The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) was introduced in 2011, replacing the Foreshore and Seabed Act 2004. This legislation was aimed to restore customary interests previously extinguished under the 2004 Act, establish statutory tests for recognising customary interests and provide for public access.
Under the Act, Māori can obtain legal rights in the form of customary marine titles or protected customary rights, with two application pathways available. Māori can apply to the High Court for a recognition order or engage directly with the Crown or do both. In each case, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.
The Waitangi Tribunal has recently inquired into the Act as a priority, acknowledging its impact on Māori and the importance of customary rights. In its Stage 1 Report, released in 2020, the Tribunal found that certain aspects of the procedural and resourcing arrangements breached the Treaty of Waitangi and negatively affected Māori. The Tribunal’s Stage 2 Report was released in October 2023 and examines whether the Act breaches Te Tiriti o Waitangi (Tiriti) principles and prejudices Māori.
Overview
In its Stage 2 Report the Tribunal found that aspects of the Act do breach Tiriti principles and cause prejudice to Māori for various reasons, including:
- The Crown’s inability to facilitate well-informed and meaningful Māori participation in the consultation process.
- The inability to provide a fair and reasonable statutory test for customary marine title.
- Failing to offer Māori a choice between having their applications heard in either the High Court or the Māori Land Court.
- Unjust exceptions that limit the scope of protected customary rights.
- The exceptions of accommodated activities and deemed accommodated activities reducing the regulatory authority of customary marine title holders, weakening their permission rights.
- Insufficiently empowering Māori to preserve wāhi tapu and wāhi tapu areas under the wāhi tapu protection right.
- Vesting reclaimed land in the Crown, resulting in the extinguishment of Māori customary rights without compensation and preventing the granting of customary marine titles and protected customary rights.
Duty of Active Protection
The Report emphasises that under the principle of active protection, the Crown must seek input from Māori on what they consider taonga and ensure their protection. The Tribunal confirms that, “the marine and coastal area as a whole is a taonga that has significant importance to Māori.”
The current rights provided by the Act do not sufficiently support Māori in their kaitiakitanga duties and rangatiratanga rights. The Act fails to address certain types of rāhui undermining the ability of Māori to exercise tino rangatiratanga.
The Act’s statutory deadline for filing applications has caused prejudice to those who missed the deadline altogether, as they can no longer seek legal recognition of their customary interests in te takutai moana.
The Act’s restrictions on the alienation of customary marine title also contributes to the breach of the Crown’s duty of active protection. Under section 58 of the Act, adding ‘without substantial interruption’ to the test raises the risk of some applications failing. The Act already covers the protection of existing interests in te takutai moana in other sections, so the Tribunal found that the addition is not necessary.
Duty to Consult
The Report states that even though the principles of partnership and active protection required the Crown to consult with Māori to a greater degree than the public, given the particular interest that Māori have in the taonga that is te takutai moana, there was little evidence to suggest that the Crown made meaningful efforts to engage with Māori specifically.
The Act has a substantial impact on the relationship Māori have with te takutai moana. The Crown’s duty to consult with Māori in developing the Act is of the utmost importance and goes beyond simple outreach or data gathering. When key elements of a policy are deemed non-negotiable, it severely undermines meaningful consultation. The Crown’s insistence on these non-negotiables is seen as a lack of good faith toward Māori.
Duty to Act in Good Faith as Treaty Partners
Partnership
The Tribunal has consistently upheld the idea that Te Tiriti signifies a partnership between the Crown and Māori. The partnership is built on the fundamental premise that each partner should act reasonably and in the utmost good faith towards the other. It encompasses a commitment to act honourably, reasonably, and in good faith, aligning with the principles of reciprocity and mutual benefit.
The notion of reciprocity does not imply that Māori gave the Crown unrestricted legislative supremacy over resources. Instead, it highlights the need for a balanced approach where the interests of both Māori and non-Māori are considered fairly and reasonably. The Tribunal believes there is a place for both peoples and their interests in the foreshore and seabed.
The Tribunal considers that the Act’s statutory deadline unjustified and does meet the standard of acting reasonably and in good faith toward Māori. This conclusion is based on the lack of compelling evidence supporting the choice of a six-year deadline, and the Crown’s flawed argument about legal certainty. The Tribunal found the Act’s statutory deadline is in breach of the Treaty principles of partnership and active protection.
Tribunal’s Recommendations
In summary, the Tribunal finds that the Act fails to adequately support Māori in their roles as kaitiaki and in exercising rangatiratanga rights. The Tribunal recommends specific amendments to the Act to rectify these issues. These include:
- Improving the statutory test for customary marine titles.
- Repealing the statutory deadline.
- Allowing applicants flexibility between the High Court and Māori Land Court.
- Addressing exceptions to protected customary rights.
- Repealing specific exceptions to the scope of permission rights.
- Increase the scope of the Act’s compensation regime.
- Separating the legal protection for wāhi tapu areas from the regulations and requirements associated with customary marine title under the current regime.
- Compensate affected iwi, hapū, and whānau for all reclaimed land vested in the Crown.
Conclusion
The Tribunal supports that te takutai moana is a taonga. Consequently, the Crown is required under the principle of active protection, to engage in genuine and meaningful consultations with Māori to seek their perspectives and ensure the safeguarding of this taonga.
At this stage, it is uncertain to what extent the Tribunal’s findings or recommendations will be addressed by the Crown. For those with takutai moana applications before the High Court or in engagement with the Crown, the Tribunal’s findings and recommendations will be relevant in some respects.
The experienced team at McCaw Lewis can help you navigate any aspect of your Takutai Moana matters and answer any questions you may have.
