He whakaaro: undermining the customary rights of our coastlines

Undermining the Customary Rights of our Coastline
Nā Justin Tipa

From Rakiura to Kaikoura, across to Te Tai Poutini, our people have lived by the tides – gathering kaimoana, feeding our whānau,
and protecting the life of the coast.

The Marine and Coastal Area (Takutai Moana) Act 2011 was meant to recognise these deep and enduring relationships. It was meant to restore balance after the wounds of the Foreshore and Seabed Act 2004. But the government’s recent amendments have shifted that balance once again – and not in our favour.

The government’s retrospective legislation to undermine customary rights in the marine and coastal area is a betrayal of New Zealand values and a failure of leadership.

The Amendment Act, which passed its final reading in late October, has changed the legal test for customary marine title by
raising the threshold for what iwi, hapū and whānau need to prove.

The government claimed this bill was needed to clarify the law after a 2023 Court of Appeal decision on how to apply the legal test for customary marine title. But the Crown won its appeal in the Supreme Court in December 2024, overturning that very judgment. Despite that off-ramp, they chose to press ahead with legislation that will restrict Māori rights and cost taxpayers millions.

Worse still, the legislation applies retrospectively to July 2024, when the government first announced it was amending the law. This means that any court decisions made recognising customary marine title since that date are now set aside.

Groups who have had their customary marine title recognised in that time are now forced to go back to court for costly re-hearings under the new, more restrictive legal test. This includes overturning the confirmed rights of Ruapuke whanau from a decision only months ago.

The Crown has conceded this will cost taxpayers millions of dollars, during a time evidence required to meet the Act’s legal
tests. In 2017, Te Runanga o Ngai Tahu filed a customary marine title claim for the entire takiwa coastline as ‘placeholder’ on behalf
of Kāi Tahu whānui.

I know many of you will be keen to contribute your time, knowledge and expertise to help your rūnaka or whānau gather evidence – that’s our coastal place names, our māhika kai practices, and our long history of nohoaka and pa along the coast.

We need to keep going with this, as it’s important knowledge for our whānau to hold. The tide may turn again on this legislation. Our time in court or in negotiations with the Crown will come.

In the 20 years since the courts first recognised the right to investigate the existence of customary rights in the foreshore and seabed, none of the scaremongering predictions about customary title holders have come to pass.

Public access, fishing, and navigation were never under threat. The 2011 legislation guaranteed these for everyone in the common marine and coastal area, including areas in customary marine title.

It feels like this government has lost sight of what is important to the country and the majority of New Zealanders. New Zealanders want action on the things that matter to us. We’re concerned about the cost of living, access to infrastructure and public services, economic opportunities, and protecting the natural environment.

Instead, the Prime Minister is allowing Parliament’s time, and tens of millions of dollars, to be spent re-opening old attacks on Māori rights – rights that have been repeatedly recognised in legislation and the courts.

It’s a failure of leadership, and it’s out of touch with the concerns of New Zealanders. when the government is facing severe fiscal
challenges and budget deficits.

On the one hand, Treaty and Justice Minister Paul Goldsmith is ploughing money into the court system to try to clear the
severe backlog of cases; on the other hand, he is spending millions in taxpayer money to send already decided cases back into the queue.

Even if it weren’t unjust, this would still be a very questionable use of public money. And it is unjust. It goes against the right that every New Zealander can have their day in court. It undermines the rule of law and the credibility of the legal system.

When a National-led government bypasses its own 2011 Marine and Coastal Area Act, it breaches the honour of the Crown – the duty to act with integrity, consistency, and good faith towards Maori.

By seeking to avoid Parliament’s legislative process and judicial interpretation, the government undermines a cornerstone of the Westminster system: the separation of powers and respect for due process.

The most frustrating aspect of all this is that the 2011 Act had largely helped put the divisiveness of the foreshore and seabed issue to rest. In response to the appalling fear campaigns trying to pit “iwi” against “Kiwi”, Labour nationalised the foreshore and seabed in 2004.

Following this, the Māori Party at the time negotiated with John Key’s National government to secure the repeal of the 2004 Foreshore and Seabed Act and the restoration of the right to seek customary title in the courts. It was a positive step, but it was still a compromise
by iwi and hapu.

Nevertheless, hapu and whanau set about the hard work of assembling the evidence required to meet the Act’s legal tests. In 2017, Te Rūnanga o Ngai Tahu filed a customary marine title claim for the entire takiwā coastline as ‘placeholder’ on behalf of Kāi Tahu whānui.

I know many of you will be keen to contribute your time, knowledge and expertise to help your rūnaka or whānau gather evidence – that’s our coastal place names, our māhika kai practices, and our long history of nohoaka and pā along
the coast. We need to keep going with this, as it’s important knowledge for our whānau to hold.

The tide may turn again on this legislation. Our time in court or in negotiations with the Crown will come. In the 20 years since the courts first recognised the right to investigate the existence of customary rights in the foreshore and seabed, none of the scaremongering predictions about customary title holders have come to pass.

Public access, fishing, and navigation were never under threat. The 2011 legislation guaranteed these for everyone in the common marine and coastal area, including areas in customary marine title.

It feels like this government has lost sight of what is important to the country and the majority of New Zealanders. New Zealanders want action on the things that matter to us. We’re concerned about the cost of living, access to infrastructure and public services, economic opportunities, and protecting the natural environment.

Instead, the Prime Minister is allowing Parliament’s time, and tens of millions of dollars, to be spent re-opening old attacks on Māori rights – rights that have been repeatedly recognised in legislation and the courts.

It’s a failure of leadership, and it’s out of touch with the concerns of New Zealanders.