Treaty Negotiations and Justice Minister Paul Goldsmith is leading the Government amendments to foreshore and seabed legislation. Photo / Mark Mitchell
Treaty Negotiations and Justice Minister Paul Goldsmith is leading the Government amendments to foreshore and seabed legislation. Photo / Mark Mitchell
The Supreme Court has just released a judgment on customary rights to rivers and beaches in the Eastern Bay of Plenty.
This judgment, the second of two, covers separate appeals from seven groups on whether recognition can be granted to rivers within a given marine and coastal area.
Itfound that navigable rivers – that is a river wide and deep enough to be used by boats – do meet the definition of a “marine and coastal area” and can be included in customary marine claims in court, if all other requirements under the law are met.
“The beds of navigable rivers meet Maca’s definition of “marine and coastal area”, and therefore recognition orders may be made in relation to them if the other requirements in Maca are met."
The judgment also covers the application of the two-pronged customary rights test, which has been the subject of much public and parliamentary debate.
A previous Court of Appeal ruling in 2023 effectively lowered the test for iwi seeking customary title in parts of coastal New Zealand.
This triggered a point in the coalition agreement between National and NZ First to return the test to Parliament’s original intent.
Justice Minister Paul Goldsmith has confirmed the Government intends to tighten the rules for iwi to be granted customary rights to the foreshore and seabed. Photo / Mark Mitchell
They need to prove they hold the area in accordance with tikanga (Māori customs and practices) and have exclusively used and occupied the area from 1840 to the present day without substantial interruption.
The Court of Appeal effectively criticised the second leg of the test (exclusive use without substantial interruption) as meaning too few groups would qualify.
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests.”
The 2023 ruling effectively revised the test to require applicants to have held the area at 1840, rather than from 1840 to the present.
However, late last year, the Supreme Court ruled against the Court of Appeal. For a moment, legislation to toughen the test was put on the back burner while Government lawyers considered whether a new bill was necessary.
“The Supreme Court ruling ... was helpful but, after appropriate consideration, the Government has decided it doesn’t go far enough.
“We will progress with the bill currently before the House, which ensures these tests for applications directly with the Crown, or through the courts, are upheld as originally intended.”
The Government intends to pass the new legislation by the end of October.
