New Zealand Supreme Court upholds appeal over Māori customary rights News
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New Zealand Supreme Court upholds appeal over Māori customary rights

The New Zealand Supreme Court on Monday unanimously upheld an appeal by the Attorney-General, revising the legal test under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). The decision effectively lowers the barriers for Māori, the Indigenous people of Aotearoa New Zealand, to establish customary rights over the use of the foreshore and seabed.

The Supreme Court’s judgment centered on the interpretation of Section 58 of MACA. The court found that the Court of Appeal had adopted an “unduly narrow” interpretation of the criteria for granting a customary marine title (CMT) in the common marine and coastal area, previously referred to as the foreshore and seabed. The Supreme Court emphasized that the “text and legislative history of MACA make clear its purpose is to recognise and reconcile competing interests in marine and coastal areas.”

The court formed its judgment based on the interpretation of four key issues in Section 58. The provision outlines requirements for granting a CMT, including that the applicant group “holds” the area “in accordance with tikanga” (Māori customary law, a framework of values and practices guiding correct procedures) and has “exclusively used and occupied” the area “from 1840 to the present day without substantial interruption.”

The Supreme Court further considered that the three-stage test adopted by the Court of Appeal “does not transparently confront the reconciliation task mandated by the Act” and identified four baseline premises that underpin it. These are the “removal of Crown ownership” in the common marine and coastal area, the revival of Māori customary interests which were removed under previous legislation, the “protection of vested property rights and expressly authorised activities,” and “public access, navigation and fishing rights” in the marine and coastal area.

Concerning the identified elements, the Supreme Court applied a holistic approach, “informed by tikanga,” to interpreting what it means to “hold” a CMT, rejecting the Court of Appeal’s narrow interpretation. A statement from the Court noted, “The customary interest cannot be just a collection of unconnected activities or uses. There must be an integrated or holistic relationship with the seascape.” Regarding “exclusive use and occupation,” the judgment noted, “use and occupation cannot mean actual physical occupation of the seascape is required” but rather a tikanga-based “strong cultural connection.”

The judgment is the first of two concerning claims to customary rights over the harbors, river mouths, beaches, and seascape of the eastern Bay of Plenty. It stems from seven separate appeals to the Supreme Court, which were “heard together due to the significant overlap in terms of issues and location. The interpretation of Section 58 primarily pertains to the Attorney-General’s appeal, while the second forthcoming judgment will address the remaining issues arising from the appeals.

Earlier this year, the government proposed amendments to Section 58 of MACA. However, a Waitangi Tribunal inquiry, published in September 2024, determined that the Crown breached Te Tiriti o Waitangi (Treaty of Waitangi), recommending the Crown halt its amendment of the act.

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