On 24 March 2011, the Marine and Coastal Area (Takutai Moana) Act 2011 (the „Act‟) was enacted to repeal and replace the Foreshore and Seabed Act 2004. The call for change has been motivated by an independent Ministerial Review of the Foreshore and Seabed Act 2004, which deemed the 2004 Act unfair, as it failed to recognise the rights of all New Zealanders and was discriminatory against Maori. The new Act is the product of approximately two years of consultation between the Attorney General, on behalf of the Government, and iwi groups. According to the Attorney General Hon. Christopher Finlayson, the new Act is a “just and durable resolution to the issue, and recognises the rights of all New Zealanders in the common marine and coastal area.” “Marine and coastal area” is defined in section nine of the Act and broadly encapsulates the area that is bounded by the line of mean high-water springs and the outer limits of the territorial sea. It also includes the beds of rivers, airspace, subsoil, bedrock and other matter that are part of the coastal marine area. The new Act repeals the 2004 Act as it grants courts the jurisdiction to recognise customary rights where such rights can be proven under the Act. However, the granting of a customary title under the Act is distinguished from a private (fee simple) title, as the land comprised under a customary title is subject to public access and cannot be sold. In summary, the Act: applies to the area formerly known as the foreshore and seabed, which will be known in the future as the marine and coastal area, creates a common space in the marine and coastal area (the common marine and coastal area) which All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information. May 2011 – July 2011 Page 2 of 4 © 2011 allows the interests and rights of all New Zealanders in the marine and coastal area to be recognised in law, does not affect existing private titles in the marine and coastal area, guarantees and, in some cases, extends existing rights for navigation, ports, fishing and aquaculture, provides tests for applicant groups to meet, to demonstrate customary marine title in areas where they have had exclusive use and occupation since 1840 without substantial interruption. o This recognition will include the right to go to the High Court (or negotiate an out-of-court settlement with the Crown) to seek customary marine title for areas with which groups such as iwi and hapu have a longstanding and exclusive history of use and occupation. o Similar to private (fee simple) title, customary marine title gives rights to: permit activities requiring a resource consent, some conservation activities, protection of wahi tapu (sacred areas), ownership of taonga tuturu (Maori objects) found in that space, and ownership of non-Crown minerals. It also gives the customary title holder the right to create a planning document setting out objectives and policies for the area. o Groups such as iwi, hapu and whanau will also be able to gain recognition and protection for longstanding customary rights that continue to be exercised. Their association with the common marine and coastal area in their rohe (home territory of a specific iwi) will also be recognised through a right to participate in conservation processes, which formalises existing best practice in coastal management.