< October 2018 newsletter

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.

The first case management conferences were held earlier this year, during May and June. Transcripts of the conferences are available HERE.

One of the more contentious issues that arose during these conferences was that of the role and status of the Attorney-General in proceedings under the Act. This and other matters arising from these conferences prompted Justice Collins to call for the interested parties to make submissions on any concerns they had, by 30th August. Several of submissions and interlocutory applications received questioned the role of Attorney-General.

“The Attorney-General does not consider it is his role to oppose applications in the public interest, or that the public interest requires him to oppose applications”.
(Memorandum - Counsel for Attorney General, 11 September 2018).

Counsel for the Attorney-General responded to the submissions, issuing a Memorandum on 11th September, clarifying his status and role in the proceedings under the Act. The main points in the Memorandum are as follows:

  • The Attorney-General is not a defendant to the applications.
  • The Attorney-General understands his involvement in each application is that of interested party.
  • As an interested party, his role is to represent the public interest and to support the purpose of the Act as set out in s 4 of the Act. This is to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand, as well as providing for the exercise of customary interests and acknowledging the Treaty of Waitangi.
  • The Attorney-General considers his role might include: assisting the Court with interpreting the Act, providing evidence and advising the Court of the progress of applications.
  • The Attorney-General does not consider it is his role to necessarily oppose applications in the public interest, but he is not precluded from making submissions that might not support an application.
  • It remains to be seen whether he will take an active role in each application. However, if he thinks criteria have not been met for the recognition orders he will make a submission.
  • The Attorney-General filed a number of Notices of Appearances in Applications where he thought there were particular defects in the way the case was pleaded. Going forward, he will keep his position in relation to each application under review and the Notices of Appearances may not represent his final view.
  • The Attorney-General hopes that there will be no need for a hearing regarding his role and status in the proceedings, however if there are any further concerns, counsel for the Attorney-General will be available to discuss these with counsel for the concerned parties.

Following this Memorandum, Justice Collins responded with two brief Minutes dated 17 September – the first regarding the role of the Attorney-General in the proceedings and the second regarding a Test Case Proposal. The main points are as follows:

  • If there are any applicants that still want to challenge the status of the Attorney-General, they should file and serve any memoranda by 8 October 2018. They should also indicate whether they wish to pursue their applications by way of a hearing.
  • The Seafood Industry Representatives had filed an interlocutory application with specific concerns about the Attorney-General’s role and how their interests would be best represented. They should also file any memoranda by 8 October 2018 stating whether they wish to pursue their application to hearing.
  • On 24 July 2018, Ms Mason, senior counsel for five applicants – known as the “Ngapuhi Applicants” applied to have their application heard in two parts. It was proposed that the first part be used as a test case, so the Courts could determine the criteria required to prove customary marine title. The second part asked the court to state a case to the Maori Appellate Court. They have also been given a date of 8 October 2018 to file any submissions in response and Ms Mason has until 25 October 2018 to respond to those. A final decision regarding the Ngapuhi application will be in November.

Thank you to Katrina Jensen, manager of the Coastal Claims Project, for simplifying what is at times complicated material regarding this matter. If you would like register as a supporter of the Coastal Claims campaign, visit their website here: https://www.nzcpr.com/countering-coastal-claims-campaign/

The most recent Minutes/directions issued by Justice Collins are available on the High Court website, available by clicking HERE.

Dr Muriel Newman of NZCPR writes in a recent article that the Attorney General is under attack, with claimants trying to restrict his role to that of being an observer in the claims process rather than an advocate for the public interest. To read the full article ‘Warning Shots Over Foreshore and Seabed Claims’, please click HERE.

Claims to the foreshore and seabed to come under the wing of the Māori-Crown Relations agency.
The unit considering the Marine and Coastal Area Act claims is to come under the newly introduced agency – ‘Māori Crown Relations: Te Arawhiti’, the minster responsible being Kelvin Davis. The questions must now be asked “which minister will be responsible for dealing with the 385 Crown engagement applications, and will anyone in the government be looking out for the public interest?” We must hope it will not be Kelvin Davis, who represents the Maori electorate of Te Tai Tokerau, and has been reported as supporting the Waitangi Tribunal finding that Ngapuhi did not cede sovereignty when they signed the Treaty of Waitangi.

Go back to the October 2018 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


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 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

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 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

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

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

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