Māori bids for customary titles over parts of big rivers entering coastlines where they have legal rights have been strongly boosted by a new Court of Appeal decision.
In two earlier High Court rulings, iwi applications for rights over the Mohaka and Waioeka/Otara river mouths in Hawkes Bay and the Bay of Plenty were denied because of an old law apparently trumping provisions of the 2011 Marine and Coast Area Act (MACA).
The Crown claimed, and the High Court agreed, that Māori groups could not claim customary marine title (CMT) over the river mouths because they were deemed to have been “navigable” in 1903, a timing stipulated in the Coal Mines Act passed by Parliament in 1979. As they were deemed navigable, that meant they were legally vested in the Crown and the MACA law could not have made them available for iwi or hapū to claim rights over.
The boundary for any successful coastal claimant for CMT would therefore have to run across a line where the river meets the sea, and not include any stretch of the river mouth.
But in an appeal covering the High Court findings on CMT applications for areas around where the Waioeka River enters the sea near Ōpōtiki, the Court of Appeal says that is not so.
The three judges found the Marine and Coastal Area Act expressly extinguishes the previous grant of title to the Crown under all other laws, including the Coal Mines Act.
Rather than the Coal Mines Act (and its successor provision in the Resource Management Act) extinguishing Māori rights for the river mouths, MACA extinguishes the Crown’s rights presumed under the old Coal Mines Act.
That means the claim for customary marine title by Te Kāhui, an umbrella group for four hapū in the eastern Bay of Plenty, will now succeed, subject to the group proving it has ‘held’ the area in accordance with tikanga and had exclusivity without substantial interruption since 1840.
The Court of Appeal, made up of President Mark Cooper, Justice David Goddard and Justice Forrest Miller, ruled: “CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.”
The parts of the rivers that fall within that definition would be either up to 1km upstream or five times the river’s width at the mouth, whichever is the lesser. The CMT could apply to the riverbeds, as well as airspace above and the water space (but not the water).
Justice Miller’s decision accepted, for the Court, the argument of a Te Kāhui lawyer, Karen Feint KC, that the old law had been “insufficiently clear to expropriate CMT” but even if it had extinguished it for claimants, the 2011 MACA law had “reinstated it”.
The judge wrote: “Under S11 (3) of MACA any previous vesting of the common coastal and marine area in the Crown under the Coal Mines Act was reversed.
“The Crown was divested of every title as owner, whether under any enactment or otherwise, of any part of the common marine and coastal area.”
The Marine and Coastal Area Act was the National Government’s response to Labour’s controversial Foreshore and Seabed Act which had declared the foreshore and seabed to be in Crown ownership. MACA said no one – neither the Crown nor Māori – ‘owned’ those. MACA also established rights, both Customary Marine Title or Protected Customary Rights for which iwi, hapū or whānau could apply to the High Court or in direct negotiation with the Crown.
Justice Miller noted: “MACA states emphatically that it seeks to remedy an injustice done to Māori by the 2004 Act. It seeks to give effect to the Treaty by recognising intrinsic, inherited rights and translating them into legal rights and interests.”
The Court of Appeal finding means the Te Kahui claim for CMT over the Waioeka/Otara river mouth and the separate Ngāti Pāhauwera claim for the Mōhaka river mouth in Hawkes Bay would not now be trumped by the Coal Mines Act. The claimants would need to meet the MACA criteria to have CMT recognised, but would not lose out on the old navigability criteria.
Evidence to the High Court from claimants focused on the importance to iwi of the river mouths spiritually and historically as a place of taniwha, and for fishing, whitebaiting and traditional activities such as gathering hangi stones and drift wood.
Both the key river mouth applications, when before the High Court, had been heard by Justice Peter Churchman.
In declining CMT for the Mōhaka, he acknowledged the claim failed because of a “side-wind” of the old navigability provision affecting the iwi’s rights under MACA and that had resulted “in an injustice for the people of Ngāti Pāhauwera in this case”.
He said it was clear the area where the Mōhaka River reached the sea was of great significance to the iwi, was in its core area of interest, and the group had fought for a long time to protect or regain control over it.
The judge hinted then that Ngāti Pāhauwera could benefit if the issue was now to go up the chain to the Court of Appeal or Supreme Court.
“It is possible that the appellate courts looking at the matter now would not interpret the effect of the Coal Mines legislation in the same way.”