Coming to a beach near you

Susan @DEMOCRACYACTION
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Jun 04, 2021
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< June 2021 newsletter

Coming to a beach near you

In a bombshell ruling, the High Court has granted 13 iwi claimants customary marine title and rights to several marine areas in the Bay of Plenty, a move which could set a precedent for the 580+ other claims that cover the entire coastline of New Zealand. This ruling grants the claimants a new form of property right, known as customary marine title, over areas of foreshore and seabed between Whakatāne and Ōpōtiki - from the high water mark on the land side, out 12 nautical miles to sea, including the airspace above.

Customary Marine Title

Customary marine title (CMT) is not a title that can be sold, but it does allow the iwi to gain financially from the area. This could be through "partnerships" or leases entered into with commercial operators. Additionally, the title includes the ownership of non-nationalised minerals.

The public have a right of access, although iwi can register wāhi tapu sites (a place sacred to Māori in the traditional, spiritual, religious, ritual or mythological sense), which can restrict public access.

The Crown and Local Government will maintain responsibility for the area from an environmental perspective, and will consult with the iwi before preparing Coastal Policy Statements and other local planning documents. Under the Act, the CMT holder has the right to prepare a planning document which the local authority must take into account when making any decision in relation to the CMT area. It also gives the iwi the right to veto any resource consent application, with no right of appeal by the applicant.

Under this law, the public pays through taxes and rates for the care of this area, while the CMT holder is able to turn this natural resource into a source of income.

The landmark decision will likely serve as a precedent - unless it is overturned

When the Government enacted the legislation in 2011, the Minister responsible - Christopher Finlayson - stated that the Act set a very high bar in order for a court to grant title to an area. This included proving exclusive use and occupation of the area since 1840 without substantial interruption, and to have held the area in accordance with tikanga (Māori customary values and practices). However, the Justice Churchman has decided that holding the area in accordance with tikanga takes precedence over exclusive use, thereby ruling that "the concept of exclusion was fundamentally inconsistent with the tikanga values of manaakitanga and whakapapa" [paragraph 111], and that the "obligation of manaakitanga can extend as far as sharing the resources of the takutai moana with non-Māori" [paragraph 265].

Based on this logic, the entire New Zealand coastline could end up under Māori control.

PLEASE HELP TO FIGHT BACK!

A group called the Landowners Coalition was involved in the case as an Interested Party. They did so on behalf of the public interest and supporters who do not have the means or ability to undertake these initiatives themselves. They are shocked by the outcome of this case, as the judgement takes a very liberal view of the law, and believe it has not been applied in a manner that was intended by Parliament.

Unless this decision is appealed, it will have a profound impact on our entire coastline and Territorial Sea. Consequently, the Landowners Coalition have lodged an appeal, and are seeking financial support to do so. If you are able to help, please visit the Coastal Claims Fighting Fund fundraiser page at NZCPR, by clicking HERE

Also, if you haven't already done so, please sign the petition to restore NZ beaches to public ownership. You can read more and sign the petition here: http://chng.it/5RcPSxv9vn

COURT MINUTES

Judgment (no. 2) of Churchman J, dated 7 May 2021 [Edwards on behalf of Whakatōhea – Substantive judgment]

REFERENCE

Ministry of Justice booklet: Recognising customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011

Marine and Coastal Area (Takutai Moana) Act 2011

APPLICATION MAPS

Te Awawhiti has mapped all applications. Click the link below to access. To go to the map, click the tab "Kōrero Takutai"

Te Kete Kōrero a Te Takutai Moana Information Hub

MEDIA

NZ Herald: Whakatōhea hapū win customary marine title case

One News: Bay of Plenty iwi granted customary rights to several marine areas

NZ Herald: Crown decides against appealing latest foreshore and seabed decision

COMMENT

A Bombshell Ruling by Dr Muriel Newman

Waikanae Watch In the light of the recent Foreshore and Seabed ruling

Marine and Coastal Area (Takutai Moana) Act Petition

Go back to the June 2021 newsletter

Submission: Marine and Coastal Area Act Amendment Bill

Nov 04, 2024

Here's our written submission on the government's proposed Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. Continue reading

Tide turns on Marine & Coastal Area Act

Oct 02, 2024

Legislation intending to clarify certain sections of the Marine and Coastal Area (Takutai Moana) Act (MACA) to provide certainty around how Customary Marine Title (CMT) is granted for New Zealand’s coastline has passed its first reading. The legislation addresses the definitions of terms such as "exclusive use and occupation" and "substantial interruption." Continue reading

C’mon government – get a move on!

Jul 01, 2024

Despite repeated questioning, the Coalition has still not provided the details or even a timeline for their proposed changes to the Marine and Coastal Area Act. While Minister Paul Goldsmith says that work is underway, there seems to be a lack of urgency. Continue reading

THE RISING TIDE OF CUSTOMARY RIGHTS OVER THE FORESHORE AND SEABED

Apr 13, 2024

In another shock decision made under the Marine and Coastal Area (Takutai Moana) Act, the High Court has awarded Māori groups customary title and other exclusive rights to the entire South Wairarapa coastline, stretching over approximately 150 kilometres. Justice Cheryl Gwyn has granted five Customary Marine Titles over the area to multiple iwi and hapū groups. Three of these sections cover an area up to 3km out to sea from the high-water springs, while the other two extend out to 10km. Continue reading

Claims for customary title to Whāngarei Harbour in court

Feb 17, 2024

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. Continue reading

Tikanga Trumps 'State' Law

Nov 11, 2023

Image: Ōhope Beach with Ohiwa Harbour in the background. The Great Beach Grab! The long-awaited Court of Appeal judgement under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) was released the week following the general election. Continue reading

UPDATE ON MARINE COASTAL AREA CLAIMS UNDER MACAA

Jun 10, 2023

With so much going on, it’s easy to miss the progress of the claims made under the Marine and Coastal Area Act (Takutai Moana) 2011. But progressing they are. Currently case management conferences are being held in different parts of the country for those who have applied for recognition of customary marine title and rights via the High Court option. Continue reading

Crown not appealing foreshore and seabed decision

Jul 08, 2021

The decision last month by Justice Peter Churchman is the first major case under the foreshore and seabed legislation, the Marine and Coastal Area (Takutai Moana) Act 2011, which replaced Labour's foreshore and seabed law. The decision awarded customary title in three parts of Eastern Bay of Plenty to six hapū of Whakatohea. Justice Churchman’s decision elevated the status of Maori “tikanga” above the common law tests in the Marine and Coastal Area Act. This means that unless the judgement is overturned, it is likely to have a significant impact not only on the claims process, but on New Zealand’s legal system as well. If this judgement is allowed to stand, it is likely that hundreds of claims for customary marine title – involving most if not all the coastline – will succeed. The Crown considered lodging an appeal against this decision, but has decided not to. Instead, the Attorney-General has applied to appear as an intervenor to assist the court. Any expectation that the government would act in the interests of the rest of New Zealand have been dashed. Lodging an appeal has been left up to a self-funded private group to act in the public interest. Continue reading

Update on MACAA – serious issues have arisen during the court process

Aug 03, 2019

The Marine and Coastal Area Act 2011 triggered almost 600 applications for the recognition of customary rights over specified area of the common marine and coastal area. Over 200 claims were lodged in the High Court, the start of a very complicated, long and expensive process. Continue reading

Update on claims to the marine & coastal area

Jul 01, 2019

An update on applications lodged in the High Court: The second round of case management conferences are currently underway. The applicants have been requested to provide evidence to back up their claims, including accurate maps. They have also been instructed to deal with the overlapping claims. One of our members attended the conference held on 27th June in the Auckland High Court and will be reporting back to our Working Group at the July meeting. Continue reading

MACA Act is shaping up to be a debacle of monumental proportions

Sep 06, 2018

Back in 2003 the Judges in the Court of Appeal case that triggered the foreshore and seabed controversy indicated that there would probably be no more than a few pockets of customary title still in existence. But fifteen years later, following the introduction of the Marine and Coastal Area Act, (MACA Act), we are faced with every square inch of the coastline being claimed, in some places many times over. By the deadline 3 April 2017, 587 claims had been lodged, 202 to be heard in the High Court, the other 385 to be dealt with by Crown engagement, i.e. directly with the Government. Continue reading

Iwi seeking governance of the Marine & Coastal Area, and authority over water

Apr 08, 2019

On March 26 Maori claimants from around the country gathered to make submissions to the Waitangi Tribunal for the rights to their coastal water areas, saying that since the foreshore and seabed march in 2004, progress has been slow in recognising iwi governance of their marine and coastal areas. Continue reading

Update On The Marine And Coastal Area Act

Jun 06, 2018

Currently, the Minister for Treaty of Waitangi Negotiations, on behalf of the Crown, is engaging with groups where the Crown had an existing commitment before 2017. The groups are: Continue reading

Update on the Coastal Claims debacle

Oct 05, 2018

The process is underway to hear the applications for the recognition of customary interests that have been registered in the High Court. The initial focus has been on applications where the Minister for Treaty of Waitangi Negotiations, on behalf of the Crown, has already decided to engage. They are listed on the Ministry of Justice website - to view please click HERE. Continue reading

Urgent: Coastal claims update - can you help?

Dec 03, 2018

Countering the Coastal Claims Campaign is seeking to contact people who know the history of the stretch of coastline in the southern Hawke’s Bay from Whangaehu to Cape Turnagain, which is being claimed under the Marine and Coastal Area Act, (claim no. CIV-2011-485-789). If you, or anyone you know is familiar with the coastline, please email [email protected]. This is an urgent request, as statements of evidence from interested parties must be filed and served on Ms Clarkson, (on behalf of the applicants), the Attorney General, and the overlapping claimants by 16 January 2019. Continue reading

Campaign to overturn the Marine and Coastal Area Act

Dec 03, 2018

The New Zealand Centre for Political Research (NZCPR) has launched a campaign to have the foreshore and seabed returned to public ownership. This would mean repealing the Act, but acknowledge this will not happen without a tsunami of public concern. You can read more about this campaign in a recent NZCPR article ‘Return the Coast to Public Ownership’. Continue reading

Claims under the Marine and Coastal Area Act

Feb 05, 2019

The first of the High Court cases to be heard is the Clarkson application. Details about this claim (and the other overlapping claims) are available on the NZCPR website. Please click HERE. Continue reading

Campaign to repeal the MACA Act and restore public ownership of the coast

Feb 05, 2019

NZCPR has launched a campaign to restore public ownership of the coast. Continue reading

The Māori and Indigenous Governance Centre, University of Waikato, argues for a Treaty partnership power sharing model over the marine and coastal estate

Mar 04, 2019

The Māori and Indigenous Governance Centre, University of Waikato, argues for a Treaty partnership power sharing model over the marine and coastal estate. Continue reading

Update On Claims Under The Marine And Coastal Area Act

Nov 06, 2018

The High Court’s initial ‘priority’ claim under the Marine and Coastal Area Act is for a stretch of coastline in the southern Hawke’s Bay from Whangaehu to Cape Turnagain - see CIV-2011-485-789 here >https://www.nzcpr.com/marine-and-coastal-area-act-claim-ap…/ Continue reading

Mātaitai Reserves - another vehicle for tribal control of the coast

Aug 08, 2018

Those seeking to gain control of the coastline are not confined to making claims under the Marine and Coastal Area Act. Although not in the same league as the nearly 600 claims under the Act, there are also a growing number of areas approved as special customary management zones, such as mātaitai reserves, (customary fishing reserves), and taiapure, (local fisheries which give Maori customary area management rights). We are also seeing increased calls by Maori entities for temporary closures and restrictions on fishing methods, and the introduction of fisheries bylaws. Continue reading

Countering the claims to our coasts

Mar 08, 2018

We have been very busy publicising the issue by contacting as many people as possible to alert them to the 26 February deadline to register as an interested party in the claims, and advising how to go about doing so. Over December/January over 400 organisations were contacted. This was followed up by a Facebook campaign, which included a video with links to a landing page on our updated website. This was launched on Friday 9th February, running for just over two weeks, and resulted in 10,700 visits to our website. We also sent a link to the video and website to all those on our mailing list. Our members have also been busy informing friends, family and other contacts, drawing their attention to the video and webpage. Continue reading

Update On Claims Under The Marine And Coastal Area Act

May 04, 2018

Case management conferences have now been scheduled for the priority cases and their overlapping claims. These will take place between 28th May and 27th June, in 10 locations throughout the country - from Whangarei to Dunedin. These hearings are only for claimants and their counsel. Continue reading

Coastal Claims

Dec 07, 2017

Claims under the Marine and Coastal Area (Takutai Moana) Act 2011 Will the new government fix the problems - or make them worse? When Labour and New Zealand First were last in office, Helen Clark and Winston Peters acted to ensure the foreshore and seabed remained in public hands. Labour's Foreshore and Seabed Act 2004 vested ownership of the public foreshore and seabed in the Crown. Continue reading

Countering the claims to our coast

Feb 02, 2018

Contrary to assurances given by the government of the day, the avalanche of claims made under the Marine and Coastal Area Act include not only remote areas of the coast, but every inch of the marine and coastal area of New Zealand. More than 580 claims have been registered for recognition of Customary Rights and for Customary Marine Title over 10 million hectares of foreshore and seabed out to 12 nautical miles (22 kilometres), all harbours and estuaries, the airspace above and many of the minerals below. Continue reading

The Ngati Porou bid to secure customary title over the coastline

Jun 06, 2018

The Nga Rohe Moana o Ngati Porou Bill (No 2) gives Ngati Porou two years to put in a claim for the recognition of customary marine title under the Marine and Coastal Area Act. The iwi is seeking customary title and rights over the over a significant part of the East Coast coastline down to Gisborne. Continue reading

The Claims To Our Coast

Apr 04, 2018

There are two pathways claimants to the marine and coastal area could choose to file applications for the recognition of customary interests, i.e. the High Court route and/or direct engagement with the Crown. The Attorney General is currently involved in the first stage of dealing with the claims filed in the High Court. In the meantime, we hear that the government has agreed to negotiate Te Whanau a Apanui’s marine and coast area claim and its historical claim in the one package. See Waatea news item here. Continue reading

Update on claims made under the Marine and Coastal Area Act

Sep 06, 2018

Update on claims made under the Marine and Coastal Area Act The first of case management conferences in relation to 202 High Court applications filed under the Marine and Coastal Area Act 2011 have been held in various locations around New Zealand, overseen by the Honourable Justice Collins. The transcripts of these cases are available HERE. Continue reading

Petition to demand our democracy back

Jun 04, 2021

A group of concerned citizens have launched a petition to return New Zealand to a true democracy. The petition, to be presented to parliament, states that ‘We Demand Our Democratic Rights & Democracy Back' Continue reading

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< June 2021 newsletter