The Government said a Court of Appeal decision in 2023 had lowered the customary title test to an unacceptable degree. It drafted amendments to change the law and also appealed the case to the Supreme Court.
Even though the Crown won the appeal in the Supreme Court in December last year, the Government decided in August this year to plough on with the amendment bill.
Justice Minister Paul Goldsmith said several successful applications since the Supreme Court decision showed further clarity of the test was needed.
Sweeping lengths of the coastline in Wairarapa and Kāpiti-Manawatū have been subject to customary marine title awards.
“What we’ve seen in recent cases, based on the Supreme Court test, is entire coastlines being granted CMT [coastal marine title],” said Goldsmith.
“That is why we believe this legislation is required: to restore the parliamentary intent, which was a high threshold, and specific parts of the coastline, not entire coastline.”
The duelling over Finlayson’s quotes was at its height in the committee stage debate last week, in which he was mentioned 10 times.
The Green Party’s Steve Abel quoted Finlayson as saying the changes did not restore the original intention of Parliament, “they undermine them”.
But Goldsmith, the minister in charge of the bill, came armed with his own set of Finlayson quotes to back up a claim that the threshold test had been set high in the 2011 act.
- From Q&A onJune 20, 2010, when Finlayson had said: “In the round, based on the sort of information I have, based on my talking around the place, I’d say about 10% of the coastline would be under CMT”.
- From Question Time, June 16, 2010, answering a question from Labour’s David Parker on how much more of the foreshore and seabed he expected would be subject to customary titles as a consequence of the change to the threshold test from Labour’s stricter law, to which Finlayson had said: “That is a very good question, and [it is] an important question. I believe, in answer to the member, that we are not talking about very much, at all.”
But as this latest chapter of the foreshore and seabed has unfolded, Finlayson has become more critical of the Government.
“Why don’t they just come out and be honest and say ‘we’re not clarifying the law; we’re tightening it up – the Māoris have had too many wins.’
“That would at least be transparent,” he told the Herald. “But to say they are clarifying the intention of Parliament is simply not true.”
He was even more strident in his criticism of the Government when speaking to a Waitangi Tribunal 50th anniversary conference this month.
Speaking about a biography of American conservative writer William Buckley, he cited a reference in the book to an article by Professor Richard Hofstadter called “The Paranoid Mind” on “paranoid conservatism”.
“’They fear the future, they dream of a world that never was and never could be, they’re exclusionary, they’re humourless’ ... they’re this coalition,” he said.
And he dismissed previous predictions of iwi denying public access to the foreshore if they got customary title.
“That’s just one of those favourite ones that the KKK brigade bring up.”
Speaking to the Herald, he said that when he was Attorney-General, he would not have been able to get the current amendments accepted because the Māori Party would have objected.
And he would not have been able to get the lower threshold set by the Court of Appeal accepted because National would have objected.
Why don’t they just come out and be honest and say ‘we’re not clarifying the law; we’re tightening it up - the Maoris have had too many wins.’
The 2011 act had been a carefully crafted compromise over years of consultation.
Under the law, customary marine title (CMT) can be negotiated with the Government or awarded by the courts if the applicant group can show it held the particular coastal area in accordance with tikanga, and it had exclusive use and occupation without substantial interruption from 1840 to the present.
Essentially, the main change the Court of Appeal made was to say the exclusive use and occupation should apply “at” 1840, rather than since 1840.
Finlayson was critical of what the Court of Appeal did to the test, calling it a “ropey” judgment.
If an applicant group could not make the test because a breach of the Treaty of Waitangi had resulted in a substantial interruption to their exclusive use and occupation of an area, that was to be dealt with through the Minister of Treaty Negotiations in treaty settlements, not the MACA law, he said.
He said the amendment bill was not needed because the Supreme Court’s December decision had corrected the Court of Appeal judgment.
He said the amendments that are about to be passed into law later today went a lot further than the 2011 act.
He cited three main points that change the current test:
PHYSICAL EVIDENCE: The test in the current act says the applicant group has to have held the area in accordance with tikanga, and exclusively used and occupied that area from 1840 to the present without substantial interruption.
But the amendment now says that no inference can be drawn about a group’s use and occupation of an area or continuity of it unless it is based on physical evidence. It says no inference can be made if the application is based on a spiritual or cultural association unless it is manifested in a physical activity or resource.
That makes the test significantly narrower.
EXTINGUISHMENT: The current act says that customary marine title does not exist if that title is extinguished as a matter of law. But it also says that a resource consent granted in that area for an activity does not constitute a substantial interruption, meaning there are limits on its interpretation - an existing resource consent cannot be used to argue title has been extinguished.
The amendment removes that limit. It also sets out specific triggers for extinguishment, Crown grants, common law, statutory vesting, administrative action, or that an interest has been established that is legally inconsistent with exclusive use and occupation of the area by the applicant group.
That makes extinguishment of title a lot easier to establish.
BURDEN OF PROOF: Under the current act, it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished. Effectively, applicants have had to prove they exclusively used and occupied an area from 1840. And any objector, including the Crown, has had to prove that there has been substantial interruption – which can include the extinguishment of title.
However, under the amendment, the presumption of non-extinguishment is removed. The applicant group has to prove both exclusive use and occupation and that there has been no substantial interruption or extinguishment.
That means it has to prove a negative, or prove that something has not happened.
That third change directly overturns the stated position on burden of proof as heard by Parliament, as the MACA bill was before the House, as this exchange on September 15, 2010, shows:
Te Ururoa Flavell (Māori Party-Waiariki) to the Attorney-General: “What is the burden of proof under the Marine and Coastal Area (Takutai Moana) Bill in relation to applications for customary interests, and what type of evidence would the Crown be required to produce to prove that a customary interest had been extinguished?”
Christopher Finlayson (Attorney-General): “Under clause [106] an applicant group is required to prove it is entitled to the customary interest that is the subject of the application. It would have to show, for example, exclusive use and occupation of the area since 1840 without substantial interruption, and that the area in question was held in accordance with tikanga. If the Crown wants to assert that customary title does not exist, then it will have the burden of showing that it has been extinguished. This sharing of the burden of proof is modelled on comments of the Court of Appeal in the Ngāti Apa case.”
After the law change, seven cases that have been heard in the High Court since the policy announcement on June 24, 2024, will have to be reheard, four in which customary title has been awarded, and three of which have decisions pending. The Government has set aside $15 million to help iwi with the cost of rehearings.
CMT already awarded that will need to be reheard:
Wairarapa (1b),
Inner Aotea Harbour, Waikato region
Kāpiti-Manawatū (1a)
Ruapuke Island, Foveaux Strait
Applications heard but pending decisions and will need to be reheard:
Whangārei Coast
Whangārei Harbour
Ngā Potiki (2), Tauranga.
What is customary marine title?
Customary marine title or CMT is a special status of the common marine and coastal area awarded to iwi, hapū or whānau groupings. The area falls between the wet part of the beach and the 12-nautical-mile
Even though it has sometimes been described as a type of ownership, the law specifically states that it “is incapable of ownership” and that no one owns it.
Public access is guaranteed, as are fishing rights and navigation rights.
The Government continues to own nationalised resources, oil and gas, gold, silver and uranium. But the holders of CMT own any non-nationalised resources and have a veto right on any future consents required for new activities, developments or expansions of existing activities in their CMT area, including marine reserves and mining of iron sands and aquaculture ventures within the 12-nautical-mile limit.
Existing consented or permitted activities are protected. And infrastructure deemed “reasonably necessary” for social and economic well-being and operated by organisations such as power companies, ports or water entities do not need permission of CMT holders.