The Court of Appeal recently issued its first substantive judgment, Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504, considering an appeal under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).

The appeal mostly concerned the statutory requirements for recognising customary marine title (CMT) and may have an impact on how third-parties choose to participate in the judicial proceedings.

In this article, we look at the background to this case, the legal test for CMT and what the judgment could mean for iwi, hapū or whānau groups looking to have customary rights protected.

CMT test

Out of the three legal interests above, CMT is the most valuable as it is a non-alienable territorial right compared to a participation or usage right. A group that holds CMT over a specified area does not have the right to exclude people from that area (unless the area is a wāhi tapu area). They do, however, have rights such as the ability to derive commercial benefit from exercising rights, the right to create planning documents, rights in relation to the New Zealand coastal policy statement, and permission rights in relation to resource consents in the CMT area.

The High Court may grant a CMT if satisfied that the applicant group:

• holds a specified area in accordance with tikanga, and
• has exclusively used and occupied that area from 1840 to the present day without substantial interruption. CMT is a (non-alienable) interest in the land.

The Court was divided on the interpretation of the test for CMT, with Cooper P and Goddard J in the majority and Miller J in the minority.

Holds in accordance with tikanga

All three Justices agreed that “holds” in accordance with tikanga requires evidence of activities that show control or authority over an area, rather than carrying out a particular activity.

Exclusively used and occupied that area from 1840 to the present day without substantial interruption

The majority, Cooper P and Goddard J determined that exclusivity means that in 1840, prior to the proclamation of British sovereignty, the applicant group used and occupied the area, and had sufficient control over that area to exclude others if it wished to do so.  However, the operation of tikanga may have been disrupted from the Crown’s exercise of kāwanatanga. Therefore, applicant groups do not need to demonstrate an intention and ability to exclude other people from the coastal area in circumstances where the law effectively deprived them of that ability.

Miller J considered that the test for CMT is a single composite test. It draws from the common law of aboriginal title and it conceives of property not as a thing or resource but as consisting primarily in control over access to things and resources. It requires both an externally-manifested intention to control the area against other groups and the capacity to do so. He considered that the majority’s interpretation of the test made it very easy to meet.

It is likely that subsequent appeals will address the law on what intensity of use and occupation is needed to meet the statutory requirement of exclusivity.

Burden of proving substantial interruption

The Court of Appeal overturned the High Court’s finding on who has the burden of proof to determine whether there has been substantial interruption. The Court was unanimous that the applicants must prove that they hold the area in accordance with tikanga and the use and occupation of the area by that group has been exclusive and continuous from 1840 to the present day. However, the applicant group does not need to prove “without substantial interruption”.

This means that the Attorney-General and third parties to the proceedings, like Seafood Industry Representatives who participated in the appeal, port companies, local government with substantial projects, etc, may wish to take a more active role in MACA proceedings. However, active participation in the proceeding may put those parties in the middle of a dispute between the Crown and Māori concerning the recognition of legal interests in the marine and coastal area.

Next steps

The outcome of the Court of Appeal judgment is that the parties will need to go back to the High Court to have two areas of CMT redetermined in accordance with the Court of Appeal’s interpretation. Other CMT applications that have been determined by the High Court (and not appealed) will remain in place, but those yet to be determined by the High Court will be subject to the Court of Appeal judgment. However, there is unlikely to be clarity for Māori and others on the test for CMT for a while, as the Court of Appeal has reserved its judgment on the exclusivity element, a key factor in the CMT.

It will also be interesting to watch this space as the Waitangi Tribunal recently released the MACA Stage Two Report. The Waitangi Tribunal found that the Act breaches the principles of te Tiriti o Waitangi. Amongst other things the Tribunal was particularly critical of the “without substantial interruption” test because the public and private rights it seeks to protect, are already protected in other part of the Act.

Simpson Grierson will be monitoring developments in this space. If you have any questions, or just want to chat through any issue, then please talk to us.

Special thanks to Sarah Gwynn for her assistance in writing this article.