The Government is pushing forward with controversial legislation that affects Māori customary claims to the foreshore and seabed after a Supreme Court ruling raised questions over whether the coalition would consider the legislation necessary.
Today, Treaty Negotiations Minister Paul Goldsmith confirmed the Government intended to pass the Marine and Coastal Area (Maca) Bill by the end of October.
Labour is against the bill, saying it restricts the ability of Māori to argue for their customary rights in court.
It comes after a series of court decisions regarding what the test should be for Māori to gain customary title over a marine area and fierce criticism that the move was an overstep.
A landmark 2023 Court of Appeal decision criticised the second limb of the test for customary marine title, saying the requirement for groups to have held exclusive use of an area since 1840 was too high a bar.
The Court of Appeal ruling was expected to essentially lower the test for iwi to be awarded customary title in parts of coastal New Zealand.
In July 2024, the Government introduced legislation to overturn that Court of Appeal decision, arguing it gave too much power to iwi and hapū over what happens in too much of the country’s coastal areas.
Goldsmith said the bill was aimed at ensuring the Maca tests were interpreted and applied as originally intended. This will force several claimants to either begin their applications again or have part of their case reheard.
The existence of the bill has prompted fierce criticism from some parts of Māoridom, including Ngāi Tahu, which said the Government was taking New Zealand “back to the dark ages”.
“This is not the National Party that Ngāi Tahu knows and has had an intergenerational relationship with.”
Since then, the Supreme Court ruled that the Court of Appeal “erred” in its decision to ultimately ease the customary marine title test for Māori, raising questions about whether the Government would continue with the legislation.
The Government has chosen to proceed with the bill because it doesn’t believe the Supreme Court decision has gone far enough.
Customary marine title is a special status of the common marine and coastal area awarded to iwi, hāpu or whānau groupings. The area falls between the wet part of the beach and the 12-nautical-mile limit. It cannot be sold.
Labour’s Māori-Crown Relations spokesman Peeni Henare said the law as it stood did not give Māori ownership rights such as control over public access. Public access is guaranteed, as are fishing rights and navigation rights.
“We do not support these changes... In 2011, the National Party made much of their commitment to Māori ”having their day in court” and this proposed change takes that away again."
Henare is referring to the 2011 Maca legislation National implemented in place of the previous 2004 law (enacted by Labour).
The 2004 law extinguished the right of Māori to claim customary title but set up a regime of awarding territorial and use rights. This prompted the historic 2004 hīkoi, which led to the birth of Te Pāti Māori and the intense debate over the foreshore and seabed.
National’s 2011 legislation restored the right of Māori to claim recognition of customary title and use rights, while also protecting public access and navigation.
Henare said moving forward with the bill “did nothing to strengthen the Māori-Crown relationship”.
“The Government needs to be straight up and admit they don’t care about Māori. Their actions don’t match their words.”
Goldsmith said the Government intended to pass the legislation by the end of October this year.
“Therefore, 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.
“If passed, the test will apply to any court decisions made since the Government announced its policy on July 25, 2024, and all undetermined applications in either the court or Crown engagement pathways.”
He said Customary Marine Title gives the holder valuable rights, including refusing resource consents in the area, such as for renewals of some private assets such as wharves, or aquaculture expansion.
“All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test in 2011 before Customary Marine Title could be granted.”
Read a detailed explainer on the Government’s bill here.
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.