Waitangi Tribunal finds Marine and Coastal Area Act breaches Treaty of Waitangi

The Marine and Coastal Areas Act 2011 replaced the controversial Foreshore and Seabed Act 2004. Photo / File

Legislation that replaced the controversial Foreshore and Seabed Act not only breaches the Treaty of Waitangi but prejudices Māori, the Waitangi Tribunal has found.

The Marine and Coastal Area (Takutai Moana) Act was introduced in 2011 to replace the Foreshore and Seabed Act 2004.

The act allows iwi to negotiate a settlement directly with the Government, or go to court to test the extent of customary title and rights – something the Foreshore and Seabed Act did not allow - while providing for public access.

In either pathway, applications for customary rights had to be filed by a statutory deadline of April 3, 2017.

Some of the 92 applicants claimed the act was "undermining and eroding" their customary rights to an extent inconsistent with the Treaty, and disputed the Crown-imposed deadline.

The tribunal agreed to hear the claims under urgency in two stages, the first addressing resourcing and procedure, and second the act itself.

In its stage 1 report released today, the tribunal found the claimants have been, and remain, prejudiced by aspects of a procedural and resourcing regime that falls "well short of Treaty compliance".

This included the Crown failing to provide adequate and timely information to applicants, and provide timely funding for claims.

The tribunal recommended the act's procedural and resourcing arrangements be amended, including considering a legal aid scheme.

It also called on the Crown to urgently address a policy vacuum that impeded both the Crown's engagement, and the two settlement pathways.

To improve the Crown's support for applicants seeking to resolve overlapping interests, the tribunal suggested the Crown provide funding and administrative support to applicants, access to facilitators and mediators, and access to tikanga-based resolution processes.

The report concluded Māori would be prejudiced until the Crown took such steps to make the act's supporting procedural and resourcing arrangements "fairer, clearer, more cohesive, and consistent with the Crown's obligations as a Treaty partner".

Other claims relating to the substance of the act itself, and whether it adequately recognises and protects Māori customary rights as required by the Treaty, will be addressed in stage 2.