The Marine and Coastal Area (Takutai Moana) Act 2011 is a landmark piece of legislation in Aotearoa New Zealand that replaced the controversial Foreshore and Seabed Act 2004. It was created to address long-standing Māori claims to customary rights in the marine and coastal environment, while reaffirming public access to these spaces.
But more than a legal framework, the Act reflects the ongoing tension between Treaty rights, public expectations, and the Crown’s role in recognising Māori authority over traditional coastal areas.
The Marine and Coastal Area Act sets out who can claim what in the foreshore and seabed-the area between high tide and the outer limits of the territorial sea (12 nautical miles offshore). Key features of the Act:
- No one owns the marine and coastal area. It is vested in no one, meaning the Crown does not own it, nor do private individuals.
- Customary marine title can be recognised where iwi, hapū, or whānau can prove they have held and exercised exclusive use and occupation of an area since 1840, without substantial interruption.
- Protected customary rights can be recognised for activities (like collecting kaimoana, launching waka, or conducting rāhui) that have been exercised continuously since 1840.
Both types of rights can be sought through direct engagement with the Crown or by applying to the High Court.
The Act followed years of legal and political tension. In 2003, the Court of Appeal ruled in Ngāti Apa v Attorney-General that Māori could claim customary ownership of parts of the foreshore and seabed. This led to a major political backlash. In 2004, the Labour Government passed the Foreshore and Seabed Act, which extinguished Māori customary title and vested ownership of these areas in the Crown. The move sparked mass protests, the creation of the Māori Party, and was condemned by the UN as a breach of indigenous rights. The National-led Government repealed the 2004 Act in 2011 and introduced the Marine and Coastal Area (Takutai Moana) Act as a compromise-returning the legal possibility for Māori to pursue customary recognition, but without granting full ownership.
Ātiawa ki Whakarongotai has held, and continues to hold, the marine and coastal area within their rohe in accordance with their tikanga since 1840, the High Court has ruled.
In May-June 2024, the High Court heard applications for Customary Marine Title (CMT) within the area of Whangaehu to Whareroa. Ātiawa ki Whakarongotai were applicants in that hearing, seeking exclusive CMT in their rohe from Kūkūtauākī (near the Kōwhai Stream) to Whareroa.
On Friday 13 June the High Court released its decision, in which it found that “it is Te Ātiawa alone that have the holistic relationship with the seascape required to satisfy the test for CMT” in their rohe, outside areas of shared interests at the boundaries. Accordingly, the Court has determined that Ātiawa ki Whakarongotai are entitled to CMT in those areas
Tīhema Baker, Pou Ākau for Ātiawa ki Whakarongotai, says the decision affirms what they have always known and expressed about the nature of their rights and interests in relation to the takutai moana.
“We don’t need a court decision to tell us that we hold mana whenua and mana moana in our own rohe. But the rights granted by CMT will give us a useful legal mechanism to exercise that mana in consenting and other processes.”
Those rights include the ability to veto resource consents and conservation permission rights for particular activities, as well as input into local plans and national policy statements.
Management of the marine and coastal area by the Crown and local government has been disastrous for the marine environment, Baker says. In the Kāpiti Coast, this is evidenced through the toxic contamination of shellfish beds, destruction of marine habitat and loss of biodiversity.
Ātiawa ki Whakarongotai remain committed to expressing their rangatiratanga through the protection and restoration of the coastal marine environment, alongside their ART Confederation partners Raukawa ki te Tonga and Ngāti Toa Rangatira, for the benefit of their people and wider community.
More than 200 applications were filed under the Act, but progress has been slow. The legal thresholds are high, and proving continuous, exclusive occupation since 1840 is difficult-especially given colonisation, war, and land loss.
Some key cases include:
- Re Reeder (2021): The High Court granted limited customary marine title to several eastern Bay of Plenty iwi, marking a rare success under the Act.
- Ongoing litigation involving groups such as Ngāi Te Rangi, Ngāti Porou, Whakatōhea, and others, many of whom have grown frustrated with the Crown process.
Critics argue the Act is too narrow and places an unreasonable burden of proof on Māori, effectively denying redress for historical injustice.
