Foreshore and Seabed Act 2004

  • repealed
  • Foreshore and Seabed Act 2004: repealed, on 1 April 2011, by section 5 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Findings of High Court with respect to territorial customary rights in public foreshore and seabed

32 Meaning of territorial customary rights
  • (1) In this Act, territorial customary rights, in relation to a group, means a customary title or an aboriginal title that could be recognised at common law and that—

    • (a) is founded on the exclusive use and occupation of a particular area of the public foreshore and seabed by the group; and

    • (b) entitled the group, until the commencement of this Part, to exclusive use and occupation of that area.

    (2) For the purposes of subsection (1)(a), a group may be regarded as having had exclusive use and occupation of an area of the public foreshore and seabed only if—

    • (a) that area was used and occupied, to the exclusion of all persons who did not belong to the group, by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part; and

    • (b) the group had continuous title to contiguous land.

    (3) In assessing, for the purposes of subsection (1)(b), whether a group had exclusive use and occupation of an area of the public foreshore and seabed, no account may be taken of any spiritual or cultural association with the area, unless that association is manifested in a physical activity or use related to a natural or physical resource.

    (4) For the purposes of this section, the right of a group to exclusive use and occupation of a particular area of the public foreshore and seabed is not lost merely because rights of navigation have from time to time been exercised in respect of the area.

    (5) If the area of the public foreshore and seabed over which a group claims a right to exclusive use and occupation was at any time used or occupied by persons who did not belong to the group, the right must be regarded as having been terminated unless those persons—

    • (a) were expressly or impliedly permitted by members of the group to occupy or use the area; and

    • (b) recognised the group’s authority to exclude from the area any person who did not belong to the group.

    (6) In this section,—

    contiguous land means any land that is above the line of mean high water springs and that—

    • (a) is contiguous to the area of the public foreshore and seabed in respect of which the application is made or to any significant part of that area; or

    • (b) would, but for the presence of any of the following kinds of land, be contiguous to that area or to any significant part of that area:

      • (i) a marginal strip within the meaning of section 2(1) of the Conservation Act 1987:

      • (ii) an esplanade reserve within the meaning of section 2(1) of the Resource Management Act 1991:

      • (iii) a Māori reservation set apart under section 303 of Te Ture Whenua Maori Act 1993:

      • (iv) a road of any description or a road reserve:

      • (v) any railway line within the meaning of section 4(1) of the Railways Act 2005:

      • (vi) any reserve similar in nature to any land of a kind described in any of subparagraphs (i) to (v)

    continuous title means a title to any contiguous land that has at all times, since 1840, been held by the applicant group or by any of its members (whether or not the nature or form of that title was, at any time, changed or affected by any Crown grant, certificate of title, lease, or other instrument of title).

    (7) To avoid any doubt, in this section, a reference to a member, in relation to a group, includes a past member and a deceased member of the group.

    Section 32(6) contiguous land paragraph (b)(v): amended, on 1 January 2009, by section 63(2) of the Public Transport Management Act 2008 (2008 No 87).