58Customary marine title

1. Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—

2. holds the specified area in accordance with tikanga; and
3. has, in relation to the specified area,—
   1. exclusively used and occupied it from 1840 to the present day without substantial interruption; or
   2. received it, at any time after 1840, through a customary transfer in accordance with subsection (3).

4. In considering whether the requirements of subsection (1)(b)(i), (3)(c)(ii), or (3)(d)(ii) are met, no inference may be drawn about all or any of the geographic scope, continuity, or exclusivity of a group’s use and occupation of a specified area in a period unless that inference—

5. is based on evidence of a physical activity, or of a use, related to natural and physical resources (within the meaning of section 2(1) of the Resource Management Act 1991) in all or part of the area, by the group in that period; and
6. is not based on a spiritual or cultural association with all or part of the area unless that association is manifested in a physical activity, or in a use, related to natural and physical resources (within the meaning stated in paragraph (a)) in all or part of the area, by the group in that period.

7. Repealed

8. For the purposes of subsection (1)(b)(ii), a transfer is a customary transfer if—

9. a customary interest in a specified area of the common marine and coastal area was transferred—
   1. between or among members of the applicant group; or
   2. to the applicant group or some of its members from a group or some members of a group who were not part of the applicant group; and
10. the transfer was in accordance with tikanga; and
11. the group or members of the group making the transfer—
    1. held the specified area in accordance with tikanga; and
    2. had exclusively used and occupied the specified area from 1840 to the time of the transfer without substantial interruption; and
12. the group or some members of the group to whom the transfer was made have—
    1. held the specified area in accordance with tikanga; and
    2. exclusively used and occupied the specified area from the time of the transfer to the present day without substantial interruption.

13. Customary marine title does not exist if the applicant group’s customary interest proposed to be recognised in that title has been extinguished as a matter of law.

14. For the purposes of subsection (4), the applicant group’s customary interest proposed to be recognised in customary marine title has been extinguished as a matter of law if, in relation to a specified area of the common marine and coastal area,—

15. legal title was vested, before 17 January 2005, in a legal person or a group, other than the applicant group, by any means, including—
    1. Crown grants made by or under any lawful authority, including ordinances, statutes, or the prerogative; or
    2. the common law; or
    3. a statutory vesting; or
    4. administrative action; or
16. an interest has been established before, on, or after 17 January 2005 that is legally inconsistent with exclusive use and occupation of the area by the applicant group.

17. Subsection (5)(a) or (b) applies even if the person is the Crown or a local authority and is, under section 11(3), divested of that title as owner, because—

18. section 11(3) does not revive customary interests in any part of the common marine and coastal area that existed before any vesting of title, or establishment of an interest, divested under section 11(3); and
19. section 6 only restores and gives legal expression in accordance with this Act to customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004.

20. Subsection (4)—

21. does not limit section 57B (which sets out the requirements for determining whether substantial interruption has occurred to an applicant group’s exclusive use and occupation); and
22. is not limited by subsections (5) and (6) (which state some ways, but not the only ways, that the applicant group’s customary interest proposed to be recognised in customary marine title has been extinguished as a matter of law for the purposes of subsection (4)).