Changes to the foreshore and seabed law are due to be introduced to Parliament next month. Photo / Alan Gibson
The Government hopes to have the bill restoring the test for customary title in the foreshore and seabed done and dusted by Christmas, says Justice Minister Paul Goldsmith.
But Labour will be opposing any change and believes the Court of Appeal judgment, which made it easier for iwi, hapū and whānau to have customary marine title recognised, should be left untouched.
Goldsmith announced on July 25 that the Government would overturn the Court of Appeal decision and restore the former test in the 2011 law.
But because the bill will take effect from the date he announced the measures and will affect some live cases that have been heard but not yet decided, “it is not helpful to have too long a lag”, he told the Herald.
The bill amending the test in the Marine and Coastal Area (Takutai Moana) Act 2011 is still being drafted and he plans to introduce it to Parliament next month. It will go to a select committee, although it might be a shortened process.
Goldsmith said it would be desirable to have it finished by Christmas. Applicants granted customary marine title between July 25 and before the bill is completed would have it overturned and need to have part of the case reheard or could enter negotiations with the Crown.
Goldsmith said it was an unusual move to completely overturn a court judgment “but we felt it was justified in this circumstance because it materially changed the hurdle or the test and that would have very significant ramifications”.
The intention of the 2011 act was for there to be a high threshold for customary marine title “recognising that we are trying to balance rights and the fact that all New Zealanders have an interest in the coastal areas”.
“The implication of the decision was that it was a different law that should have been passed – and that’s not how it works,” said Goldsmith.
“It in effect, changed the legislation and we were not prepared to go along with that.”
Unlike the United States, where the Supreme Court can strike down legislation, New Zealand’s system is one of parliamentary sovereignty.
Willie Jackson said Labour believed the Court of Appeal decision should be respected.
“The threshold was far too high, far too high,” he said.
Jackson said that while he respected the sovereignty of Parliament and acknowledged that the courts sometimes “overstepped the mark”, Parliament did, too.
“It’s easy to say it’s the sovereignty of Parliament but that means stuff-all to people who are fighting for their rights every day, who have had their language denied, have had their culture denied and when they have the opportunity to take something to court, that’s shut down too.”
Jackson said his position had been framed by his activism and Māori had come to rely on the courts over many decades.
“I understand the sovereign argument but I sympathise and empathise more with our people who are now using the courts to get what they want.
“Because of the 1987 court decision [the Lands case], we got the Treaty settlements process … Māori Television, Māori radio, kōhanga reo because Government was obliged to show how that court decision would roll out in a modern New Zealand society.”
It was the partnership approach taken by Governments rather than giving over total tino rangatiratanga [article two].
It’s easy to say it’s the sovereignty of Parliament but that means stuff-all to people who are fighting for their rights every day.
Some Māori, such as his uncles Syd Jackson, Moana Jackson and Te Pāti Māori did not agree with the partnership approach.
“Their line is they own everything but better to take the middle position. That’s where I think those judges did a good job.”
The Government’s amendment bill will pass with the support of Act and New Zealand First. It is part of New Zealand First’s coalition agreement. Along with Labour, the Greens and Te Pāti Māori will oppose the amendment bill.
On the day of Goldsmith’s announcement, Te Pāti Māori called it a confiscation and an all-out assault on whakapapa and said: “It is time for us to step into our tino rangatiratanga and break the Crown’s colonial monopoly on power.
“Tangata whenua have always had undisturbed ownership and rights over our whenua, our resources, and our taonga. The burden rests on the Crown to prove their rights.”
WHAT YOU NEED TO KNOW
What is the Government planning to do with the foreshore and seabed law?
It is drafting a law to overturn a Court of Appeal judgment issued in October last year which made it easier for Māori to claim customary marine title (CMT) in the foreshore and seabed. The judgment centred on the Edwards case, the first major case under the Marine and Coastal Area (Takutai Moana) Act (MACA), which was passed in 2011 to repeal Labour’s Foreshore and Seabed Act 2004.
Was the repeal of the judgment an election promise by any of the parties of Government, National, Act or New Zealand First?
No, because the judgment came out the week after the election so during the election campaign, no one knew it would be such a big issue. And when it did, it was a big deal because even though it was about only one case, it was the first major case to be heard under the 2011 law and the hundreds of other cases waiting to be heard in the High Court would have to follow the new test for customary title set out in the Court of Appeal judgment.
Customary title can also be negotiated between the Crown and iwi and for consistency, unless the judgment was overturned in statute, the Government would have to have adopted the court’s test in its ongoing direct negotiations with a handful of iwi.
How did the Court of Appeal judgment change the test?
Under the law passed in 2011, two conditions in section 58 had to be met before CMT was recognised: the applicant group must hold it in accordance with tikanga (Māori customs and practices); it must have exclusively used and occupied it without substantial interruption since 1840.
The Court of Appeal judgment criticised the second leg and said under that criteria, incursions into an area by third parties since 1840 would deprive a group of customary marine title and would be inconsistent with the Treaty of Waitangi. “Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests.”
It effectively said it couldn’t see how Parliament intended to prescribe a test for CMT that operated in a way that entrenched and perpetuated breaches of the Treaty of Waitangi.
It was a 2-1 majority decision on the test, Justice Mark Cooper and Justice David Goddard for and Justice Forrest Miller dissenting. Miller said it had made the test much easier, no applicant had advanced the case for it, and it was not supported by the legislation.
Why was that test put in the law in the first place?
You have to consider the context in which the 2011 law was passed by National, the Māori Party and United Future. It was a much more liberal test to pass than the one passed by Labour in 2004 in the Foreshore and Seabed Act. Under Labour’s law, in order to get a territorial customary right recognised, an applicant group not only had to have exclusive use and occupation since 1840, it had to own the adjacent land next to the foreshore and seabed. None succeeded.
When National and the Māori Party agreed to replace that law (a review was part of their confidence and supply agreement), the test for getting CMT recognised was relaxed in 2011, and the rewards for success were higher and more explicit.
The term “exclusive use and occupation” was taken primarily from Canadian case law.
What is customary marine title?
It is a special status of the common marine and coastal area awarded to iwi, hāpu or whānau groupings. The area falls between the wet part of the beach and the 12-nautical-mile limit.
It cannot be sold. Public access is guaranteed as are fishing rights and navigation rights.
Even though it has sometimes been described as a type of ownership, the law specifically states that it “is incapable of ownership” and that no one owns it.
The holder of CMT does not have the right to restrict access to the area unless parts of the area are subject to a wāhi tapu order, which needs to be approved by a court.
The Government continues to own nationalised resources, oil and gas, gold, silver and uranium. But the holders of CMT own any non-nationalised resources and have a veto right on any future consents required for new activities, developments or expansions of existing activities in their CMT area, including marine reserves and, mining of iron sands and aquaculture ventures within the 12-nautical-mile limit. The attitude to such ventures is likely to vary between iwi.
Existing consented or permitted activities are protected. And infrastructure deemed “reasonably necessary” for social and economic wellbeing and operated by organisations such as power companies, ports or water entities do not need permission of CMT holders.
But it is an offence to begin an activity for which permission is required from a CMT holder and fines of up to $300,000 and two years’ jail can be applied to people, and up to a $600,000 fine for an offender such as a company.
What are protected customary rights?
They are rights that are lesser than CMT but that can be recognised as a protected activity under the same law, the Marine and Coastal Area (Tākutai Moana) Act 2011, for such things as tangihanga, baptisms, whitebaiting, gathering sand, shells, stones, plants and driftwood, launching waka and boats, taking water and planting.
Was there much debate about the test for exclusive use and occupation in 2011?
Yes. The Māori Party of Tariana Turia and Pita Sharples was not happy about it but voted for the bill because they believed it was much better than Labour’s regime. It restored the right of Māori to go to court to have CMT recognised and while the test meant few would have it recognised, the unstated quid pro quo was that once it was, it was a meaningful title that gave the holders real power over activities.
Without a shadow of a doubt, if the new test set by the Court of Appeal had been proposed by Attorney-General Christopher Finlayson in his 2011 law, he would not have got it through his caucus, let alone cabinet and Parliament.
In a rough guesstimate at the time, he reckoned about 10% of the New Zealand coast would end up in customary title. Under the new threshold, most applications would be likely to succeed, so long as the tikanga link was accepted.
The Greens opposed it on the basis that the test was too hard.
The Labour Party was happy to see the end of its 2004 law but didn’t support the replacement for several reasons. It thought the Māori Party’s misgivings about it meant it could not be seen as full and final. Labour also thought the test for CMT should be set entirely by the courts and not Parliament. It now believes the decision of the Court of Appeal should stand.
How did the Edwards case end up in the Court of Appeal?
The case centres on the recognition of CMT and protected customary rights concerning the Eastern Bay of Plenty. The High Court issued a judgment in May 2021 setting out its decisions which recognised that six hapū of Whakatōhea had CMT in three parts of the Eastern Bay of Plenty. The judge used pukenga or local experts to help identify which hapū had held the area in accordance with tikanga. He also rejected the notion that hapū had needed to show they controlled an area in order to meet the test of exclusive use and occupation. He accepted the concept of “shared exclusivity” meaning that if hapū with overlapping claims recognised the relationship of others with an area, it would not be a barrier to awarding CMT.
Appeals were then filed by a host of groups including some hapū that had missed out on CMT, others that objected to the rough boundaries, and by the Landowners Coalition Inc which believed the judge misinterpreted the criteria for CMT and that applicants needed to show they control a particular area.
It is not yet clear whether the concept of “shared exclusivity” will be kept or overturned in the amendment bill. However, keeping it could be considered a reasonable compromise by reducing the complication of overlapping claims, without removing one of the primary conditions.
How will the law be amended in Goldsmith’s bill?
As announced by him, the bill will insert a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT; the eight existing CMT decisions will continue to be recognised. It will add text to section 58 of the act to define and clarify the terms “exclusive use and occupation” and “substantial interruption”. It will amend the “burden of proof” section of the act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day. And it will make clearer the relationship between the framing sections of the act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.
What happens to current cases under the Government’s plan to overturn the new test?
It’s complicated. The Edwards case is still live and further appeals are scheduled to be heard by the Supreme Court in November under the Court of Appeal’s test. Edwards is among four decided cases under appeal for which the Court of Appeal’s case law will apply – unless the Supreme Court changes it again (Edwards, Eastern Bay of Plenty; Ngāti Pāhauwera, Hawke’s Bay; Tokomarua Bay 1 and 2, Tokomaru Bay; and Wairarapa (1a), Wairarapa). Four decided cases that are not under appeal will stand and not be impacted (Tipene, Titi Island; Ngā hapu o Ngāti Porou Tranche 1 and 2, Tai Rawhiti; Clarkson, Wairarapa; and Ngā Pōtiki (1), Tauranga).
However, five live and undecided cases already before the High Court will be impacted. If they are awarded CMT, it will be overturned and parts of the cases will either need to be reheard under the test to be passed in the amendement act or provision made for the applicant to present evidence to meet the new test, which could be through negotiations with the Crown (Whangārei Harbour, Tai Tokerau; Wairarapa (1b), Wairarapa; Nga Pōtiki (2), Tauranga; Inner Aotea Harbour, Aotea Harbour; and Kāpiti-Manawatu (1a), Kāpiti-Manawatu).
All other undetermined claims and those set down for hearings will have to be decided under the provisions of the amended test in the yet-to-be-introduced amendment act, including Rongomaiwahine, Hawke’s Bay; Ngāti Koata, top of the South Island; Te Whānau a Āpanui, Bay of Plenty; Ngā hapu o Ngāti Porou, Tai Rawhiti; and Whangārei Coast, Whangārei.
How did it all start?
When aquaculture was taking off in the Marlborough Sounds, eight iwi sought to have the foreshore and seabed declared customary land – with the support of the Māori Fisheries Commission.
In 2003, the case known as Ngāti Apa eventually made its way to the highest domestic court at the time, the Court of Appeal. It concluded that the Māori Land Court could investigate claims for customary title in the foreshore and seabed.
What was the Government’s response at the time?
Because the Māori Land Court has the power to turn customary land into freehold title, Helen Clark’s Government believed it was better to overturn the decision rather than appeal it to the Privy Council.
Before the Ngāti Apa decision, the Government thought the foreshore and seabed was in Crown ownership.
Her deputy, Michael Cullen, worked closely with senior Māori MPs at the time, including John Tamihere, the current president of Te Pāti Māori, to come up with a regime that first, asserted Crown ownership of the foreshore and seabed, and removed the right to test customary title in the court. It also set up a regime whereby the Government would compensate any iwi if it could convince a court that it otherwise would have been able to prove customary title or what it called “territorial customary rights”. The test, however, was extremely high and the applicant group had to own the land next to the relevant foreshore and seabed.
It was described by many Māori as a “confiscation” and MP Tariana Turia led the resistance to it, resigning from Parliament and forming the Māori Party.
Is it common for Parliament to overturn court decisions?
It is not uncommon. For example, the law setting out a framework and staged process for pay equity claims was the result of a court decision. Parliament wanted to provide a negotiated regime rather than having the courts as the only option through which claims could be made.
In 2023, Parliament passed a law that negated the effect of a court decision that would have forced the Government to release some 501 deportees from their parole-type obligations as a consequence of a case taken by a former drug dealer “G” against his conditions. G’s individual win was upheld, however.
Parliament occasionally tweaks the law to address concerns or discrepancies raised in court judgments.
Certainly, there is no question that Parliament has the right to overturn court decisions it does not agree with.
Audrey Young covers politics as the New Zealand Herald’s senior political correspondent. She has extensively covered the foreshore and seabed issue since the 2003 Ngāti Apa decision. Disclosure: Justice Cooper mentioned in the Q and A is her brother-in-law. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018.
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