The Courts have significantly lowered the threshold for Māori groups to acquire exclusive rights over the foreshore and seabed, signaling the likely success of hundreds of other claims around New Zealand.
The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) gave iwi and hapū groups the right to seek ‘customary marine title’ (CMT) over the foreshore and seabed with which they have had a longstanding and exclusive history of use and occupation. When the National Government passed the Act in 2011, then Attorney-General, Chris Finlayson, assured the country that the criteria for gaining CMT were stringent, and that only around 10 percent of New Zealand’s coastline would be awarded, all in remote areas.
On the face of it, the wording of the relevant parts of the Act seems straightforward. To qualify for CMT, under Section 58 the applicants must meet the following requirements:
“Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
• holds the specified area in accordance with tikanga; and
• has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.
At the time of the introduction of the legislation, the Attorney General assured the public that tikanga is only one of the elements that would be taken into account alongside other elements like exclusive use and occupation. However, the Courts have taken a different view. In his controversial decision in 2021 concerning ‘the Edwards case’, Justice Churchman elevated ‘tikanga’ above the need to consider the second limb of the test, which is whether the areas had been used and occupied exclusively and continuously since 1840. The judge found that the concept of exclusion was inconsistent with the tikanga values of ‘manaakitanga’ and ‘whanaungatanga.’ As a result of this finding, areas that received multiple claims by various groups, thought by many to be grounds for instant disqualification, are allowed based on the tikanga-based concept of “shared exclusivity.”
Additionally, it was determined by the Court of Appeal that the test for “substantial interruption” should be read as requiring that the applicant group’s use and occupation of the area was not substantially interrupted by lawful activities carried on by others.
Because of such rulings, most of New Zealand’s foreshore and seabed is likely to end up awarded to multiple Māori groups. That is, unless the new government enacts an urgent law change to better reflect the intention of parliament.
Additionally, the Court of Appeal ruling extends to the beds of navigable rivers
The High Court finding that CMT cannot be held over the beds of navigable rivers has been overturned by the Court of Appeal. The Court ruled that: “CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.” The parts of the rivers that fall within that definition would be either up to 1km upstream or five times the river’s width at the mouth, whichever is the lesser.
What are the rights awarded under a Customary Marine Title?
Customary title is a different sort of title from fee simple title. It is inalienable - the land cannot be sold. A CMT applies to the foreshore and seabed, (or riverbed), as well as the air space and water space above the land, (but not the water), the subsoil, and the bedrock below. The area includes the wet part of the beach all the way out to the 12 nautical mile limit of the territorial sea.
Once granted, the holders of a customary marine title in specific parts of the common marine and coastal area will have:
• the right to permit (or withhold permission for) activities requiring a resource consent in the area covered by the title. This could include the building of new wharves or aquaculture permits;
• the right to permit (or withhold permission for) certain conservation processes (e.g. establishing or extending a marine reserve, and establishing or extending conservation protected areas);
• a permission right regarding applications for concessions in the customary marine title area;
• the right to prepare a planning document setting out their objectives and policies which would be recognised and provided for in the customary marine title area by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be considered in those areas;
• the ownership of non-nationalised minerals within the customary title area. This includes the right to mining royalties from the date a claim is lodged. (Most of the over 580 applications for the recognition of customary rights were filed just before the statutory deadline of 3 April 2017);
• certain rights in relation to the New Zealand Coastal Policy Statement;
• the right to be notified and consulted when other groups apply for marine mammal watching permits;
• the ability to prohibit or restrict access to wahi tapu areas;
• prima facie ownership of newly found taonga tuturu (historical artefacts).
The above provisions will allow for environmental management and economic development to be placed in the hands of local iwi or hapū groups. A customary marine title holder will be able to stop anyone seeking a resource consent from some activity in the area for which they hold customary marine title. (There are some activities to which this permission right will not apply, such as re-consenting for existing aquaculture; existing infrastructure work, maintenance, and upgrades; emergency activities, and scientific research or monitoring).
Significant taxpayer subsidies for claimants
Claimant groups can access up to $458,000 of activity funding, and the ‘actual and reasonable’ costs directly related to preparing for and participating in court proceedings. Despite such generous help being made available, the Waitangi Tribunal found that the Marine and Coastal Area (Takutai Moana) Act is in breach of the Treaty because it had not funded all costs incurred by the applicants going through the process. In response, in 2021 the Labour Government Minister for Treaty Negotiations, Andrew Little, announced a new strategy to provide more resources for the applicant groups to research and establish their claims. This includes the government department ‘Te Arawhiti’ helping with research and evidence gathering needed to satisfy the legal tests set out in the legislation.
Funding is also available for iwi and hapū groups who have not made an application under the Act, but who want to represent their customary interests in part of the marine and coastal area where another group has applied to have their customary interests recognised.
On the other hand, there is no financial assistance available for anyone wanting to oppose the claims. They must pay research, legal fees, and other associated costs themselves. Thanks to this policy, those working to defend the public interest or commercial interests in the marine and coastal area are at a serious disadvantage. Therefore, opposition to the claims is limited and spasmodic.
Marine and Coastal Area (Takutai Moana) Act 2011
Judgment (no. 2) of Churchman J. 7 May 2021
Court of Appeal Decision: Whakatōhea Kotahitanga waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors
The Office for Māori Crown Relations: funding guidelines
Media Release - Attorney General 7 Sept 2010 ‘Marine and Coastal Area Bill introduced - guarantees public access’
Over 580 claims have been lodged for customary title and/or customary rights in the foreshore and seabed, covering the entire coastline of New Zealand out to the limit of the territorial sea, often with multiple claims over the same area.
A customary marine title holder will be able to stop anyone seeking a resource consent from some activity in the area for which they hold customary marine title.