Graeme Reeves: Why is the Creation of Customary Marine Titles an Issue of Concern for New Zealand?

A brief legislative history of the seabed and foreshore journey

Prior to the 2003 Court of Appeal decision commonly referred to as the Ngati Apa decision it was generally believed that customary rights to the foreshore and seabed had been extinguished by the cession of sovereignty under the Treaty of Waitangi.

The Ngati Apa case held that Maori customary title could only be extinguished by legislation and because that had not happened the definition of “land” in the Te Ture Whenua Maori Act 1993 applied and under that definition the foreshore and seabed was not necessarily excluded from being land.

The finding gave jurisdiction to the Maori Land Court to hear applications by claimants seeking to establish customary title.

As a reaction to the Ngati Apa decision the Labour Government of the day passed the Foreshore and Seabed Act 2004 which essentially overruled the decision stating that:

• the Crown is the owner of the foreshore and seabed (except for privately owned parts);
• the public has the right of access over the foreshore for recreation and over the foreshore and seabed for navigation;
• customary activities that people have been doing since 1840 were protected;
• people who owned dry land next to the foreshore and had been using part of the foreshore and seabed since 1840, could claim territorial customary rights and apply to the Crown for redress.

The next cab off the rank in this saga entailed the National–led government passing the Marine and Coastal Area Act 2011 (MACA Act) which defined the Marine and Coastal area as extending from the mean high water mark to 12 nautical miles offshore.

It includes the whole coastline of New Zealand, including off-shore islands.

It created a special status for the common marine and coastal area. That means neither the Crown nor any other person can own it.

It also, restored the right to seek customary marine title (CMT).

When the Legislation was introduced the then Attorney- General assured New Zealand that no more than 10 percent of New Zealand’s 20,000 kilometres coastline would end up being controlled by Maori.

To succeed in an application for a CMT a Maori group (Tribe) must prove that it has had exclusive use and occupation of the area since 1840 without substantial interruption, and has held the area in accordance with Tikanga.

The first two elements of the test, “exclusive use” and “without substantial interruption” meet the requirement of certainty which is essential for good law.

The third element of “tikanga” does not meet the requirement of certainty and is therefore bad law.

Now enter the Edwards case.

The Edwards case involved overlapping claims and its outcome has implications for some 200 claims currently before the High Court.

The key finding in that case was that the critical focus of the assessment for the granting of a CMT must be on tikanga in other words on Lore and not Law.

 Hence the uncertainty. Lore is not found in a statute or from the common law. It is found from the engagement of Maori advisers appointed by the Court.

Their advice is not binding on the Judge but in the Edwards case it was decisive and “exclusive “was side-lined to allow more than one tribe to acquire a CMT. Thus opening the door for the 200 odd claimants waiting in the wings.

Edwards was appealed to the Court of Appeal and its decision was delivered on 18 October 2023.

It was a split decision with the majority (Cooper P and Goddard J) in essence agreeing with the Edwards case i.e. the applicant group need only satisfy the court that it currently holds the area in accordance with tikanga, and that its use and occupation of the area has been continuous since 1840. In other words multiple applicants.

The dissenting Judge however, thought that the test set by the majority Judges was too easy to meet.

This is what Millar J said at para [188] of the judgment.

“The majority approach makes the s58 test very much easier to meet. But no applicant group contended for it and I do not find it an available reading of the legislation. In my opinion the statutory language and the legislative history make clear that exclusive use and occupation must subsist in fact from 1840 to the present day.”

It seems to me, at least, that Millar J is on the right side of the argument and the majority, instead of interpreting the Law, are making the Law. That is not their role. Parliament makes the Law.

Customary Title. What is it?

• It is the right to say yes or no to activities that need resource consents and permits (RMA permission right);
• the right to say yes or no to certain conservation activities (conservation permission right) - the right to be notified and consulted when other groups apply for marine mammal watching permits;
• the right to be notified and consulted about changes to Coastal Policy Statements;
• the right to seek recognition of wahi tapu and wahi tapu areas and restrict access if this is necessary (a wahi tapu protection right);
• the right to ownership of minerals other than petroleum, gold, silver, uranium and, if the Ngai Tahu (Pounamu Vesting ) Act 1997 applies, pounamu;
• the right to ownership of newly found taonga (unless the Maori Land Court decides otherwise);
• the right to create and lodge a planning document for management of natural and physical resources, which then must be taken account of by local authorities and relevant government agencies.

All of the above rights are worthy of further discussion, but I wish to only address one - the right to ownership of minerals except for petroleum, gold, silver and uranium.

New Zealand Petroleum and Minerals (NZPAM) is the government agency that manages New Zealand’s Crown minerals estate.

It has confirmed that there are significant rare earths and other valuable minerals occurring in the seafloor muds in our permit area, including cerium, lanthanum, neodymium, praseodymium, yttrium, cobalt, rubidium, caesium, germanium, gallium, strontium, thallium and tungsten.

I must confess that I have not heard of most of them, but what I do know is that rare earth minerals are in high demand for many applications including cell phones, flat-screen televisions, electric car batteries and other high-tech products as well as military applications, and there is a high demand for them.

There is a potential under the Court’s interpretation of the MACA Act that Maori will have control over all of these resources to the exclusion of all non- Maori.

Conclusion

My view is that Parliament needs to take urgent action to curtail the excesses of the activist Judiciary and either amend the MACA Act to exclude any reference to tikanga and give effect to the minority decision of Millar J or to repeal MACA and start again to design a law that is fair and equitable and respects the equal rights of all New Zealanders in a twenty first century context.

Graeme Reeves is a lawyer and former National MP.