Tribunal releases report on marine and coastal area regime

The Waitangi Tribunal has released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report

The stage 1 inquiry investigated whether the procedural and resourcing arrangements supporting the Marine and Coastal Area (Takutai Moana) Act 2011 breached the Treaty and prejudicially affected Māori. The Tribunal accorded the inquiry high priority, acknowledging the importance of the customary rights at stake and the immediacy of the Act’s alleged impacts on Māori.

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 title interests extinguished under the 2004 Act, introduced statutory tests and awards whereby customary interests may be identified, 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 either engage directly with the Crown or apply to the High Court for a recognition order. They may also do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

In its report, the Tribunal found the claimants have been (and remain) prejudiced by aspects of a procedural and resourcing regime that fell well short of Treaty compliance. In particular, the Tribunal found that the Crown’s regime was inconsistent with Treaty obligations because it failed to:

  • provide adequate and timely information about the Crown engagement pathway for applicants to seek recognition of their customary rights in the marine and coastal area;
  • put in place adequate policies to ensure that the High Court pathway and the Crown engagement pathway operated cohesively;
  • actively and practically support efforts to resolve overlapping interests in the marine and coastal area;
  • cover 100 per cent of all reasonable costs that the claimants incurred in pursuing applications under the Act;
  • manage real or perceived conflicts of interest in the administration of funding;
  • provide sufficiently independent, accessible, and transparent mechanisms for the internal review of funding decisions;
  • enable timely access to funding for applicants in the Crown engagement pathway; and
  • fund judicial review for Crown engagement applicants and Māori third parties.

The Tribunal therefore recommends that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. The Tribunal calls on the Crown to urgently address the policy vacuum that continues to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways.

With regard to funding, the Tribunal recommends that the Crown consider the Legal Aid scheme, or an adapted version, as a suitable model for marine and coastal area applications. To improve the Crown’s support for applicants seeking to resolve overlapping interests, the Tribunal suggests that the Crown provide applicants with funding and administrative support, access to facilitators and mediators, and access to tikanga-based resolution processes.

The report concluded that Māori would continue to be prejudiced until the Crown takes steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.

The Tribunal received 92 claims for stage 1 of the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry, and a further 75 parties were granted interested party status. Hearings took place from 25 March 2019 to 2 August 2019.  The inquiry panel comprised Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins.

Stage 2 of the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry will commence in the latter half of 2020. It will inquire into whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

The The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report is now available to download:

The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report (external link)

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