The first major case under National's foreshore and seabed legislation has been sent back to the High Court. Photo / Alan Gibson
The Government-in-waiting has been called on to amend the foreshore and seabed law following a landmark decision in the Court of Appeal which is expected to lower the test for iwi to be awarded customary title in parts of coastal New Zealand.
Under the current law, the Marine and Coastal Area (Takutai Moana) Act 2011 (Maca), an iwi or hapū applicant group has to meet two main criteria before customary title is recognised: it has to hold the area in accordance with tikanga (Māori customs and practices); and it has to have exclusively used and occupied it from 1840 to the present day without substantial interruption.
Former attorney-general Chris Finlayson, who was responsible for the passage of the law, said at the time he expected about only 10 per cent of the coastal marine area would end up in customary marine title (CMT).
But the new decision is likely to lower the test and potentially increase the likelihood of a claim to succeed.
Among the litigants who took the case to the Court of Appeal is the Landowners Coalition Incorporated (LCI), who were represented by Jack Hodder KC.
Former Act MP Muriel Newman is a founder of the Landowners Coalition and has slammed the judgment.
“The bottom line is that since we now know that National’s law change will deliver a disastrous outcome that is the exact opposite of what they promised to the New Zealand public, we believe the new National Government has no option but to put it right by changing the law,” she said in a newsletter for the NZ Centre for Political Research.
While the Court of Appeal had ordered three awards of customary marine title to be sent back to the High Court for reassessment, it was a hollow victory, she said.
“Since the judges reasoned that doing what Parliament intended would be perceived as unjust and contrary to Maca’s purpose, they reinterpreted the law in a way that will ensure virtually all of tribal claims succeed.”
Under the law, an applicant group can have customary marine title recognised by either the High Court or through direct negotiations with the Government, and there are about 400 applications in the system.
Public access, navigation and fishing rights are not affected by customary title, which falls short of an ownership right.
The Government continues to own nationalised resources - gold, silver, petroleum and uranium - but the customary title holder has a veto on any consents required for activity by others or for the development of the area in question, which can range from the wet sand to 12 nautical miles out to sea.
The new Court of Appeal decision effectively criticises the second limb of the test for customary marine title - exclusive use and occupation from 1840 without substantial interruption - as meaning too few groups would qualify.
It says that under that criteria, incursions into an area by third parties since 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.
“That outcome 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.
“Maca would, by a side wind, create a form of [an] ‘adverse possession’ regime in respect of customary land that would be novel and unprecedented, inconsistent with the common law, and inconsistent with the Treaty,” the judgment says.
“The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner.”
The judgment said it would be ironic and unjust if the generous welcome that Māori extended to settlers were now to be treated as diminishing or extinguishing the rights of Māori groups.
“Maca should not be read in a manner that would produce that unsatisfactory result.”
So instead of Section 58 meaning the applicant group had to have exclusively used and occupied the area from 1840 to the present day without substantial interruption, the judgement said the Act “can and should be read as requiring that the applicant group’s use and occupation of the area was not substantially interrupted by ‘lawful’ activities carried on by others”.
“Activities that were not interruptions, because the group allowed those activities in the exercise of its manaakitanga [hospitality], would not result in a failure to meet this requirement.”
Activities that were inconsistent with the applicant group’s customary rights, and were not authorised by legislation capable of overriding those rights, would also be disregarded and would not result in failure to meet the criteria.
The court did not accept a submission by LCI that the applicant group needed to demonstrate an ability to exclude others from the relevant area from 1840 to the present day.
“It would be unjust and unprincipled to require an applicant group to demonstrate an ability to exclude others, when that ability was taken away from Māori customary owners by the law as it was understood for most of the relevant period.”
The Maca law which was passed under John Key’s National government replaced Labour’s Foreshore and Seabed Act of 2004, which extinguished the right of Māori to claim customary title but set up a regime of awarding territorial and use rights.
The Court of Appeal case centred around the first substantive case to be heard under the 2011 act, involving the award of customary marine title in the eastern Bay of Plenty to six hapū of Whakatōhea.
Judge Peter Churchman’s decision in 2021 relied on local experts, or pūkenga, to determine which hapū qualified and which didn’t and he accepted the concept of “shared exclusivity” to accommodate overlapping claims, meaning several hapū could have an interest in the same area.
Some of the hapū appealed the CMT award, as did LCI. The attorney-general, Whakatāne District Council and Seafood Industry Representatives were among the interested parties.
Another feature of the Court of Appeal decision looked at overlapping claims for an areas by more than one group. One judge, Justice Forrest Miller, believed shared exclusivity could happen when the groups recognised each other’s claim. Otherwise, it would be unworkable.
But the court president, Justice Mark Cooper, and Justice David Goddard did not believe there had to be mutual recognition before shared customary title could be recognised.
“Suppose for example that two hapū occupying coastal marae both make regular use of an area in the common marine and coastal area,” the judgment said. “The two hapū have close whakapapa links. Each hapū considers that they have the primary connection to the area, and that the other is permitted by them to use it as a matter of manaakitanga and whanaungatanga …
“A refusal to recognise CMT in those circumstances would effectively mean that areas that were unquestionably in Māori customary ownership in 1840 were taken out of Māori ownership, and customary rights and interests lost, because a currently unresolved tikanga difference between two or more hapū cannot be resolved in the High Court in the context of competing applications for CMT.”
Tikanga differences of that kind could take considerable time to resolve in a tikanga-consistent manner.
If the groups could not agree on a person to hold a CMT on their behalf, the court could appoint a person to hold the CMT until such time as a tikanga resolution could be resolved.
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 extensively covered the foreshore and seabed issue since the 2003 Ngāti Apa decision, which led to Labour’s Foreshore and Seabed Act. Disclosure: She is the sister-in-law of Justice Cooper.
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