Supreme Court Ruling Changes Course for Māori Customary Marine Title

The Supreme Court of New Zealand has released its judgment on an appeal that made it easier for Māori to gain customary marine title under the Marine and Coastal Area (Takutai Moana) Act. The ruling is a significant victory for iwi, hapū, and whānau groups who have been seeking recognition of their customary rights over certain areas.

The Court of Appeal’s decision last October was deemed “unduly narrow” by the Supreme Court, which has now taken on the Attorney-General’s appeal to restate the appropriate test for obtaining a customary marine title (CMT) in the common marine and coastal area. This change is expected to impact those seeking CMT, who will once again need to prove they have had continuous exclusive use and ownership of the area since 1840.

Understanding the Marine and Coastal Area (Takutai Moana) Act

Under the act, common marine and coastal areas cannot be owned, and public fishing, navigation, and access rights 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 for obtaining a CMT in these areas.

The Original Decision

Last October’s Court of Appeal decision found that groups only needed to show they had enough control over the area to prevent others from using it, and situations where the law itself had prevented them from doing so could be ignored. This approach was deemed too narrow by the Supreme Court, which stated that the three-stage test did not adequately address the Marine and Coastal Area Act’s “reconciliatory purpose”.

The Supreme Court’s Ruling

The Supreme Court identified four key issues around the interpretation of section 58, which formed the basis of its judgment. These included:

* 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 stated that those who “hold” customary interest over an area must have an “integrated or holistic relationship with the seascape”. 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. The court said interference that is not “substantial” should not prevent the granting of a CMT.

Conclusion

The Supreme Court’s ruling provides a significant victory for iwi, hapū, and whānau groups who have been seeking recognition of their customary marine titles under the Marine and Coastal Area Act. While the decision may still face challenges in the future, it marks an important step towards acknowledging and respecting Māori rights over our country’s natural resources.

If you are interested in learning more about this topic, sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.