#opinion Marine & Coastal Area changes? Skulduggery at its dumbest.

The contentious Marine and Coastal Areas Act has passed the Parliament; this first part comes from the Office of Treaty Settlements:

• The Bill clarifies the wording of the customary marine title (CMT) test by:
• defining and clarifying the terms ‘exclusive use and occupation’ and ‘substantial interruption’ in section 58 and strengthens the requirement for physical evidence of exclusive use.
• clarifying the burden of proof for applicants in the Court pathway to show they have exclusively used and occupied the areas they claim from 1840 to the present day without substantial interruption.
• clarifying how other parts of the Act (the preamble, purpose, and Treaty of Waitangi sections) affect the test to allow section 58 to operate more in line with its literal wording.
• overriding previous reasoning of the Courts on the CMT test and overturning decisions awarding CMT made after 25 July 2024.

Seven cases will need to be re-heard: four where decisions have been issued by courts with three to come where there have been hearings but no judgments. The Government considers this necessary to ensure as much consistency between applicants as possible. The Marine and Coastal Area (Takutai Moana) Act 2011 is a key piece of legislation in Aotearoa New Zealand that sets out how customary rights and interests of Māori in the marine and coastal area are recognised and protected. It replaced the Foreshore and Seabed Act 2004, which had caused significant controversy and division between Māori and the Crown.

Now lets talk about the origins: The Foreshore and Seabed Debate

 The origin of the Takutai Moana Act lie in a 2003 Court of Appeal decision known as the Ngāti Apa case. Ngati Apa v Attorney-General was a landmark legal decision that sparked the New Zealand foreshore and seabed controversy. Yes that one – one of the biggest political events in generations. The case arose from an application by eight northern South Island iwi for orders declaring the foreshore and seabed of the Marlborough Sounds Maori customary land. After lower court decisions and consequent appeals in the Maori Land Court, the Māori Appellate Court and the High Court; the Court of Appeal unanimously held that the Maori Land Court had jurisdiction to determine whether areas of foreshore and seabed were Maori customary land or not. The court also held that, “The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with the law”. The effect of the decision was subsequently overturned by the Foreshore and Seabed Act 2004. Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa, Rangitane and Te Atiawa applied to the Maori Land Court for an order that certain land is customary Maori land. The land is the foreshore and seabed of the Marlborough Sounds. The area includes seabed under waters within the Sounds, such as Pelorus Sound and Port Underwood, and under waters on the seaward side of the land such as the west coast of D’Urville Island.  Judge Hingston in the Maori Land Court gave an interim decision on a preliminary question favouring the iwi. The Attorney-General and others appealed to the Maori Appellate Court which then stated questions of law for the High Court. Ellis J in the High Court answered the questions favourably to the appellants. The iwi appeal to this Court.

This decision challenged the widespread assumption that the Crown owned all foreshore and seabed areas. It opened the possibility for iwi and hapū to pursue legal recognition of customary ownership of coastal areas where their ancestral connection had never been legally extinguished. On 18 November 2004, the New Zealand Parliament passed a law which deems the title to be held by the Crown. This law, the Foreshore and Seabed Act 2004, was enacted on 24 November 2004. Some sections of the act came into force on 17 January 2005. It was repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011. On 27 January 2004, National Party leader Don Brash delivered a speech at Orewa that was highly critical of the government’s policy towards Māori. Brash said that the government was showing strong favouritism to Māori, both in the foreshore and seabed debate and in many other areas of government policy. Brash’s speech was condemned both by the government and by many Māori groups, but met with widespread approval from many other sectors of New Zealand society. This support was boosted by the successful ‘iwi/Kiwi’ billboard campaign which followed Brash’s speech. These billboards framed the foreshore debate as the Labour Party’s attempt to restrict public access to beaches, while the National Party would protect this aspect of the ‘Kiwi way of life’. Shortly afterwards, an opinion poll put the National Party ahead of the Labour Party for the first time in over 18 months.

The government was also facing serious internal debate over its proposed legislation. Many of the party’s Māori MPs were deeply unhappy with the government’s plans, and raised the possibility of breaking ranks to oppose the legislation in Parliament. This left the government unsure of whether it had a sufficient number of votes to pass its legislation through Parliament. In theory, the government had a narrow majority willing to support its proposed bill, with Labour, the Progressives, and United Future all prepared to vote in favour. If two of Labour’s Māori MPs were to vote against the bill, however, it would fail. Moreover, any attempt to make the bill more favourable to these MPs would risk losing the support of United Future.

On 8 April 2004, it was announced that the centrist-nationalist New Zealand First party would give its support to the legislation. New Zealand First’s price for this support was that ownership of the seabed and foreshore would be vested solely in the Crown, ending the concept of “public domain” –  Things got more complicated for the Government as Maori MPs were called on to leave the Party – Tariana Tuira did – establishing the Maori Party. In October 2006, Tariana Turia (of Te Pāti Māori) introduced a member’s bill designed to repeal the Foreshore and Seabed Act. In recreating the legal status before the Foreshore and Seabed Act was passed, however, the bill was reported to vest ownership of the foreshore and seabed in the Crown. Turia denied that her bill would do anything but repeal the Foreshore and Seabed Act 2004 in its entirety and described Labour’s descriptions as “scaremongering”.

In response to Ngāti Apa, the Labour Government led by Prime Minister Helen Clark introduced the Foreshore and Seabed Act 2004, which vested ownership of the foreshore and seabed in the Crown. While the Act allowed Māori to seek recognition of some customary rights (such as traditional gathering or navigation), it removed the possibility of full customary title, effectively extinguishing Māori ownership rights in those areas.

This move sparked widespread Māori opposition, including:

• The formation of the Māori Party, which was established largely as a protest against the 2004 Act.
• Large-scale public demonstrations, including the historic hikoi to Parliament in 2004, where thousands marched under the banner of protecting Māori customary rights and mana whenua over the coastal and marine environment.

 After entering government in coalition with the National Party in 2008, the Māori Party pushed for the repeal of the 2004 Act. This led to the passage of the Marine and Coastal Area (Takutai Moana) Act 2011, which aimed to restore fairness and recognise Māori customary interests consistent with Te Tiriti o Waitangi / the Treaty of Waitangi.

The 2011 Act:

• Removed Crown ownership of the foreshore and seabed, declaring instead that no one owns the marine and coastal area ; it is held in perpetuity for the benefit of all New Zealanders.
• Allowed iwi, hapū, and whānau to apply for recognition of:
  • Customary Marine Title (CMT) ; a form of legal recognition that gives Māori groups rights similar to ownership, such as veto powers over certain activities and the ability to manage resources.
  • Protected Customary Rights (PCRs) ; specific traditional activities such as launching waka, gathering kaimoana, or conducting customary practices, which can continue without the need for resource consents.

Applications for recognition could be made either through the High Court or via direct negotiation with the Crown.

 The truth is that’s all changed now because the bar is much higher than before but the Justice Minister has said ‘This is not something that we’ve done lightly’ but then goes on to say “I recognise that this will be very disappointing to groups who have been through the process. This is not something that we’ve done lightly but there is a long way to go and much of our coastline still to be considered and we believe as a government that it’s important to get that right.” New Zealand Firsts Casey Costelloe weighed in saying “This is not removing the rights for Māori. Māori, like any New Zealander, have the opportunity to enjoy their coastline and enjoy their benefits.”

The Opposition took aim with Peeni Henare saying “For whatever reason, this government continues to say co-governance, co-management, or working alongside Māori is not the thing to do and would rather score political points instead of underscoring the good frameworks that are already in place that allow management of places like the marine and takutai moana.” While the Greens Steve Abel said “No good can come from a bill of this character. It is a bill that explicitly leads in to those worst mindsets of colonisation; that at every turn Māori are cut against and undermined and undone and for all the efforts of this chamber and this house to make amends for those cruel histories of colonisations, this bill forces the Crown back into a position of dishonorability.”

Either way there is a long way to go.