Tangaroa te takutai, Tangaroa te waitai Tangaroa te Auhiki, Tangaroa te Autuke Horahia tō mana atua, Horahia tō mana tīpua Horahia tō mana auhāroa ki te au moana.

Tangaroa of the shore, Tangaroa of the water, Tangaroa of the deep sea, Tangaroa of the rough currents, Spread your spiritual power, Spread your supernatural power, Spread your enduring calmness upon the sea

The Supreme Court recently released its first of two judgments in Whakatōhea Kotahitanga Waka (Edwards) and Ors v Te Kāhui and Ors^[1] which considered seven separate appeals relating to claims to customary rights in the rohe of eastern Bay of Plenty under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). 

This much-anticipated judgment addresses the meaning of the ‘test’ for customary marine title (CMT) under section 58. This was an appeal by the Attorney-General against a majority decision of the Court of Appeal, which we discussed in an earlier article.

The Supreme Court was unanimous in allowing the appeal, and took the opportunity to provide a fresh test under section 58 to “better reflect the text, purpose and legislative history of [the MACA Act]”^[2]. 

In this article, we look at the background to this judgment, the development of the legal test for CMT, and its implications for affected third parties. We also discuss the impact of the decision in light of the recently introduced Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill (Amendment Bill).

Background 

Under the MACA Act, iwi, hapū and whānau can apply to the High Court to have their customary rights in the common marine and coastal area (takutai moana) recognised. There are two forms of customary rights recognition, with one of those being a CMT order. A CMT order can only be granted if an applicant meets the test under section 58. 

Key issue on Appeal

The judgment focused solely on the correct interpretation of the ‘test’ for CMT in section 58 of the MACA Act. The remaining appeals will be determined in a later judgment. 

The Supreme Court analysed section 58 by assessing its four key elements, and highlighted that those components are not only interconnected but also overlap in both a conceptual and evidential way.^[3]

A summary of the Supreme Court’s assessment on each of the four elements in section 58 is as follows:

1.    “Holds … in accordance with tikanga”

“Holds” in accordance with tikanga has two important implications:

• It must amount to an integrated or holistic relationship with a seascape.^[4] In the carrying out activities, mana over the relevant area must be claimed and exercised.^[5] The Supreme Court agreed with the Court of Appeal that the exercise of mana as control and as the practical expression of the claimed take ^[6] will be a focus.
• It indicates the present tense: holding the takutai moana in the past will not be enough.^[7] 

2.    “Exclusively used and occupied”

Determining whether applicants have exclusively used and occupied the specified area requires a contextual inquiry of fact and degree, informed by both the common law and tikanga. The contextual analysis will include the nature of the place claimed and the community claiming it, the nature of the customary relationship with the place, including its use, and the prior law - tikanga - regulating both relationship and use.^[8]

Under the MACA Act, the context of place is particularly significant, given that customary rights and public rights of access, navigation and fishing may coexist. Such a reality informs what is meant by “exclusive”: unaffected or undisturbed use and occupation of a claimed area is not likely. Use and occupation does not mean actual physical occupation of te takutai moana - it encompasses control rather than residence, and cannot mean to the exclusion of all others.^[9]

3.    Continuity: “from 1840 to the present day without substantial interruption”

The Supreme Court acknowledged that this component of section 58 “is the most difficult to apply”.^[10] This stage bears the major burden of the MACA Act’s reconciliation purposes. The key issue is what level of continuity (from 1840 to the present day) is required to establish a CMT: at what point are customary rights ‘crowded out’ by the activity and interests of others?

This element is to be balanced against the fact that third parties in the proceeding (such as the Attorney-General, councils, and ports) bear the burden of proving a substantial interruption under section 106 of the MACA Act. This requires the assessment of both the physical extent and duration of an interruption. Mere interference will not be enough.^[11] The Supreme Court stated that this “does not mean the continuity requirement should be depowered, but it does mean that an approach that is sensitive to [historical realities is required]”.^[12]

The Court cannot be satisfied, however, that sufficient continuity exists where an applicant group has, for a sufficiently substantial period, been crowded out of the claimed space by competing structures or activities. Such interruption amounts to being substantial. 

4.    Extinguishment of CMT as a matter of law

The Supreme Court highlighted the inherent difficulties in determining how CMT can be extinguished at law if it has not yet been recognised, and how, once granted, it can be extinguished at law without a voluntary surrender.^[13] Therefore, it can be assumed that the question in this part of the test relates to whether underlying customary title, and not the CMT itself, has been extinguished at law.[^14] The Court stated that customary title and rights can only be extinguished by clear and plain statutory authority.^[15] This will be explored more in the second judgment as the Supreme Court grapples with whether the fact of a navigable river extinguishes CMT. 

Implications of the decision on third parties

It is inevitable that third parties will be impacted by the interpretation and application of the MACA Act. In its decision, the Supreme Court held closely to the intent that is reflected in section 4 of the MACA Act. The Supreme Court made clear that a fundamental pillar of its interpretation of section 58 relied on the legislative history of the MACA Act, and the reconciliatory nature of its drafting. At its crux, the MACA Act was introduced to reconcile the various interests in the takutai moana for the benefit of all New Zealanders. 

The Supreme Court has clearly signalled that the reconciliation processes requires that, in some cases, customary rights will be substantially interrupted (both spatially and temporarily) by the activities of others, such as ports, commercial shipping, and third-party fishing and navigation.^[16] Importantly however, the Courts should look to reconcile these activities with customary rights - before deciding that CMT cannot be granted.^[17]

What next for the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill?

On 24 September 2024, the Government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill (Amendment Bill) into the House for its first reading. The Justice Committee has examined the Amendment Bill, and released its report on 3 December 2024. As part of that process, it recommended that the Amendment Bill be passed, subject to a number of amendments.

One of the primary purposes of the introduction of the Amendment Bill was to overturn the Court of Appeal’s interpretation of CMT in these proceedings. In the Government’s view, the Court of Appeal’s interpretation was reductive and failed to give effect to the intended ‘substantial interruption’ requirement of section 58. 

If enacted as currently drafted, the Amendment Bill will materially change the criteria the Courts must apply when considering an application for a CMT order. The most significant aspects of the Amendment Bill as currently drafted are:

• An outstanding application that is yet to be heard or determined by the Court cannot be determined until such time as the Amendment Bill is passed.
• The Courts may place any hearings on hold.
• The proposed definitions and criteria for CMTs will be changed to a more restrictive test.
• The burden of proof for establishing that there has not been substantial interruption to a CMT applicant’s exclusive use and occupation of an area will fall wholly on the applicant. 

The Amendment Bill has a complicated transitional regime that preserves orders and decisions that have been made to date. 

The timing of the Supreme Court’s decision makes it possible for the Government to further consider the Amendment Bill before it is passed into law. Given the Court of Appeal decision that prompted the Amendment Bill has now been overturned, it may be timely to consider if the Bill is necessary or whether it could be further refined. We will watch with interest. 

Get in touch

Please contact us if you have any questions about the Supreme Court’s decision or the Amendment Bill.

Special thanks to Oscar Wilson and Sarah Gwynn for their help drafting this FYI.