Summary
The Supreme Court, in a two part judgment, determined customary rights in the foreshore and seabed in the Eastern Bay of Plenty.
Background
Following repeal of the Foreshore and Seabed Act 2004, Māori customary rights in the foreshore and seabed are recognised under the Marine and Coastal Areas (Takutai Moana) Act 2011 (“MACA”). Customary rights applicants can apply for two types of orders – customary marine title (“CMT”), and protected customary rights (“PCR”).
CMT and PCR can be recognised through court ordered “recognition orders”, or via agreements negotiated with the Crown. Any “applicant group” can apply for CMT and PCR. Applicant group means 1 or more iwi, hapū, or whanau groups seeking customary rights, including a person appointed by 1 or more of those groups to represent them in seeking those rights
The High Court determined a number of claims relating to the Eastern Bay of Plenty in 2021. Subsequently, many of those claims were appealed to the Court of Appeal and then to the Supreme Court.
In 2024, the Supreme Court delivered its first part judgment on the appeals, overturning in part the Court of Appeal’s test for CMT under s 58 of MACA. It confirmed that “exclusive use and occupation” must be interpreted in light of tikanga, and therefore does not require possession to the exclusion of all others (as is the case in the Western conception of property rights). However, it found the Court of Appeal had erred in treating any significant third-party activity as a substantial interruption, rather than requiring proof that such activity displaced the applicants’ tikanga-based authority.
The Court’s decision also held that overlapping CMT claims could be recognised, though it left the detail of this, along with several other matters, to a second part of the judgment.
That second judgment (the subject of this brief) addresses the applicability of MACA rights to the beds of navigable rivers, overlapping CMT claims, the status and mandate of applicant groups, and how the correct approach to factors relevant to the “exclusive use and occupation” requirement of CMT, including the relative weight to give evidence of physical control compared to spiritual and cultural connection.
Concurrently to these proceedings, the government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, which it states returns the test for CMT to the original intent of Parliament. The Select Committee reported on the Bill in December 2024 and is currently awaiting its second reading.
The case
Customary rights in “navigable rivers” not extinguished
The area encompassed in one of the CMT orders made in the High Court included the mouths of two rivers. MACA recognised that CMT in the coastal marine area could extend up to 1 km up river. However, CMT and PCR could not be recognised where the underlying customary rights had been extinguished by law.
The Attorney-General submitted that customary rights in navigable rivers had been extinguished by s 261(2) of the Coal Mines Act 1979. Section 261(2) of the Coal Mines Act 1979 deemed that, unless the Crown had granted property rights in the riverbed, the riverbed “shall remain and be deemed to have always been vested in the Crown.” It also confirmed that minerals, including coal, within such riverbeds were the Crown’s “absolute property”.
The High Court held the section did extinguish customary rights. The Court of Appeal did not consider the issue, holding that even if customary rights had been extinguished, they were revived by s 11(3) of the MACA. The Attorney-General appealed, arguing the section vested beneficial ownership in navigable riverbeds in the Crown in a manner inconsistent with underlying customary rights.
The Supreme Court upheld the Court of Appeal’s decision, but on the basis that s 261(2) did not, as a matter of statutory interpretation, extinguish customary rights. Following Attorney-General v Ngati Apa (which concerned a similarly worded statute), the Court held the statutory language was insufficiently clear to extinguish customary title. It did not expressly extinguish such rights, nor did it do so impliedly. Notwithstanding its sweeping language, the court held that Parliament intended s 261(2) as the declaration of the common law principle that where the Crown granted land abutting a navigable river, it did not relinquish property rights (including mineral rights) up to the middle of the river.
The court relied on contextual clues, Parliamentary materials, and the Ngati Apa case to support this interpretation, which read limitations into s261(2) that are not contained in its text.
Because customary rights had not been extinguished, it followed that MACA recognition orders could extend to navigable rivers in the coastal marine area. The effect of this finding on the relevant CMT order was left to be dealt with by the High Court in a subsequent hearing.
“Shared exclusivity” affirmed
Te Upokorehe, a group claiming to be an iwi, sought CMT around Ōhiwa Harbour to the exclusion of the Te Whakatōhea iwi and its hapū, a claim disputed by those groups.
The Court of Appeal held the MACA allowed for joint management (or “shared exclusivity”) of overlapping CMT claim areas by different applicant groups, but that it did not provide for separate but overlapping claims. Te Upokorehe appealed.
The Supreme Court upheld the Court of Appeal’s decision, affirming the MACA definition of “applicant group” implicitly recognised the complex inter-relationships between the rights of local iwi, hapū, and whānau groups. Separate but overlapping claim areas were inconsistent with MACA, and would cause significant practical difficulties for third parties (given that CMT confers quasi-property rights).
Accordingly, the court dismissed Te Upokorehe’s appeal.
Flexible approach to “applicant group”
The MACA defines applicant group as “one or more iwi, hapū, or whānau groups”. To obtain PCR or CMT in a particular area, the applicant group must establish they meet the statutory requirements for those rights as a collective.
Applicant group status was an issue in three of the appeals heard by the Supreme Court.
WKW appeal
Applicant group Whakatōhea Kotahitanga Waka(“WKW”) sought CMT and PCR on behalf of the iwi Te Whakatōhea. Hapū of Te Whakatōhea initially supported the claim, but subsequently withdrew their support, and challenged WKW’s claim for recognition orders on behalf of the entire iwi.
The Supreme Court, upholding the Court of Appeal, held that whatever the practical benefits of having an unfragmented, iwi-wide recognition orders, the withdrawal of hapū mandate meant the WKW appeal was no longer seeking recognition on behalf of the iwi, and therefore no longer an applicant group.
Ngāti Muriwai appeal
Ngāti Muriwai applied for recognition orders as a hapū of the Te Whakatōhea iwi. Other hapū argued that Ngāti Muriwai was not an applicant group as it was not a distinct hapū within the iwi.
The lower courts rejected Ngāti Muriwai’s application because they had not been a distinct hapū of Te Whakatōhea at 1840. Ngāti Muriwai appealed.
The Supreme Court allowed the appeal. Even if Ngāti Muriwai did not meet the definition of hapū, it was still a “whānau group” per the definition of applicant group. Accordingly, it was entitled to participate in joint management of the claim area in combination with the iwi and other hapū. This would be the case even if Ngāti Muriwai could not independently establish that it met the requirements for CMT or PCR in the claim area.
Kutarere Marae appeal
Kutarere Marae, formed in the 1930s from a number of disparate whānau unaffiliated to local hapū, sought recognition of their customary rights through negotiating with the Crown rather than court order.
The lower courts held that it was not an “applicant group” and could not pursue such negotiations. The Supreme Court overturned these decisions, holding that it was not the role of the courts to prevent any alleged applicant group from negotiating with the Crown.
Holistic approach to “exclusive use and occupation”
This group of appeals concerned applications by various local iwi and hapū (including Te Whakatōhea, Ngāti Awa, Ngāi Tai, and Te Whānau-ā-Apanui) for CMT over Whakaari/White Island and the nearby Te Paepae o Aotea. The lower courts rejected all the claims, placing weight on disputes between applicants over exclusivity and concluded that evidence of seasonal resource use, shared connections, and spiritual associations did not meet the requirement of continuous and exclusive use and occupation.
The Supreme Court reframed the test. Drawing on the first part of its judgment, it held that “exclusive use and occupation” must be assessed through a tikanga lens, and that it can be manifested not only by physical settlement but also by rāhui, spiritual authority, collective control, and enduring customary practice.
A key contextual factor in the claim area was that Whakaari and Te Paepae o Aotea were uninhabitable – this made reliance on Western notions of physical use and occupation less appropriate, and consequently greater weight could be given to spiritual and cultural connections with the claim area, provided these connections were “holistic” and demonstrated an exercise of mana over the area.
The lower courts, in adopting a less holistic approach that focused largely on inter-iwi disputes about seasonal fishing rights, had asked themselves the wrong question. The court therefore referred the matter back to the High Court for redetermination in line with the Supreme Court’s broader approach.
Result
Following determination of the appeals, the determination of customary rights claims for several applicant groups (Ngāti Muriwai, Kutarere Marae, and Te Kāhui in respect of Whakaari and Te Paepae o Aotea) and the effect of the navigable rivers judgment on the relevant CMT order were referred to the High Court for another hearing. The remaining appeals were dismissed
Implications
The decision affirmed several notable points about MACA from the first part of the judgment, including:
The rulings are likely to lead to further activity in the High Court, and increased complexity in granting and administering recognition orders. The holistic approach to “exclusive use and occupation” may make CMT orders easier to obtain. All of this, however, is subject to the passage of Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, currently awaiting its second reading. The Bill, if enacted, will result in a test for CMT that fundamentally differs from that adopted by the courts, with those changes taking effective retrospectively from 25 July 2024 (the date the Bill was announced by the Government).
More significant is the court’s judgment on navigable rivers, which is applicable beyond MACA. The court’s determination that customary title to navigable riverbeds was not extinguished by the Coal Mines Act, thereby raising the question of whether it has been extinguished at all. Future litigation on this point seems almost inevitable, inviting comparisons between this case and the Ngati Apa case in 2003 that preceded the Foreshore and Seabed Act. Whether this decision has the same significance as Ngati Apa remains to be seen.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Franks Ogilvie appeared alongside Jack Hodder KC for the Landowners' Coalition in this matter.
