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Marine and Coastal Area (Takutai Moana) Act 2011

Customary interests - Customary marine title - Determination of whether customary marine title exists

59: Matters relevant to whether customary marine title exists

You could also call this:

"What to consider when deciding if a group has customary marine title in an area"

Illustration for Marine and Coastal Area (Takutai Moana) Act 2011

When you are deciding if customary marine title exists in a certain area, you need to think about some important things. You must consider if the group or its members own land next to the area, or have been fishing there without selling the fish, for a long time. You also need to think about if they have a marae near the area. If people who are not part of the group have used the area for fishing or sailing, it does not automatically mean the group cannot have customary marine title. However, if this use caused big problems, it might affect the group's claim. You can find more information about what land abutting means in the Conservation Act 1987 and the Resource Management Act 1991. To decide if customary marine title exists, you must look at how long the group or its members have been using the area. You need to think about if they have been owning land or fishing in the area for a long time. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit what you can consider when thinking about fishing rights. Land abutting the area means land that is right next to it, or land that is next to a special area like a marginal strip, an esplanade reserve, or a road, which is then next to the area. You can read about marginal strips in the Conservation Act 1987, and about esplanade reserves in the Resource Management Act 1991. The use of the area by others does not automatically stop the group from having customary marine title, unless it caused big problems, as explained in section 57B.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3213373.

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Topics:
Māori affairs > Māori landEnvironment and resources > ConservationEnvironment and resources > Town planning
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58: Customary marine title, or

"A special right to an area of the sea or coast, based on your group's traditional use and connection to it"

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"Changes to the Law About Using the Coast and Sea"

Part 3Customary interests
Customary marine title: Determination of whether customary marine title exists

59Matters relevant to whether customary marine title exists

  1. Matters to which a decision maker (including the Court) must have particular regard in determining whether customary marine title exists in a specified area of the common marine and coastal area include whether the applicant group or any of its members—

  2. own land abutting all or part of the specified area and have done so, without substantial interruption, for all of the applicable period:
    1. exercise non-commercial customary fishing rights in all or part of the specified area, and have done so for all of the applicable period:
      1. exercise non-commercial customary fishing rights in named fishing grounds in all or part of the specified area, and have done so for all of the applicable period:
        1. have marae near all or part of the specified area.

          1. To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(b).

          2. In complying with subsection (1)(a), (b), or (c), the decision maker must also have particular regard to the extent to which there has been such ownership, or such exercise of fishing rights in the specified area, for all of the applicable period.

          3. The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title, unless that use causes or contributes to substantial interruption under section 57B.

          4. For the purpose of subsection (1)(a), land abutting all or part of the specified area means—

          5. land that directly abuts the specified area; or
            1. land that does not directly abut the specified area, but does directly abut any of the following:
              1. a marginal strip (as defined in section 2(1) of the Conservation Act 1987) that directly abuts the specified area:
                1. an esplanade reserve (as defined in section 2(1) of the Resource Management Act 1991), but only to the extent that it directly abuts the specified area:
                  1. a reserve (as defined in section 2(1) of the Reserves Act 1977), but only to the extent that it directly abuts the specified area:
                    1. a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified area:
                      1. a road that directly abuts the specified area:
                        1. a railway line that directly abuts the specified area.

                        Notes
                        • Section 59(1): replaced, on , by section 10(1) of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (2025 No 58).
                        • Section 59(2): replaced, on , by section 10(1) of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (2025 No 58).
                        • Section 59(2A): inserted, on , by section 10(1) of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (2025 No 58).
                        • Section 59(3): amended, on , by section 10(2) of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (2025 No 58).
                        • Section 59(4): amended, on , by section 10(3) of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (2025 No 58).
                        • Section 59(4)(b)(ii): amended, on , by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).