(May 21, 2021) On May 7, 2021, the High Court of New Zealand, the third highest court in New Zealand’s court hierarchy, issued a decision in Re Edwards (Whakatohea) (No 2)  NZHC 1025 in which it “granted recognition orders for customary marine title and protected customary rights to a number of applicant groups in the eastern Bay of Plenty.” The orders were made pursuant to the Marine and Coastal Area (Takutai Moana) Act 2011, which “allows [Māori] whanau [family], hapu [subtribe] and iwi [tribe] groups to apply for [such recognition orders] in a specific area of the coastal marine area (the takutai moana).”
The Marine and Coastal Area (Takutai Moana) Act 2011 repealed the Foreshore and Seabed Act 2004. The earlier act had been passed in response to a 2003 Court of Appeal decision in Ngati Apa v Attorney-General  3 NZLR 643 in which the court held that the Maori Land Court had jurisdiction to determine whether or not areas of the foreshore and seabed were Maori customary land under the Te Ture Whenua Maori Act 1993. The 2004 legislation essentially overruled this decision, stating that
- the Crown is the owner of the foreshore and seabed (except for the privately owned parts)
- the public has the right of access over the foreshore for recreation and over the foreshore and seabed for navigating boats
- customary activities that people have been doing since 1840 were protected
- people who owned dry land next to the foreshore, and who had been using part of the foreshore and seabed since 1840, could claim territorial customary rights and apply to the Crown for redress.
The proposal and passage of the Foreshore and Seabed Act 2004 gave rise to large-scale protests and was the catalyst for the formation of the Maori Party. The Waitangi Tribunal, following an urgent inquiry into the issue, found that the policy underpinning the legislation breached the principles of the Treaty of Waitangi and, beyond that, “the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination.”
In 2010, the National Party-led government announced that it would repeal the Foreshore and Seabed Act 2004 following a review that was undertaken pursuant to a confidence and supply agreement with the Maori Party. The Marine and Coastal Area (Takutai Moana) Bill was subsequently passed in 2011, with the then-attorney general explaining that
[t]he Bill restores the right to seek recognition of customary marine title in the common marine and coastal area through the Courts – a fundamental common law right confirmed by the Court of Appeal in the 2003 Ngati Apa case, but subsequently taken away from Maori by the 2004 Act.
The Bill sets out tests for proving customary marine title based on the Court of Appeal’s decision in the Ngati Apa case, as well as the common law in Canada and Australia. It also sets out the rights customary marine title holders may exercise, such as guardianship and development rights. These rights do not affect public access.
Marine and Coastal Area (Takutai Moana) Act 2011
A guide on recognizing customary rights under the 2011 Act explains that
[t]he marine and coastal area extends from mean high water springs (roughly the highest point washed by the tide) to 12 nautical miles offshore. It runs along the whole coastline of New Zealand, including off-shore islands.
The common marine and coastal area is the marine and coastal area (see above), except for certain conservation areas and existing private titles. Private titles include any land that is owned by any person other than the Crown. It includes Maori customary land and Maori freehold land.
The Act creates a special status for the common marine and coastal area, meaning neither the Crown nor any other person can own it.
. . .
The Act provides for iwi, hapu and whanau to have their customary rights in the common marine and coastal area determined. This is called customary marine title. This interest in land does not allow the land to be sold or for the public to be excluded.
In order to prove customary marine title in a particular area, a group must have had exclusive use and occupation of the area since 1840 without substantial interruption, and have held the area in accordance with tikanga [Maori customary values and practices]. Customary marine title gives certain rights under the Act. It is not possible to negotiate additional rights.
Iwi, hapu or whanau can also seek recognition of certain customary activities such as waka [boat] launching and gathering natural materials. These are called protected customary rights. The activities must have existed at 1840 and have been continually undertaken since then. Where protected customary rights are recognised they are exempt from resource consent requirements and coastal occupation charges. A resource consent [authorization for certain activities or use of a resource] cannot be granted if it is likely to have adverse effects that are more than minor on the exercise of a protected customary right.
There are two pathways for iwi, hapu or whanau to apply for recognition of their customary rights. They can apply to engage directly with the Crown or apply to the High Court. The same legal tests apply and the same package of rights is available under both pathways. Groups have until 3 April 2017 to apply for recognition of their customary interests under either pathway.
Te Arawhiti, the Office for Maori Crown Relations, reports that it “received 387 applications for direct engagement with the Crown, and 175 of those were made in both the High Court and Crown engagement. There are many overlapping applications both to the Crown and in the High Court.” The High Court reports that “[t]here are 200 active marine and coastal recognition applications” before the court.
High Court Decision
As the Re Edwards (Whakatohea) (No 2) case “is only the second application to be heard under the Act, and the first involving overlapping claims, many of the issues arising in this case have not previously been addressed by the Courts. Therefore, this decision has implications for some 200 other such claims currently before the High Court.”
The court exercised its power under section 99 of the 2011 Act to appoint two experts on tikanga (pukenga) to “advise on tikanga matters in the proceedings, and the tikanga-based elements under the Act.”
Among the key findings of the court were the following:
- In relation to the phrase “holds the specified area in accordance with tikanga” in the Act, “because of the ‘sui generis’ nature of customary marine title, the critical focus of the assessment under this element must be on tikanga, rather than on western proprietary concepts.”
- In relation to the phrase “exclusive use and occupation” in the Act, “the concept of ‘shared exclusivity’, taken from Canadian jurisprudence, was consistent with the purposes of the Act and could be applied in the circumstances to allow for a single customary marine title order over the claimed takutai moana area shared between the applicants.”
- In relation to the phrase “substantial interruption” in the Act, “while certain physical activities allowed under resource consents and certain physical structures could amount to substantial interruption, the granting of a resource consent itself could not. Furthermore, the loss and confiscation of the applicants’ land through raupatu [referring to government confiscation of land in retaliation for rebellion against the Crown in the wars of the 1860s] did not sever their connection to the takutai moana.”
In terms of the tikanga involved in the proceedings,
[t]he Court acknowledged tikanga as the first law of Aotearoa New Zealand, and the growing intersection between tikanga and the common law. It considered a range of tikanga values put forward by the applicants, particularly the concept of whanaungatanga [kinship] and the importance of whakapapa [genealogy] (and its interconnectedness), and concluded that through their whakapapa, a number of the applicants had links to the earliest Maori settlement of the eastern Bay of Plenty, and that they had been able to establish their mana [authority; control; power] in relation to the whenua [land] and takutai moana of the area.
Following an individual assessment of the protected customary rights applications, the court issued a range of orders to a number of groups. These orders “included protected customary rights over activities including the collection of shells, stones and driftwood, carrying out customary practices in the takutai moana such as tangihanga [funeral rites], wananga [knowledge-sharing] and karakia [prayer], collection of certain resources for rongoa [medicinal practices], and launching of boats and waka.”