Despite the Prime Minister Christopher Luxon promising his government would respond to a controversial Court of Appeal decision made under the Marine and Coastal Area Act, (i.e. the 'Edwards/Whakatōhea' case), the promised amendment to section 58 of the Act as stated in the coalition agreement has not been included in the 100-day Action Plan. It is disappointing this has not been treated as a matter of urgency.
While the government is dragging its heels, the High Court continues to hear applications from Māori groups seeking orders to recognize Customary Marine Title and Protected Customary Rights in the marine and coastal area. Currently being heard in court are applications from 15 Māori groups for the Whāngarei Harbour and seven groups for the Northern Wairarapa Coast. (See MACAA list of scheduled hearings by clicking HERE).
These ongoing hearings follow previous rulings in the High Court and the Appeal Court, including a landmark decision by the Court of Appeal last year that significantly lowered the threshold for obtaining Customary Title. That ruling is now the leading case on the interpretation of the Act.
This is not what we were promised!
The interpretation of the law by the judiciary is at odds with statements made by the National government back in 2011 when the Marine and Coastal Area legislation was introduced. At the time, Attorney General Chris Finlayson assured the public no more than 10 per cent of the coast would end up in customary title. The Court of Appeal decision clearly shows that this will not be the case. Finlayson, when referring to the legislation in a commentary last year said:
“The law passed and its tests are being routinely ignored by the courts, but that is an issue for another day.” (Listener, February 18, 2023).
If the law is not amended to reflect Parliament's original intent, it is highly likely that Māori groups will gain a significant degree of control over much of the foreshore and seabed out to 12 nautical miles. The coalition agreement between National and NZ First addresses this matter and pledges to amend section 58.
“The Coalition Government will reverse measures taken in recent years which have eroded the principle of equal citizenship, specifically we will… Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatōhea Maori Trust Board & Ors [2023] NZCA 504.”
What you can do
It is important to message the coalition leaders and request that they treat the amendment of section 58 of the Marine and Coastal Area Act as a matter of urgency, in line with their coalition agreement.
For further information see:
- ‘Coastal claims legislation is a shambles of monumental proportions!’ published by elocal magazine December 2023
- Tikanga trumps 'state' law Democracy Action newsletter November 2023
Media coverage
NZ Herald (21 June 2010) Iwi will get 2000km of coastline