A summary of the scope and effects of Customary Marine Title and Protected Customary Rights in the common marine and coastal area.

In 2011 the Government passed the Marine and Coastal Area (Takutai Moana) Act 2011 “to provide for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area”. This legislation replaced the Foreshore and Seabed Act 2004. It allows Māori whanau [family], hapu [subtribe] and iwi [tribe] groups to apply for recognition orders in specific areas of the coastal marine area.

The Act created two pathways for establishing legal recognition of Protected Customary Rights (PCR) and Customary Marine Title (CMT). That is, either via the High Court or by engaging directly with the Government. 

Applicants for the recognition of CMT and/or PCR had six years to lodge their claims. By the deadline of 3 April 2017 more than 590 claims were registered - 387 filed for direct engagement with the Crown and 205 in the High Court. 

What areas have been claimed?

Practically all the marine and coastal area of New Zealand is claimed under the Act. The applications for the recognition of customary rights cover over 10 million hectares of foreshore and seabed out to 12 nautical miles (22 kilometres), harbours and estuaries, the airspace above, the subsoil, bedrock below, and ownership rights over minerals (other than petroleum, gold, silver and uranium, which are Crown owned), s 83(2) Marine and Coastal Area (Takutai Moana) Act 2011 

Maps of the High Court application areas are available HERE. See Annexure B for a list of the CIVs, the applicants’ details, and a description of the area claimed. (N.B. These maps relate only to the applications before the High Court – they do not include those that have been lodged directly with the Government). 

Map 2 shows 36 applications for the recognition of customary marine title and/or protected customary rights in an area of the east coast from Whangārei Heads to the base of the Coromandel Peninsula, including the Hauraki Gulf.

Rights that can be awarded under the Marine and Coastal Area Act

The Act recognises three levels of statutory rights and interests which can be held and exercised subject to the guarantees in s 26, s 27, and s 28. They are:

1. ‘Customary Marine Title,’ (CMT), which is basically about some of the elements of ownership and possession; 
2. ‘Protected Customary Rights, (PCR), which is basically about use and activities; and
3. a right for all affected iwi, hapū or whānau to participate in consultation processes in the common marine and coastal area.

Customary Marine Title 

(See sections 58-62 Marine and Coastal Area (Takutai Moana Act 2011)

The most extensive of the rights, this is similar to 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 given are conditional. For example, the group cannot sell the area - it cannot be alienated, save in accordance with tikanga to other persons in the same iwi or hapū. A CMT group may delegate the rights conferred by a customary marine title order or an agreement in accordance with tikanga; or transfer a customary marine title order or an agreement in accordance with tikanga (s 60).

The legislation states that CMT 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 for the claimants to hold abutting or contiguous land, but this may be considered in determining whether customary marine title exists.

If a group gains the recognition of CMT over an area, their rights include the following: 

• The group may use, benefit from, or develop a CMT area (including derive commercial benefit) by exercising the rights conferred by a CMT order or agreement.

• The group is not liable for payment, in relation to the customary marine title area, of coastal occupation charges imposed under s 64A of the Resource Management Act 1991; or royalties for sand and shingle imposed by regulations made under the Resource Management Act 1991 (See s 60 MACA Act)
• The right to give or refuse permission, on any grounds, for an activity to which an RMA permission right applies, (sections 66 to 70).
• A conservation permission right, which gives the group the right to say yes or no to certain conservation activities in the area, (sections 71 to 75)
• The right to be notified and consulted when other groups apply for marine mammal watching permits in the area, (s 76)
• The right to be consulted about changes to Coastal Policy Statements (s 77) 
• A wāhi tapu protection right, which allows the group to seek recognition of a wāhi tapu and restrict access to the area, thereby creating public no-go zones, (s 78 and s 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, which are Crown owned. 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))

The public cannot be excluded, (s 26), however, the right to recreational access is 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. Trespassers in areas designated wāhi tapu can be fined up to $5000 (s 81(2). 

Protected Customary Rights 

(See sections 51-57)

These rights are basically about use and activities. They can be granted for customary activities like collecting hāngi stones or launching waka in the common marine coastal area (CMCA). Holders of a PCR do not need resource consent to carry out customary activities, and local authorities cannot grant resource consents for others’ activities that would have an adverse effect on that PCR, unless the PCR holder agrees (s 52).

A PCR 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, such as selling sand, gravel etc. An applicant group does not need to have an interest in land in or abutting the specified part of the common marine and coastal area to establish protected customary rights (s 51 (3).

In exercising a protected customary right, a protected customary rights group is not liable for the payment of coastal occupation charges imposed under section 64A of the Resource Management Act 1991; nor the payment of royalties for sand and shingle imposed by regulations made under the Resource Management Act 1991 (s 52).

The third right is for all affected iwi, hapū or whānau to participate in consultation processes in the common marine and coastal area. 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. The Director-General of Conservation must have regard to the views of such affected parties in making conservation decisions.

A surprising High Court ruling has far-reaching implications for all claims 

At the time the National Government passed the Marine and Coastal Area Act the country was assured that only a handful of claims, and only those in remote areas, would be successful. This was because the criteria for gaining Customary Marine Title were thought to be stringent. For example, under section 58 of the Act claimants had to satisfy two tests:

1. they had to “hold the specified area in accordance with tikanga” – where ‘tikanga’ was defined as “Māori customary values and practices”; and
2. they had to have “exclusively used and occupied the area without substantial interruption from 1840 to the present day.”
   

However, the presiding judge in only the second application to be heard under the Act, and the first involving overlapping claims, took a liberal rather than a literal interpretation of the law. This has resulted in granting six separate claimants protected customary rights and customary marine title over a 44 km stretch of coastline in the Bay of Plenty near Opotiki. 

Justice Churchman determined that since applicants had been found by the Court-appointed Māori cultural advisors to have held the claimed areas according to ‘tikanga’, this was sufficient for Customary Marine Titles to be awarded, thereby over-ruling any requirement to consider the second limb of the test – whether the area had been used and occupied ‘exclusively’ and continuously since 1840.

By elevating the status of tikanga above other requirements in the Act, ‘tikanga’ became the critical focus. The overlapping claims, which are inconsistent with the concept of ‘exclusive use and occupation’, were expected to be ruled out, as were claims for areas where third-party use resulted in ‘substantial interruption’. However, despite being contrary to what Parliament intended - that claimants prove they have exclusively used and occupied the foreshore and seabed since 1840 without substantial interruption - instead of ruling out overlapping claims for failing to meet this criteria, Justice Churchman created ‘shared exclusivity’ to accommodate them all.

This case is currently before the Court of Appeal. If Justice Churchman’s ruling is not overturned on appeal it will set a precedent for the other yet-to-be determined claims, which may result in customary marine titles being granted to virtually the entire common marine and coastal area of New Zealand.

References‍

Office of Treaty Settlement overview of the Act‍

Marine and Coastal Area (Takutai Moana) Act 2011 applications for recognition orders‍‍

‍THE HIGH COURT OF NEW ZEALAND MEDIA RELEASE 7 May 2021

New Zealand: Landmark Judgment Recognizes Customary Rights in Coastal Marine Area‍

‍Russell McVeagh: Important High Court decision on customary marine title‍

Minister for Treaty of Waitangi Negotiations, Andrew Little: Takutai Moana Crown Engagement Strategy July 2021