Marin And Coastal Area(Takutai Moana) Act 2011 (M5)

Question 1

Under the Marine and Coastal Areas (Takutai Moana) Act 2011 what does it restore and provide for?

Answer 1

•Restores any customary interests in the marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 (s6)

•Provides for
- Protected customary rights orders and agreements to protect an activity, use or practise established by the applicant group
- Customary marine title - the customary interests established by the applicant group and recognised by a customary marine title order or an agreement

Question 2

Define “MACA”?

Answer 2

Marine and Coastal Area (Takutai Moana) Act 2011

a) Means the area bounded by the line of mean high water springs and the outer limits of the territorial sea.
b) includes beds of rivers that are part of coastal marine area (under RMA)
c) includes airspace and water space (but not water) above the area described in a) and b)
d) includes the subsoil, bedrock, other matter under the areas described in a) and b)

Question 3

Under section 2 for “MACA” what are some definitions?

Answer 3

a) specified freehold land located in that area; and
b) any area that is owned by the Crown and has the status of any of the following kinds :
(i) a conservation area within the meaning of s 2(1) of the Conservation Act 1987
(ii) (ii) a national park within the meaning of s 2 of the National Parks Act 1980:
(iii) a reserve within the meaning of s 2(1) of the Reserves Act 1977; and
(c) the bed of Te Whaanga Lagoon in the Chatham islands

Question 4

What are Protected Customary Rights?
(Considered less than ownership)

Answer 4

•Protected customary right covers an area of the common marine and coastal area
•Form of use /activity/customary practice
•PCR must have been exercised in accordance with tikanga in area since 1840 and continues to be exercised by applicants
•PCR recognised by either -
- High Court by a protected customary rights order OR
- agreement between applicant group and Minister which is given effect to by an Order in Council

Question 5

What is Customary Marine Title? (CMT)
(More like ownership)

Answer 5

Recognised by -
•order made by High Court or
•agreement between applicant and Crown given effect to by Act of Parliament
•Covers an area of common coastal marine and coastal area of area -
- Is exclusively used and occupied by applicant group since 1840 to present day without substantial interruption, or received by applicant group by customary transfer
- Is held in accordance with tikanga

Question 6

What is the relationship of MACA to the RMA?

Answer 6

Protection of PCR is a matter of national importance under s 6(g) RMA
Plans under the RMA
• PCR can limit the creation of permitted activities (s 85A RMA)
•If holders of customary marine title (CMT) create a planning document for the CMT area, regional council must recognise and provide for resource management matters in that document in regional plan or RPS (ss61 or 66 RMA)

Question 7

What is the relationship between Resource Consents and Protected Customary a rights?

Answer 7

•PCR do not require a resource consent but are subject to controls determined by the Minister of Conservation
•A consent cannot be granted if it has a more than minor adverse effect on a protected customary right unless the holder of the right has given its consent (s 104(3)(c)(v)RMA)
•An affected PCR group (see s 95F RMA) must get limited notification if an application for resource consent is made in the PCR area AND the activity may have adverse effects on the PCR AND the group has not given written approval

Question 8

What is the relationship of Resource Consents and CMT?

Answer 8

•If use or exercise of CMT rights requires a resource consent, a consent must be obtained
•Resource consents for activities by others also require an “RMA permission right” (s 66 MACA) from CMT group
•CMT group has complete discretion over grant or decline of permission rights
•BUT “accommodated activities” do not require a permission right
•A CMT group that is affected (see s 95G A) & doesn’t give approval must get limited notification in relation to an accommodated activity that may have adverse effects on the exercise of the groups rights

Question 9

What are some of the details of applications under MACA?

Answer 9

•Deadline [3 April 2017] is passed so no new applications
•385 applications for crown engagement
•23 applications for crown engagement in Manawatu-Whanganui region
•Under crown engagement, public will be able to make submissions
•202 applications to High Court-public can file notice of appearance with Registrar once public notice given
•CMT granted in re Tipene (2016) NZHC 3199 (Titi islands)