National and NZ First have made good on their coalition agreement promise to amend section 58 of the Marine and Coastal Area Act (MACA) to make clear Parliament’s original intent. They are doing so via the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill currently before Parliament.
It has had its first reading under urgency and has now been referred to the Justice Select Committee for submissions which close on the 15th of October.
The Preamble to the Bill explains why the amending legislation is required:
“The Court’s interpretation of those provisions changed the effect that parliament intends them to have, and materially reduced the requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption).” [The applicable period essentially being since 1840.]
In other words, the Courts have read the legislation in a way that is contrary to the intentions of Parliament, and in a way that substantially diminished the threshold tests to gaining customary title. If the will of the judges had prevailed, the property rights to all of the marine and coastal areas would have passed to iwi or hapu interests.
The coalition government has therefore taken the unusual step of introducing new legislation to overturn the decisions of both the High Court and the Court of Appeal. By doing so, they are preventing the judgments from becoming the precedent for the 200 or so cases that have not been heard in the High Court.
The proposed amendments are significant and go a long way to affirming Parliament’s intention when it introduced the Act in 2011. In this regard, it is likely to do what the government has said it would, which is commendable.
However, a fair question to ask is whether Maori should have any right to the “wet” area of the coast at all. Clearly, National and NZ First think so. It is therefore unrealistic to assume that the select committee hearing the submissions will make changes to the Bill that are fundamentally different from the draft it is currently seeking public submissions on.
The key elements in the amending legislation are changes to sections 57 (definitions), 58 (conditions to gaining customary title), 59 (matters of relevance), and 106 (Burden of proof).
Section 57 – definitions
The Bill adds new “interpretation” clauses to S57 to define “exclusive use and occupation” (S57A) and “substantial interruption” (S57B).
It says, exclusive use and occupation of the area is where the applicant group or its members “had both the intention and the ability to control the area, to the exclusion of others…”. In other words they have access rights greater than others and have enforced those rights.
The meaning of “Substantial interruption” is taken to mean an event or accumulation of events that interrupt that exclusive use and occupation, that “requires a decision maker (including the Court) to consider the nature, extent, duration, and cause of any interruption to the group’s exclusive use and occupation of the specified area.”
Whether an interruption is significant, will be an important point that determines the outcome of claims.
Section 58 – conditions to gaining customary title
Section 58 of the Act says:
58 (1) Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
(a) holds the specified area in accordance with tikanga; and
(b) has, in relation to the specified area,—
(i) exclusively used and occupied it from 1840 to the present day without substantial interruption…
The Bill amends this by adding a new section 1(A) which says that when considering whether an applicant has exclusively used and occupied an area from 1840 to the present day without substantial interruption, there must be evidence of physical activity rather than claims of a spiritual connection. In other words, the connection needs to be real.
Section 59 – matters of relevance
Section 59 of the Act guides the court by referring to matters that MAY be relevant to indicate whether customary marine title exists. They include whether theapplicant group or any of its members own land abutting all or part of the specified area and whether they have exercised customary fishing rights in the area.
The Bill amends this by replacing the “MAY” be taken into account with “MUST have particular regard” and then it lists the ownership of abutting land and customary fishing rights in the area, and adds “have marae near all or part of the specified area”.
While this is a directive rather than a suggestion, the possibility of bias from judges too easily persuaded by creative historical accounts presented by so-called cultural historians, remains.
The Bill should be amended to provide further clarity, including a requirement for applicants to own abutting land and control access to the area (which was a requirement of the Foreshore and Seabed Act but relaxed in the Marine and Coastal Area Act) and demonstrate the land has been occupied without interruption from 1840 to the present day.
Section 160 – burden of proof
S106 addresses the burden of proof. The Bill corrects what is likely to have been a drafting error in the Act and now explicitly requires an applicant to provide proof that they have used an area exclusively and continuously since 1840.
While these changes are welcome, there are other areas that need to be addressed.
The Bill continues to leave room for judicial reinterpretation by activist judges.
To most people exclusive means exclusive – used by one particular person or group. Justice Churchman in the High Court saw it differently when he looked at it through a tikanga lens. He ruled exclusive can mean more than one and issued “jointly held Customary Marine Title”. Parliament needs to make it clear to the courts that exclusive means what it says, and close the window on any further reinterpretation of key words in the Bill – like the meaning of significant interruption when assessing whether an area has been used continuously since 1840.
The MACA cases are unusual in that they lack competing evidence. The evidence is from Maori through their cultural experts (pukenga) that goes unchallenged. It is an adversarial approach without adversaries.
The fact that there is no Respondent to these proceedings means hearsay evidence and cultural mumbo jumbo goes unchallenged. It becomes the only evidence available to the judge, and more so when it is supported by cultural experts (pukenga) who legitimise it as “evidence”.
How the courts deal with historical evidence and what standards they adopt will be critical.
The judiciary on trial
There is another aspect that flows from the Bill that has implications for the judiciary.
There is growing concern about political activism in the legal fraternity, including within the judiciary. The passing of the Bill will be an important test for the judiciary. How they respond will be watched intensely – the High Court in particular.
The Supreme Court appeal of the Edwards case will also be carefully scrutinised. A number of high-profile commentators with legal experience have expressed their concerns about the rise of judicial activism and the use of tikanga. If the bench snubs the will of Parliament then it would add fuel to the calls for “corrective” action by the Government.
Time and money
There are some 200 MACA cases to be heard in the High Court. At the current clearance rate, that will take decades, which is unmanageable for a court system already under strain.
There is no doubt many of the cases yet to be heard will also be appealed – mainly by Maori applicants fighting over status. Applicants receive taxpayer funding to make their claims and appeals. If unchecked, that cost may be in the region of $500 million over the decades.
This is an absolute waste of taxpayers’ money – and the delays are in no one’s interest.
By capping the funding assistance and setting a much higher bar to the granting of customary title, the government may be hoping that some or many of the claims will be abandoned, but the total cost will be substantial.
The right thing to do
The judgments in the High Court and Court of Appeal show how little regard some members of the judiciary have for the will of Parliament. In my view, there is too much activism within the judiciary to assume they will be fair and impartial when considering important cultural issues.
The right thing to do would be to shut the door on customary title by returning the marine and coastal area to Crown ownership, managed for the benefit of all New Zealanders. That is the simple and correct solution.
The coalition government is instead returning to National’s 2011 position by taking the view that the law as passed then is fit for purpose. It’s not. National, (and presumably its coalition partners), are happy to go along with Chris Finlayson’s 2011 prediction that as much as ten percent of the coast could be affected.
Is the public prepared to accept iwi and hapu having ownership and veto rights for ten percent of the coast and seabed out 12 nautical miles?
References:
Marine and Coastal Area (Takutai Moana) Act 2011 >>> https://www.legislation.govt.nz/act/public/2011/0003/latest/DLM3213373.html
Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill >>> https://www.legislation.govt.nz/bill/government/2024/0083/latest/LMS993644.html)
Frank Newman is a member of the Landowners Coalition Inc which is a party to the Edwards case and has registered an interest in all 202 cases before the High Court. Landowners is acting on behalf of the public interest to give the public a voice they would not otherwise have.