The Court of Appeal recently released a judgment regarding the scope of the Marine and Coastal Areas (Takutai Moana) Act. This is the first time a substantive judgment regarding Māori customary interests has reached the Court of Appeal.

The Act allows the Court to recognise Māori customary interests in the marine and coastal area where the applicant group can demonstrate that the land had been held in accordance with tikanga since 1840. 

This case concerned an application where a claim was made by multiple groups to the same area of land, and the boundaries of that land were disputed by neighbouring iwi. The Court sought to determine what the test was for deciding whether a group should be granted customary marine title.

The test for granting customary marine title was split into three parts:

  • Whether the group currently held the relevant area as a matter of tikanga;
  • Whether in 1840, prior to the proclamation of British sovereignty, the group had used and occupied the area, and had sufficient control to exclude others if they wished to do so; and
  • Whether post-1840, that use and occupation ceased, or was substantially interrupted by lawful activities carried out in the area.

When considering whether a group currently held an area in accordance with tikanga, the Court noted that it was important to consider the tikanga of whanaungatanga (relationships) and manaakitanga (respect).

In particular, the Court noted that an iwi or hapu could hold land in accordance with tikanga, and also grant others permission to use the land or resources, as this is consistent with the tikanga of whanaungatanga and manaakitanga. This should be viewed as a manifestation of the group’s mana or control over the land, rather than undermining it.

The customary right must have existed since 1840 to the present day. Use of a resource on its own would not be sufficient to prove exclusive use and occupation.

However, the Court found that it would be unjust to require an applicant group to demonstrate an ability to exclude others, when this ability was taken away from Māori customary owners by the law introduced by the British government post-1840.

The Court considered that when determining whether that right had been interrupted, the Court should have regard to the substantial disruption to the operation of tikanga that resulted from the Crown’s assertion of kāwanatanga (governance).

Substantial interruption will be demonstrated where a group has ceased to occupy the land such that ahi kā roa (long burning fires/continuous occupation) is no longer maintained by the group, or as a matter of tikanga another Māori group has displaced the applicant group as the primary occupiers and kaitiaki (guardians) of the area.

The Court found an activity will not be a substantial interruption where:

  • It was not an interruption because it was allowed by the applicant group in the exercise of manaakitanga;
  • It was inconsistent with the group’s customary rights and was not authorised by legislation capable of overriding those rights.

If you are considering making an application for customary marine title, it is important to seek legal advice in order to get the best outcome for you and your whānau.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.