Marine and Coastal Area (Takutai Moana) Act

The Marine and Coastal Area Act has resulted in over 580 applications for the recognition of customary rights and customary marine title over 10 million hectares of our 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.

Background

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 s 27: Rights of navigation, s 28: Rights of fishing and s 29: Reclaimed land.

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 (s 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 (s 56). There is a particular status for PCR holders within the RMA framework (s 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, (s 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 (s 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 (s 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” (s 58) – or received it since 1840 in accordance with tikanga from a group which itself had exclusive use and occupation since 1840 (s 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 (s 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, (s 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 (s 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, (s 26(1)).

RIGHT TO CONSULT

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 (ss 48 to 52). The Director-General of Conservation must have particular regard to the views of such affected parties in making conservation decisions (s 51).

WHAT WAS THE PROCESS TO APPLY FOR 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, (s 95), or by applying to the High Court (s 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” (s 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.

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