In latest report Waitangi Tribunal finds that Marine and Coastal Area (Takutai Moana) Act 2011 breached Treaty of Waitangi…

The Waitangi Tribunal recently released the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 2 Report.

The Marine and Coastal Area (Takutai Moana) Act was introduced in 2011 to replace the Foreshore and Seabed Act 2004.

Under the Takutai Moana Act, Māori can obtain recognition of their customary interests in the marine and coastal area by applying to the High Court for a recognition order or engaging directly with the Crown. Any applications for recognition of customary rights had to be filed by 3 April 2017.

The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry commenced in 2017 following claims that the Act breached the Treaty of Waitangi.

Stage two of the Inquiry has focused on whether the policies and principles underpinning the Takutai Moana Act are compliant with Te Tiriti. Hearings for stage two were completed in February 2022.

In the Stage 2 Report, the Tribunal found that:

• The Crown did not adequately consult with Māori in developing the Takutai Moana Act.
• The 2017 deadline for filing applications is not justified.
• The statutory test for customary marine title Māori must undertake to have their rights recognised is not fair and reasonable.
• The Act gives no choice between having applications heard in the High Court or the Māori Land Court, which breaches the Treaty principle of options.
• The Act’s provisions on reclaimed land, which vests reclaimed land in the Crown without compensation for Māori who have customary interests in that land, is a breach of Treaty principles.

Overall, the Tribunal found that the Takutai Moana Act does not adequately support Māori in their kaitiakitanga (guardianship) duties and rangatiratanga (chieftainship) rights, and fails to balance Māori rights and other public and private rights. The Tribunal therefore concluded that the Act is in breach of Te Tiriti.

The Tribunal recommended specific amendments to the Act, including:

• Improve the statutory test for customary marine title.
• Repeal the 2017 application deadline.
• Allow applications to be transferred between the High Court and the Māori Land Court.
• Increase the Act’s compensation regime and compensate affected iwi, hapū, and whānau for reclaimed land vested in the Crown.

The Tribunal emphasised that all recommendations should be implemented as a package, and that ‘cherry-picking’ certain recommendations will not restore the balance required by the Treaty principles.

You can read more about the stage one report here.

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