Tests for customary marine title and protected customary rights
Tests that must be met by applicant groups
Customary marine title
To obtain recognition of customary marine title over a specified area of the common marine and coastal area, an applicant group must prove that it:
- holds the specified area in accordance with tikanga; and
- has exclusively used and occupied the specified area:
- from 1840 to the present day, without substantial interruption; or
- from the time of a customary transfer until the present day, without substantial interruption.
Certain matters may be taken into account in determining whether customary marine title exists. These are:
- ownership of land abutting all or part of the specified area
- the exercise of non-commercial customary fishing rights in the specified area.
The use of part of the common marine and coastal area for fishing or navigation does not necessarily preclude an applicant group from establishing customary marine title.
Protected customary rights
For a protected customary right, it must be shown:
- an applicant group has exercised the right since 1840; and
- the applicant group continues to exercise the right in accordance with tikanga, whether it continues to be exercised in exactly the same or similar way, or evolves over time; and
- the right has not been extinguished.
The applicant group does not need to own land in or abutting the specified part of the common marine and coastal area in order to establish protected customary rights.