And it set a deadline of six years for Māori to lodge claims under the act, either to the High Court or to the government for direct negotiation. They were closed off in 2017.
The tribunal says that the replacement act does not provide a fair and reasonable test for customary marine title. And it wants the Government to repeal the deadline.
It also says that activities allowed to take place despite customary rights and customary title undermine the permission rights of groups with recognised rights, that there was not enough consultation with Māori on the law, that the deadline imposed on Māori for making claims under the act was not justified, that Māori should be able to have their claims heard by either the High Court of Maori Land Court, that tying protection of wāhi tapu to the act is problematic, and that vesting reclaimed coastal areas in the Crown extinguished a claim to customary title or rights and therefore to compensation.
The tribunal found that the Marine and Coastal Area (Takutai Moana) Act was an improvement on the Foreshore and Seabed Act. But it was still critical of it.
“Overall, we find that the act does not sufficiently support Māori in their kaitiakitanga duties and rangatiratanga rights, nor does it provide for a fair and reasonable balance between Māori rights and other public and private rights,” the tribunal said in introductory comments to cabinet ministers.
In an earlier stage-one report released in 2020, the tribunal found that aspects of procedure and resourcing breached the Treaty of Waitangi, including failure to fund claimants 100 per cent.
The Foreshore and Seabed Act was the Labour government’s response to a 2003 Court of Appeal ruling in the Ngāti Apa case, which found that the Māori Land Court had the power to investigate claims for customary title in the foreshore and seabed and to use its powers to convert it to freehold title.
Labour asserted Crown ownership of the foreshore and seabed, extinguishing the right of Māori to claim customary title in the courts but provided for negotiated redress where the court held that customary title would have existed if it had not been for the extinguishment.
The Marine and Coastal Area (Takutai Moana) Act 2011 restored the right of Māori to have customary title and rights recognised through the courts, or to apply to have direct negotiations with the Crown.
It required claims to either the court or the Crown to be lodged by April 2017 and of all the claims, 30 were made to the High Court only, 207 were made to the Crown only and 175 claims were made to both forums.
Progress through the courts has been slow and the approach taken by a judge in a landmark case is under appeal.
The tribunal’s report includes recommendations to:
- Repeal the statutory deadline for claims under the act;
- Improve the statutory test for customary marine title (subject to the outcome of appeals in Edwards (Te Whakatōhea No. 2) currently before the courts;
- Allow applicants to transfer applications between the High Court and the Māori Land Court;
- Repeal specific exceptions to the scope of protected customary rights;
- Repeal specific exceptions to the scope of permission rights;
- Increase the scope of the act’s compensation regime;
- Decouple the wāhi tapu protection right from the customary marine title regime;
- Compensate affected iwi, hapū, and whānau for all reclaimed land vested in the Crown.
The tribunal said the statutory deadline for Māori to apply for recognition of their rights in te takutai moana “was not and is not justified.”
It said there was an absence of convincing evidence about why exactly the Crown chose a six-year deadline.
“We find that the act’s statutory deadline is in breach of Treaty principles. It is of paramount importance that the Crown repeal the deadline, as it is the root of many administrative problems arising from the Act. We urge the Crown to repeal it without delay.”
The tribunal found that the marine and coastal area was a taonga “and that the act’s impact on this taonga and on the relationship Māori have with it is significant.”
“Therefore, the principles of the Treaty require a high standard of consultation with Māori. Although the Crown consulted with focus groups – an important step – this did not relieve the Crown of its obligation to actively consult and engage with Māori generally.
“This broader phase of the Crown’s consultation process was too short, did not focus on affected Māori as opposed to non-Māori, and did not sufficiently allow Māori to engage with the operational details of the Act.”
The inquiry panel comprised: Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins and Sir Pou Temara.
