Foreshore & seabed: Supreme Court orders Crown to pay more than $100,000 to cover claimants’ court costs

Court has ruled in favour of hapū group, Te Kāhui. Photo / Alan Gibson

The Supreme Court has taken the highly unusual decision to order the Crown to fund iwi litigants in a foreshore and seabed case before the case has been heard.

The court has ordered the Crown to pay $105,000 in court costs for a group of four hapū who are set to have their case relating to the recognition of customary marine titles heard in November.

The hapū group, Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea (Te Kāhui), had sought assurances from the Crown their case would be funded – as was protocol under a scheme established in 2022 by Te Arawhiti (the Office of Māori Crown Relations).

The group did not receive those assurances and went to the Supreme Court seeking a determination the Crown would provide the funding.

In a decision released today, the court ruled in favour of Te Kāhui.

The case to be heard by the Supreme Court in November involves the highly controversial claim for customary title in the Eastern Bay of Plenty – known as the Edwards case.

The decision by the Court of Appeal in October last year to lower the test for customary title is going to be overturned in law by the Government in a bid to prevent it being established as a test for other cases.

But the case itself will proceed to the Supreme Court where it is being appealed by multiple parties on various grounds, including by other iwi and by the Crown itself on the lowering of the test.

What’s this latest case about?

The Supreme Court ruling references the Takutai Moana Financial Assistance Scheme. The hearing document says: “The scheme was revised in 2022 to provide full, uncapped funding for actual and reasonable court costs.”

In April 2024, Cabinet advised the High Court it had not approved additional funding for such hearings in the 2024/2025 financial year or for subsequent years.

As noted in the decision, Te Kāhui had sought reassurance the Crown would cover court costs of Māori applicants in Supreme Court appeals but no such assurance of full funding was given.

In July 2024, Te Arawhiti issued an advisory stating applicants would need to work to funding caps of $30,000.

In response to that advisory, Te Kāhui went to the Supreme Court asking for a prospective costs order – a pre-determination of who will cover the group’s court costs.

The court ruled in favour of the group and ordered the Crown to pay prospective costs of $97,500 and application costs of $7,500.

Customary marine title is a way of legally recognising the customary interests iwi, hapū, and whānau groups have in specific parts of the country’s marine and coastal areas.

It cannot be sold. Public access is guaranteed as are fishing rights and navigation rights.

The holder of CMT does not have the right to restrict access to the area unless parts of the area are subject to a wāhi tapu order, which needs to be approved by a court.

Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.