Decision sets approach to claims of customary rights in the foreshore and seabed

14 May 2021

The High Court in deciding the Whakatōhea claim for customary rights in the Eastern Bay of Plenty has set the approach to resolving overlapping claims and to a range of other significant legal issues which will have far-reaching implications for the many claims still to be determined.

The case1 was only the second to be heard under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), which provides for protected customary rights (PCRs) and customary marine title (CMT).

PCRs allow the holder to exercise certain rights over the relevant takutai moana without a consent under the Resource Management Act (RMA), and grants an exemption from certain charges under that Act. The right must have been exercised since 1840 in relation to particular takutai moana in accordance with tikanga, and must not have been extinguished as a matter of law.2

To gain CMT, the applicant must be able to demonstrate exclusive use and occupation in relation to the specified area from 1840 to the present day without substantial interruption, or to have received the title after 1840 through customary transfer.3

The Court granted CMT (both joint and sole) in various areas to the hapū of Whakatōhea, Ngāti Awa, and Ngāi Tai, the boundaries of which will be determined in a further hearing in early 2022. 

A number of the applicants from Te Whakatōhea were also successful in advancing claims for recognition by way of PCR. 

Overlapping claims approach

While the initial application (under the predecessor Foreshore and Seabed Act 2004) was made by Claude Edwards on behalf of Te Whakatōhea, by the time of the hearing a number of other applicant groups had joined.

The Court encouraged them to engage with each other to see whether any agreement could be reached that might reduce the number of competing claims.4 Through a process of hui and wānanga, they were able to form themselves into three broad groupings.5

Purpose of the Act

The Court affirmed that the purpose of the Act is to reflect the Treaty of Waitangi and to recognise and provide for the interests of whānau, hapū and iwi, balanced with the rights of all New Zealanders in the takutai moana.6

Burden and standard of proof

The Court affirmed that applicants are required only to prove the positive elements under the Act. They do not have to demonstrate that their customary rights have not been extinguished because that is presumed in the absence of proof to the contrary. 

The civil burden of proof, on the balance of probabilities, also applies,7 meaning that the Crown must prove extinguishment.

General approach to applying tikanga

As distinct from cases which have merely asserted the place of tikanga in the law of Aotearoa New Zealand, the Court in this judgment has delved deeper into the relevant principles of tikanga and their application to the facts. 

The judge asserted that whether a specified area can be said to be “held” in accordance with tikanga, involves “a factual assessment that will be heavily influenced by the views of those who are experts in tikanga”.8

Moreover, the judge relied heavily on pūkenga, those whom the parties called from within their own rohe, and others whom the Court called by way of its discretion under section 99 of the Act, largely adopting the recommendations of the Court-appointed pūkenga in his findings.9

We envisage this may set a trend for future cases whereby pūkenga are frequently appointed to assist the Court.

“Shared exclusivity”

In applying the exclusivity requirement mandated by the Act for the granting of CMT, the judge adopted the “shared exclusivity” concept developed by the Canadian Courts. This allows multiple groups to share title in the same area, provided there is a mutual acknowledgement of shared rights and interests as between those groups.10 

We note, however, that this approach may not be able to reconcile tensions when applicants do not accept shared rights in an area of the takutai. It is likely, therefore, that there will be further consideration of these issues in future cases.

Substantial interruption

The Court concluded that neither raupatu (in the sense of Crown confiscation of land) nor consents given under the RMA in the claimed area substantially disrupted the relationship that the applicants had with the takutai moana, nor their holding of the takutai moana in accordance with tikanga.11

This removes what could have been significant barriers to any future applications of CMT.

Our comment

This is a useful and constructive judgment which has the potential to facilitate the successful determination of future claims. 

In particular, the Court’s approach to overlapping claims shows some promise. We hope that in future cases the courts adopt a more effective and respectful approach where tensions persist, as opposed to the Government’s current policy in Treaty settlements of trying to punch through, paper over or override competing interests among claimants.

We also commend the Court for being bold in spearheading the application of tikanga and the resolution of the new and complex legal issues presented by the Act. 

This case has set a clear tone that tikanga is and should be the primary means by which MACA applications and related matters are discussed and determined. 

Though tensions as to the application of tikanga are still likely to arise, the fact tikanga ought to apply is unlikely to be challenged. And the fact many of the applications were successful, shows promise for future applications. 

1 Re Edwards (Te Whakatōhea (No.2)) [2021] NZHC 1025
2 Section 51 of the Act
3 Section 58 of the Act
4 At [11]-[14]
5 At [15]-[19]
6 See Part II
7 At [99]-[101]
8 At [130]-[131]
9 See [311]-[331]
10 At [162]; Delgamuukw v British Columbia [1997] 3 SCR 1010 at [158]
11 At [200], [204], [227]

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