UPDATE: 7 MAY 2021
The High Court has granted 13 iwi customary rights to several marine areas in the Bay of Plenty, which could set a precedent for the 580+ other claims that cover the rest of the coastline of New Zealand. This ruling grants iwi 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 (CMT) is not a title that can be sold, but it does allow the iwi to gain financially. This could be through "partnerships" or leases entered into with commercial operators. Additionally, the title includes the ownership of minerals other than petroleum, gold, silver, and uranium.
The public have a right of access, unless the iwi has placed a rāhui (temporary ban) over the area. Iwi can also 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 customary marine title area. It also gives the iwi the right to veto any resource consent application, with no right for the applicant to appeal.
So, 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.
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 customary marine 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 judge made the decision that holding the area in accordance with tikanga took precedence over exclusive use, and ruled 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.
Judgment (no. 2) of Churchman J, dated 7 May 2021 [Edwards on behalf of Whakatōhea – Substantive judgment]
NZ Herald: Whakatōhea hapū win customary marine title case
One News: Bay of Plenty iwi granted customary rights to several marine areas
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
A Bombshell Ruling by Dr Muriel Newman
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
The passing of the Marine and Coastal Area Act in 2011 resulted in over 580 applications for legal recognition and protection of customary interests in the 10 million hectares area of our foreshore and seabed, out to 12 nautical miles (22 kilometres), including harbours, estuaries and river mouths, the airspace above and many of the minerals below.
Contrary to assurances given by the Government, the claims include not only remote areas of the coast, but every inch of the common marine and coastal area of New Zealand.
The Marine and Coastal Area Act was created to replace the Foreshore and Seabed Act 2004. In 2009 the National-led government, as part of a November 2008 confidence-and-supply agreement with the Māori Party, undertook a review of the Foreshore and Seabed Act. In response to the review the Marine and Coastal Area (Takutai Moana) Act 2011 was passed, repealing the 2004 act. The new law replaced Crown ownership of the foreshore and seabed with a ‘no ownership’ regime and provided for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area.
WHAT KINDS OF CUSTOMARY RIGHTS CAN BE RECOGNISED UNDER THE ACT?
The Act recognises three levels of statutory rights and interests which can be held and exercised subject to the guarantees in s 27: Rights of navigation, s 28: Rights of fishing and s 29: Reclaimed land.
PROTECTED CUSTOMARY RIGHT
This is basically about use and activities. These rights can be granted for customary activities like collecting hāngi stones or launching waka in the common marine and coastal area (CMCA). Holders of Protected Customary Rights (PCR) do not need resource consent to carry out customary activities, and local authorities cannot grant resource consents for other activities that would have an adverse effect on that PCR. With respect to the CMCA this is defined as a right which has been exercised since 1840, continues to be exercised in accordance with tikanga, (whether in the same way, or a way which has evolved over time), and is not extinguished as a matter of law (s 53). Holders of protected customary rights can delegate or transfer such rights in accordance with tikanga, and derive commercial benefits from such rights, including selling gravel etc. They do not, however, have title over the land (s 56). There is a particular status for PCR holders within the RMA framework (s 57), including a veto power on most adverse activities (essentially save existing ones).
An applicant group does not need to have an interest in land in or abutting the specified part of the CMCA in order to establish PCR, (s 51(3)).
CUSTOMARY MARINE TITLE. (SECTIONS 58-60)
Obviously the most important and extensive of the rights, is basically about 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 are conditional. For example, the group cannot sell the area, i.e. it cannot be alienated, save in accordance with tikanga to other persons in the same iwi or hapū. Nor can members of the public be excluded (s 26), subject to any wāhi tapu conditions that have been included in a government agreement or High Court order recognising Māori customary rights under the Act (s 79).
Title can be recognised if the applicant group holds the specified area in accordance with tikanga, and has “exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption” (s 58) – or received it since 1840 in accordance with tikanga from a group which itself had exclusive use and occupation since 1840 (s 60). There is no requirement to hold abutting or contiguous land, but this may be taken into account when determining whether customary marine title (CMT) exists. If a group has CMT recognised over an area, their rights will include the following:
- a Resource Management Act permission right which allows the group say yes or no to activities that need resource consents or permits in the area - in effect the right to veto any proposed development;
- a conservation permission right which allows the group say yes or no to certain conservation activities in the area;
the right to be notified and consulted when other groups apply for marine mammal watching permits in the area the right to be consulted about changes to Coastal Policy Statements (s 77);
- a wāhi tapu protection right, which lets the group seek recognition of a wāhi tapu and restrict access to the area, thereby creating public no-go zones, (ss 78 and 79). Trespassers can be fined of up to $5,000, (s 81(2));
- the ownership of all minerals which are found in the area, other than petroleum, gold, silver and uranium. For example, where CMT is vested in an iwi or hapū over an area with iron sand deposits, those deposits would belong to that iwi or hapū. The group is entitled to receive any royalties due to the Crown in respect of such minerals from the date on which an application for title is first lodged (s 84(3)(b)).
While the Act guarantees access to the coastline, without charge, for individuals, the Act does not prohibit CMT holders from charging groups or commercial users for access, (s 26(1)).
RIGHT TO CONSULT
The third right is for all affected iwi, hapū or whānau to participate in consultation processes in the CMCA. Affected iwi, hapū and whānau are those which exercise kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga (ss 48 to 52). The Director-General of Conservation must have particular regard to the views of such affected parties in making conservation decisions (s 51).
WHAT WAS THE PROCESS TO APPLY FOR RECOGNITION OF CUSTOMARY RIGHTS?
There were two pathways for iwi, hapū or whānau to have their customary interests recognised at law - either by direct engagement with the Crown, (s 95), or by applying to the High Court (s 100). Groups could apply through both pathways. The deadline for applications closed on 3 April 2017.
It is estimated the over 580 competing claims will tie the courts up for decades, costing the country tens, if not hundreds of millions of dollars in claimant funding, policy advice and legal fees.
To prove that it has customary marine title for a particular area that should be recognised, a Māori group must have “exclusively used and occupied it from 1840 to the present day without substantial interruption” (s 58).
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.
New information will be published on this page as it comes to hand. Updates on developments will also be included in our regular newsletters.
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