The Supreme Court has ruled the majority of the Court of Appeal “erred” in its interpretation of a law that allows Māori to be granted customary marine title over the foreshore and seabed.
It has unanimously allowed an appeal by the Attorney-General, following the Court of Appeal’s decision last October.
Customary marine title is a right that allows Māori to give or refuse permission for certain activities that require a resource consent.
Under section 58 of the Marine and Coastal Area Act 2011, it can be granted if Māori can show they have held a specified area of the foreshore and seabed in accordance with tikanga.
They also need to have exclusively used and occupied it from 1840 to the present day without substantial interruption.
Last year the Court of Appeal attempted to clarify how that test should be interpreted, but was later criticised by the Government who said it “materially lowered the threshold”.
Multiple groups appealed, including the Attorney-General.
Today, the Supreme Court has unanimously allowed the Crown’s appeal, following a Court of Appeal decision last year. (Source: 1News)
Today, the Supreme Court has unanimously allowed the Crown’s appeal.
“It disagreed with the way the Court of Appeal approached the test and said that it had done so too narrowly,” said lawyer Matanuku Mahuika.
“It also said the Court of Appeal didn’t take into account the re-conciliatory purpose of MACA. That’s about the recognition of Māori rights in relation to the takutai moana, alongside providing for public rights and uses.”
In its judgment, the Supreme Court weighed into each element of the test, including the meaning of “substantial interruption”.
“On this aspect, we consider that the majority of the Court of Appeal erred in that they appear to have concluded that only interference expressly authorised by statute are capable of substantially interrupting exclusive use and occupation,” it said.
It also said Māori could demonstrate “exclusive use and occupation” of an area even if they didn’t physically occupy the area.
“What is required is making extensive use of the space (in light of its nature and resources), along with an intention and some capacity to exercise control over it, to the extent permitted by law,” it said.
“It must also be remembered that the seascape is not dry land. It cannot be fenced off, built up or otherwise occupied in the same way that dry land can be.”
The Court used the example of a whānau, hapū or iwi who have maintained a strong cultural connection with an area.
It said cases where they have “harvested and protected its resources, and asserted mana in a practical way in relation to it” may be sufficient to satisfy this requirement.
All of the parties except one agreed that tikanga was relevant when interpreting this area of the Act.
The Court also discussed the possibility of shared exclusivity, where more than one group exercised mana and control over the same space, noting that this does not prevent the granting of a customary marine title.
Meanwhile, the Government is progressing with a bill to amend the Marine and Coastal Area Act.
In a statement, the minister responsible for the Bill Paul Goldsmith said the Government was pleased with the outcome.
“We’ll be taking some time to work through the implications this will have on legislation before the House,” he said.
“No decisions have been made.”
