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Navigating control of NZ’s foreshore and seabed region

In brief
  • Recent Court of Appeal decision raises concerns over coastal control.
  • The Marine and Coastal Area Act (MACA) enables Customary Marine Titles (CMTs) to Māori applicants. 
  • CMT grants commercial rights, resource consent influence, and local activity authority.
  • Lowered CMT requirements, involving tikanga, shared exclusivity, and revised property rights, may enable hundreds of applications. 

Concerns over who will control coastal regions

Recent reports have raised concerns about a potential shift in New Zealand’s coastal regions, transitioning from public control to Māori control, despite prior assurances from the Government. 

Understanding MACA and CMT

In 2011, the Marine and Coastal Area Act (MACA) was passed by Te Pāti Māori, in collaboration with The National Party, paving the way for the end of Crown ownership of coastal areas. This Act introduced the concept of Customary Marine Title (CMT), granting iwi, hapu, and whanau groups the authority over extensive coastal regions – from the highest tide mark to the 12-nautical-mile territorial waters limit, excluding the waters themselves.

CMT holders benefit from valuable commercial rights that allow them to use and develop marine areas, earning royalties from mining and fees from commercial activities. They also have authority over granting or denying permission for certain activities. Rights are subject to government regulations and environmental protection measures. CMT also exempts them from seeking consent for long-standing traditional practices. Notably, it doesn’t permit holders to sell land nor deny public access to areas covered by a CMT.

Navigating control of NZ’s foreshore and seabed region - Centrist
Recent court decisions could see large swathes of NZ coastline move from public control.

Initially, Chris Finlayson, the chief sponsor of the bill and a former National MP, assured that no more than 10% of New Zealand’s coastline would come under Māori control. This assurance was grounded in the stringent criteria set for CMT, including the adherence to tikanga (Māori customary law) and the demonstration of exclusive use since 1840.

However, recent reports suggest that the Act may have been originally designed to align CMT with tikanga-based requirements, ensuring that overlapping claims and third-party confiscations (historical land seizures by entities other than the Crown) would not lead to disqualification.

The Treaty of Waitangi Tribunal encouraged claimants to come forward, with the government providing financial support for those pursuing CMT claims but not for those in opposition.

As the MACA claim deadline in 2017 approached, hundreds of overlapping applications spanning the entire New Zealand coastal region were submitted, raising concerns about the potential implications.

The impact of the Court of Appeal

In the Edwards case, the Court of Appeal made a significant decision that prioritised tikanga over traditional property rights when considering CMT applications. This decision set a precedent for future CMT applications and upheld the concept of “shared exclusivity,” allowing multiple groups to coexist in the same region and accommodate overlapping claims – a departure from the initial public understanding when MACA was passed.

Additionally, the Court’s ruling allows for partial exclusions within a claimed area, reducing the barriers to obtaining CMT. Legal experts, such as Anthony Willy, argue that this decision could be seen as the judiciary overstepping its role and infringing on the separation of powers by making it easier for CMT applicants.

Concerns and proposals

Both Dr Muriel Newman and Willy caution that this decision could potentially lead to Māori control over the majority of New Zealand’s coastline and territorial sea. Disputes among competing claimants could also lead to social division.

In response, they advocate for reconsidering the law, favouring a return to the 2004 Foreshore and Seabed Act, which firmly vested rights in the Crown. 

The implications of these developments are significant, as they could reshape New Zealand’s coastal regions and the balance of control between Māori and the wider public. 

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