New Zealand’s Supreme Court has issued a landmark ruling today that establishes a new framework for determining indigenous customary rights over coastal areas, in a case involving overlapping claims from multiple iwi groups in the eastern Bay of Plenty.
The judgment interprets key provisions of the Marine and Coastal Area (Takutai Moana) Act 2011, legislation that attempted to balance Māori customary rights with public access and commercial interests in New Zealand’s coastal areas. The Act emerged from controversy over the Foreshore and Seabed Act 2004, which had effectively extinguished Māori customary rights to the coastline.
At the heart of the case lies the interpretation of section 58, which sets out the test for customary marine title. The Court has clarified that applicant groups must first prove they hold an area in accordance with tikanga (Māori customary law) and have used and occupied it since 1840. The burden then shifts to opposing parties to prove either non-exclusivity or substantial interruption.
The Court departed significantly from the Court of Appeal’s view that only statutorily authorised activities could constitute substantial interruption. Instead, any lawful activity might contribute to interruption if it effectively “crowds out” customary use and occupation. This could include major port infrastructure, intensive commercial shipping, or accumulated smaller-scale activities if sufficiently prolonged.
The judgment introduces a more demanding test for customary title while avoiding broad policy pronouncements. It requires detailed examination of historical evidence, contemporary use patterns, and the cumulative effect of various activities. However, key aspects remain to be developed through future cases, including the precise threshold for “crowding out” and temporal requirements.
For Māori groups pursuing claims, particularly in areas with significant commercial activity, the path to establishing customary title has become more challenging. Commercial stakeholders, meanwhile, have gained greater scope to demonstrate how their operations affect customary rights.
The case illustrates the challenges courts face when interpreting legislation that attempts to reconcile indigenous rights with modern commercial interests. The resulting framework emphasises factual analysis over policy considerations, perhaps reflecting recent debate about the appropriate role of courts in contentious social issues.
For practitioners advising clients on customary marine title matters, this judgment requires a significant shift in approach:
- Evidence Collection Strategy: Counsel representing Māori claimants must now gather more comprehensive historical evidence, focusing particularly on demonstrating continuous use and occupation that has persisted despite other activities in the area.
- Commercial Activity Assessment: Practitioners representing commercial interests should carefully document all lawful activities that may have “crowded out” customary use, even if not statutorily authorised under previous interpretation.
- Expert Witness Requirements: Both sides will need to engage experts who can speak to the cumulative impact of activities over time, potentially including historians, marine scientists, and tikanga experts.
- Litigation Risk Analysis: The judgment introduces greater uncertainty, particularly for claims in areas with moderate levels of commercial or public activity that fall short of major infrastructure but may still collectively constitute “substantial interruption.”
- Settlement Considerations: With a higher evidential threshold, some claimants may now reconsider litigation pathways in favor of direct negotiation with the Crown, potentially shifting the landscape of marine and coastal area disputes.
Disclaimer: This analysis is intended to provoke thought and debate, and does not represent the official position of chambers.
