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.
This is one of the two paths by which claimants can qualify for customary marine title (CMT) or protected customary rights (PCR). Either via the High Court or by a recognition agreement where claimants negotiate the Crown, assisted by the Office of Treaty Settlements. In these cases, the Minister of Treaty Negotiations acts as the Judge, awarding title to the coast without any right of appeal.
To see the High Court list of applications currently before the Court, please click HERE.
NZCPR has published the High Court maps showing the areas of the coastline that have been claimed under the Marine and Coastal Area Act. See here: https://www.nzcpr.com/marine-and-coastal-area-claim-maps/
Crown negotiations are occurring alongside the High Court process. To view applications for recognition of customary interests via the Crown, please click HERE.
Meanwhile, we are still awaiting the outcome of the Court of Appeal hearing seeking to overturn a High Court decision – known as the Edwards case - to grant multiple customary marine titles over a 44 km stretch of coastline near Opotiki. If this ruling stands it will set a precedent the around 580 yet-to-be determined claims, with the likely result that customary title to virtually the entire New Zealand coastline – right out to the 12 nautical mile edge of the Territorial Sea – will pass to claimant groups.
At the time the National Government passed the Marine and Coastal Area Act the country was assured that only a handful of claims, and only those in remote areas, would be successful. This was because the criteria for gaining Customary Marine Title were thought to be stringent. For example, under section 58 of the Act claimants had to satisfy two tests:
- they had to “hold the specified area in accordance with tikanga” – where ‘tikanga’ was defined as “Māori customary values and practices”; and
- they had to have “exclusively used and occupied the area without substantial interruption from 1840 to the present day.”
However, the presiding judge in only the second application to be heard under the Act, and the first involving overlapping claims, took a liberal rather than a literal interpretation of the law. This resulted in granting six separate claimants protected customary rights and customary marine title over a 44 km stretch of coastline in the Bay of Plenty near Opotiki. Justice Churchman determined that since applicants had been found by the Court-appointed Māori cultural advisors to have held the claimed areas according to ‘tikanga’, this was sufficient for Customary Marine Titles to be awarded, thereby over-ruling any requirement to consider the second limb of the test – whether the area had been used and occupied ‘exclusively’ and continuously since 1840.
By elevating the status of tikanga above other requirements in the Act, ‘tikanga’ became the critical focus. The overlapping claims, which are inconsistent with the concept of ‘exclusive use and occupation’, were expected to be ruled out, as were claims for areas where third-party use resulted in ‘substantial interruption’. However, despite being contrary to what Parliament intended - that claimants prove they have exclusively used and occupied the foreshore and seabed since 1840 without substantial interruption - instead of ruling out overlapping claims for failing to meet this criteria, Justice Churchman created ‘shared exclusivity’ to accommodate them all.
The Crown considered lodging an appeal against this decision but decided not to. Instead, the Attorney-General applied to appear as an intervenor to assist the court. Lodging an appeal in the public interest was left to a private group - the Landowners’ Coalition.
Government ups its help to claimants
While no financial assistance is available for anyone wanting to oppose any of these claims - or to appeal decisions - the government originally offered funding of up to $458,000 for applicants to prepare their case.
Despite such generous help being made available, a Waitangi Tribunal finding that the Marine and Coastal Area (Takutai Moana) Act is in breach of the Treaty because it had not funded all costs incurred by the claimants going through the process. In response, in 2021 Minister for Treaty Negotiations, Andrew Little, announced a new strategy to provide more resources for whānau, hapū and iwi to research and establish their claims. This includes the government department ‘Te Arawhiti’ helping with research and evidence gathering needed to satisfy the legal tests set out in the legislation.
Funding is also available for iwi, hapū, or whānau groups who have not made an application under the Act, but who want to represent their customary interests in part of the marine and coastal area, where another group has applied to have their customary interests recognised.
On the other hand, there is no financial assistance from the government for other parties opposing the claims. They must pay research and legal fees themselves. Thanks to this policy, those working to defend the public interest in the marine and coastal area are at a serious disadvantage. Therefore, opposition to the claims is limited and spasmodic.
Another critical issue in the claims process is that the Attorney General is not acting as a defendant to the applications. Nor is he abiding by the fundamental responsibility of an Attorney General and that is to act in the public interest.
“To be clear, the Attorney-General does not consider it is his role to oppose applications in the public interest”, current Attorney General David Parker has been reported as saying.
Parker went on to explain that instead he will act as an ‘interested party’ in each claim to ensure that the statutory tests are met. This stance was referred to by Justice Churchman in his verdict on the Edwards case:
“the Attorney-General (the Attorney-General appeared in the “interests of all the public”, recognising that his role is one of “independent aloofness”, but that given the untested nature of the legislation, he should appear to ensure the Court has all the relevant information before it and to assist in the interpretation and application of the Act through legal submissions) (21a)
With very little in the way of robust opposition to the claims, the applicants and their lawyers largely have free reign in making their case and presenting their evidence.
- Brief overview of customary rights awarded under the Marine and Coastal Area (Takutai Moana) Act
- The great beach giveaway
Library Of Congress: New Zealand: Landmark Judgment Recognizes Customary Rights in Coastal Marine Area