The rising tide of customary rights over the Foreshore and Seabed

In another shock decision made under the Marine and Coastal Area (Takutai Moana) Act, the High Court has recently awarded Māori groups customary title and other exclusive rights to the entire South Wairarapa coastline, stretching over approximately 150 kilometres. Justice Cheryl Gwyn granted five Customary Marine Titles over the area to multiple iwi and hapū groups. Three of these sections cover an area up to 3km out to sea from the high-water springs, while the other two extend out to 10km.

This decision follows the first Court of Appeal interpretation of the Act, which involves a 40km stretch of coastline near Ōpōtiki in the Bay of Plenty. In this case, ‘tikanga’ principles were given precedence over the common law test of exclusive use and occupation set out in the Act. Additionally, the Court accepted the concept of ‘shared exclusivity’. The dissenting judge in the majority ruling of that case noted that the Court of Appeal findings would make it “very much easier” for Māori to obtain customary rights. This prediction has proven true, as evidenced by the outcome of the case involving iwi and hapū claims to the Wairarapa coast.

In 2011, the Marine and Coastal (Takutai Moana) Area Act was passed by John Key’s National Government in collaboration with the Māori Party. This law repealed Crown ownership of the common marine and coastal area. Instead of the country’s foreshore and seabed being vested in the Crown on behalf of all New Zealanders, it became ‘public domain,’ thereby allowing Māori to seek customary title over the area.

The then Prime Minister John Key assured the public that only a “relatively small” amount New Zealand’s coast would end up going into customary title, and that most New Zealanders would notice no change.

However, this promise is proving to be false.

All New Zealand’s coastline is subject to claims.

There are still just under two hundred applications for the recognition of customary rights to be heard by the Courts. Additionally, around 385 applicants have chosen to seek the recognition of customary interests in the foreshore and seabed in direct negotiations with the Crown.

Currently, applications for the recognition of customary rights relating to the northern portion of the Wairarapa coast are being heard in the Wellington High Court. At the same time, fifteen Māori groups have applications currently being heard in the High Court for the Whāngarei Harbour.

Other areas where successful claimants have been granted customary rights in the common marine and coastal area include a 16km long stretch in Hawkes Bay; a section stretching from just south of Wairoa to south of Napier Harbour; Tauranga Harbour’s eastern-most arm; and around two islands southwest of Stewart Island.

Rights provided under the legislation

The Marine and Coastal Area Act creates three new types of legal interest, rights that are only available to Māori. They are:

a) ‘Customary Marine Title,’ (CMT), which is about some of the elements of ownership and possession;

b) ‘Protected Customary Rights, (PCR), which is about use and activities; and

c) a right for all affected iwi, hapū or whānau to participate in consultation processes in the common marine and coastal area.

Customary Marine Title

A Customary Marine Title is a comprehensive right that includes elements of ownership, although with certain conditions attached. The legislation ensures public access to the common marine and coastal area, as well as protection of navigation and fishing rights. The group holding a Customary Marine Title cannot sell the area but may transfer the title to other individuals within the same iwi or hapū in accordance with Maori customary practices, (tikanga). However, a CMT group may delegate the rights to others conferred by a customary marine title order. Once granted, the holders of a customary marine title have:

• the right to permit or withhold permission for activities requiring a resource consent in the area covered by the title, including infrastructure such as wharves and marine farms not specified as an accommodated activity under the Act;

• the right to permit or withhold permission for certain conservation processes (e.g. establishing a marine reserve);

• 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 taken into account in those areas;

• the ownership of non-nationalised minerals within the customary title area. For example, where a title is vested in an iwi or hapū over an area with iron sand deposits, those deposits belong to that iwi or hapū. The group is entitled to receive any royalties due to the Crown in respect of such minerals from the date on which an application for title is first lodged;

• prima facie ownership of newly found taonga tuturu (historical artefacts);

• the right to be consulted on matters such as marine mammal watching permits, and changes to Coastal Policy Statements;

• the ability to prohibit or restrict access to wahi tapu sites. Those who trespass may face fines of up to $5,000. A CMT group has the authority to use, benefit from, and develop the designated CMT area, including the ability to derive commercial benefits. The group is exempt from coastal occupation charges related to the area under the Resource Management Act.

Protected Customary Rights

Protected Customary Rights are centred on the use and practice of certain activities. These rights are defined as those that have been continuously exercised since 1840 in accordance with tikanga, whether in their original form or with adaptations over time, and are not legally extinguished. These rights can include traditional activities like gathering hāngi stones or launching waka in the common marine and coastal area.

Holders of a PCR are not required to obtain resource consent for customary activities, and local authorities cannot grant consent for activities that may negatively impact these rights. PCR holders can transfer or delegate their rights in line with tikanga. They can also gain commercial benefits such as selling sand or gravel. When exercising a PCR, a rights group is not obligated to pay coastal occupation charges or royalties for sand and shingle under the Resource Management Act 1991.

Notably, an applicant group does not need to have a land interest in or adjacent to the specified area of the marine and coastal zone to establish protected customary rights. The third entitlement is for all affected iwi, hapū or whānau to participate in consultation procedures in the common marine and coastal area. Affected iwi, hapū and whānau are those who practice kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga. The Director-General of Conservation must have regard to the views of such groups when making conservation decisions.

This extensive list of rights applied over large swathes of the New Zealand coastline makes a mockery of former Prime Minister John Key’s assurance that most people will notice no change. As a sign of things to come, iwi are demanding that the Port of Tauranga pay a mitigation fee of $75-100 million as a condition of their resource consent for expansion. Given the power conferred on iwi groups under MACA similar demands can be expected in the future unless the government makes changes to current legislation.

References

JUDGMENT OF GWYN J in the matter of an application for an order recognising Customary Marine Title and Protected Customary Rights under the Marine and Coastal Area (Takutai Moana) Act 2011 Marine and Coastal Area Act. Group M, Stage 1(A) Marine and Coastal Area (Takutai Moana) Act 2011