Rainey Collins Lawyers

New Foreshore and Seabed Law to Recognise Maori Customary Title

By Peter Johnston, Tuesday, 13 July, 2010, Maori Issues

The Government has announced that new legislation in relation to the foreshore and seabed will be introduced in August 2010. 

Crown-ownership of the foreshore and seabed will be removed and replaced with a “non-ownership model”. 

Customary Interests

The legislation will recognise three types of customary interests:

1. Universal recognition/mana tuku iho;
2. Customary rights; and
3. Customary title.

Mana Tuku Iho

Mana tuku iho recognises the relationship that iwi have with the foreshore and seabed in their respective areas.  The recognition will apply without the need for negotiation or court applications. 

Customary Rights

Customary rights are recognition of, and protection of, customary activities, uses and practices that are non-territorial.  These include the collecting of hangi stones, launching waka and collecting kai moana).

Once recognised, the group holding customary rights will have a legally-recognised right to continue to carry out certain customary activities and practices.

The threshold for proving customary rights will be lower than for proving customary title.  The Government has proposed that the test will be a mixture of tikanga Maori and common law.

What is Customary Title?

Customary title will provide Maori with a legal title to certain portions of the foreshore and seabed.   

One of the major distinctions is that this title cannot be sold.  The Government proposal also provides that the title cannot be converted to a fee-simple title.

The title will recognise that the relationship existed, and continues to exist, between iwi/hapu and the foreshore and seabed.

The customary title will provide for:

1. The right to permit activities that need a coastal permit or resource consent;
2. The right to participate in conservation processes;
3. The right to create a planning document that would be recognised and provided for by local government.

How Can Customary Title be Gained?

Iwi and hapu will have the right to apply to the High Court restored. 

Claimants will have to prove to the courts that they had exclusive and continuous occupation of a coastal area since 1840. 

The Government has proposed that the new legislation will set out how the courts will determine and recognise the customary interests.  It is proposed that the legislation will state that a customary title will be awarded where the following elements are proven:

1. In order to establish the necessary connection/interest the relevant foreshore and seabed area must be held in accordance with tikanga Maori;
2. This connection/interest must be of a level that accords with the applicant having ‘exclusive use and occupation’ of the relevant foreshore and seabed area;
3. This ‘exclusive use and occupation’ must date from 1840 until the present without substantial interruption.

The test for customary title will be a mixture of tikanga Maori and the common law.

Negotiations

Parties will also be free to negotiate a settlement to recognise their customary rights outside the courts process.

The Government has announced that mandated iwi who had their negotiations with the Crown placed on hold while the review of the Foreshore and Seabed Act 2004 was carried out will be invited to resume negotiations under the new legislation, when it is enacted.

The negotiations option may eliminate the cost of court action.

New Legislation

The specific details on the tests for customary title and other matters will be set out in new legislation when it is passed.  The Government has advised that it expects to introduce new legislation in August 2010.

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