One of the early battlegrounds of the new Coalition Government is set to focus on the foreshore and seabed law.
The three parties of government have agreed to legislate against a recent Court of Appeal judgment on customary title to the foreshore and seabed.
Essentially, the Court of Appeal judgment issued on October 18 changed the law passed by Parliament and will make it easier for iwi and hapu to have customary title recognised by the courts.
As a result of the coalition agreement, the Government will pass a law overturning that part of the judgment and return the criteria for customary title to the tougher one passed by Parliament.
It was a commitment sought in negotiations by New Zealand First and it gained the support of National and Act.
The move will be vigorously opposed by the Greens and Te Pati Maori which described it as a move to “whitewash Aotearoa and entrench colonisation.
“The Government needs to respect the court’s decision,” said Te Pati Maori co-leader Rawiri Waititi.
Labour is likely to take more time to debate it.
The judgment centres on the first substantive case brought under the Marine and Coastal Area (Takutai Moana) Act 2011, also known as MACA. It involved the award of customary marine title in the eastern Bay of Plenty to six hapu of Whakatohea.
MACA is the law that John Key’s National Government passed in 2011. It replaced Labour’s Foreshore and Seabed Act 2004 which had vested ownership of the foreshore and seabed in the Crown.
Under the current law, an iwi or hapu applicant group has to meet two main criteria before customary title to it is recognised: it has to hold the area in accordance with tikanga (Maori customs and practices): and it has to have exclusively used and occupied it from 1840 to the present day without substantial interruption.
The Court of Appeal said that under that second leg regarding exclusive use and occupation without substantial interruption, incursions into an area since the Treaty of Waitangi was signed in 1840 would deprive a group of customary marine title.
“Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests.”
It would do so by setting a threshold for recognition of customary marine title that could not be met and that would be inconsistent with the Treaty/ Te Tiriti.
“Where the Treaty/Te Tiriti had been breached by Crown failures to protect customary rights and interests, MACA would entrench and perpetuate those breaches,” the judgment said.
The MACA would create a regime of customary land that would be novel and unprecedented, inconsistent with common law and the Treaty of Waitangi.
“The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner.”
The majority of the court then made rulings about section 58 to the effect that an applicant group who can show they held an area in accordance with tikanga at 1840 will obtain customary marine title unless their rights had been expressly extinguished in law – or the group had abandoned the area or ceded it to another Maori group as a matter of tikanga.
The coalition agreement says the Government will “Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatohea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatohea Maori Trust Board & Ors [2023] NZCA 504.”
Te Pati Maori’s Waititi said the legislation had been intentionally designed to lock iwi from being able to make claims.
“You can’t prove continuous use of the land since 1840 if your land was taken from you. Under that threshold 90 per cent of iwi aren’t eligible,” said Waititi whose Waikiri electorate covers the eastern Bay of Plenty.
“The Courts recognised this legislation was a breach of Te Tiriti and the Government needs to respect the Court’s decision.
“We support Te Whakatohea 100 per cent.”
The Green Party will also oppose the move to override the court judgment.
“It’s deeply concerning to see this backroom deal to introduce legislation that will cut across a Court of Appeal decision, especially when that decision came out only one day after the election, and there has been no public conversation about the best way forward,” said list MP Teanau Tuiono, chair of the party’s Māori and Pasifika caucus, Te Mātāwaka.
“The Green Party voted against the Takutai Moana Act and the Foreshore and Seabed Act because these acts both limited customary rights.
“We continue to believe that any further limitations to the legal test for having these rights recognised is a breach of Te Tiriti.”
The legislation in 2011 was taken through the House by the Attorney-General of the time, Chris Finlayson. He said he expected only 10 per cent of New Zealand coastline would end up in customary title.
Critics of the court judgment, including former Act MP Muriel Newman, a co-founder of the Landowners Coalition, that the outcome was the exact opposite of what the last National Government had promised and called on the new Government to “put it right by changing the law”.
The legislative changes are likely to be taken through the House by the new Minister of Justice, Paul Goldsmith.
Public access and navigation are not affected by customary title unless parts of the area are subject to a wahi tapu order. The Government will continue to own nationalised resources, gold, silver, petroleum and uranium. But the holders of customary title will have a veto on any consents required for activity by others or development of the area in question.
Parties of the new Government have become increasingly concerned about a number of judgments in recent years that have been perceived as activist and the courts interpreting laws as they would like them to have been written, rather than as Parliament intended.
The concern is evident in both coalition agreements under a section headed “Ongoing decision-making principles” in which the parties assert “parliamentary sovereignty” – sometimes called “parliament supremacy.”
The section says the parties will make decisions that, among other things, are “Pro-democracy – upholding the principles of liberal democracy, including equal citizenship, parliamentary sovereignty, the rule of law and property rights, especially with respect to interpreting the Treaty of Waitangi.”
Audrey Young covers politics as the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018. She has written extensively about the foreshore and seabed issue since the 2003 Ngāti Apa decision, which led to Labour’s Foreshore and Seabed Act, and about the ongoing contest between Parliament and the courts.
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