Interim guidance on land status
investigation and mapping to support
claims for Customary Marine Title
Context
This interim guidance has been developed by the Surveyor-General to support applicant
groups under the Marine and Coastal Area Act (Takutai Moana) Act 2011 (the Act). It is
preliminary and subject to change.
It is intended for use by professionals with expertise in statutory property investigations,
surveying and mapping.
Overview
The mapping of areas subject to a claim for Customary Marine Title (CMT) needs to
provide sufficient information to enable the Court to make a decision on the extent of the
CMT area.
Ideally the maps should include sufficient detail to enable the ready production of a
survey plan that meets the requirements of s109(4)(a) of the Act, which includes
complying with the Rules for Cadastral Survey. That survey plan will need to be prepared
by a Licensed Cadastral Surveyor who will lodge it as a Cadastral Survey Dataset (CSD) for
approval and integration into the cadastre
1.
However while a high level of accuracy is required at the end of the claim process, these
guidelines are intended to allow flexibility in the level of detail at earlier stages. This is
partly to avoid the significant effort that can be involved in accurately locating the
under the Official Information Act 1982
boundaries where the claim for CMT is not recognised.
The guidelines are also intended to assist the Court by enabling the provision of maps
that provide a reliable depiction of the extent of the Common Marine and Coastal Area
(CMCA). The extent of the CMT area is constrained by the boundaries of the CMCA as
defined in the Act.
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The maps will need to show the extent of the CMCA being claimed as CMT.
The landward boundaries of the CMCA are defined by the provisions in the Act. These
extents have a maximum limit at the line of Mean High Water Springs (MHWS). However
below that line the Act excludes categories of land from the CMCA (see definition of
1 Surveyors preparing such a CSD should initially seek specialist advice from Toitū te Whenua LINZ with a
Survey Information
– Complex request.
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CMCA), and hence from any CMT. For example, a Crown reserve, national park, or
conservation area; and specified freehold land (see definition in Act) including Māori land
and Land Transfer land. Other lands of the Crown, local authority land (including
reserves) and some unformed roads became part of the CMCA on the passing of the Act
(s11). It is important to note, however, that the cadastre was not updated to depict the
change to boundaries that resulted from the divestment of title to Crown and local
authority land that occurred on the passing of the Act. The cadastre depicts the extents
of parcels of land for which rights have been created following approval of survey plans,
as required by the Cadastral Survey Act 2002.
The final survey plans of a CMT area will be used to update the cadastre to accurately
1982
reflect the legal extents of CMT and the adjoining land. The specifications for those
survey plans are likely to require changes to, or dispensations from, the Rules for
Act
Cadastral Survey 2021.
Determining the line of MHWS
Locating the line of MHWS is crucial for determining the boundary of the CMCA and
hence the boundary of any claim for CMT.
The line of MHWS is a ‘movable’ boundary under the common law doctrine
Information of accretion
and erosion. As the line can move with time (depending on the underlying topography as
well as any long-term change in sea level), its location need not be accurately determined
at any given point in time. The line should be sufficiently accurate to locate it correctly in
relation to the adjacent parcels.
Official
The cadastre records the coastal boundaries in the position in which they were last
the
defined on a survey plan. In most cases this was a long time ago, perhaps over 100 years.
The location recorded in the cadastre may therefore no longer align with the current
location of the boundary. The difference between the line of Mean High Water Mark
(MHWM) used on older surveys and the line of MHWS can be ignored on the maps
under
prepared for a CMT claim.
Spatial data that accurately maps the line of MHWS (or alternatively the line of MHWM)
may be available from regional councils, Crown research organisations or Toitū te
Whenua LINZ.
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Alternatively, the line may be able to be adequately interpreted from aerial imagery or
lidar data.
The location of the line of MHWS can be particularly difficult to determine in estuarine
areas.
Noting the provisions in s13 of the Act that recognise changes in the boundaries of the
marine and coastal area, the Surveyor-General’s preliminary view is that field
determination of the line of MHWS is not necessary.
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Determining the CMT Boundaries
The landward extents of a CMT will often be determined by the intersection of the line of
MHWS with the boundaries of parcels in the cadastre, as specified by the CMCA
provisions in the Act. Determining the status of the land that is potentially affected and
applying the provisions of the Act can require complex and time-consuming work.
The final survey plan will accurately define the extents of the CMT and its relationship to
the abutting lands, as approval of the survey plan will result in any intersected parcels
being updated in the cadastre. The final map of the extents of CMT determined by the
Court does not need to be so detailed but should be sufficient to clearly indicate where
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the boundary is intended to lie, while not extending beyond the boundaries of the CMCA.
The guidance below allows for appropriate CMT boundaries to be mapped at a low
Act er
level of accuracy, with a description of the intended location of the boundary. This is
intended for boundaries are not in doubt, noting that the survey plan will define them
accurately and legally in accordance with the Court intentions.
CMT maps for the initial stage of the Court process should be indicative only, to avoid
unnecessary work determining landward CMT boundaries that may not be recognised by
the Court.
Information
Use of annotation where the line of MHWS more or less
follows the existing cadastral boundaries
Official
Where the line of MHWS more or less follows the existing boundaries depicted
in the
cadastre (such as along a regular beachfront) the maps can annotate the CMT boundary
the
as
‘CMT boundary follows CMCA boundary’. This annotation is intended to be sufficient to
give all interested parties confidence that, from a practical perspective, the CMT claimed
or recognised includes all the ‘wet’ land up to the line of MHWS to the extent allowed by
the Act (i.e. the legal boundary o
under f the CMCA). This means that the CMT boundary will not
follow the line of MHWS but will coincide with the boundary of any parcels of land
excluded from the CMCA (such as specified freehold land) that lie below the line of
MHWS.
CMT in rivers
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The CMCA includes parts of the beds of rivers upstream from their mouth. The extent of
the CMCA up a river is not defined by the line of MHWS but by the definition of ‘coastal
marine area’ in the Resource Management Act 1991 (RMA). A claim for CMT that includes
CMCA that is the bed of a river will require more detailed assessment to determine its
extent.
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CMT boundaries in other areas including harbours, estuaries
and parcels under water
In remaining areas the extents of the CMCA are generally less certain and detailed
analysis is likely to be required.
Parcels that are below (wholly or in part) the line of MHWS need to be investigated to see
if they are specifically excluded from the CMCA under the Act (e.g. specified freehold
land, conservation area, etc.). The seaward boundaries of such excluded parcels may be
the boundaries of the CMCA and CMT.
Where the line of MHWS intersects a parcel that is not excluded under the Act, including
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some unformed roads, the boundary of the CMCA will most likely be at that line.
Act
Investigation of the status of these parcels will involve interpretation of titles, statutory
actions, related legislation, etc. against the criteria in the Act. In particular, investigation
of land owned by the Crown or local authorities often requires specialist expertise in land
status investigation. In exceptional cases, expert advice from Toitū te Whenua LINZ may
be required.
The resulting assessments of the CMCA and CMT relationship to existing boundaries
Information
should be to a standard that enables it to be relied upon by the Court, including for the
subsequent production of the survey plan (and CSD) for the recognition order.
Mapping Requirements Official
The maps:
the
•
should clearly depict the boundaries of the CMT claimed or recognised.
•
for CMT boundaries near the foreshore, should depict the line of MHWS in relation
to nearby cadastral boundaries.
under
•
should use aerial imagery as a base map.
•
should define (wet) CMT boundaries within the CMCA by either straight lines or
boundaries that are coincident with the boundary of the territorial sea (12-nautical
mile limit). Irregular lines should otherwise not be used.
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should present the information at scales sufficient to clearly show the relationship
of the CMT boundaries to cadastral boundaries.
•
should show the relationship to any adjoining area of CMT that is claimed or has
been recognised.
•
should depict the names of relevant rivers, place names and other contextual
information.
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•
should comply with the High Court Practice Note 2022/1
‘Mapping Guidelines for
applications to the High Court under the Marine and Coastal Areas (Takutai Moana)
Act 2011’ [HCPN 2022/1].
•
should be in terms of the NZTM2000 projection and include a NZTM2000 grid.
•
should be also available in digital spatial format (e.g. a shapefile) to support further
use.
Parcels excluded from the area of a CMT
Where it is known that a parcel of land is within the marine and coastal area (e.g. below
MHWS or in the bed of a river) but is excluded from the CMCA and hence the area of any
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CMT (i.e. specified freehold land, conservation areas, national parks or Crown reserves),
such a parcel should be depicted as in the cadastre even where it may have been affected
Act
by erosion. This includes parcels that are wholly below the line of MHWS.
Existing parcels included in the area of a CMT
The maps should depict any parcel of land from the cadastre that is within the CMCA and
within the area of CMT claimed because it is below (wholly or in part) the line of MHWS
and meets the criteria specified in the Act
2 (i.e. most Crown and local authority land, and
some unformed roads). The depiction should use symbology that clearly indi
Information cates that
the parcel is now within the CMCA and should include the parcel appellation where
possible.
Exemption from accurate determination of relationship to parcel boundaries
Official
Notwithstanding the previous two paragraphs, where the line of MHWS more or less
follows the existing boundaries depicted in the cadastre (such as along a regular
the
beachfront) the maps need not accurately depict the relationship between the boundary
of the area of CMT and parcels in the cadastre, but instead can annotate the CMT
boundary as
‘CMT boundary follows CMCA boundary’.
under
Surveyor-General
14 April 2022
Released
2 sections 11(3)-(4), 13(2) 14(3)-(5)
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