15 August 2026

Amendments to the Marine and Coastal (Takutai Moana) Act 2011

On 24 October 2025, Parliament enacted the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 (the Amendment Act).  These amendments make significant changes to the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act), particularly in relation to how the legal test for customary marine title (CMT) is assessed.

The amendments were introduced following a series of Court of Appeal and Supreme Court decisions, with Parliament signalling that further clarification was needed to ensure the Amendment Act reflects its intended balance.

Following last year’s amendments to the Act, a number of rehearings have been set down in the High Court so that the Court can look at applications based on the new legal test.  With these rehearings underway, there are key changes to be aware of.

What is Customary Marine Title?

Customary marine title recognises customary interests that iwi, hapū, and whānau have had in the common marine and coastal area since 1840.  Customary marine title can’t be sold and public access, fishing and other recreational activities in a customary marine title area are unaffected (except for some lawful restrictions, including for the protection of wāhi tapu and wāhi tapu areas).

Applications were filed by various iwi, hapū and whānau groups before the cut off in 2017 advising of their interests in their respective coastlines and in the common marine and coastal area since 1840.  Applications were made either to the High Court or through Crown engagement.  Since 2017, the High Court has heard multiple applications with a handful of final determinations released granting CMT to applicants, but no High Court order has yet been sealed.

Summary of the Amendments

The key change is to the legal test under section 58 of the Act

Applicant groups must now prove that they hold the specified area in accordance with tikanga, and that they have had exclusive use and occupation of that area from 1840 to the present day, without substantial interruption. This requirement is now clearly reinforced, with the burden resting fully on the applicant group, rather than third parties.

The amendments also introduce stricter definitions of key concepts

Under the new section 57A, exclusive use and occupation requires that the group had both the intention and the ability to control the area, to the exclusion of others, across the full applicable period.

Section 57B now defines substantial interruption in detail

This includes any interruption to either the group’s use and occupation, or the exclusivity of that use. The Court must consider the nature, extent, duration, and cause of any interruption. Importantly, interruption can arise from lawful activities carried out by others (such as fishing or navigation), from changes in how the group itself uses the area, or from the cumulative effect of multiple activities over time.

The amendments also clarify the type of evidence required

Section 58 now provides that no inference about the extent, continuity, or exclusivity of use can be made unless it is based on evidence of physical activity or use of natural and physical resources. Cultural or spiritual association alone is not sufficient unless it is demonstrated through physical use.  This means that the spiritual belief must be manifested through physical activity.

Finally, the amendments apply retrospectively, meaning decisions made after 25 July 2024 will need to be reconsidered under the new framework.  There are various applications that fall into this camp and are set to be rescheduled.  There is one hearing that has been reheard already, and two hearings scheduled for September and December this year.

What does this mean practically?

The amendments essentially raise the threshold for establishing CMT, which means the legal test under the Amendment Act is harder for applicants to prove.     Applicant groups must now provide detailed and continuous evidence showing both use and control of the area from 1840 to the present, and must carefully address any potential interruptions.

The retrospective nature of the amendments requires some applications to be reheard, increasing cost and delay. At the same time, the possibility of further law reform means applicants need to remain flexible while progressing their claims under the Amendment Act.

If you need legal advice or support with your MACA application, our Kahurangi Tiriti team is here to help. We are committed to providing practical guidance and supporting you throughout your takutai moana journey.

Carmen Mataira, Hakaraia Richards-Coxhead and Tawera Marsh all work in our Kahurangi Tiriti team and are able to assist – please contact the team on 07 958 7444.