Tribunal releases second report on marine and coastal area regime

The Waitangi Tribunal has released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 2 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 restored customary interests extinguished under the 2004 Act, introduced statutory tests and awards to recognise customary interests, and provided for public access. Under the Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. The Act provides two application pathways for this purpose. Māori can apply to the High Court for a recognition order or engage directly with the Crown, or do both. In each pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal accorded the inquiry into the Takutai Moana Act high priority, acknowledging the importance of the customary rights at stake and the immediacy of the Act’s alleged impacts on Māori. The stage 1 report, which was released in 2020, found that some aspects of the procedural and resourcing arrangements supporting the Act breached the Treaty and prejudicially affected Māori.

The stage 2 report investigates whether the Act itself breaches Treaty principles and causes prejudice to Māori. In this report, the Tribunal finds the claimants have been, and will likely continue to be, prejudiced by aspects of the Act that breach Treaty principles. In particular, the Tribunal finds that the Act is not Treaty compliant because (among other reasons):

• the Crown failed to allow properly informed and meaningful participation for Māori during the consultation process;
• the Act does not provide for a fair and reasonable statutory test for customary marine title (an interim finding, as the Court of Appeal is currently considering how the relevant provisions should be interpreted);
• the statutory deadline was not, and is not, justified by any policy considerations that meet the standard of acting reasonably and in good faith toward Māori;
• the Act gives Māori no choice between having their applications under the Act heard in the High Court or the Māori Land Court;
• certain exceptions to the scope of protected customary rights are unreasonable;
• the exceptions of accommodated activities and deemed accommodated activities undermine the permission rights (certain regulatory rights available to customary marine title holders);
• the wāhi tapu protection right does not allow Māori to effectively protect wāhi tapū and wāhi tapu areas; and
• the Act vests reclaimed land in the Crown, thus extinguishing Māori customary rights and preventing the grant of a customary marine title and protected customary rights without compensation.

Overall, the Tribunal finds that the rights under the Takutai Moana Act do not sufficiently support Māori in their kaitiakitanga duties and rangatiratanga rights and fail to provide a fair and reasonable balance between Māori rights and other public and private rights. As a consequence, the Act is in breach of the Treaty.

To give effect to Treaty principles, the Tribunal recommends that the Crown make targeted amendments to the Act based on the claims that have been heard and upheld. Specifically, the Tribunal recommends that the Crown (among other points):

• improve the statutory test for customary marine title (subject to the outcome of appeals following the High Court’s Re Edwards (Te Whakatōhea No 2) judgment);
• repeal the statutory deadline;
• allow applicants the ability to transfer their applications between the High Court and the Māori Land Court with both having concurrent jurisdiction;
• repeal specific exceptions to the scope of protected customary rights;
• repeal specific exceptions to the scope of permission rights;
• increase the scope of the Act’s compensation regime;
• decouple the wāhi tapu protection right from the customary marine title regime; and
• compensate affected iwi, hapū, and whānau for all reclaimed land vested in the Crown.

The Tribunal emphasises that all recommendations should be implemented as a package to restore a fair and reasonable balance between Māori interests and those of the wider public in te takutai moana. It warns against ‘cherry-picking’ select recommendations, as this will not restore the balance required by the principles of the Treaty.

The Tribunal received 92 claims for stage one of the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry, and a further 80 parties were granted interested party status. Hearings took place from September 2020 to November 2021. The inquiry panel comprised Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins, and Tā Pou Temara.

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