Supreme Court overrules Court of Appeal decision on the test for granting Customary Marine Title…

The Supreme Court recently released a judgment overturning the Court of Appeal decision on the scope of the Marine and Coastal Area (Takutai Moana) Act. 

To establish Māori Customary Marine Title, a group must establish that they have used and occupied an area, and that the use and occupation has not stopped at any point since 1840. This stoppage in use and occupation is called a “substantial interruption” and would mean that customary title would not be awarded.

The Supreme Court and Court of Appeal disagreed on the meaning of “substantial interruption.”  

The Court of Appeal defined substantial interruption as occurring only when Parliament has passed laws which prevent use and occupation of an area.

However, the Supreme Court broadened this definition, stating that substantial interruption is a matter of context and degree and does not require legislation to be passed.

They gave the example that the intensive use of an area for commercial shipping, for example, may mean a substantial interruption of use and occupation that would preclude an award of customary title.

If you are considering making an application for customary marine title, it is important to seek legal advice in order to get the best outcome.

If you are interested, you can find an article on the Court of Appeal decision here.