The Supreme Court has released a major judgment addressing a string of cases surrounding the interpretation of customary rights under the contentious Marine and Coastal Area (Takutai Moana) Act 2011 (Maca). Photo / Alan Gibson
The Supreme Court has released a major judgment addressing a string of cases surrounding the interpretation of customary rights under the contentious Marine and Coastal Area (Takutai Moana) Act 2011 (Maca). Photo / Alan Gibson
The Supreme Court has released a major judgment addressing a string of cases surrounding the interpretation of customaryrights under the contentious Marine and Coastal Area (Takutai Moana) Act 2011 (Maca).
Before we get to that, how did we get here?
In 2003, on the back of the landmark Ngāti Apa case, the Court of Appeal concluded the Māori Land Court could investigate claims for customary title in the foreshore and seabed.
That set the stage for Labour’s Foreshore and Seabed Act 2004 - which extinguished the right of Māori to claim customary title but set up a regime of awarding territorial and use rights - creating intense public debate and the birth of Te Pāti Māori.
In 2011, National repealed that law and replaced it with Maca, which restored the right of Māori to claim recognition of customary title and use rights, while also protecting public access and navigation.
Jump forward to October last year, when another Court of Appeal judgment essentially upended the act, making it easier for iwi and hapū to have customary title recognised by the courts.
That prompted the coalition Government to overturn that judgment and introduce new amendments it said would restore the tests as they were intended under the original law.
Critics have, however, argued the new legislative tweaks would disproportionately disadvantage Māori claimants.
What exactly are those tests?
Under Maca, the “common marine and coastal area” – as the foreshore and seabed is re-termed – can’t be owned, and the public fishing, navigation, and access rights within it are protected.
But Māori can have customary rights recognised through two types of orders.
One is customary marine titles, CMTs: a concept similar to ownership but not the same – the land can’t be sold – and which recognised property rights of Māori in the marine common and coastal area since 1840.
The other is protected customary rights, or PCRs, which allow certain traditional practices, such as the collection of hangi stones, to be exercised without regulatory constraint.
The test to be granted a CMT, either through an application to the High Court or engaging with the Crown, is set relatively high and just a small fraction of the coastline would be up for customary title.
Under the much-debated section 58 of Maca, iwi could apply by showing they’d had exclusive use and occupation of a common marine and coastal area since 1840 and, notably, “without substantial interruption”.
In 2004, intense debate over the then-Labour government's foreshore and seabed legislation drew thousands of protesters to Parliament. Photo / AFP, RNZ
But the Court of Appeal decision essentially changed the threshold in that it meant applicants might not have to demonstrate substantial interruption.
The court argued that section 58 could not be reconciled with Maca’s stated purpose of promoting the exercise of customary interests.
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests,” it said.
Section 58 has, meanwhile, been at the centre of a string of active court cases over the criteria.
Originally, a single application was lodged to the Māori Land Court on behalf of Te Whakatōhea, an eastern Bay of Plenty iwi, for recognition of the iwi’s customary rights in the marine and coastal area within its rohe.
With the enactment of Maca, the application was transferred to the High Court, before various hapū and groups within the iwi – arguing recognition orders be held at hapū-level – made their own applications.
These applicants have been going to the courts under two main umbrella groups, with third parties including the Attorney-General, Ngā Hapū o Ngāti Porou and other interest groups also participating in the matter.
Last month, seven separate cases were heard in New Zealand’s highest court.
So what has the Supreme Court decided?
The court has unanimously allowed an appeal by the Attorney-General against the Court of Appeal’s decision.
It considered the majority of the Court of Appeal “erred” in its analysis by taking a narrow approach to the meaning of use and occupation “without substantial interruption”.
“On this aspect,” the Supreme Court said in its just-issued ruling, “we consider that the majority of the Court of Appeal erred in that they appear to have concluded that only interferences expressly authorised by statute are capable of substantially interrupting exclusive use and occupation”.
The court said allowing the Attorney-General’s appeal would help the court to “state the test afresh”.
Elsewhere in its ruling, the court reaffirmed that applicants must demonstrate a deep, integrated relationship with the marine area under tikanga, reflecting an ongoing connection and exercise of mana.
The ruling also addressed another key issue with the Maca test: that applicants had “exclusively used and occupied” the area.
The court clarified that, while physical exclusion of others wasn’t required, applicants should still show extensive use of the area, intention, and capacity to exercise control under tikanga and law.
What’s happening with the Government’s bill?
The Government is still progressing the amendment bill, which has been before Parliament’s Justice Committee and so far passed its first reading.
But the heated controversy surrounding it isn’t likely to go anywhere.
Te Pāti Māori has argued the legislation is intentionally designed to lock iwi out from being able to make claims, while the Green Party says it “robs Māori of customary rights” without moral justification or evidential basis.
Others – including Te Rūnanga o Ngāi Tahu Kaiwhakahaere (chairperson) Justin Tipa - have argued the bill undercut those claimants whose cases were still before the courts.
Justice Minister Paul Goldsmith. Photo / Mark Mitchell
In September, the Waitangi Tribunal also found the Government to be in breach of the Treaty in several ways, including that officials were ignored and important steps weren’t taken in the policy development process.
It also criticised the hasty timeframe with which the bill was being pushed through, and asked the process be halted to allow “genuine effort for meaningful engagement with Māori”.
Justice Minister Paul Goldsmith has defended the timeframe, pointing out that applicants for titles had already faced almost a year of legal uncertainty.
“We can’t afford to wait any longer and we don’t think that it’s particularly fair to all involved,” he said earlier this year, “which is why we are urgently progressing these amendments”.
Speaking on today’s ruling, Goldsmith said the Government was pleased with the outcome.
“We’ll be taking some time to work through the implications this will have on legislation before the house,” he said.
“No decisions have been made.“
Jamie Morton is a specialist in science and environmental reporting. He joined the Herald in 2011 and writes about everything from conservation and climate change to natural hazards and new technology.
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