing dates advertised on the applicants’ advertisements were indicative only, and that it is not too late to register as an interested party even if the advertised deadline has passed. The deadline is now 26th of February 2018.

To register as an interested party:

  1. Single out an application (or applications), particularly the coastal areas you know from experience have not been exclusively used and occupied by the applicant from 1840 to the present day.
  2. Identify the High Court case number (CIV number) of the claim/s.
  3. Fill in the Notice of Appearance form.
  4. Submit the Notice of Appearance form to the High Court along with the $110 fee for each claim. This can be done either at your nearest High Court, or by post to: Wellington High Court, SX11199, Wellington.
  5. Serve the Crown with a scanned copy of the Notice/s. This can be done by emailing copies to the following three recipients:
    • Damen.Ward@crownlaw.govt.nz
    • Geoffrey.Melvin@crownlaw.govt.nz
    • MACA@crownlaw.govt.nz

A separate notice of appearance, with a $110 filing fee, needs to be filed for each individual application. The Court will not accept a Notice of Appearance that quotes multiple applications.

Submitters unable to pay the fee can apply for a fee waiver by completing a "Waiver of Fee" form. The Court will decide whether or not to waive the fee.

Notices of Appearance need to include the key identifying factor - the reference number (CIV number) of the application - or the name of the group or person who applied to the High Court to have their customary interests recognised. The High Court reference number of the claim looks like CIV-XXXX-XXX-XXX. These details are available in the public notices that were published by the applicants. Many of the advertised public notices have been collated by NZCPR, available here .

Alternatively, to find a claim, follow these two steps:

Step 1.

Identify the applicants by looking at the Crown Law ‘Maps of High Court Application Areas’, which indicate the location of the claims registered with the Court. (This information has not been published on any official website for public use, but has kindly been made available to the public on the NZCPR website.

To find out who is claiming a specific area of the coast, locate the claim’s reference number on the map, found in Annexure A, which shows the areas each claim covers, accompanied by a number which identifies the individual claims. The identifying numbers match up with the unique CIV numbers, which can be found in Annexure B. (N.B. not all claims are shown on the map - for instance the two claiming the entire marine and coastal area. These can be found on the table at the end of Annexure B).

Step 2.

Once you have found the CIV number related to the area of interest, you can request a copy of the application that you wish to object to from the High Court at Wellington. The Wellington High Court email address is: WellingtonHC@justice.govt.nz

The phone number is (04) 914 3649 or (04) 914 3600 .

Alternatively, access to copies of the applications are available on the NZCPR website on the Countering Coastal Claims page .

Only the 202 applications for recognition of customary interests via the High Court pathway are featured on the maps - the other 380 claims registered for direct engagement with the Crown are not included.

You will need to complete a separate notice of appearance, and pay a $110 filing fee for each individual application you are interested in. The Court will not accept a notice of appearance that quotes multiple applications. Submitters unable to pay the fee can apply for a fee waiver by completing a "Waiver of Fee" form. The Court will decide whether or not to waive the fee.


Claims registered for direct engagement with the Crown

Under Crown engagement the general public will be able to object to or support any application as part of a public enquiry process seeking submissions. This process has not yet begun. The sequence and timing for determination of Crown engagement applications is being developed and information about this will be published on the Justice Department website in due course.

Claims lodged directly with the Crown can be viewed on the Justice Department website.

The website currently states that the majority of applications are still being processed and are yet to be listed. More information will regularly be added as applications are processed and details confirmed.


Encourage others to become involved:


Regular updates

New information regarding the claims process will be published on this website as it comes to hand. Updates on developments will also be included in our regular Democracy Action newsletters. To add your name to the mailing list, register as a member on our website.

If you have any queries please email:enquiries@democracyaction.org.nz

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