Customary Marine Title

The first major ruling under the Marine and Coastal Area (Takutai Moana) Act 2011 (“the Act”) was released by the High Court on Friday 7 May 2021, representing an important milestone for iwi claims to customary marine title and protected customary rights to the coastal marine area in New Zealand. The Act was brought into force by the National Government in 2011 following the repeal of the controversial Foreshore and Seabed Act 2004.

In this case, Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025, the claim was brought on behalf of Bay of Plenty iwi Te Whakatōhea, with other iwi groups also making cross claims to some of the same areas of the coastal marine area. Customary marine title (“CMT”) was granted to a number of iwi and hapū groups jointly in three areas, including the western part of Ōhiwa Harbour and the coastal marine area between Maraetōtara in the west to Tarakeha in the east. The exact boundaries of the areas to which the orders relate are yet to be determined, and will be determined following a hearing on the matter set down for February 2022.

The CMT orders made by the Court will give the iwi groups a number of rights including a right to veto any resource consent applications made in the part of the coastal marine area where CMT orders are in place.

The ruling is the first real precedent set in relation to the Act, following one other decision made under the Act in 2016 regarding the Titī (Muttonbird) Islands off Rakiura (Stewart Island) which did not provide much guidance on the application of the Act outside of the set of circumstances in that particular case.

The Whakatōhea decision will be significant for future applications for orders made under the legislation. Under the Act, the test for any applicant group is whether that group holds the land in accordance with tikanga, and has exclusively used and occupied that land from 1840 until today without substantial interruption. The Court provided guidance on the interpretation of this test and found that in this case, it had been met by a number of iwi and hapū in relation to a number of areas.

There remain 200 active applications currently before the Court, with the deadline to file an application having expired in 2017. It is a significant programme of work which will take the Court many years to complete.

The Court has just heard the first part of local Bay of Plenty iwi Ngā Pōtiki’s claim over the Rangitaua area of Tauranga Harbour and will later this year hear the second part of Ngā Pōtiki’s claim to the coastal marine area from Omanu in the west to Maketu in the east, including Mōtiti Island.

If you have any queries in relation to this decision, or the Marine and Coastal Area (Takutai Moana) Act 2011 please do not hesitate to contact us.

Laura is a solicitor in Holland Beckett Law’s environmental law and resource management team.