< June 2023 newsletter


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:

  1. they had to “hold the specified area in accordance with tikanga” – where ‘tikanga’ was defined as “Māori customary values and practices”; and
  2. 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.

Further information


Minister for Treaty of Waitangi Negotiations, Andrew Little: Takutai Moana Crown Engagement Strategy July 2021 

Takutai Moana Engagement Strategy - summary

Takutai Moana High Court Funding  

Review of the Takutai Moana Financial Assistance Scheme

Russell McVeagh: Important High Court decision on customary marine title

Library Of Congress: New Zealand: Landmark Judgment Recognizes Customary Rights in Coastal Marine Area

Briefing to the Incoming Attorney General October 2017

Media coverage

NZ Herald: Crown decides against appealing latest foreshore and seabed decision

RNZ: New strategy to settle marine and coastal claims 'within 30 years'

Go back to the June 2023 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. 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

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