Supreme Court Ruling on Customary Marine Title: A New Era for Māori Rights

In a landmark decision, the Supreme Court of New Zealand has ruled that the decision taken by the Court of Appeal relating to the Marine and Coastal Area (Takutai Moana) Act in October was “unduly narrow”. The court’s judgment has made it easier for iwi, hapū, and whānau groups to gain customary marine title under the act.

The Background: A Long-Standing Dispute

The dispute dates back to 2015 when the New Zealand government sought to extradite Kim Dotcom, the founder of Megaupload, along with three former colleagues, over charges of conspiracy, racketeering, and money laundering. The US Department of Justice has been trying to extradite the men since 2012.

The Supreme Court’s Ruling

The Supreme Court ruled that the decision made by the Court of Appeal was “unduly narrow” and that the court would hear the Attorney-General’s appeal so that it could “state the appropriate section 58 test afresh reflecting the text, purpose, and legislative history of MACA”.

Under the Marine and Coastal Area (Takutai Moana) 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.

The Court’s Concerns

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”, and what constitutes an “integrated or holistic relationship with the seascape”.

Key Takeaways

* Applicants must first prove they hold the specified area in accordance with tikanga and that they have 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 Customary Marine Title.

The Government’s Response

The government confirmed in July that they would legislate around the Court of Appeal’s decision with Justice Minister Paul Goldsmith saying at the time, “We will amend section 58 of the act to make clear Parliament’s original intent”. This means those seeking Customary Marine Title would again need to prove they have had continuous exclusive use and ownership of the area since 1840.

The Implications

The Supreme Court’s ruling has significant implications for Māori rights and the recognition of customary marine title. The court’s decision reflects a deeper understanding of the importance of tikanga, or traditional knowledge, in determining who can claim rights over an area.

In conclusion, the Supreme Court’s judgment on Customary Marine Title represents a major shift in the way New Zealand approaches Māori rights and land ownership. As the country continues to navigate its complex history and relationships with its indigenous people, this decision serves as an important step towards greater recognition and reconciliation.