Treaty Negotiations Minister Paul Goldsmith has rejected suggestions the crown would lose an appeal against over interpretation of the Marine and Costal Area Takutai Moana Act.
In a case relating to the assignment of customary marine title in the eastern Bay of Plenty, the Court of Appeal ruled that requiring iwi or hapu to prove they had exclusive use and occupation of an area from 1840 to the present day without substantial interruption was inconsistent with the Treaty of Waitangi and entrenched the Crown’s breaches of the Treaty..
Rather than go to the Supreme Court, the Government intends to amend the Act to overturn the court’s reasoning and further define the meaning of “exclusive use and occupation” and “substantial interruption”.
Mr Goldsmith says it didn’t want to wait for the Supreme Court.
“It’s totally inappropriate for a minister to speculate as to what a court would do, we didn’t want to wait that long. That’s a long and lengthy process and it was more important for parliament to reassert what it had intended to do in the original legislation,” he says.
The Government will restore the CMT test to the high threshold originally intended by:
– Inserting a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT; the nine existing CMT decisions will continue to be recognised.
– Adding text to section 58 of the Maca to define and clarify the terms “exclusive use and occupation” and “substantial interruption”.
– Amending the “burden of proof” section of the Act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.
– Making clearer the relationship between the framing sections of the Act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.
