< February 2018 newsletter

Countering the claims to our coast

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.

Unless organisations and the public become involved as interested parties, a number of these claims may well succeed. But, time is rapidly running out to register as an interested party. The opportunity to do so runs until 26th February.

The Marine and Coastal Area (Takutai Moana) Act 2011a brief summary.

In 2011 the Government passed the Marine and Coastal Area (Takutai Moana) Act 2011 “to provide for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area”. The Act allows Māori to gain recognition of two kinds of rights:

  • Customary Marine Title, which is basically about some of the elements of ownership and possession, and
  • Protected Customary Rights, which is basically about use and activities.


Customary marine title, (ss 58-60), is roughly similar to some of the elements of ownership and exclusive possession (that is, the right to possess the area to the exclusion of all other people), but the rights it gives are restricted. The group can’t sell the area or exclude the New Zealand public from it. However, this right to recreational access and use is subject to any wāhi tapu conditions.

 Examples of rights customary marine title holders possess:

  • the right to give or refuse permission for activities by others that need resource consents from local councils or permits;
  • the right to tell DOC yes or no to certain conservation activities;
  • ownership rights over minerals other than petroleum, gold, silver and uranium; Section 83(2)
  • the right to stop people accessing areas designated “wahi tapu”, with trespassers fined up to $5000 Section 81(2)

While the Act guarantees access to the coastline, without charge, for individuals, the Act does not prohibit Customary Marine Title holders from charging commercial users or groups for access Section 26(1)

To prove that it has customary marine title for a particular area that should be recognised, a Māori group must have had the exclusive use and occupation of the area since 1840 without any substantial interruption.

Protected customary rights, (ss 51, 52), basically means rights to activities and uses that are conducted according to tikanga. Once those customary rights have been legally recognised, then the group can do those things without needing to get any resource consent from local councils. Local councils also can’t give resource consents for any activities that would affect their protected activities in any significant way, unless the group agrees.

To show that it has customary rights that should be protected, a Māori group would need to show that the uses and activities have existed continuously since 1840.

Applying for recognition of customary interests

There are two different pathways that iwi, hapū and whānau could follow to get recognition of their customary rights: negotiating directly with the government, or applying for a High Court order.


Under section 58 of the Marine and Coastal Area Act, claimants for customary title must furnish evidence that not only have they used and occupied the area from 1840 to the present day without any substantial interruption, but that their use has been exclusive.

Everyone who can testify that iwi applicants have not “exclusively used and occupied” a specified area from 1840 to present day without “substantial interruption” are urged to do so.

The High Court process

Our courts depend on an adversarial process – they are poorly equipped to test claims and evidence when there is no adversary – so it is important that members of the public provide historical and contemporary evidence to prove areas under claim have been used by others. This evidence can be as simple as offering statements showing where and when they, too, had swum, fished, boated and walked the beach etc. without restriction, thereby proving that the claimants have not had exclusive use and occupation, and therefore the do not meet the legal test.

To preserve a right to challenge or to test the claim anyone who may be affected by an application can file a Notice of Appearance until 26th February 2018. You can register as an individual, as a family group, as a group of like-minded people, as a club or organization. Or you can register with organizations such as the Council for Outdoor Recreational Associations of NZ (CORANZ), and the New Zealand Centre for Political Research (NZCPR). These organizations have joined forces to enable CORANZ to register as an interested party in every claim. To join the register, go to the website here, and scroll down the page. (Although it would be very helpful to the administrator at NZCPR if you could give the claim number of the area of interest, (CIV number), you can just supply the name of the area).

Your Notice of Appearance would need to include the High Court reference number (CIV number) of the application, or the name of the group or person who applied to the High Court to have their customary interests recognised. Therefore, you will need to work out which claims affect which areas of the coast. If you missed the notices of claims published in newspapers earlier this year, you can still identify them by looking at the Maps of High Court Application Areas produced by Crown Law, which indicates the location of the claims registered with the Court. The maps can be accessed here.

To find out who is claiming a specific area of the coast, look at the relevant map, found in Annexure A, which shows the areas each claim covers, accompanied by a number which identifies the individual claims. The identifying numbers relate to the details of each claim, including a unique CIV number, which can be found in Annexure B. (N.B. not all claims are shown on the map - for instance the two claiming the entire marine and coastal area - CIV-2017-485-512 and CIV-2017-404-538). Once you have found the CIV number related to the area of interest, you can then contact the Wellington High Court to find out more details about the claim, and to ask for a copy of the claimant’s application. The Wellington High Court email address is: [email protected]

The phone number is (04) 914 3649.

NZCPR have compiled a list of the claims. They can be accessed here.

We have a list of the claims covering the East coast of the Auckland region, the Coromandel, and northern Bay of Plenty, of which there are 53 made in the High Court. For a copy of this list please email Susan at [email protected]

The High Court has provided advice for those wishing to support or oppose a High Court application, including an example of a notice of appearance, see here

If you need any help with registering, call Lee or Susan on 09 281 5173.

The filing fee is $110 per Notice to Appear. If submitters also complete a "Waiver of Fee" form the Court will decide whether or not to waive the fee. The application form is available here.

N.B. Only the 200 applications for recognition of customary interests via the High Court pathway are featured on the maps - the other 380 claims registered for direct engagement with the Crown are not included. Details of the applications made directly to the Crown are available here: https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/applications/#lists

Crown Engagement process. As yet there is no opportunity for the public to become involved in the Crown engagement pathway. We understand that the Crown is currently processing the applications received. No set timeframes for managing these applications and commencing engagement have been confirmed by the Crown.

Encourage others to become involved

Please encourage other people and organizations, such as boating clubs, fishing groups, bach owners, and anyone else with close associations with the coast, to also become involved as interested parties. (If you would like a copy of a template letter, which you can modify for your own use to send to any potential interested parties, please let us know).

In addition, please:

  • contact your local council to see if they have lodged Notices to Appear on behalf of their citizens;
  • phone, write or email the government, demanding the Crown defend the rights and interests of all citizens by vigorously challenging and testing the claims:
    • the Attorney General, David Parker, who is a party to all the claims, email [email protected] 
    • the Minister of Treaty Negotiations, Andrew Little, who is responsible for the process and for deciding the 380 claims registered for Crown engagement, email [email protected]
    • the Prime Minister Jacinda Ardern, email [email protected]
    • the Deputy Prime Minister Winston Peters, email [email protected]
  • phone your local MP;
  • write letters to local newspapers, post items on social media.

Q. When does the word ‘exclusive’ not actually mean exclusive?
A. When previous Attorney General, Chris Finlayson, decides it doesn’t.

The determination released in August 2016 by then Minister Finlayson to allow customary interests claimed by the Ngati Pahauwera Development Trust to be recognised is very concerning, not only in itself, but also for the precedent it sets. This involved the granting of Customary Marine Title for the area Poututu Stream to Ponui Stream, out to 12 nautical miles. (This area is situated in the Hawkes Bay, between Wairoa and Napier). This is despite the historical evidence which was presented to the Minister that the area has been used by others for over 150 years, thereby negating the “exclusive use” threshold for a successful claim. Mr. Finlayson’s determination included this passage:

“I am satisfied that the combined historical and contemporary third-party activities are not of sufficient intensity and scale to amount to a substantial interruption of any exclusive use and occupation that Ngati Pahauwera are able to establish. These activities often take place in small, confined parts of the CMCA and do not, of themselves, interrupt use and occupation by the applicant group”.

See the Ngati Pahauwera Letter of Determination here.

Finlayson chose to dismiss the six public submissions, including from the Council of Outdoor Recreation Associations of New Zealand, as well as historical evidence of the common marine and coastal area being used for the “landing of goods and people, travel along the foreshore between Napier and Wairoa and small-scale gravel and shingle extraction”

Dr Hugh Barr’s article, published on the NZCPR website (December 3, 2017), details evidence that the Ngati Pahauwera claim should not succeed since the claimant tribe has not had exclusive and continuing use and occupation of this section of the coast. It is available here.

Seeking Tino Rangatiratanga over the entire Common Marine Area

The intentions of at least one of the claimants are made clear in this Memorandum of Counsel filed on 11th January on behalf of the chairperson of the Mataatua District Maori Council. Not only is this group seeking Maori control of the common marine area (CMA), (s 30), but they also are suggesting that a literal interpretation of the legislation regarding the clause ‘exclusive use and occupation without substantial interruption’ was not intended by parliament, therefore the vast majority of the CMA would be capable of a Customary Marine Title recognition order.

What is the ‘common marine and coastal area’? The area between the mean high-water springs and the outer limits of the territorial sea, (12 nautical miles from shore), except for existing Māori freehold land and other areas privately owned by New Zealanders, and except for conservation areas, national parks and public reserves. The area also includes the beds of rivers, going upstream from the river mouth for a distance that is five times the width of the river mouth, but not more than 1 kilometre upstream.

Go back to the February 2018 newsletter


C’mon government – get a move on!

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


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

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

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


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

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

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.  Continue reading

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

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

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

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

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

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

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?

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

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

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

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

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

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

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

The Ngati Porou bid to secure customary title over the coastline

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

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

Countering the claims to our coasts

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 made under the Marine and Coastal Area Act

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

Update On Claims Under The Marine And Coastal Area Act

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

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