What are customary interests?

Customary marine title

Customary marine title recognises customary interests that iwi, hapū, and whānau have had in the common marine and coastal area since 1840.  Customary marine title can’t be sold and public access, fishing and other recreational activities in a customary marine title area are unaffected (except for some lawful restrictions, including for the protection of wāhi tapu and wāhi tapu areas).

If customary marine title is recognised under the takutai moana legislation the iwi, hapū, or whānau group may exercise specified rights in relation to the customary marine title area, including:

  • the right to say yes or no to certain activities that need resource consents or permits (RMA permission right)
  • the right to say yes or no to certain conservation activities (conservation permission right)
  • the right to be notified and consulted when other groups apply for marine mammal watching permits
  • the right to be notified and consulted about changes to Coastal Policy Statements
  • the right to seek recognition of wāhi tapu and wāhi tapu areas and restrict access if this is necessary (a wāhi tapu protection right)
  • the right to ownership of minerals other than petroleum, gold, silver, uranium and, if the Ngai Tahu (Pounamu Vesting) Act 1997 applies, pounamu
  • the right to ownership of newly found taonga tūturu (unless the Māori Land Court decides otherwise)
  • the right to create and lodge a planning document for management of natural and physical resources, which then must be taken account of by local authorities and relevant government agencies

 

Meeting the tests for customary marine title

To have customary marine title recognised under the takutai moana legislation, the applicant group must be able to show they:

  • hold the specified area in accordance with tikanga; and
  • have exclusively used and occupied the area from 1840 to the present day without substantial interruption; or
  • if the area was received through a customary transfer after 1840, have exclusively used and occupied the area from the time of the transfer to the present day without substantial interruption.

Use of the specified area by others over time, including for fishing and navigation, does not necessarily mean that customary marine title can’t be recognised.

 

Protected customary rights or activities

Protected customary rights or activities recognise customary activities, uses, and practices that iwi, hapū, and whānau have exercised since 1840. 

There is no need to have a resource consent to carry out a recognised protected customary right or activity, and local authorities can’t grant resource consents for any activity that would have an adverse effect on the protected customary right or activity (with some exceptions).

 

Meeting the tests for protected customary rights or activities

To have protected customary rights or activities recognised under the takutai moana legislation an applicant group must be able to show that they:

  • have exercised the activity since 1840; and
  • continue to exercise the activity in a particular part of the common marine and coastal area in accordance with tikanga today, in one way or another.

The activity can be exercised intermittently, for example, seasonally or only when circumstances permit (such as in summertime or after a ferocious storm).

Some activities cannot be recognised; these are:

  • activities regulated under the Fisheries Act 1996;
  • commercial aquaculture activities (as defined in the Maori Commercial Aquaculture Claims Settlement Act 2004);
  • activities that involve any commercial or non-commercial Māori fishing right or interest to which sections 9 or 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 apply;
  • activities that relate to wildlife (as defined in the Wildlife Act 1953 or animals specified in Schedule 6 of that Act) or marine mammals (as defined in the Marine Mammals Protection Act 1978).

Activities based on a spiritual or cultural association cannot be recognised as protected customary rights or activities, unless manifested in a physical activity or use related to a natural or physical resource (as defined in the Resource Management Act 1991).

 

Other customary interests

Iwi, hapū, or whānau that exercise kaitiakitanga in a part of the common marine and coastal area also have rights to participate in, or have their views considered in specified conservation processes including when any of the following are being considered:

  • applications to declare or extend a marine reserve (under the Marine Reserves Act 1971);
  • proposals to define and declare, or extend, a marine mammal sanctuary (under the Marine Mammal Protection Act 1978);
  • proposals to declare or extend conservation protected areas;
  • publicly notified applications for concessions; and
  • applications for permits authorising marine mammal watching (under the Marine Mammals Protection Regulations 1992.

Marine mammals officers must have particular regard for the views of iwi, hapū, or whānau that exercise kaitiakitanga in the part of the common marine and coastal area where a marine mammal is stranded, if those views are expressed to the officer concerned.  However, marine mammal and public safety must remain the primary considerations.