• A just-issued Supreme Court ruling marks the latest twist in a 20-year legal saga over Māori customary rights to the foreshore and seabed.
• After a Court of Appeal judgment last year eased the test for Māori to gain customary titles, the Supreme Court has ruled it erred in its approach to interpreting a critical part of the law.
• The ruling allows an appeal by the Attorney-General against last year’s decision and comes as the Government is pushing through legislative amendments that overturn it.

The Supreme Court has ruled the majority of the Court of Appeal “erred” in a major decision that ultimately eased the test for Māori to gain customary rights for use of the foreshore and seabed.

Its just-issued ruling allows an appeal by the Attorney-General against the Court of Appeal’s decision last October, at a time the Government is pushing through contentious legislation to overturn it.

Under the Marine and Coastal Area (Takutai Moana) Act 2011 (Maca), which replaced the Foreshore and Seabed Act 2004, the “common marine and coastal area” can’t be owned by anyone, with public fishing and access rights protected.

However, Māori can seek to have customary rights recognised with two orders: customary marine titles (CMTs) and protected customary rights (PCRs).

CMTs are a concept similar to ownership but not the same – the land can’t be sold – and recognise Māori property rights in the marine common and coastal area since 1840.

Under the Maca’s section 58, applicants for CMTs have to meet two conditions: that they’d held it in accordance with tikanga, and exclusively used and occupied it without substantial interruption since 1840.

Last year’s Court of Appeal judgment particularly criticised the second condition, saying incursions into an area by third parties since 1840 would deprive a group of CMT and be inconsistent with the Treaty of Waitangi.

“Far from recognising and promoting customary interests”, the court found, “[Maca] would in many cases extinguish those interests”.

With the view that the court’s decision changed the nature of the test by reducing its threshold, the Government responded by drafting an amendment bill aimed at ensuring the Maca tests were interpreted and applied as originally intended.

Now, the Supreme Court has unanimously allowed an appeal by the Attorney-General against the Court of Appeal ruling over what it said should be the “correct interpretation” of section 58.

In 2004, intense public debate over customary rights to the foreshore and seabed split in the governing Labour Party and led to the formation of the Māori Party. Photo / Kenny Rodger

Its just-issued decision addressed seven separate appeals heard by the court last month, involving the Attorney-General, eastern Bay of Plenty iwi Te Whakatōhea, hapu groups with overlapping claims, and other third parties.

It highlighted that a key contention in those cases was the meaning of use and occupation “without substantial interruption” since 1840.

Here, the Supreme Court considered the majority of the Court of Appeal erred in its analysis by taking an unduly narrow approach in its interpretation.

“On this aspect, we consider that the majority of the Court of Appeal erred in that they appear to have concluded that only interferences expressly authorised by statute are capable of substantially interrupting exclusive use and occupation.”

Further, the court ruled that a three-stage test adopted by the Court of Appeal didn’t adequately address the act’s reconciliatory purpose.

Given the importance of a correct statement of the test, the court ruled to allow the Attorney-General’s appeal so that, “to better reflect the text, purpose and legislative history of Maca, this court can state the test afresh”.

Elsewhere in its ruling, the court reaffirmed that applicants must demonstrate a deep, integrated relationship with the marine area under tikanga, reflecting an ongoing connection and exercise of mana.

The ruling also addressed another key issue with the Maca test: that applicants had “exclusively used and occupied” the area.

The court clarified that, while physical exclusion of others wasn’t required, applicants should still show extensive use of the area, intention, and capacity to exercise control under tikanga and law.

A second Supreme Court judgment, still to be released, would address the remaining “fact-specific” issues of the seven appeals, including application of section 58 to navigable rivers and outstanding PCR claims.

Jamie Morton is a specialist in science and environmental reporting. He joined the Herald in 2011 and writes about everything from conservation and climate change to natural hazards and new technology.