< August 2019 newsletter

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.

Over the past couple of years, the courts have held two rounds of case management conferences, where all preliminary issues are discussed, and directions are timetabled. The second round of case management conferences is now complete. Lee Short, the chair of Democracy Action, attended the final one on 27 June, which was held in Auckland. He filed the following report:

“I attended the last of the High Court case management conferences relating to the 200 or so parties that have made claims to the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011. These have been held throughout the country, this last one in Auckland.

The presiding judge, Churchman J, heard affidavits on behalf of several iwi claimants. What was made immediately clear was that little headway has been made by most of the claimants in progressing their applications, largely due to the overlapping claims. Justice Churchman stressed that with so many competing claims, the Court is not in the position to decide in favour of any applicant. He indicated the applicants’ situation would be greatly enhanced if they made joint applications. He encouraged claimants to work on forming joint bids, stressing that any such agreements would need to be recorded in formal legal documents, signed by all parties and registered with the Court.

Justice Churchman also said that they must provide to the Court accurate and detailed mapping of the areas claimed.

Most of the applicants requested a 12-month adjournment, until June 2020, to enable them to gather evidence and discuss joint bids. All wanted further money from the Crown to assist with possibility of joint bids. Justice Churchman suggested they have the ability to get together to discuss joint applications without extra funding.

Justice Churchman also stated that the Court was not sympathetic to the two claims for the entire coast, saying the claims applications were too broad. He suggested they focus on particular areas instead.

He also acknowledged the upcoming contested hearing regarding the role of the Attorney General in the claims’ process”.


The most recent minutes/directions issued by Churchman J are available on the Courts of New Zealand website - please click HERE. In his minute of July 25, re Case Management Conferences 2019, Justice Churchman commented on following issues:

  • The overlapping claims.
  • The lack of accurate mapping to which the applications relate.
  • The disquiet expressed by several applicants upon learning of the type of information that was to be included in the National Dataset – the Geographic Information System Dataset that contains layers of information derived from publicly available data. The view was expressed by some claimants that the information being gathered could potentially be seen as information that might be utilised in opposition to the applicants’ claims.
  • Although some applicants were satisfied with the position set out by the Attorney-General in the memorandum of 11 September 2018*, others were not and wished to have their applications argued. Justice Churchman: “At one extreme was the submission of Ms Mason at the Whangarei CMC on 25 June 2019, on behalf of Reti Whānau and Ngāti Kawau and Te Waiariki Kororā, where she submitted: The applicants’ view is that the Crown, the Attorney-General should not be a party to these proceedings at all, and not an interested party or in any other way”.
  • Others did not go so far as to challenge the right of the Attorney-General to appear as an interested party but wanted clarity around the nature of the public interest that the Attorney-General was representing. The submission was made that the public interest could not just relate to “non-Māori” interests.
  • The Court will hold an interlocutory hearing on 7 and 8 October 2019 in relation to the challenge to the role of the Attorney-General.
  • At the Rotorua CMC of 19 June 2019, Mr Sinclair and Ms Sykes suggested that a preliminary hearing may need to be held as to the effect of the 1865 confiscation, and whether or not the confiscation was lawful. Justice Churchman: “Ultimately, the legal consequences of the confiscation of vast tracts of land by the Crown in 1865 will be one of the matters relevant to establishing the claims of those applicants whose lands were confiscated”.

*The Attorney-General filed a memorandum on 11 September 2018 clarifying that the Attorney-General understood his involvement in each application under s 100 of the Act was that of an interested party.

Serious issues have arisen during the court process. Arguably the main ones can be summarised as:

  • the role of the Crown in the proceedings;
  • there is no guarantee the Crown will oppose the claims;
  • the extensive overlap of claimed territory, and interests;
  • problems regarding the mapping of the areas being claimed;
  • the claimants’ complaints of government funding not coming through quickly enough or the funding being insufficient;
  • the effect on the claims of those applicants whose lands were confiscated;
  • the interpretation of the term ‘exclusive’;
  • the definition of the word ‘tikanga’.

As Frank Newman, secretary of the Landowners Coalition, writes in his opinion piece Slow progress on Marine and Coastal area claims:

“The difficulty is there is no agreement on the meaning of exclusive or tikanga (Maori customary values and practices). Some argue that tikanga is unique to a tribe, who have their own values and practices.  It is therefore quite possible that the meaning of tikanga will vary depending on the case being argued.

Those engaged in the process therefore face the conundrum of arguing issues relating to exclusive use and tikanga without having a working definition and without being able to define its parameters. It will therefore be difficult to argue an area has not been used according to tikanga – when tikanga is whatever a claimant says it is”.

Frank goes on to say:

“What is clear from the court pleadings to date is that the historic evidence presented by claimants will be largely “oral and traditional”. In other words, the reflections of elders based on memories that will be either real or imagined.  This evidence is being prepared with the assistance of historians specialising in cultural history. It is highly likely that the Courts will consider these experts credible.

In the absence of any other evidence, it is likely that these memories and recollections will be accepted as fact when it is essentially hearsay evidence that cannot be verified and may well be contrived. In the end, the court will assess the weight of evidence on the balance of probabilities and it will be accepted as fact unless challenged by other parties to the claims”.

The Waitangi Tribunal also involved

In the meantime, some claimants have taken their concerns about the Marine & Coastal Area Act to the Waitangi Tribunal. Ngāpuhi leader Rihari Dargaville said he and other Māori leaders went to the Tribunal to challenge the continuous occupation requirement. According to John Tamihere, Auckland mayoral candidate and Ngāti Porou ki Hauraki chief negotiator:

"The legislation does not take into account perverse acts done to Māori, robbing them of their ability to assert exclusivity."

The Waitangi Tribunal was due to host a second round of hearings at the end July.

Media coverage:

RNZ: Crown process too long, costly for customary title of coastlines - claimants

RNZ: 'They are trying to sort of hoodwink Māori'

The campaign to repeal the law

Dr Muriel Newman, in her article Privatising New Zealand’s Coastline – Beach by Beach, makes a plea to politicians to repeal the law and reaffirm Crown ownership on behalf of all New Zealanders. Dr Newman: “When National introduced their Marine and Coastal Area Act in 2011, they reassured the public and Parliament that there would only be a few claims for remote areas of the coast. But with the whole coastline under claim – many times over – the law is clearly not doing what Parliament intended. It should be replaced.”

To assist with this initiative, we can talk to our MPs and local body politicians about the issue – we have found many have very little knowledge about what is happening. Also, please consider signing the petition which has been launched to restore public ownership of the seabed and foreshore. And encourage friends and family to also do so. The petition is available on the New Zealand Centre for Political Research website - please click HERE for a link.



Go back to the August 2019 newsletter


C’mon government – get a move on!

Despite repeated questioning, the Coalition has still not provided the details or even a timeline for their proposed changes to the Marine and Coastal Area Act. While Minister Paul Goldsmith says that work is underway, there seems to be a lack of urgency. Continue reading


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. Continue reading

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 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

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

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

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 made under the Marine and Coastal Area Act

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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

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 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