- The Amendment Bill restores Parliament’s original intent behind the 2011 MACA Act.
- It responds to recent court rulings (notably the Whakatōhea/Edwards decisions) that lowered the threshold for Customary Marine Title (CMT), allowing more claims than intended.
- The legislation aims to provide clarity and certainty for claims.
The Government has passed the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill to restore Parliament’s original intent behind the 2011 MACA Act. Recent court rulings—particularly the Whakatōhea (Edwards) decisions—were seen to lower the threshold for recognising Customary Marine Title (CMT), allowing far more claims than Parliament had intended. The Government has now moved to legislate for clarity and certainty.
Key Changes in the Amendment Bill
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Stricter Test for Customary Marine Title
- Iwi or hapū must demonstrate continuous, exclusive use and occupation of a defined area since 1840, without substantial interruption.
- “Exclusive use” now requires both the intention and the ability to control the area and exclude others.
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Physical Evidence Required
- Claims must be backed by evidence of actual use or activity, such as fishing, building, or gathering resources.
- Spiritual or cultural connections alone are not sufficient, unless expressed through tangible use.
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Clearer Definition of “Substantial Interruption”
- Use by outsiders or changes in usage (e.g., navigation, commercial fishing) can break continuity.
- Courts must consider duration, extent, and cause of any interruptions.
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Overrule of Previous Judgments
- Decisions made between 25 July 2024 and the Amendment Act’s commencement under the old law are voided, but titles granted before this date remain valid.
- The Ngāti Porou coastal agreement (2019 Act) is unaffected.
- No compensation is payable for invalidated decisions.
Impact of the Amendment
- Unless the judiciary finds ways to circumvent the intention of the Act, the legislation will limit the number and scope of successful CMT claims.
- It makes it much harder to prove customary title. Some claimants may need to refile or reprove their claims under the new criteria.
- It provides more clarity for courts and the Minister. This should ensure that CMT is granted only in well-evidenced cases, while still recognising genuine customary rights where proven.
Unequal access undermines confidence in the integrity of the process.
One critical issue left unaddressed by the new legislation is the unequal funding of claims under the Marine and Coastal Area Act. Māori claimants can receive up to $458,000 in taxpayer assistance to prepare their cases, while those wishing to oppose the claims must cover all costs themselves.
This imbalance has serious consequences. The High Court process for these claims is adversarial, yet in most cases there is no genuine adversary—no one presenting the counterarguments or evidence needed for a fair assessment. Judges are therefore making determinations without hearing the full range of views or facts.
The problem lies in the Act's design and in funding only one side. While this approach has encouraged a flood of applications, it has effectively silenced public opposition. This situation is unacceptable and must be corrected if the Coalition’s reforms are to be fair to all New Zealanders.
One recommendation is that Judges presiding over High Court claims and Ministers in the Direct Negotiation process have access to public submissions. The Attorney-General, as the guardian of the public interest, should manage such a submissions process to ensure that the Court hears from all affected parties. Only then can the determinations truly reflect the whole picture.
A transcript of the third reading debate on the Bill is available in a media release HERE
Opinion
Sean Plunket talks to Dr Muriel Newman, who is strongly opposed to the MACA Act. Watch HERE.
The Platform host Michael Laws on why Māori activists object to the Marine and Coastal Amendment Bill. Watch HERE.