The first big Court of Appeal case covering Māori customary rights over the foreshore and seabed has seen the bench divided on how to interpret Parliament’s intentions.

The split result has produced a more nuanced reading of the law, one that other judges will need to consider when dealing with iwi, hapū  and whānau applications for rights over the shoreline and nearby waters.

A dissenting judge on the appeal court says the customary rights requirements under the Marine and Coastal Area (Takutai Moana) Act, known as MACA, will now be “very much easier to meet.”

The law was National’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.

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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 (CMT) 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. Some have separately chosen to seek CMT in direct negotiations with the Crown.

In the case that has now been ruled on by the Court of Appeal, the High Court had granted CMT to a number of Māori applicants for areas of the eastern Bay of Plenty near Ōpōtiki and towards East Cape, over three zones.

Aspects of that ruling were subsequently appealed by multiple groups who had been granted, or refused, CMT by the High Court. The Crown, local and regional councils, the seafood industry and iwi group Te Whānau-ā-Apanui of East Cape were among those arguing as “interested parties.”

The High Court ‘Whakatōhea decision’ gave three iwi groups customary marine title, a property interest that allows them to have a say over certain activities that need resource consent. This could include the building of new wharves or fish farms.

MACA did not, however, restrict free public access, fishing, recreation and many other common activities.

Not only did the Court of Appeal send back for re-hearing two of High Court Justice Peter Churchman’s decisions granting the three CMT zones, but two appeal judges forming the majority on the three-person bench decided to clarify a key provision of the law for future court proceedings.

The court described MACA as “difficult and complex legislation” and the two-judge majority, court President Mark Cooper and Justice David Goddard, identified a potential clash between one section of the Act and the law’s listed purpose.

“We have found it exceptionally difficult to reconcile the text of Section 58(1)(b) with the purpose of the MACA,” they wrote, saying that on a literal reading of that section, “it seems likely there would be few areas of the foreshore or seabed where CMT could be made out.

“Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests….That outcome would be inconsistent with the Treaty/te Tiriti. It would be inconsistent with the assurances given in the Government’s 2010 consultation document that preceded MACA.”

They said it would be inconsistent with the stated purposes within Section 4 of the MACA legislation itself, and with a statement in Section 7 of the law “that recognises and promotes the exercise of customary rights to take account of the Treaty/te Tiriti.

But the dissenting judge, Justice Forrest Miller, believed their new approach would make the MACA requirements for applicants to be recognised as having CMT rights “very much easier to meet.”

He believed the decision by the majority judges discounted the literal meaning of the test in the Act for granting customary rights “in an attempt” to give effect to the law’s purpose statement. 

Section 58 of the act says applicants can make a claim to customary title if two things are met:

  • the applicant group holds the specified area in accordance with tikanga (customs, practices and traditional values), and
  • it has exclusively used and occupied it from 1840 until the present day without substantial interruption

The appeal court examined what those two limbs needed applicants to prove – whether the ‘holding’ according to tikanga and use since 1840 were enough or whether the “exclusivity” and lack of “substantial interruption” had to be proven by applicants.

It said the exclusivity element did not mean the applicant group had to show they had actively excluded others. The court found there could be shared exclusivity, with one party “holding” the specified area and allowing another or others to use it.

Because other groups had used an area – for example for fishing or collecting birds – that would not negate the main group’s position as holding that area over time, according to tikanga.

“Where a group permits access by other groups to its land and to its resources, that will reflect the exercise of its mana/control in respect of that land and (as a result) supports rather than undermines a claim to CMT.”

Te Ara ki te Rāwhiti, two pou whenua of Te Whakatōhea at Waiotahe Beach, Ōpōtiki. Photo: Wikimedia Commons.

The Act’s purposes in Section 4 recognise mana tuku iho (inherited right or authority derived in accordance with tikanga) and provide for the exercise of customary interests in the common marine and coastal area.

The majority ruling says: “Ultimately we have concluded that it is possible to interpret the text of s58 in a manner that is consistent with the purpose of MACA by reading it in a a manner that is sensitive to the materially different legal frameworks that applied before proclamation of sovereignty in 1840 and from proclamation of British sovereignty onwards.”

It also gave guidance on how the courts could interpret the MACA condition that applicants for customary title show they have held an area “without substantial interruption”, saying the very exercise by the Crown of kawanatanga or governorship since 1840 resulted in “substantial disruption to the operation of tikanga.”

Through that time, the long-held view that Māori did not have customary rights to the foreshore and seabed (which was found to be wrong by the Court of Appeal back in 2003 and led to the Foreshore and Seabed Act of 2004) could in itself have encouraged interruptions to iwi or hapū use or occupation of an area – through European incursions and lack of Crown response to such incursions.

To arguments from a Landowners Coalition Inc appellant group and seafood industry lawyers before the appeal court that the presence of commercial fishing, for example, in an area could be a cause of ‘”substantial interruption” for an applicant’s tenure of an area, the majority judges were dismissive.

“Where the Treaty/te Tiriti had been breached by Crown failures to protect customary rights and interests, MACA would entrench and perpetuate those breaches.

“MACA would, by a side wind, create a form of ‘adverse possession’ regime in respect of customary land that would be novel and unprecedented, inconsistent with the common law and inconsistent with the Treaty.

“The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner, contrary to the stated purposes of MACA and contrary to the assurances and principles set out in the 2010 consultation document,” the majority judgment wrote.

“Rather we consider that s58(1)(b) can and should be read as requiring that the applicant group’s use and occupation of the area was not substantially interrupted by lawful activities carried out by others.”

The two judges wrote: “It would be unjust and unprincipled to require an applicant group to demonstrate an ability to exclude others, when that ability was taken away from Māori customary owners by the law as it was understood for most of the relevant period. In the absence of an ability to exclude others, an intention to do so would be futile.”

They said “substantial interruption” would broadly be where a group has ceased to use and occupy a relevant area for such an extended period since 1840 that ahi kā roa is no longer maintained by that group as a matter of tikanga; where it might have been displaced by other Māori groups as primary occupier and kaitiaki of an areas.  

Second, such interruption could arise where an Act of Parliament authorised a third party to use or occupy an area, possibly voiding an applicant group’s bid for CMT. An example might be the operation of a port. 

The two judges summed up by saying the “best available reading of s58 which respects both its text and its purpose, focuses on:

  • whether the applicant group currently holds the relevant area as a matter of tikanga
  • whether in 1840, prior to the proclamation of British sovereignty, the group (or its tikanga predecessors) used and occupied the area and had sufficient control over that area to exclude others if they wished to do so. This inquiry essentially parallels the inquiry required by common law to establish customary title as at 1840.
  • whether post-1840, that use and occupation ceased or was interrupted because the group’s connection with the area and control over it was lost as a matter of tikanga, or was substantially interrupted by lawful activities carried on in the area pursuant to statutory authority.
Justice Miller

Justice Miller’s paragraphs of dissent over s58 say: “I respectfully consider that the majority judgment leaves both the requirement for exclusive use and occupation since 1840, and the concept of substantial interruption with no work to do.

“The majority approach makes the s58 test very much easier to meet. But no applicant group contended for it and I do not find it an available reading of the legislation. In my opinion, the statutory language and the legislative history make clear that exclusive use and occupation must subsist in fact from 1840 to the present day.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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