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 restored the right of iwi to seek customary rights and title in court.
The act recognised that Māori may have exclusive customary interests in otherwise public areas of the foreshore and seabed. However, those interests cannot prevent existing rights and uses such as public access, navigation, fishing, aquaculture and mining.
Customary interests under the act
The act addresses two types of customary interests in particular:
- protected customary rights, which recognise and protect customary activities, uses and practices (such as collecting hāngī stones or launching waka). Such rights must have been exercised since at least 1840, but may have evolved over time.
- customary marine title over a specified area of the common marine and coastal area, rather than fee simple title (permanent and absolute ownership).
Whānau, hapū and iwi need to apply to the court or negotiate directly with the Crown to obtain legal recognition of protected customary rights or customary marine title.
Customary marine title
To be awarded customary marine title to a specified area, an applicant group must prove that it:
- holds the area in accordance with tikanga (custom)
- has exclusively used and occupied it since at least 1840, or since a customary transfer, without substantial interruption.
In establishing customary marine title, matters to be considered include whether the applicant group or its members exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day.
Customary marine title is inalienable – the area cannot be sold. Customary marine title recognises the relationship that has existed and will continue to exist between iwi and the foreshore and seabed. It allows for continued public access and recreation, while allowing local iwi, hapū or whānau to exercise certain rights set out in the Marine and Coastal Area (Takutai Moana) Act 2011, including the ownership of minerals (other than petroleum, gold, silver and uranium in their natural condition) within the customary marine title area.
By May 2021, more than 200 applications for recognition of customary title and customary rights under the act had been made. Two had been granted.