Explainer: when the coast isn't clear

The case for amending the foreshore and seabed law

Photo by Vlad Kutepov on Unsplash

The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) was a significant legislative measure designed to address the grievances caused by Helen Clark’s Foreshore and Seabed Act 2004. Its purpose was to recognise and protect Māori customary rights in marine and coastal areas while safeguarding the interests of all New Zealanders.

This legislation marked a major achievement of John Key’s government and underscored the constructive relationship National maintained with the Māori Party during that era.

The compromise starts to fray

The interpretation of MACA by the Court of Appeal has, however, ignited substantial debate over Parliament’s legislative intent. The court's rulings have effectively broadened the criteria for recognising customary rights, lowering the threshold for claims and creating a divergence between the law's original intent and its current application. In response, the government has signaled its intention to legislate to restore what it believes was Parliament's original intention.

Just what was intended?

When Hon. Tariana Turia introduced the Marine and Coastal Area (Takutai Moana) Bill in 2010, she clearly articulated that the legislation was meant to provide a fair and just pathway for Māori to reclaim customary rights and titles extinguished by the 2004 Act.

Here is what she said:

The bill also provides for the right to seek customary title to a specific part of the common coastal marine area if that area has been used and occupied by a group according to tikanga and to the exclusion of others without substantial interruption from 1840 to the present day.

The three essential components for recognising customary marine title, as outlined in her speech, were:

1. Recognition that the claimant group must hold the area according to their tikanga (customs and traditions).

2. The requirement that the claimant group must demonstrate exclusive control over the area, meaning no other group or individual had exercised control over it.

3. Proof of continuous occupation and control since 1840, without significant interruptions that would undermine the claim.

The basic grammar of Turia's speech indicates that these elements are distinct. The first limb required adherence to tikanga, reflecting the customary governance of the area. The second and third limbs, however, focused on factual demonstrations of exclusivity and continuous occupation, independent of tikanga.

Think about it this way: if tikanga were already embedded in those exclusivity and continuity limbs, then explicitly stating it as a separate requirement in the first limb would be unnecessary, as it would be inherently addressed.

That points to a logical separation of the three elements making up the customary title framework.