< April 2024 newsletter


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.

This decision follows the first Court of Appeal interpretation of the Act, which involves a 40km stretch of coastline near Ōpōtiki in the Bay of Plenty. In this case, tikanga principles were given precedence over the common law test of exclusive use and occupation set out in the Act. Additionally, the Court accepted the oxymoron concept of ‘shared exclusivity’. The dissenting judge in the majority ruling of that case noted that the Court of Appeal findings would make it “very much easier” for Māori to obtain customary rights. This prediction has proven true, as evidenced by the outcome of the case involving iwi and hapū claims to the Wairarapa coast.

In 2011, the Marine and Coastal (Takutai Moana) Area Act was passed by John Key's National Government in collaboration with the Māori Party. This law repealed Crown ownership of the common marine and coastal area. Instead of the country’s foreshore and seabed being vested in the Crown on behalf of all New Zealanders, it became ‘public domain,’ thereby allowing Māori to seek customary title over the area.

(The ‘marine and coastal area’ means the area that is bounded on the landward side by the line of mean high-water springs, and on the seaward side by the outer limits of the territorial sea. It includes the airspace above, and the water space (but not the water), the subsoil, bedrock, and the beds of rivers that are part of the coastal marine area).

The then Prime Minister John Key assured the public that only a “relatively small” amount New Zealand’s marine and coastal area would end up going into customary title, and that most New Zealanders would notice no change.

However, this promise is proving to be false.

All New Zealand’s coastline is subject to claims.

There are still just under two hundred applications for the recognition of customary rights to be heard by the Courts. Additionally, around 385 applicants have chosen to seek the recognition of customary interests in the foreshore and seabed in direct negotiations with the Crown.

Currently, applications for the recognition of customary rights relating to the northern portion of the Wairarapa coast are being heard in the Wellington High Court.

At the same time, 15 Māori groups have applications currently being heard in the High Court for the Whāngarei Harbour.


The Marine and Coastal Area Act creates three new types of legal interest, rights that are only available to Māori. They are:

  1. ‘Customary Marine Title,’ (CMT), which is about some of the elements of ownership and possession;
  2. ‘Protected Customary Rights, (PCR), which is about use and activities; and
  3. a right for all affected iwi, hapū or whānau to participate in consultation processes in the common marine and coastal area.


A Customary Marine Title is a comprehensive right that includes elements of ownership, albeit with certain conditions attached. The legislation ensures public access to the common marine and coastal area, (with certain conditions), as well as protection of navigation and fishing rights. The group holding a Customary Marine Title cannot sell the area but may transfer the title to other individuals within the same iwi or hapū in accordance with Maori customary practices, (tikanga). However, a CMT group may delegate the rights to others conferred by a customary marine title order.

Once granted, the holders of a customary marine title have:

  • the right to permit or withhold permission for activities requiring a resource consent in the area covered by the title, including infrastructure such as wharves and marine farms not specified as an accommodated activity under the Act;
  • the right to permit or withhold permission for certain conservation processes (e.g. establishing a marine reserve);
  • the right to prepare a planning document setting out their objectives and policies which would be recognised and provided for in the customary marine title area by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be taken into account in those areas;
  • the ownership of non-nationalised minerals within the customary title area. For example, where a title is vested in an iwi or hapū over an area with iron sand deposits, those deposits 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;
  • prima facie ownership of newly found taonga tuturu (historical artefacts);
  • the right to be consulted on matters such as marine mammal watching permits, and changes to Coastal Policy Statements;
  • the ability to prohibit or restrict access to wahi tapu sites. Those who trespass may face fines of up to $5,000.

A CMT group has the authority to use, benefit from, and develop the designated area, including the ability to derive commercial benefits. The group is exempt from coastal occupation charges related to the area under the Resource Management Act.


Protected Customary Rights are centred on the use and practice of certain activities. These rights are defined as those that have been continuously exercised since 1840 in accordance with tikanga, whether in their original form or with adaptations over time, and are not legally extinguished. These rights can include traditional activities like gathering hāngi stones or launching waka in the common marine and coastal area.

Holders of a PCR are not required to obtain resource consent for customary activities, and local authorities cannot grant consent for activities that may negatively impact these rights. PCR holders can transfer or delegate their rights in line with tikanga. They can also gain commercial benefits such as selling sand or gravel. When exercising a PCR, a rights group is not obligated to pay coastal occupation charges or royalties for sand and shingle under the Resource Management Act 1991.

Notably, an applicant group does not need to have a land interest in or adjacent to the specified area of the marine and coastal zone to establish protected customary rights.

THE THIRD ENTITLEMENT is for all affected iwi, hapū or whānau to participate in consultation procedures in the common marine and coastal area. Affected iwi, hapū and whānau are those who practice kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga. The Director-General of Conservation must have regard to the views of such groups when making conservation decisions.

This extensive list of rights applied over large swathes of the New Zealand coastline makes a mockery of former Prime Minister John Key’s assurance that most people will notice no change. As a possible sign of things to come, iwi are demanding that the Port of Tauranga pay a mitigation fee of $75-100 million as a condition of their resource consent for expansion. Given the power conferred on iwi groups under MACA similar demands can be expected in the future unless the government makes changes to current legislation to reflect the original intention of parliament.

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, recent judgements have found that holding the area in accordance with tikanga takes precedence over ‘exclusive use and occupation’.

For further on this issue, see commentary by Graham Adams published by The Platform: ‘Coastal court action flies under the radar’

PLEASE NOTE: The National/NZ First agreement pledged to do something about the legislation. New Zealand First have been clear that they expect a reversal of the Act. But, until the necessary law changes are enacted, the government needs to urgently declare a moratorium to halt the claims process.

If you agree, please contact the coalition MPs to share your concerns. Key MPs are:
Prime Minister Christopher Luxon – [email protected] 
New Zealand First Leader and Deputy PM Winston Peters – [email protected]
ACT Leader David Seymour – [email protected]
Attorney General Judith Collins – [email protected]
Minister of Justice & Treaty Negotiations Paul Goldsmith – [email protected];
Minister for Courts Nicole McKee –  [email protected]


JUDGMENT OF GWYN J in the matter of an application for an order recognising Customary Marine Title and Protected Customary Rights under the Marine and Coastal Area (Takutai Moana) Act 2011 Marine and Coastal Area Act. Group M, Stage 1(A)

Marine and Coastal Area (Takutai Moana) Act 2011


Newsroom: High Court grants more coastal rights to Māori amid political sensitivities

Go back to the April 2024 newsletter


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

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. 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

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 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

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

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

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