The Government is forging ahead with plans to change the law governing New Zealand’s foreshore and seabed, despite a Supreme Court ruling last year that appeared to undercut the rationale for the change.
The proposed legislation stems from a clause in National’s coalition deal with NZ First, which promised to revisit the Marine and Coastal Area (Takutai Moana) Act.
That commitment was driven by fears that a 2023 Court of Appeal decision could have made it significantly easier for Māori groups to win recognition of customary rights over parts of the coastline.
The Government introduced a bill to Parliament last year to prevent that, but it hit pause in December after the Supreme Court effectively overturned the earlier ruling.
At the time, Justice Minister Paul Goldsmith welcomed the development and said ministers would take time to reassess their plans.
On Tuesday, Goldsmith confirmed to RNZ that Cabinet had agreed to press ahead with the law change regardless and to pass it before October.
“Everybody in New Zealand has an interest in what goes on in the coastline, and we’re trying our best to get that balance right.”
Goldsmith said he was not convinced that last year’s Supreme Court ruling had set a high enough test for judging whether customary rights should be granted.
“We’ve had a couple of cases that have been decided since then – which have shown almost 100% of the coastline and those areas being granted customary marine title – which confirmed to us that the Supreme Court test still didn’t achieve the balance that we think the legislation set out to achieve.”
Asked whether he expected an upswell of protest, Goldsmith said that had been an earlier concern but: “time will tell”.
“There’s been a wide variety of views, some in favour, some against, but we think this is the right thing to do.”
The legislation was one of the key objections raised by Ngāpuhi leaders last year when they walked out on a meeting with Prime Minister Christopher Luxon in protest.
More than 200 applications for customary marine title are making their way through the courts. Under the amendment bill, any court decisions issued after 25 July 2024, will need to be reconsidered.
That would appear to cover seven cases, involving various iwi from around the country.
“I understand their frustration over that,” Goldsmith said. “But we believe it is very important to get this right, because it affects the whole of New Zealand.”
Goldsmith said the government had set aside about $15 million to cover the additional legal costs.
The Marine and Coastal Area Act was originally passed by the National-led government in 2011, replacing the controversial Foreshore and Seabed Act 2004, which had extinguished Māori customary rights in favour of Crown ownership.
The 2004 law, introduced by Helen Clark’s Labour government, provoked widespread protest and led to the creation of the Māori Party, now known as Te Pāti Māori.
National’s 2011 replacement declared that no one owned the foreshore and seabed but allowed Māori groups to seek recognition of their rights – or “Customary Marine Title” – through the courts or in direct negotiations with the Crown.
Customary title recognises exclusive Māori rights to parts of the foreshore and seabed, provided certain legal tests are met, including proving continuous and “exclusive” use of the area since 1840 without substantial interruption.
The 2023 Court of Appeal ruling, however, declared that groups only needed to show they had enough control over the area that they could keep others from using it, and that situations where the law itself had prevented them from doing so could be ignored.
The Supreme Court subsequently overturned that and said the Court of Appeal had taken an unduly narrow approach in its interpretation.
rnz.co.nz
