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.
The decisions made by the High Court and now the Court of Appeal make the test for Māori to be awarded customary title to the foreshore and seabed so low that most of the claims are likely to succeed.
The passing of MACA saw around 600 claims lodged for customary title and/or customary rights in the foreshore and seabed, covering the entire coastline of New Zealand, often multiple claims over the same area. Those holding customary title can control the use of and access to the area using customary tools (such as wāhi tapu), participate in governance (involvement in coastal planning and policy development, vetoing resource consents), and gain financially from the use of the area and its resources (charging commercial operators, ownership of non-nationalised minerals).
When the legislation was introduced in 2011, the country was assured by the then Attorney-General Chris Finlayson that only around 10 percent of New Zealand’s 20,000 km coastline would end up under Customary Marine Title, and this in remote areas. Plainly this is not the case - the judiciary is interpreting the legislation far more liberally than intended by Parliament.
To qualify, under Section 58 of the Act the claimants for customary marine title had to meet the following requirements:
- the applicant group holds the specified area in accordance with tikanga; and
- has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption.
This first substantive appeal under the Act made to the Court of Appeal follows a landmark decision by Churchman J in Re Edwards (Te Whakatōhea No. 2)  NZHC 1025, awarding customary marine title (CMT) and protected customary rights (PCR) to a range of applicant groups in the eastern Bay of Plenty. This was also the first case to confront competing applications for CMT over the same area.
Multiple applications for the recognition of customary marine title over the same area should have instantly disqualified most of the claims, as any plain reading of the Act would determine that overlapping claims would fail to meet the exclusivity test.
However, in his controversial decision in 2021, Justice Churchman elevated ‘tikanga’ - which had been determined by pūkenga (Māori cultural advisers) – above the need to consider the property-rights s 58(1)(b) test. According to the Judge, “The critical focus must be on the question of whether or not the specified area was held in accordance with the tikanga that has been established.”
Instead of determining that overlapping claims would fail to meet the exclusivity test, the Judge also relied on pūkenga when it came to accepting a tikanga-based concept of “shared exclusivity” to accommodate overlapping claims. This means that multiple claims over the same area - which would have failed the exclusivity test - were accepted.
Additionally, “substantial interruptions” were interpreted to mean that small parts of a claimed area might need to be excluded, rather than the claim itself.
The Court of Appeal decision affirms tikanga as the dominant consideration when assessing Customary Marine Title applications.
The Appeal Court agreed with the High Court in its judgment WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) & ORS v TE KĀHUI AND WHAKATŌHEA MĀORI TRUST BOARD & ORS  NZCA 504. It agreed that if it is proven that a claimant “holds the area in accordance with tikanga” then tikanga determines if the claimant has met the requirement of exclusive use and occupation from 1840 to the present day without substantial interruption. Additionally, the judgement stated that they found it exceptionally difficult to reconcile the text of s 58(1)(b) with the purpose of MACA. “On a literal reading of s 58(1)(b), and its requirement… that the group must have exclusively used and occupied the area from 1840 to the present day, it seems likely there would be few areas of the foreshore or seabed where CMT could be made out”.
So, instead of s 58 meaning the applicant group had to have exclusively used and occupied the area from 1840 to the present day without substantial interruption, the Appeal Court said the Act “can and should be read as requiring that the applicant group’s use and occupation of the area was not substantially interrupted by ‘lawful’ activities carried on by others”.
The findings of the Appeal Court are echoed by Justice Powell in Re Reeder & Ors (Ngā Pōtiki Stage 1 – Te Tāhuna o Rangataua)  NZHC 2726 - a claim concerning the upper reaches of the Tauranga Harbour, whereby a Customary Marine Title is to apply over that area of common maritime and coastal area known as Te Tāhuna o Rangataua, (the Welcome Bay area). This is despite the whole of the foreshore of the Tauranga Harbour being vested in the Tauranga Harbour Board since 1915.
The Court of Appeal ruling opens the beds of navigable rivers for claims
Additionally, bids for customary titles over parts of rivers entering coastlines have been strongly boosted by the Court of Appeal decision. The Court ruled that: "CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term." The parts of the rivers that fall within that definition would be either up to 1km upstream or five times the river's width at the mouth, whichever is the lesser. The CMT could apply to the riverbeds, as well as airspace above and the water space (but not the water).
In two earlier High Court rulings, iwi applications for rights over the Mohaka and Waioeka/Otara River mouths in Hawkes Bay and the Bay of Plenty were denied.
Anthony Willy: The Foreshore and Seabed
Dr Muriel Newman: Court of Appeal Opens Coast to Māori Ownership
For further information on the influence pūkenga had on the High Court decision, see clauses 308-331 JUDGMENT (NO. 2) OF CHURCHMAN J. (7 May 2021). This follows MINUTE (NO. 18) OF CHURCHMAN J. (8 July 2020) regarding the appointment of the pūkenga.
High Court: Marine and Coastal Hearings List