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Important High Court decision on customary marine title

Home Insights Important High Court decision on customary marine title

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Contributed by: Dan Minhinnick, Matt McMenamin, Taylor Mitchell and Madeline Alison

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Published on: June 16, 2021

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An influential judgment about customary marine title under the Marine and Coastal Areas (Takutai Moana) Act 2011 (Act) was issued by the High Court in May.1
 
This is only the second application to be heard under the Act, the first involving overlapping claims, and provides an example of how the Courts treat the ongoing trend to include tikanga and Te Ao Māori concepts within statutory frameworks.
 
The decision will influence the resolution of some 200 other claims currently before the High Court, as well as the 387 claims lodged under the adjacent Crown negotiation process. In addition, the process for settling claims under the Act is set to shift significantly following recent announcements from the Government.
 
In this update we explore the judgment, and proposed new process for settling claims, in more detail.

Context

This is the latest in a long line of case law regarding Māori customary rights, notably beginning with Wi Parata v Bishop of Wellington in 1877,2 following which Māori customary title in the whenua (land) and takutai moana (the marine and coastal area) was denied by the New Zealand legal system for over a century, a trend that was echoed in 1963.3 The landmark case of Attorney-General v Ngāti Apa turned that law on its head and held that customary title was recognised at common law until lawfully extinguished.4 That led to the enactment of the controversial Foreshore and Seabed Act 2004, which was repealed and replaced with the Act in 2011.

Judgment

The Court was faced with applications for recognition of customary marine title and/or protected customary rights under the Act. Through its judgment, the Court granted customary marine title in various areas to the hapū of Whakatōhea, Ngāti Awa, and Ngāi Tai. The precise boundaries of this customary marine title will be determined in a further hearing in early 2022.

The question of what counts as substantial interruption to exclusive use and occupation

The judgment will be influential for its exploration of the meaning of the statutory phrase "substantial interruption". Under the Act, for customary marine title to be recognised, the applicant group must have, among other things, exclusively used and occupied the area from 1840 to the present day without "substantial interruption". This term was not defined in the Act.
 
The Court held that raupatu (land confiscation) did not constitute a substantial interruption of the applicants' relationship with the takutai moana. Further, there was nothing in the Resource Management Act 1991 (RMA) or prior legislation to indicate with the requisite "crystal clear" intention that a resource consent granted prior to the commencement of the Act would extinguish customary rights.5 Whether a third party structure or practice could amount to substantial interruption is a factual question based on its level of interference with the applicant's ability to undertake activities including fishing and navigation in the takutai moana.
 
For example, the Court considered activities which enhance or do not prevent the applicant's use of the area such as seawalls, boat ramps or other commercial/recreational fishers would not constitute substantial interruption. By comparison, it considered infrastructure which did prevent or significantly impact the applicant's use of the takutai moana would likely constitute substantial interruption, such as sewerage outfalls, working wharves or marine farms.
 
For those reasons, although there had been confiscation of some of the claimants' coastal land, resource consents granted prior to the Act's commencement over some of the takutai moana, some third party structures erected in the area, and some evidence of third party use of the takutai moana, Churchman J found there had been no "substantial interruption" of the claimants' relationship to the takutai moana.

Approach to overlapping claims

As the first judgment under the Act to address overlapping claims, the Court took a pragmatic and constructive approach to this issue, encouraging parties to confer between each other and appoint representatives to see whether any agreement could be reached that would reduce the number of competing claims. Following a number of hui and wānanga, there were essentially three broad groupings of applicants at the hearing, as well as three neighbouring iwi who participated in the hearing. 
 
In our view, it is encouraging to see a respectful approach that recognises the rangatiratanga and mana of applicant groups and avoids unnecessary engagement with the court, allowing some issues to be decided between the parties.

Assessing Te Ao Māori in a statutory context

The decision also provides an example of how the Courts treat the ongoing trend to include tikanga and Te Ao Māori concepts within statutory frameworks. In relation to the Act, tikanga is imported into the statutory assessment through the test for customary marine title. 
 
To assess the tikanga of the relevant groups, the Court largely adopted the findings of two court-appointed pūkenga (specialists in tikanga), as well as those called from the applicants' own hapū. As it happened, there was little disagreement between these witnesses as to the tikanga relating to the takutai moana.
 
This reflects similar processes under the RMA where it is a widely accepted approach that mana whenua are best placed to give evidence on what the tikanga and effects on tangata whenua for a particular activity and place are. However, the High Court also appears to have gone further than typical RMA processes and adopted a collaborative approach similar to that of the Waitangi Tribunal, which undertakes research into claims alongside the relevant claimant and Crown.

Renewed progress for coastal claims from here

Last week, the Minister for Treaty Negotiations, Andrew Little, revealed a new strategy for the Crown negotiations occurring under the Act alongside the High Court process. This strategy responds to conclusions made by the Waitangi Tribunal last year that the Act was in breach of the Treaty because of the significant delays for processing claims and because it had not funded all costs incurred by whānau, hapū and iwi going through the process.
 
The Government's new strategy provides more resources for claimants, and intends to shorten the current timeline for resolving all claims under the Act from 100 years to between 20-30 years. It suggests a new three-step process of initial engagement by the Crown:

  • research and evidence-gathering (with assistance from the Crown);
  • then determination and recognition, which would be considered by either the Minister for Treaty Negotiations or the High Court. 
 
This announcement provides the opportunity for renewed action under the Act, which has largely stalled over the past decade since it came into force.
 
 

FOOTNOTES

  1. Re Edwards (Te Whakatōhea (No 2)) [2021] NZHC 1025.

  2. Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC).

  3. Re The Ninety Mile Beach [1963] NZLR 461 (CA).

  4. Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).

  5. This language was based on Tipping J's observations in Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) at [185].

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