Supreme Court Upholds Government’s Bid to Overturn Customary Marine Title Decision

The New Zealand 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. The court’s decision is a significant development in the ongoing debate over the recognition of Māori rights in New Zealand’s coastal waters.

Background to the Case

In 2019, Kim Dotcom, a New Zealand internet entrepreneur, was fighting extradition to the United States along with three former colleagues. The case centered on the file-sharing website Megaupload, which was accused of facilitating illegal file-sharing and earning millions of dollars in the process. However, Dotcom and his co-defendants argued that the site simply provided a place for users to store and share files.

On June 12, 2019, Dotcom visited the Supreme Court in Wellington, where he was accompanied by his lawyers. The court’s decision on this case has no bearing on the current dispute over customary marine title.

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 Issue at Hand

The Supreme Court’s decision relates to the Marine and Coastal Area (Takutai Moana) Act, which allows iwi, hapū, and whānau groups to apply for recognition of their customary rights over certain areas. The court’s judgment found that a previous decision by the Court of Appeal was “unduly narrow” and did not adequately address the act’s purpose.

The Supreme Court’s Ruling

In its ruling, the Supreme Court said it was concerned that the three-stage test used in the previous case did not adequately address the Marine and Coastal Area Act’s “reconciliatory purpose”. The court stated that the act’s purpose is to recognise the rights of Māori under the Treaty of Waitangi and long-held rights of other New Zealanders.

The Supreme Court identified four key issues around the interpretation of section 58, which formed the basis of its judgment. These issues 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 said 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 used and occupied the claimed area from 1840 to the present day.

Conclusion

The Supreme Court’s decision is a significant step forward for Māori rights in New Zealand. However, the issue of customary marine title remains a complex and contentious one, with much work still to be done to ensure that Māori are able to exercise their rights over their ancestral lands and waters.

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