Supreme Court Ruling on Customary Marine Title: A Significant Victory for Māori Rights

In a landmark decision, the New Zealand Supreme Court has ruled that a major decision by the Court of Appeal in October was “unduly narrow” and has paved the way for iwi, hapū, and whānau groups to gain customary marine title under the Marine and Coastal Area (Takutai Moana) Act.

The ruling marks a significant victory for Māori rights, as it upholds the reconciliatory purpose of the act, which aims to recognize the rights of Māori under the Treaty of Waitangi and long-held rights of other New Zealanders. The Supreme Court has also clarified that applicants must prove they hold customary interest over an area in accordance with tikanga, or Māori tradition.

Background: A Long-Running Dispute

The dispute began in 2012, when the US Department of Justice started trying to extradite Internet entrepreneur Kim Dotcom and three of his former colleagues for conspiracy, racketeering, and money laundering. The defendants argued that Megaupload was simply a file-sharing platform, while the US claimed it facilitated illegal activities.

In 2015, an NZ district court permitted the extradition, leading to unsuccessful appeals at the High Court and Court of Appeal. This week’s Supreme Court appeal marked a new chapter in the case.

The Controversial Court of Appeal Decision

Last October, the Court of Appeal ruled that groups only needed to show they had enough control over an area to keep others from using it, and situations where the law itself had prevented them from doing so could be ignored. This decision was met with criticism from iwi, hapū, and whānau groups, who argued that it undermined the rights of Māori under the Treaty of Waitangi.

The Government’s Response

In July, the government confirmed they would legislate around the Court of Appeal’s decision to make clear Parliament’s original intent. Justice Minister Paul Goldsmith stated that the government would amend section 58 of the act to reflect the true purpose of MACA.

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

Key Issues Identified by the Supreme Court

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’s Ruling: A More Holistic Approach

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.

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 stated that interference that is not “substantial” should not prevent the granting of a CMT.

A New Chapter for Māori Rights

The Supreme Court’s ruling marks a significant victory for Māori rights, as it upholds the reconciliatory purpose of MACA and clarifies the requirements for customary marine title. This decision is expected to have far-reaching implications for iwi, hapū, and whānau groups seeking to assert their rights under the act.

In conclusion, the Supreme Court’s ruling on customary marine title is a significant step forward for Māori rights in New Zealand. It demonstrates the court’s commitment to upholding the reconciliatory purpose of MACA and recognizing the rights of Māori under the Treaty of Waitangi.