Foreshore and Seabed

2 Main Elements of the Foreshore and Seabed Act

2.3.2 Territorial Customary Rights

Territorial customary rights are rights that would, at common law, have been called aboriginal or customary title. They are based on the exclusive occupation and use of a particular area of the public foreshore and seabed. The Act provides a process for recognition of territorial customary rights and redress.

Any group of Maori or non-Maori that can prove exclusive occupation and use, and meet the other criteria in the Act, can claim territorial customary rights. The group must hold title to the land adjoining the relevant area of the foreshore and seabed (or a significant part of that area) before it can claim territorial customary rights.

2.3.2.1 Applications for Territorial Customary Rights

A group that has had exclusive use and occupation of a part of the public foreshore and seabed can apply to the High Court for a finding that the group would have had territorial customary rights over that area if it was not owned by the Crown.

A group that would rather enter into negotiations with the government directly, can request that the Minister of Maori Affairs and the Attorney-General enter into discussions. Any agreements reached will need to be confirmed by the High Court as meeting the criteria for territorial customary rights.

2.3.2.2 Tests for Territorial Customary Rights by the High Court

The criteria that applications to the High Court must meet are:

that the group has had exclusive occupation and use of the relevant area of public foreshore and seabed;

that the group has occupied and used the area of the public foreshore and seabed without substantial interruption since 1840;

that the group has had title to the land adjoining the area of foreshore and seabed (or a significant part of that area) since 1840 and continues to have title; and

that, in the past, the group has controlled entry and occupation of others to the area.

If the High Court makes a finding that a group would previously have had territorial customary rights, the applicant group can ask the Court to:

establish a foreshore and seabed reserve over the area; or

refer this finding to the Attorney-General and the Minister of Maori Affairs who will enter into negotiations with the applicant group to discuss redress.

2.3.2.3 Reserves

If a foreshore and seabed reserve is established, the applicant group and representatives of the regional council and Crown will agree on a board and a charter to administer the reserve. The functions of the board include the development of a management plan for the area. Councils will then have to recognise and provide for that management plan in relevant policy statements and plans prepared under the Resource Management Act. Regional councils will be obliged to undertake a review of relevant policies and plans after a management plan is finalised. If Councils decide to change their plans to recognise and provide for that management plan, they will need to publicly notify the proposed changes and consider public submissions.

For further information on territorial customary rights.