Govt decision-less as court approves more coastline titles to Māori applicants
Māori have been granted rights over more of the southern North Island coastline under tighter new Supreme Court criteria, while the Cabinet enters its seventh month of indecision over an amending law.
The latest High Court ruling over the coast from Kāpiti to Manawatū (Paekakariki to the Rangitikei River, and including Kapiti Island and islets) is unique because it takes a pivotal late 2024 Supreme Court ruling into account.
It still makes a series of grants of customary marine title (CMT) at a time when the Government wants to restrict such coastal rights.
The coalition has a bill before Parliament that would make it harder for iwi and hapū to prove continuous and exclusive use of waters under tikanga since 1840. The bill is designed, the Treaty Negotiations Minister Paul Goldsmith reportedly claimed, to mean only about 5 percent of the coast could be subject to CMT. It contains a provision making any judgments delivered since its introduction moot and would return such cases to new hearings.
But after an urgent decision delivered by the Supreme Court went some way to meeting concerns the Government had over an earlier Court of Appeal judgment, Goldsmith paused the law change. Having promised to pass it by the end of 2024, he and colleagues have been seeking advice on whether it is still needed, with that process beginning in December.
A High Court judge awarded six new areas of customary title that month on the other side of the North Island, down the southern Wairarapa coastline. She invited lawyers to submit to her on how the Supreme Court ruling in November might change her findings.
Now another judge, taking into account the Supreme Court's refined and extended criteria, has done the same for the Kāpiti to Manawatū coast on the other side of the island.
A spokesperson for Goldsmith said no decision had been reached by the Government on whether to progress its bill.
The minister told Parliament's Māori Affairs select committee during Scrutiny Week on Tuesday he could not commit to a timeframe, even to say the Government could decide the bill's fate this year.
'We are actively turning our mind to it and we do want to resolve these issues sooner rather than later.
'Broadly we are concerned about the whole framework that's developed. I'm worried that we could see the way it's currently set up we could continue having court case for many, many years and could still be testing it in 2040. We are turning our minds towards how we could come up with a more efficient process.'
Goldsmith said it could either leave the law as it is, with the Supreme Court's view prevailing, or could amend the Government's bill to continue to change the existing law but 'recognising' elements of that court's views.
In CMT cases, a process the Crown made Māori undertake when Parliament passed the Marine and Coastal Areas (Takutai Moana) Act in 2011, iwi or hapū apply via the courts or direct to a minister to have customary rights over inner waters and coastline recognised. Rights of the public to access, swim, use boats and fish are not affected.
But the commercial fishing industry has been an 'intervener' in various Marine and Coastal Areas Act cases before the courts, arguing local Māori either did not have exclusive use, or continued use of water under tikanga (custom) since 1840. Industry lawyers have argued that commercial fishing fleets have lawfully fished in these zones, making the exclusivity criteria redundant.
The fishing-industry-friendly coalition Government has taken notice and its amendment law, which has already gone through the select committee process, is an attempt to make Māori claims to CMT more difficult.
Now, with a tighter criteria on the table via the Supreme Court, the Cabinet must decide if its law and its restrictions are even needed. One line of thought is that the Government should now back off the law and avoid more controversy with Māori after the intensity of opposition of the Treaty Principles Bill.
A map provided to the High Court by the Attorney-General's lawyers showing overlapping claims in the Kāpiti to Manawatū coastline.
In this latest Kāpiti-Manawatū coastline case, Justice Christine Grice has in a 600-page judgment weighed the Supreme Court's definitive views on tikanga, exclusivity and undisturbed use of waters into account and made CMT orders in favour of five groupings.
Two, Te Ātiawa and Ngāti Raukawa, win exclusive customary rights, and to share rights with other tribal groupings. One iwi, Muaūpoko, is granted shared rights with two individual hapū or whānau claimants.
The applicants' rights to CMT over waters beside the coastline are, however, all restricted down from the 12-nautical mile limit sought to between a kilometre and a nautical mile only.
That is despite the marine and coastal area being legally the area between the high-water springs and the 12 nautical mile limit of the territorial sea.
A bid by Te Ātiawa for exclusive CMT over Kapiti Island was rejected by the judge, who found Ngāti Toa had clear rights to the island, although Te Ātiawa succeeded in winning shared rights over the 5km channel between the island and its area on the facing coastline.
Justice Grice's judgment follows hearings between March and November 2024 and late submissions in February 2025.
She says it considers 'historically contested events and the groups' circumstances, in particular their relationships with the takutai moana and how those relationships have been expressed through to the present time – in the context of the application of the statutory test for CMT as recently reformulated by the Supreme Court.
'The final determination recognises that five applicant groups are entitled to either shared exclusive, or exclusive CMT as various specific locations across the hearing area.'
Another 10 groups claiming parts of the coastline areas have chosen not to go through the courts, but made applications to ministers and officials under what is known as the Crown engagement pathway.
Attorney-General Judith Collins is represented in the court actions, with her lawyer telling Justice Grice she acts 'in the interests of all the public (including Māori) to assist the court to interpret the MACA Act, assuming an 'independent aloofness''.
Witnesses and claimants told the High Court that for their ancestors there had been no line between land and sea. 'From the Kāpiti Coast they looked seaward to Kapiti Island and beyond to the top of the South Island. The moana which took their waka to those places was a continuation of the land – it was a highway,' Justice Grice writes.
The MACA law was the National Government's response in 2011 to the highly controversial 2004 Foreshore and Seabed Act brought in by Helen Clark's Labour Government after the appeal court at the time found Māori could claim customary ownership rights of their shoreline and inshore waters.
The 2004 law extinguished any customary rights and vested the foreshore and seabed in the Crown, leading to widespread Māori protest and ultimately the formation of the Māori Party.
National's compromise MACA law seven years later declared no one owned the foreshore and seabed – not Māori and not the Crown. It restored any customary rights extinguished by the 2004 law, and provided instead for Māori groups to apply for Customary Marine Title recognising that certain areas were held by them and giving them influence over uses in those zones. It covers the area between high-water springs and the 12 nautical mile limit of the territorial sea.
Iwi and hapū around the country have lodged more than 200 court applications for customary marine title. About 390 groupings had separately chosen to seek CMT in direct negotiations with the Crown but a Waitangi Tribunal report this month recorded none had been concluded and just seven were near completion.
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