Foreshore and Seabed

2 Main Elements of the Foreshore and Seabed Act

2.3.1 Customary Rights Orders

A customary rights order is an order by the Maori Land Court or the High Court that recognises an activity, use or practice that has been carried out continuously from 1840 to the present day. Customary rights orders are a type of property right, but they do not confer an estate or interest in land. Customary rights orders are given protection through the Resource Management Act 1991 as amended by the Resource Management (Foreshore and Seabed) Amendment Act 2004. (For more information Resource Management (Foreshore and Seabed) Amendment Act 2004.)

2.3.1.1 Applications for customary rights orders

There are two processes for applications for customary rights orders:

Whanau, hapu or iwi can apply to the Maori Land Court for a customary rights order.

A group of natural persons, whose members share a distinctive community of interest, can apply to the High Court for a customary rights order.

2.3.1.2 Tests for Customary Rights Orders by the Maori Land Court and the High Court

The Maori Land Court and the High Court will apply similar statutory tests that are based on the common law. The test for the Maori Land Court jurisdiction requires that the relevant activity, use or practice:

is, and has been since 1840, integral to tikanga Māori;

has been exercised in a substantially uninterrupted manner since 1840;

continues to be exercised today in the same area of public foreshore and seabed; and

is not prohibited or extinguished by law.

For the High Court, an equivalent test is used which requires that the relevant activity, use or practice:

is, and has been since 1840, integral to the distinctive cultural practices of the group;

has been exercised in a substantially uninterrupted manner since 1840;

continues to be exercised today in the same area of public foreshore and seabed; and

is not prohibited or extinguished by law.

The Courts cannot make a customary rights order in respect of an activity that is regulated by fisheries, wildlife or marine mammals legislation.

2.3.1.3 Effects of a Customary Rights Order

The effect of a customary rights order is that the activity, use or practice specified in the order is protected under the Resource Management Act. Activities carried out under a customary rights order are called recognised customary activities. The Resource Management (Foreshore and Seabed) Amendment Act amends the Resource Management Act in order to:

recognise and provide for the protection of recognised customary activities as a matter of national importance in all decision-making under the Resource Management Act. This includes during the development of policy statements and plans and in determining applications for resource consents.

enable the exercise of a recognised customary activity without a resource consent and despite rules in plans prepared under the Resource Management Act.

require a consent authority to decline a resource consent for a proposed activity that the consent authority considers would have a significant adverse effect on a recognised customary activity, unless the holder of the customary rights order has given its written approval. Exceptions to this are provided for the maintenance of, and new consents for, existing infrastructure works and associated operations.

Enable the Minister of Conservation, in consultation with the Minister of Maori Affairs, to impose controls on the exercise of a recognised customary activity where it will have a significant adverse effect on the environment. These controls can not prevent the exercise of a recognised customary activity.

For publication and information sheets on customary rights.