Tribunal releases report on the Takutai Moana Act 2011

On Friday 13 September 2024, the Waitangi Tribunal released The Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report in pre-publication format.

The Marine and Coastal Area (Takutai Moana) Act was introduced in 2011 to replace the controversial Foreshore and Seabed Act 2004. The Act restores customary interests extinguished under the 2004 Act, introduces statutory tests and awards to recognise customary interests, and provides for public access. Under the Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title (CMT) or protected customary rights. The Act provides two application pathways for this purpose: application to the High Court or direct engagement with the Crown. They may also do both.

The Marine and Coastal Area (Takutai Moana) Act Coalition Changes Urgent Inquiry was granted urgency in the Waitangi Tribunal’s inquiry programme due to the importance of the customary rights at stake; the immediacy of impacts on Māori; and the lack of an alternative remedy. The inquiry panel comprises Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins, and Tā Pou Temara.

The Tribunal’s report considers the Treaty compliance of the policy development process that the Government followed in seeking to amend the Takutai Moana Act, along with the proposed amendments, and whether these cause prejudice to Māori. Claimants also raised another issue in the urgent inquiry – the alleged mismanagement of funding for applications for customary marine title under the Act. This will be addressed in a forthcoming stage of the inquiry.

In its report, the Tribunal finds that the Crown departed from orthodox and responsible policymaking in several concerning ways. It observes that the advice of officials was regularly dismissed and the process was rushed, leading to important steps not being taken. Key among these omissions was a failure to follow a transparent and evidence-based approach. The Tribunal says the approach to policy development was instead characterised by ideology and blind adherence to pre-existing political commitments at the expense of whānau, hapū, and iwi. Due to this, the Tribunal finds that the Crown has failed to meet the high standard it should set for itself with its Treaty partner.

Overall, the Tribunal finds that the Crown has breached the Treaty in a number of ways:

• A dismissal of official advice, and important steps not taken in the policy development process, resulted in the Crown breaching the principle of good government.
• The Crown failed to consult with Māori during the development of the proposed amendments, despite repeated advice from officials; it offered to consult with Māori only after decisions were made; and it reduced that limited offer of consultation even further to suit its own deadline to amend the Act before the end of 2024. This is a breach of the principle of partnership.
• The Crown has breached the principle of tino rangatiratanga by exercising kāwanatanga over Māori rights and interests in te takutai moana without providing any evidence for one of its key justifications – namely, that the public’s rights and interests require further protection beyond what is already provided by the Act. The Crown also failed to inform itself of Māori interests.
• The Crown’s consultation with commercial fishing interests (which already have statutory protection) prior to finalising the proposed amendments, while failing to consult with Māori, is a further breach of the principle of good government.
• The Crown has breached the principle of active protection and the principle of good government by failing to demonstrate how it arrived at its understanding of ‘Parliament’s original intent’ and by seeking to amend the Takutai Moana Act before the Supreme Court can hear the matter.
• The Crown has breached the principles of active protection and good government by proposing amendments that are applied retrospectively (from 25 July 2024 onwards). As a result, applicants will be forced to have their cases reheard, burdening them emotionally and financially through no fault of their own, and placing further strain on whanaungatanga. Retrospectivity also means that some applicants who would have been granted customary marine title under the old test might find themselves unable to meet the standards of a new test.

To give effect to Treaty principles, the Tribunal recommends that:

• the Crown halt its current efforts to amend the Takutai Moana Act;
• the Crown make a genuine effort for meaningful engagement with Māori; and
• the focus of this engagement should be on the perceived issues of permissions for resource consents, rather than interrupting the process of awarding customary marine title.

The Tribunal emphasises that these recommendations should be implemented to restore a fair and reasonable balance between Māori interests and those of the public in te takutai moana. At present, the Crown’s actions are such a gross breach of the Treaty that, if it proceeds, these amendments would be an illegitimate exercise of kāwanatanga. The Tribunal cautions the Crown that, on the strength of the evidence it has received, to proceed now on its current course will significantly endanger the Māori–Crown relationship.

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