The Supreme Court says the decision taken by the Court of Appeal relating to the Marine and Coastal Area (Takutai Moana) Act in October was "unduly narrow". Photo: Getty Images / Hagen Hopkins
The Supreme Court has unanimously allowed the Attorney-General to appeal a judgment that made it easier for Māori to gain customary marine title under the Marine and Coastal Area (Takutai Moana) Act.
In its judgement, the Supreme Court said the major decision by the Court of Appeal last October was "unduly narrow" and the court would hear the Attorney-General's appeal so the court could "state the appropriate section 58 test afresh reflecting the text, purpose and legislative history of MACA".
Under the act, common marine and coastal area cannot be owned, and public fishing, navigation and access rights within this area are protected.
However, iwi, hapū and whānau groups can apply to have their customary rights recognised.
Section 58 of the act sets out the test to obtain a customary marine title (CMT) in the common marine and coastal area, previously referred to as the foreshore and seabed.
Last October a Court of Appeal decision found groups only needed to show they had enough control over the area that they could keep others from using it, and situations where the law itself had prevented them from doing so could be ignored.
The government confirmed in July they would legislate around the Court of Appeal's decision with Justice Minister Paul Goldsmith saying at the time they would amend section 58 of the act to "make clear Parliament's original intent".
It meant those seeking Customary Marine Title would again need to prove they have had continuous exclusive use and ownership of the area since 1840.
In its ruling, the Supreme Court said it was concerned the three-stage test did not adequately address MACA's "reconciliatory purpose" and stated the act's purpose was to recognise the rights of Māori under the Treaty of Waitangi and long-held rights of other New Zealanders.
Issues
The Supreme Court identified four key issues around the interpretation of section 58 which formed the basis of its judgement.
Among them were:
- Who "holds" the relevant area "in accordance with tikanga"
- Who has exclusively used and occupied the area "from 1840 to the present day without substantial interruption"
The court said those who "hold" customary interest over an area must have an "integrated or holistic relationship with the seascape".
"'olds' is informed by tikanga, with take tūpuna (ancestral right) being the most important source of right to this element. It may be expressed as whether mana, as control, is claimed and exercised over the relevant area. This tikanga relationship must continue to the present day, because tikanga (through ahi kā) imports continuity and 'holds' is used in the present tense."
Applicants must first prove they hold the specified area in accordance with tikanga and they used and occupied the claimed area from 1840 to the present day.
If these two hurdles are cleared, the burden shifts to those contradicting the claim to prove that the use and occupation has not been exclusive or has been substantially interrupted.
Interference that is not "substantial" should not prevent the granting of a CMT, the court said.
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