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Explanatory note

This Amendment Paper sets out the following updating and technical amendments:

the Preamble, and amendments to the principal Act’s Preamble, are altered to set out how the Bill relates to—
- Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea [2024] NZSC 164, [2024] 1 NZLR 857 (the 2 December 2024 decision):
- Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua (Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea) [2025] NZSC 104 (the 15 August 2025 decision):
new section 57B(c) and (d) is amended to continue the effect of paragraph [199] of the 2 December 2024 decision that a substantial interruption must be, or be changes to, use and occupation carried out, or an activity carried out, lawfully (as authorised by or under legislation, or otherwise not unlawfully):
new section 58(4) and (5) is amended to fix the logical difficulty, in the wording of section 58(4), identified in paragraph [205] of the 2 December 2024 decision, and consequential changes are made to new sections 58(7)(b) and 59A(g) (clauses 8(3) and 12):
drafting clarifications are made to section 51(1)(c) and new section 58(4), (5), and (7)(b) so that they refer to whether a customary right or interest has not been, or has been, extinguished as a matter of law:
new clauses 11AA and 11AB amend consequentially the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 (the 2019 Act). The consequential amendment affects subpart 3 (recognition of customary marine title) of Part 4 (recognition of protected customary activities, wāhi tapu, and customary marine title). New section 110A is inserted, and ensures that,—
- for the purposes of that subpart, the 2011 Act (as referred to in, and applied by, that subpart) continues to apply—
  - as it was in force immediately before the commencement of the CMT Amendment Act; and therefore
  - as if the CMT amendments, and any amendments made to it after that commencement, were not made:
- a reference in any other section of that subpart to a provision of the 2011 Act is therefore a reference to that provision as in force immediately before the commencement of the CMT Amendment Act:
- in new section 110A, 2011 Act means the Marine and Coastal Area (Takutai Moana) Act 2011, and CMT Amendment Act and CMT amendments have the meanings given in section 9(1) of the 2011 Act (as amended by that amendment Act):
new section 59A(g) is amended to delete the example (of a vesting of a title as owner to any part of the common marine and coastal area), given the holding in the 15 August 2025 decision that customary interests in and rights to the beds of navigable rivers have not been extinguished by section 261(2) of the Coal Mines Act 1979 and its predecessor, section 14(1) of the Coal-mines Act Amendment Act 1903:
new section 59B(1)(g) to (l) specifies judgments altered and overridden (to the extent that they express reasoning and conclusions about the requirements for recognition of customary marine title, and aspects of the law specified in new section 59A) unable to be specified in the Bill as reported from the Justice Committee on 3 December 2024 (clause 12):
new section 59B(2) and (3) ensures that the judgments specified in new section 59B(1)(g), (i), (j), and (l) are examples of judgments containing a CMT decision, a customary marine title order (whether or not sealed under section 113), or both, that must be taken to have no legal effect, and never to have had legal effect, under clause 4(1) and (3) of new Schedule 1AA (inserted by clause 11 of the Bill):
in clause 1 of new Schedule 1AA, the definition of the old law (which continues to apply to any interlocutory application, appeal, or rehearing related to a CMT decision made before or at midnight on 25 July 2024) is clarified so that the definition means specified provisions as interpreted by the courts before, at, or after that time:
clause 5 of new Schedule 1AA is amended to confirm that the applications that it authorises the Court to rehear include those in respect of which the Court in the interim period makes a CMT decision, or a customary marine title order (whether or not sealed under section 113), that must be taken to have no legal effect, and never to have had legal effect, under clause 4(1) or (3) of new Schedule 1AA.

The Honourable Paul Goldsmith, in Committee, to propose the amendments shown in the following document.

Hon Paul Goldsmith

Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill

Government Bill

83—2

	Preamble
1	Title
2	Commencement
	Part 1 Amendments to Marine and Coastal Area (Takutai Moana) Act 2011: general
	Amendments to principal Act
3	Principal Act
4	Preamble amended
5	Section 9 amended (Interpretation)
6	New sections 9A to 9C inserted
	9A	Customary marine title amendments: purposes and application
	9B	Customary marine title amendments: interpretation and overriding effect
	9C	Transitional, savings, and related provisions
6A	Section 51 amended (Meaning of protected customary rights)
7	New sections 57A and 57B and cross-heading inserted
		Interpretation matters
	57A	Meaning of exclusive use and occupation
	57B	Meaning of substantial interruption
8	Section 58 amended (Customary marine title)
9	Section 59 amended (Matters relevant to whether customary marine title exists)
10	Section 106 amended (Burden of proof)
11	New Schedule 1AA inserted
	Consequential amendment to Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
11AA	Principal Act
11AB	New section 110A inserted (Subpart unaffected by CMT amendments and later amendments to 2011 Act)
	110A	Subpart unaffected by CMT amendments and later amendments to 2011 Act
	Part 2 Amendment to Marine and Coastal Area (Takutai Moana) Act 2011: aspects of law altered by CMT Amendment Act
11A	Principal Act
12	New sections 59A and 59B inserted
	59A	Outline of aspects of law altered by CMT Amendment Act
	59B	~~Examples of judgments and parts of j~~Judgments given under this Act referred to in sections 9A and 9B
	Schedule New Schedule 1AA inserted into Marine and Coastal Area (Takutai Moana) Act 2011

Preamble

(1)

In 2023, in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252, the Court of Appeal interpreted provisions of the Marine and Coastal Area (Takutai Moana) Act 2011 about the requirements for recognition of customary marine title. The Court’s interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption). Amendments to those provisions are needed to ensure that they have the effect that Parliament intends. The enactment of this legislation makes those amendments:

(2)

The Court of Appeal’s interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption):

(3)

In 2024, in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea [2024] NZSC 164, [2024] 1 NZLR 857, the Supreme Court allowed an appeal by the Attorney-General against the Court of Appeal’s decision:

(4)

The Supreme Court stated its interpretation of those provisions, and held that the Court of Appeal was incorrect in its interpretation of them:

(5)

In 2025, in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua (Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea) [2025] NZSC 104, the Supreme Court decided the remaining issues under the appeals before it, and applied its interpretation of those provisions:

(6)

Amendments to those provisions are still needed, however, to ensure that they have the effect, and maintain the balance, that Parliament intends:

(7)

In particular, amendments to those provisions are still needed to—

(a)

define more strictly the requirements for exclusive use and occupation:

(b)

require inferences by a decision maker (including the Court) to be based on evidence of physical use and occupation:

(c)

clarify that, in the case of an application for, or to vary or cancel, a recognition order, the applicant group must prove that the group both—

(i)

holds the specified area in accordance with tikanga; and

(ii)

had exclusive use and occupation of the specified area from the start to the end of the applicable period without substantial interruption:

(8)

The enactment of this legislation makes those amendments:

The Parliament of New Zealand therefore enacts as follows:

1 Title

This Act is the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2024.

2 Commencement

This Act comes into force on the day after Royal assent.

Part 1 Amendments to Marine and Coastal Area (Takutai Moana) Act 2011: general

Amendments to principal Act

3 Principal Act

This Part amends the Marine and Coastal Area (Takutai Moana) Act 2011.

4 Preamble amended

(1)

In the Preamble, before recital (1), insert:

Background to Act as enacted

(2)

In the Preamble, after recital (4), insert:

Background to amendments made by CMT Amendment Act

(5)

In 2023, in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252, the Court of Appeal interpreted provisions of this Act about the requirements for recognition of customary marine title. The Court’s interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption). Amendments to those provisions are needed to ensure that they have the effect that Parliament intends. The enactment of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act ~~2024~~ ~~makes those amendments~~:

(6)

(7)

(8)

The Supreme Court stated its interpretation of those provisions, and held that the Court of Appeal was incorrect in its interpretation of them:

(9)

(10)

Amendments to those provisions are still needed, however, to ensure that they have the effect, and maintain the balance, that Parliament intends:

(11)

In particular, amendments to those provisions are still needed to—

(a)

define more strictly the requirements for exclusive use and occupation:

(b)

require inferences by a decision maker (including the Court) to be based on evidence of physical use and occupation:

(c)

clarify that, in the case of an application for, or to vary or cancel, a recognition order, the applicant group must prove that the group both—

(i)

holds the specified area in accordance with tikanga; and

(ii)

had exclusive use and occupation of the specified area from the start to the end of the applicable period without substantial interruption:

(12)

The enactment of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2024 makes those amendments:

5 Section 9 amended (Interpretation)

In section 9(1), insert in their appropriate alphabetical order:

applicable period, for a determination of whether customary marine title exists in a specified area of the common marine and coastal area (see sections 57A, 57B, 58, 59, 95, 98, and 106), means the period specified (as applicable)—

(a)

in section 58(1)(b)(i) (from 1840 to the present day); or

(b)

in section 58(3)(c)(ii) and for the purposes of section 58(1)(b)(ii) (from 1840 to the time of a customary transfer); or

(c)

in section 58(3)(d)(ii) and for the purposes of section 58(1)(b)(ii) (from the time of a customary transfer to the present day)

CMT Amendment Act means the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2024

CMT amendments means this Act’s provisions as amended, inserted, or replaced by the CMT Amendment Act

exclusive use and occupation has the meaning given in section 57A

substantial interruption has the meaning given in section 57B

6 New sections 9A to 9C inserted

Before section 10, insert:

9A Customary marine title amendments: purposes and application

Purposes

(1)

The purposes of the CMT amendments (for example, sections 57A, 57B, 58, 59, and 106) are—

(a)

to define the applicable requirements for recognising customary marine title (namely, requirements for, and for proof of, exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption); and

(b)

in particular, consistent with recitals (5) to (12) of the Preamble of this Act, to alter aspects of the law that are—

(i)

specified in section 59A; and

(ii)

in reasoning and conclusions expressed in judgments~~, or parts of judgments,~~ given under this Act that include, for example, ~~the parts of~~ the judgments specified in section 59B.

Application

(2)

The customary marine title decisions, agreements, and orders to which the CMT amendments apply are specified in Part 1 of Schedule 1AA.

9B Customary marine title amendments: interpretation and overriding effect

Provisions to which duty applies

(1)

This section applies to—

(a)

the CMT amendments; and

(b)

in particular, sections 57A, 57B, 58, 59, and 106 of this Act.

Duty to interpret provisions to promote their purposes and application

(2)

A decision maker (including the Court) must interpret the CMT amendments in a way that promotes their purposes and application (as stated in section 9A).

Overriding effect

(3)

This section prevails over—

(a)

section 4 (purpose) (including, without limitation, that purpose as given effect to through sections 4(2)(a) and (c) and 6(1)):

(b)

section 7 (Treaty of Waitangi (te Tiriti o Waitangi)):

(c)

the reasoning and conclusions (about the requirements for recognition of customary marine title, and aspects of the law specified in section 59A) that are expressed in ~~the parts of~~ the judgments given under this Act that are specified in section 59B, and any reasoning and conclusions that are—

(i)

to the same effect, or to materially similar effect, in substance; and

(ii)

expressed in any other judgment~~, or part of a judgment,~~ given under this Act.

9C Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

6A Section 51 amended (Meaning of protected customary rights)

In section 51(1)(c), replace “is not” with “has not been”.

7 New sections 57A and 57B and cross-heading inserted

In Part 3, after the subpart 3 heading, insert:

Interpretation matters

57A Meaning of exclusive use and occupation

(1)

This section applies to a group or its members that is or are—

(a)

an applicant group; or

(b)

making a customary transfer; or

(c)

a group or members of a group to whom a customary transfer was made.

(2)

This section defines whether, for the purposes of this Act, the group or its members has, had, or have exclusive use and occupation of a specified area of the common marine and coastal area from the start to the end of the applicable period without substantial interruption.

(3)

The group or its members has, had, or have exclusive use and occupation of the area from the start to the end of the applicable period without substantial interruption only if the group or its members had both the intention and the ability to control the area, to the exclusion of others, from the start to the end of the applicable period without substantial interruption.

57B Meaning of substantial interruption

In this Act, substantial interruption, to a group’s exclusive use and occupation of a specified area of the common marine and coastal area,—

(a)

means any 1 or more substantial interruptions to 1 or both of the following:

(i)

the group’s use and occupation of that area:

(ii)

the exclusivity of the group’s use and occupation of that area:

(b)

requires a decision maker (including the Court) to consider the nature, extent, duration, and cause of any interruption to the group’s exclusive use and occupation of the specified area:

(c)

can be caused (without limiting paragraph (a)) by use and occupation carried out, or an activity (including, without limitation, an activity that is or includes fishing or navigation) carried out,—

(i)

wholly or partly in that area; and

(ii)

by a person, or persons, who did not belong to the group; and

(iii)

with ~~or without any~~ authorisation by or under legislation or otherwise lawfully:

(d)

can be caused (without limiting paragraph (a)) by changes to the use and occupation carried out, or to an activity carried out,—

(i)

wholly or partly in that area; and

(ii)

by a person, or persons, who did belong to the group; and

(iii)

with ~~or without any~~ authorisation by or under legislation or otherwise lawfully:

(e)

can be caused (without limiting paragraphs (a) to (d)) by the combined or cumulative effects of, or of changes to, 2 or more activities of the kind described in paragraph (c) or (d):

(f)

has not occurred (despite paragraphs (a) to (e)) only because, in relation to that area, an activity is carried out wholly or partly in that area under a resource consent granted at any time between—

(i)

the commencement of this Act; and

(ii)

the effective date.

8 Section 58 amended (Customary marine title)

(1)

After section 58(1), insert:

(1A)

In considering whether the requirements of subsection (1)(b)(i), (3)(c)(ii), or (3)(d)(ii) are met, no inference may be drawn about all or any of the geographic scope, continuity, or exclusivity of a group’s use and occupation of a specified area in a period unless that inference—

(a)

is based on evidence of a physical activity, or of a use, related to natural and physical resources (within the meaning of section 2(1) of the Resource Management Act 1991) in all or part of the area, by the group in that period; and

(b)

is not based on a spiritual or cultural association with all or part of the area unless that association is manifested in a physical activity, or in a use, related to natural and physical resources (within the meaning stated in paragraph (a)) in all or part of the area, by the group in that period.

(2)

Repeal section 58(2).

(3)

Replace section 58(4) with:

(4)

Customary marine title does not exist if the applicant group’s customary interest proposed to be recognised in that title is has been extinguished as a matter of law.

(5)

For the purposes of subsection (4), the applicant group’s customary interest proposed to be recognised in customary marine title is has been extinguished as a matter of law if, in relation to a specified area of the common marine and coastal area,—

(a)

legal title was vested, before 17 January 2005, in a legal person or a group, other than the applicant group, by any means, including—

(i)

Crown grants made by or under any lawful authority, including ordinances, statutes, or the prerogative; or

(ii)

the common law; or

(iii)

a statutory vesting; or

(iv)

administrative action; or

(b)

an interest has been established before, on, or after 17 January 2005 that is legally inconsistent with exclusive use and occupation of the area by the applicant group.

(6)

Subsection (5)(a) or (b) applies even if the person is the Crown or a local authority and is, under section 11(3), divested of that title as owner, because—

(a)

section 11(3) does not revive customary interests in any part of the common marine and coastal area that existed before any vesting of title, or establishment of an interest, divested under section 11(3); and

(b)

section 6 only restores and gives legal expression in accordance with this Act to customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004.

(7)

Subsection (4)—

(a)

does not limit section 57B (which sets out the requirements for determining whether substantial interruption has occurred to an applicant group’s exclusive use and occupation); and

(b)

is not limited by subsections (5) and (6) (which state some ways, but not the only ways, that the applicant group’s customary interest proposed to be recognised in customary marine title is has been extinguished as a matter of law for the purposes of subsection (4)).

9 Section 59 amended (Matters relevant to whether customary marine title exists)

(1)

Replace section 59(1) and (2) with:

(1)

Matters to which a decision maker (including the Court) must have particular regard in determining whether customary marine title exists in a specified area of the common marine and coastal area include whether the applicant group or any of its members—

(a)

own land abutting all or part of the specified area and have done so, without substantial interruption, for all of the applicable period:

(b)

exercise non-commercial customary fishing rights in all or part of the specified area, and have done so for all of the applicable period:

(c)

exercise non-commercial customary fishing rights in named fishing grounds in all or part of the specified area, and have done so for all of the applicable period:

(d)

have marae near all or part of the specified area.

(2)

To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(b).

(2A)

In complying with subsection (1)(a), (b), or (c), the decision maker must also have particular regard to the extent to which there has been such ownership, or such exercise of fishing rights in the specified area, for all of the applicable period.

(2)

In section 59(3), after “does not, of itself, preclude the applicant group from establishing the existence of customary marine title”, insert “, unless that use causes or contributes to substantial interruption under section 57B”.

(3)

In section 59(4), replace “subsection (1)(a)(i)” with “subsection (1)(a)”.

10 Section 106 amended (Burden of proof)

Replace section 106(2) with:

(2)

In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the group—

(a)

holds the specified area in accordance with tikanga, as required by section 58(1)(a); and

(b)

had exclusive use and occupation of the specified area from the start to the end of the applicable period without substantial interruption, as required by section 58(1)(b)(i) or (ii).

11 New Schedule 1AA inserted

Before Schedule 1, insert the Schedule 1AA set out in the Schedule of this Act.

Consequential amendment to Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019

11AA Principal Act

Section 11AB amends the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.

11AB New section 110A inserted (Subpart unaffected by CMT amendments and later amendments to 2011 Act)

Before section 111, insert:

110A Subpart unaffected by CMT amendments and later amendments to 2011 Act

(1)

For the purposes of this subpart, the 2011 Act (as referred to in, and applied by, this subpart) continues to apply—

(a)

as it was in force immediately before the commencement of the CMT Amendment Act; and therefore

(b)

as if the CMT amendments, and any amendments made to it after that commencement, were not made.

(2)

A reference in any other section of this subpart to a provision of the 2011 Act is therefore a reference to that provision as in force immediately before the commencement of the CMT Amendment Act.

(3)

In this section,—

2011 Act means the Marine and Coastal Area (Takutai Moana) Act 2011

CMT Amendment Act and CMT amendments have the meanings given in section 9(1) of the 2011 Act (as amended by that Amendment Act).

Part 2 Amendment to Marine and Coastal Area (Takutai Moana) Act 2011: aspects of law altered by CMT Amendment Act

11A Principal Act

This Part amends the Marine and Coastal Area (Takutai Moana) Act 2011.

12 New sections 59A and 59B inserted

After section 59, insert:

59A Outline of aspects of law altered by CMT Amendment Act

The altered aspects of the law referred to in section 9A(1)(b) include alterations made by provisions that—

(a)

define a group’s exclusive use and occupation of a specified area of the common marine and coastal area from the start to the end of the applicable period:

(b)

require the group’s use and occupation of the area to be exclusive in that the group has had both the intention and the ability to control that area, to the exclusion of others, from the start to the end of the applicable period:

(c)

require that no substantial interruption has occurred to the group’s exclusive use and occupation of that area from the start to the end of the applicable period:

(d)

define substantial interruption to the group’s exclusive use and occupation of that area as meaning any 1 or more substantial interruptions to 1 or both of the following:

(i)

the group’s use and occupation of that area:

(ii)

the exclusivity of the group’s use and occupation of that area:

(e)

clarify how substantial interruption to the group’s exclusive use and occupation of that area can be caused, and when it has not occurred:

(f)

clarify what inferences are permitted, and require particular regard to be had to specified matters, in determining whether the group has had exclusive use and occupation of that area from the start to the end of the applicable period without substantial interruption:

(g)

clarify when the applicant group’s customary interest proposed to be recognised in customary marine title is has been extinguished as a matter of law by a vesting of a title as owner to any part of the common marine and coastal area ~~(for example, to the bed of a navigable river, to the extent that the bed of the river is any part of that area)~~:

(h)

clarify what the group must prove in an application for the recognition of customary marine title in that area.

59B Examples of judgments and parts of jJudgments given under this Act referred to in sections 9A and 9B

Examples of judgments altered and overridden

(1)

~~Examples of t~~The judgments ~~and parts of judgments~~ referred to in sections 9A(1)(b) and 9B(3)(c) as being altered and overridden include, ~~without limitation~~for example, the following ~~parts of~~ judgments (to the extent that they express reasoning and conclusions about the requirements for recognition of customary marine title, and aspects of the law specified in section 59A):

(a)

Colin Francis Reeder and Ngā Pōtiki ā Tamapāhore Trust on behalf of Ngā Pōtiki [2021] NZHC 2726, [2022] 3 NZLR 304 (12 October 2021) ~~at [29]~~–~~[41], relating to the meaning of exclusive use and occupation from 1840 to the present day~~:

(b)

Ngāti Pāhauwera and others [2021] NZHC 3599 (22 December 2021) ~~at [178]~~–~~[180] and [462], relating to the meaning of exclusive use and occupation in accordance with tikanga~~:

(c)

Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 (18 October 2023) ~~at [109], [416], [426]~~–~~[430], [434], and [435]~~–~~[437], relating to the meaning of exclusive use and occupation without substantial interruption (section 58(1)(b)), including where the burden of proof lies (under section 106)~~:

(d)

Ngāi Tūmapūhia-ā-Rangi Hapū Inc on behalf of Ngā Uri o Ngāi Tūmapūhia ā Rangi Hapū and others [2024] NZHC 309 (26 February 2024) ~~at [88]~~–~~[93], [103], [107] and [108], [192] and [193], and [620]~~–[625], relating to the meaning of exclusive use and occupation without substantial interruption, the relevance of tikanga to that test, and including the burden of proof and the requirement for continuity:

(e)

Ngā Hapū o Tokomaru Ākau and others [2024] NZHC 682 (25 March 2024; reissued redacted version 1 May 2024) ~~at [100]~~–~~[104], [105]~~–~~[108], and [393]~~–~~[395], relating to the meaning of use and occupation, exclusivity, substantial interruption, and the burden of proof under section 106~~:

(f)

Muriwai Maggie Jones on behalf of Ngāi Tai Iwi and the Uri of Ngāi Tai Iwi [2024] NZHC 1373 (28 May 2024; reissued 29 May 2024) ~~at [112] and [116], relating to the scope of substantial interruption and continuity.~~:

(g)

Re Papa [2024] NZHC 3610 (29 November 2024):

(h)

Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea [2024] NZSC 164, [2024] 1 NZLR 857 (2 December 2024):

(i)

Re Te Hika o Pāpāuma Mandated Iwi Authority [2024] NZHC 3745 (10 December 2024) and Re application for orders recognising Customary Marine Title and Protected Customary Rights [2025] NZHC 1523 (11 June 2025):

(j)

Re Taueki (Ngāti Tamarangi) [2025] NZHC 1488 (9 June 2025):

(k)

Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua (Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea) [2025] NZSC 104 (15 August 2025):

(l)

Re Application by Hutchinson (on behalf of Landowners of Ruapuke Island Group) [2025] NZHC 2400 (22 August 2025).

Examples of judgments containing decision, order, or both, that must be taken to have no legal effect, and never to have had legal effect

(2)

The judgments specified in subsection (1)(g), (i), (j), and (l) are examples of judgments that contain a CMT decision, a customary marine title order, or both, that must under clause 4(1) and (3) of Schedule 1AA be taken to have no legal effect, and never to have had legal effect.

(3)

Subsection (2) does not limit clause 4 of Schedule 1AA.

Schedule New Schedule 1AA inserted into Marine and Coastal Area (Takutai Moana) Act 2011

s 11

Schedule 1AA Transitional, savings, and related provisions

ss 9A, 9C, 59B

Part 1 Provisions relating to CMT Amendment Act

1 Definitions

In this Part, unless the context otherwise requires,—

announcement time means midnight on 25 July 2024

commencement means the commencement of the CMT Amendment Act

CMT Amendment Act has the meaning given in section 9(1)

CMT amendments has the meaning given in section 9(1)

CMT decision means a decision relating to whether customary marine title exists in a specified area of the common marine and coastal area and that is—

(a)

a decision made by the responsible Minister on behalf of the Crown relating to a notice of intention (see section 95)—

(i)

to seek an agreement recognising customary marine title; and

(ii)

given by an applicant group; or

(b)

a decision made by the Court (as defined in this clause) relating to an application (see sections 98 and 100)—

(i)

for a recognition order recognising customary marine title; and

(ii)

made by an applicant group

decision made by the Court, for the purposes of paragraph (b) of the definition of CMT decision, includes, but is not limited to, each of the following done, made, or issued by or on behalf of the Court:

(a)

an interlocutory decision (for example, a direction, minute, or order) of any kind:

(b)

any consideration or any hearing, of any kind, in part or in full, of 1 or both of—

(i)

an interlocutory matter:

(ii)

a substantive matter:

(c)

a substantive decision (for example, a direction, minute, or order) of any kind

interim period means the period that—

(a)

starts at the announcement time; and

(b)

ends on the commencement

old law means the following provisions (as in force before the announcement time, and as interpreted by courts before, at, or after that time):

(a)

subpart 3 (customary marine title) of Part 3 (customary interests):

(b)

provisions of this Act that relate to that subpart (for example, related definitions in section 9 and related provisions in section 106 (burden of proof)).

2 CMT amendments do not apply to CMT decision made at announcement time

Main rule

(1)

The CMT amendments do not apply to or affect a CMT decision made—

(a)

before or at the announcement time; and

(b)

under the old law.

(2)

The CMT amendments also do not apply to or affect the following, made before the announcement time, that give effect to a CMT decision of a kind specified in subclause (1):

(a)

an agreement made and entered into under section 95 that recognises and provides for customary marine title:

(b)

a customary marine title order made under section 98(1) that recognises customary marine title.

Related interlocutory applications, appeals, or rehearings

(3)

The old law continues to apply ~~for~~ to any interlocutory application, appeal, or rehearing related to a CMT decision of a kind specified in subclause (1).

If CMT decision not given effect to in agreement or order

(4)

This clause applies even if, at the announcement time, a CMT decision of a kind specified in subclause (1) is not given effect to in—

(a)

an agreement made and entered into under section 95 that recognises and provides for customary marine title; or

(b)

a customary marine title order made under section 98(1) that recognises customary marine title.

(5)

A CMT decision to which subclause (4) applies may, after the announcement time, be given effect to in an agreement or an order specified in subclause (4)(a) or (b).

3 CMT amendments apply to CMT decision made after announcement time

Main rule

(1)

The CMT amendments apply to a CMT decision made after the announcement time.

Related interlocutory applications, appeals, or rehearings

(2)

The CMT amendments apply ~~for~~ to any interlocutory application, appeal, or rehearing related to a CMT decision of a kind specified in subclause (1).

Effect of consideration, without decision, at announcement time

(3)

This clause applies even if, at the announcement time,—

(a)

the Crown has considered, but has not decided, whether the applicant group has satisfied the Crown that the group has satisfied the requirements of the old law; or

(b)

the Court has considered, but has not decided, whether the applicant group has satisfied the Court that the group meets the requirements of the old law.

4 Certain CMT decisions made in interim period, and related agreements and orders made, have no legal effect and never have had legal effect

CMT decisions based on old law (as in force in interim period)

(1)

A CMT decision must be taken to have no legal effect, and never to have had legal effect, if it was made—

(a)

in the interim period; and

(b)

in accordance with the old law (as in force in the interim period).

Related agreements

(2)

An agreement must be taken to have no legal effect, and never to have had legal effect,—

(a)

if it was made and entered into—

(i)

in the interim period; and

(ii)

under section 95; and

(b)

to the extent that it gives effect to a CMT decision to which subclause (1) applies.

Related customary marine title orders

(3)

A customary marine title order (whether or not sealed under section 113) must be taken to have no legal effect, and never to have had legal effect, if it—

(a)

was made—

(i)

in the interim period; and

(ii)

under section 98(1); and

(b)

gives effect to a CMT decision to which subclause (1) applies.

5 Court may continue to hear, or rehear, affected applications

Application to which clause applies

(1)

This clause applies to an applicant group’s application for a recognition order for customary marine title if, at the announcement time, the Court has considered, but has not decided, whether the group has satisfied the Court that the group meets the requirements of the old law.

(1A)

Subclause (1) applies whether or not the Court in the interim period makes in respect of the application 1 or both of the following:

(a)

a CMT decision to which clause 4(1) applies:

(b)

a customary marine title order to which clause 4(3) applies.

Court may continue to hear, or rehear, all, or any part of, application

(2)

The court may, after the commencement, and in a way that complies with clause 3,—

(a)

continue to hear or rehear, all, or any part of, the application; and

(b)

invite and consider related further submissions from all or any parties to, or other participants in, the application.

6 No entitlement to compensation

A person is not entitled to compensation of any kind on account of the operation of the CMT amendments.

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