Twenty-one years after the foreshore and seabed hīkoi, legislative changes are being pushed through that will make it harder for many Māori to prove customary title of the takutai moana.
Last week the government announced it is going ahead with planned changes to the Marine and Coastal Area (Takutai Moana) Act. The Act is the successor to the infamous Foreshore and Seabed Act, which was passed in 2004 amidst widespread protest from Māori. The current law is based on a compromise struck in 2011 as part of a Confidence and Supply Agreement between the National Party and Te Pāti Māori, which balances Māori rights to the takutai moana (foreshore and seabed) with the rights of the general public to access and use the beach and ocean. This new amendment would undermine that compromise.
How does the current law work?
The Marine and Coastal Area Act aims to strike a balance between the customary rights of Māori and the rights of all New Zealanders to access and use the foreshore and seabed. To do so, it first preserves a number of general rights for everyone, including rights of access, rights of navigation, and individual fishing rights. At the same time, it provides a way for Māori to have other rights upheld, if they can prove they have held and exclusively occupied the area since 1840, in accordance with tikanga, without substantial interruption.
Where those factors can be proven, applicants can be awarded customary marine title. Crucially, customary marine title does not override the rights of other individuals regarding access, navigation and fishing. However, it does give successful applicants a say over larger-scale corporate and commercial activities in their area. Examples of this might be commercial fishing, big building projects, or any other activity likely to have a major adverse effect on the environment. This is not the same as limiting private access.
Why does the government want to change the law?
In 2023, the Court of Appeal was asked to interpret the test for the recognition of customary marine title. The terms “exclusive occupation”, “in accordance with tikanga” and “without substantial interruption”, for example, all needed to be interpreted by the Court to make it clear exactly what they meant in practice. What if, for example, two iwi had control of an area according to their tikanga, which allowed each of those iwi to access that area, but excluded all others? Would that count as exclusive occupation under the law?
The Court of Appeal decision in 2023 clarified the relevant tests, but the government disagreed with the result. Normally when that occurs, the losing side can appeal the decision to the Supreme Court. That’s what happened in this case, but rather than wait for the Supreme Court’s decision, in 2024 the government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. The bill was specifically designed to overrule the Court of Appeal decision.
The Waitangi Tribunal conducted an urgent inquiry on the government’s plans last year. Its report said that if the bill was introduced – which it subsequently was – it would breach the treaty principles of partnership, rangatiratanga, kāwanatanga, active protection and good government. Importantly, the Tribunal also dismissed the claim from the government that the bill was just about restoring parliament’s original intent, in part because that original intent included acknowledgment of te Tiriti o Waitangi. Chris Finlayson, the former attorney general who helped draft the original law in 2011, reiterated that point about parliament’s original intent earlier this week.
Did the Supreme Court case go ahead?
Yes, and it threw a spanner in the works for the government, but for an unexpected reason – the government won. The Supreme Court disagreed with aspects of the Court of Appeal’s interpretation and therefore decided to allow the government’s appeal, given “the importance of correctly stating the test”. The Supreme Court still disagreed with many of the government’s arguments, but nevertheless allowed the government’s appeal.
The decision left uncertainty as to what would happen next. The government had originally said that it just wanted to change the Court of Appeal decision, but the Supreme Court did that for them.
So what happens next?
If the bill goes through, it will make it far harder for Māori to have their customary rights to the foreshore and seabed acknowledged. The Waitangi Tribunal noted that this is a drastic change, and that there had been no identified public right or interest that requires protection which might justify such a change. As noted by leading Māori lawyer Natalie Coates, the only groups which stand to benefit from such a significant restriction on Māori land rights are those seeking to undertake commercial activity.
Although submissions on the bill closed on October 15 last year – with almost 6,700 submissions received – it is unlikely this is the last we’ll hear of this issue, especially given its very loaded history. When the Foreshore and Seabed Act was passed in 2004, tens of thousands took to the streets in protest. It would not be a surprise if 20 years later, we’re about to see the same response.
