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."
The Bill amends section 58 of MACA, which sets out the legal test that Courts and the responsible Minister must abide by when determining whether to recognise CMT for an applicant group. The Government is committed to ensuring that the criteria for applications are interpreted and enforced by the courts in accordance with the original intentions of Parliament when MACA was enacted.
Justice Minister Paul Goldsmith says those seeking Customary Marine Title will need to prove they have had continuous exclusive use and ownership of the area since 1840.
When Parliament enacted the legislation in 2011, the Minister responsible, Christopher Finlayson, stated that the Act set a high bar 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, both the Court of Appeal as well as several decisions of the High Court have interpreted the law far more liberally than intended by ruling that holding an area in accordance with tikanga takes precedence over exclusive use. These decisions changed the nature of the test and materially reduced the threshold. The recently introduced Amendment Bill seeks to rectify this by ensuring that exercising customary rights according to tikanga over a particular area will not be enough.
Measures in the new legislation, the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill include:
- Defining an applicant group’s exclusive use and occupation of a specified area of the common marine and coastal area from the start to the end of the applicable period. It will do so by adding text to section 58 to define and clarify the terms ‘exclusive use and occupation’ and ‘substantial interruption’.
- Requiring the group’s use and occupation of that area to be exclusive in that the group has had both the intention and the ability to control that area, to the exclusion of others, and that no substantial interruption has occurred to the group’s exclusive use and occupation of that area from the start to the end of the applicable period.
- Amending the ‘burden of proof’ section of the Act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.
- Making clearer the relationship between the framing sections of the Act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.
The Bill also provides that no inference may be drawn about all or any of the geographic scope, continuity, or exclusivity of a group’s use and occupation of a specified area in a period unless that inference:
- is based on evidence of a physical activity, or of a use, related to natural and physical resources (within the meaning of section 2(1) of the Resource Management Act 1991) in all or part of the area by the group in that period; and
- is not based on a spiritual or cultural association with all or part of the area unless that association is manifested in a physical activity or in a use related to natural and physical resources (as defined in the Resource Management Act 1991) in all or part of the area, by the group in that period.
Additionally, the legislation provides a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT.
Resource consent millstone not addressed
While the changes outlined in the Amendment Bill are welcome, another issue which is a cause of public concern relates to applications for resource consent in the common marine and coastal area where customary interests are, or might be, recognised. Under MACA resource consent applicants must notify and seek the views of any group that has applied for recognition of customary rights in the area - in most cases, multiple groups. Unless the law is changed, this situation could persist for years as the claimant groups await their opportunity to present their case in court or engage in negotiations with the government. It appears this has not been addressed by the bill. Nor has the inordinate amount of power in the hands of successful CMT applicants, who have the power to veto all resource consents and conservation activities in ‘their’ areas.
The Government intends to pass this legislation before the end of the year
The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is now before the justice select committee, and is open for public consultation.
The closing date for submissions is 11.59pm, Tuesday, 15 October 2024.
A link to the Parliamentary website to make a submission is available by clicking HERE.
While Democracy Action advocates for the restoration of Crown ownership of the marine and coastal area as the best way to safeguard the public interest in New Zealand’s coastline, we also support the intention of the proposed changes in the bill, which aim to define and clarify the requirements for acknowledging Customary Marine Title, including proof of exclusive use and occupation of a specified area without substantial interruption. Therefore, we urge everyone to make a submission on the bill. We plan to provide further information next week for those who need help formulating a submission - once we have received legal advice on the contents of the Amendment Bill.
References
Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill
Hon Paul Goldsmith: Restoration of Customary Marine Title test begins
The Office for Maori Crown Relations: Resource consents in the marine & coastal area
Opinion
Dr Muriel Newman, NZCPR: MACA Misinformation
Media coverage
RNZ: Changes to Marine and Coastal Area Act pass first reading | RNZ News
RNZ: Customary Marine Title: Government to overturn Court of Appeal precedent | RNZ News
Further information
The Marine and Coastal Area (Takutai Moana) Act 2011
Democracy Action November 2023: ‘Tikanga Trumps 'State' Law’
Democracy Action May 2021: The Great Beach Giveaway