Update on the Marine and Coastal Area Act

May 7, 2024
Gulf Users' Group

In another controversial decision made under the Marine and Coastal Area (Takutai Moana) Act, the High Court recently awarded multiple iwi and hapū groups customary title and other exclusive rights to the entire South Wairarapa coastline, stretching over approximately 150 kilometres. Justice Cheryl Gwyn granted five Customary Marine Titles over the area - three of these sections cover an area up to 3km out to sea from the high-water springs, while the other two extend out to 10km.

This case followed a Court of Appeal judgment released last October involving a 44km stretch of coastline near Ōpōtiki in the Bay of Plenty. In this case, ‘tikanga’ principles were given precedence over the common law test of exclusive use and occupation set out in the Act. Additionally, the Court accepted the notion of ‘shared exclusivity.’ The dissenting judge in the majority ruling of that case noted that the Court of Appeal findings would make it “very much easier” for Māori to obtain customary rights.

This is proving to be the case. Last week the entire Tokomaru Bay coastline was awarded to two hapū, extending up to four nautical miles out to sea.

Applications for recognition of customary rights in the Hauraki Gulf yet to be resolved

All New Zealand’s coastline is subject to claims. This includes multiple claims over the Hauraki Gulf - there are 44 separate applications for the recognition of customary rights relating to the Hauraki Gulf registered in the High Court. This number does not include those who have chosen to enter into direct negotiations with the Crown.

It may seem unbelievable that anyone could claim exclusive use and occupation of the Hauraki Gulf, but this supposition does not take into account the interpretation of the MACA law by the judiciary. The Attorney General at the time of the passing of the law, Chris Finlayson, has acknowledged that the elastic way MACA is being interpreted is a concern. Last year he told the Listener that the courts are routinely ignoring the law’s tests.

Unless the government makes changes to current legislation most if not all of NZ’s coastline could well end up under customary marine title, giving the title holders significant rights over the foreshore and seabed.

The Marine and Coastal Area Act (MACA) was brought in by John Key’s National Government back in 2011 as part of its coalition agreement with the Maori Party. Before MACA became law, the then Attorney General Chris Finlayson assured critics that only around 2000km of New Zealand’s 20,000km coastline — or roughly 10 per cent — would end up being under customary title. That promise is now proving to be wrong.

Rights provided under the legislation

The Marine and Coastal Area Act creates three new types of legal interest, rights that are only available to Māori. Anyone who imagines customary rights and marine title is only about gathering shellfish or gathering hangi stones is mistaken. The rights include:

  1. ‘Customary Marine Title,’ (CMT), which is about some elements of ownership and possession;
  2. ‘Protected Customary Rights, (PCR), which is about use and activities; and
  3. a right for all affected iwi, hapū or whānau to participate in consultation processes in the common marine and coastal area.

A Customary Marine Title is a comprehensive right that includes elements of ownership, although with certain conditions attached. The legislation ensures public access to the common marine and coastal area, as well as protection of navigation and fishing rights. The group holding a Customary Marine Title cannot sell the area but may transfer the title to other individuals within the same iwi or hapū in accordance with Maori customary practices, (tikanga). However, a CMT group may delegate the rights to others conferred by a customary marine title order.

Once granted, the holders of a customary marine title have:

  • the right to permit or withhold permission for activities requiring a resource consent in the area covered by the title. This could affect applications to set up aquaculture, marinas, offshore wind turbines or to build new wharves and jetties in their designated areas.
  • The right to permit or withhold permission for certain conservation processes (e.g. establishing a marine reserve);
  • the right to prepare a planning document setting out their objectives and policies which would be recognised and provided for in the customary marine title area by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be considered in those areas;
  • the ownership of non-nationalised minerals within the customary title area.
  • the right to be consulted on matters such as marine mammal watching permits, and changes to Coastal Policy Statements;
  • the ability to prohibit or restrict access to wahi tapu sites. Those who trespass may face fines of up to $5,000.

A CMT group has the authority to use, benefit from, and develop the designated CMT area, including the ability to derive commercial benefits. The group is exempt from coastal occupation charges related to the area under the Resource Management Act.

Protected Customary Rights

Protected Customary Rights are centred on the use and practice of certain activities. These rights are defined as those that have been continuously exercised since 1840 in accordance with tikanga, whether in their original form or with adaptations over time and are not legally extinguished.

Holders of a PCR are not required to obtain resource consent for customary activities, and local authorities cannot grant consent for activities that may negatively impact these rights. PCR holders can transfer or delegate their rights in line with tikanga. They can also gain commercial benefits such as selling sand or gravel.

When exercising a PCR, a rights group is not obligated to pay coastal occupation charges or royalties for sand and shingle under the Resource Management Act 1991.

Notably, an applicant group does not need to have a land interest in or adjacent to the specified area of the marine and coastal zone to establish protected customary rights.

The third entitlement is for all affected iwi, hapū or whānau to participate in consultation procedures in the common marine and coastal area. Affected iwi, hapū and whānau are those who practice kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga. The Director-General of Conservation must have regard to the views of such groups when making conservation decisions.

Read more at https://www.gulfusers.org.nz/media-releases/the-marine-and-coastal-area-takutai-moana-act-2011




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