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Supreme Court rules in new twist for 20-year foreshore and seabed Māori rights saga

Author
Jamie Morton,
Publish Date
Mon, 2 Dec 2024, 3:24pm
In 2004, intense public debate over customary rights to the foreshore and seabed split in the governing Labour Party and led to the formation of the Māori Party. Photo / Kenny Rodger
In 2004, intense public debate over customary rights to the foreshore and seabed split in the governing Labour Party and led to the formation of the M膩ori Party. Photo / Kenny Rodger

Supreme Court rules in new twist for 20-year foreshore and seabed Māori rights saga

Author
Jamie Morton,
Publish Date
Mon, 2 Dec 2024, 3:24pm
  • A just-issued Supreme Court ruling marks the latest twist in a 20-year legal saga over M膩ori customary rights to the foreshore and seabed.
  • After a Court of Appeal judgment last year eased the test for M膩ori to gain customary titles, the Supreme Court has ruled it erred in its approach to interpreting a critical part of the law.
  • The ruling allows an appeal by the Attorney-General against last year鈥檚 decision and comes as the Government is pushing through legislative amendments that overturn it.

The Supreme Court has ruled the majority of the Court of Appeal 鈥渆rred鈥� in a major decision that ultimately eased the test for M膩ori to gain customary rights for use of the foreshore and seabed.

Its just-issued ruling allows an appeal by the Attorney-General against the Court of Appeal鈥檚 decision last October, at a time the Government is pushing through contentious legislation to overturn it.

Under the Marine and Coastal Area (Takutai Moana) Act 2011 (Maca), which replaced the Foreshore and Seabed Act 2004, the 鈥渃ommon marine and coastal area鈥� can鈥檛 be owned by anyone, with public fishing and access rights protected.

However, M膩ori can seek to have customary rights recognised with two orders: customary marine titles (CMTs) and protected customary rights (PCRs).

CMTs are a concept similar to ownership but not the same 鈥� the land can鈥檛 be sold 鈥� and recognise M膩ori property rights in the marine common and coastal area since 1840.

Under the Maca鈥檚 section 58, applicants for CMTs have to meet two conditions: that they鈥檇 held it in accordance with tikanga, and exclusively used and occupied it without substantial interruption since 1840.

Last year鈥檚 Court of Appeal judgment particularly criticised the second condition, saying incursions into an area by third parties since 1840 would deprive a group of CMT and be inconsistent with the Treaty of Waitangi.

鈥淔ar from recognising and promoting customary interests鈥�, the court found, 鈥淸Maca] would in many cases extinguish those interests鈥�.

With the view that the court鈥檚 decision changed the nature of the test by reducing its threshold, the Government responded by drafting an amendment bill aimed at ensuring the Maca tests were interpreted and applied as originally intended.

Now, the Supreme Court has unanimously allowed an appeal by the Attorney-General against the Court of Appeal ruling over what it said should be the 鈥渃orrect interpretation鈥� of section 58.

In 2004, intense public debate over customary rights to the foreshore and seabed split in the governing Labour Party and led to the formation of the M膩ori Party. Photo / Kenny Rodger
In 2004, intense public debate over customary rights to the foreshore and seabed split in the governing Labour Party and led to the formation of the M膩ori Party. Photo / Kenny Rodger

Its just-issued decision addressed seven separate appeals heard by the court last month, involving the Attorney-General, eastern Bay of Plenty iwi Te Whakat艒hea, hapu groups with overlapping claims, and other third parties.

It highlighted that a key contention in those cases was the meaning of use and occupation 鈥渨ithout substantial interruption鈥� since 1840.

Here, the Supreme Court considered the majority of the Court of Appeal erred in its analysis by taking an unduly narrow approach in its interpretation.

鈥淥n this aspect, we consider that the majority of the Court of Appeal erred in that they appear to have concluded that only interferences expressly authorised by statute are capable of substantially interrupting exclusive use and occupation.鈥�

Further, the court ruled that a three-stage test adopted by the Court of Appeal didn鈥檛 adequately address the act鈥檚 reconciliatory purpose.

Given the importance of a correct statement of the test, the court ruled to allow the Attorney-General鈥檚 appeal so that, 鈥渢o better reflect the text, purpose and legislative history of Maca, this court can state the test afresh鈥�.

Elsewhere in its ruling, the court reaffirmed that applicants must demonstrate a deep, integrated relationship with the marine area under tikanga, reflecting an ongoing connection and exercise of mana.

The ruling also addressed another key issue with the Maca test: that applicants had 鈥渆xclusively used and occupied鈥� the area.

The court clarified that, while physical exclusion of others wasn鈥檛 required, applicants should still show extensive use of the area, intention, and capacity to exercise control under tikanga and law.

A second Supreme Court judgment, still to be released, would address the remaining 鈥渇act-specific鈥� issues of the seven appeals, including application of section 58 to navigable rivers and outstanding PCR claims.

Jamie Morton is a specialist in science and environmental reporting. He joined the Herald in 2011 and writes about everything from conservation and climate change to natural hazards and new technology.

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