Customary Rights and Customary Marine Titles

2004 Foreshore and Seabed Protest

A brief overview of historical and current affairs by rock lobster industry commentator, Daryl Sykes

A useful starting point for a conversation about the nature and extent of Maori rights to sea fisheries is the Fisheries Amendment Act 1986, which amended the Fisheries Act 1983 to bring into operation the Quota Management (QMS) system.

The 1986 Act is generally regarded as a reaction against the former regime of open slather and government incentives, which had led to a massive expansion of the inshore fishing industry. At the same time, inshore fisheries dramatically declined due to overfishing. The 1986 amendment moved away from the older regulated system, which contained no conservation incentives toward the creation of valuable and transferable property rights in fisheries resources.

The QMS legislation is based around the concept of a quota, a fraction of a particular ‘total allowable catch’ for a particular fish stock defined by a reference to species and to quota management areas, these latter being divisions of the New Zealand territorial sea and the Exclusive Economic Zone.

Quota is allocated in perpetuity, and the holders acquire a harvesting right, measured as a specific tonnage for a specific quota management area for a fixed period (one year). Quota can be thought of as a slice of variable pie – the shape and relative size of one’s slice stays the same, depending on the quota one has accumulated, but the pie itself expands or contracts year to year depending on the size of the total annual commercial catch, as fixed by the Ministry each April or October. Quota gives rise to an ‘annual catch entitlement’ (ACE) in accordance with specific formulae set out in the Fisheries Act 1996.

The QMS was introduced on 1 October 1986. In response, Māori obtained an injunction against the Government to prevent further fish stocks being introduced into the QMS until the issue of ownership had been resolved. As a result of the action taken by Māori, the courts confirmed Māori customary fishing rights were controlled by ‘hapu and tribes’ and those customary rights contained both commercial and non-commercial elements. To resolve claims and litigation involving fisheries, an interim settlement of fishing claims acknowledging the full spectrum of Māori interests in fisheries was entered into between Māori and the Crown in 1989 and provided 10% of all fisheries then in the QMS – along with some funding for administration.

The Fisheries Deed of Settlement, implemented through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, was the final settlement of all Māori claims to customary fishing rights. Under the settlement, the Crown additionally awarded:

  • Māori funds to buy a 50% ownership stake in Sealord Products Ltd.
  • an undertaking to provide Māori with 20% of the quota for all new species brought within the QMS after that time.
  • Māori positions on statutory fisheries management bodies.
  • restructure of the then Māori Fisheries Commission into the Treaty of Waitangi Fisheries Commission (TOWFC) to enhance its accountability to Māori.
  • regulations to allow self-management of Māori fishing for subsistence and cultural purposes.

In return, Māori agreed:

  • that the settlement closed all Māori commercial fishing rights and interests.
  • to accept regulations for customary non-commercial fishing. to stop litigation (including any Tribunal claims) relating to Māori commercial fisheries.
  • to support legislation to give effect to the settlement and to endorse the QMS.
Marine coastal Pou hero

When Māori entered the Treaty Fisheries Settlements, they accepted the QMS, which included defined QMAs, as the basis of a Treaty Settlement. It was a core condition on the Crown side agreed to by Māori. If the Crown wants to change the QMS, it cannot do it unilaterally without being in breach of the Treaty Settlement. Any change requires Māori agreement.

The point made by Māori is if the Crown can unilaterally alter the system it entered as a condition of the Fisheries Settlements of 1989 and 1992 it has the capacity to alter any Treaty Settlements on its own political whim. What price Treaty, what price the honour of the Crown?

So, to the Marine and Coastal Area (Takutai Moana) Act 2011. This is the latest in a long line of case law regarding Māori customary rights, notably beginning with Wi Parata v Bishop of Wellington in 1877, following, which Māori customary title in the whenua (land) and takutai moana (the marine and coastal area) was denied by the New Zealand legal system for over a century. The landmark case of Attorney- General v Ngāti Apa turned that law on its head and held that customary title was recognised as common law until lawfully extinguished. That led to the enactment of the controversial Foreshore and Seabed Act 2004, which was repealed and replaced with the MACA Act in 2011.

The MACA Act restores customary title interests extinguished under the 2004 Act, introduces statutory tests and awards whereby customary interests may be identified, and provided for. This legislation replaced Crown ownership of the foreshore and seabed with a ‘no ownership’ regime and restored the right of Iwi to seek customary rights and title in court. In summary, the Marine and Coastal Area (Takutai Moana) Act 2011 aims to strike a balance between customary rights, public access, and environmental protection in New Zealand’s coastal and marine regions.

The Act requires for customary marine title to be recognized, the applicant group must have exclusively used and occupied the area from 1840 to the present day without ‘substantial interruption.’ The court clarified that raupatu (land confiscation) did not constitute a substantial interruption of the applicants’ relationship with the coastal marine area. Additionally, a resource consent granted before the Act’s commencement would not extinguish customary rights unless there was a ‘crystal clear’ intention to do so. Whether a third-party structure or practice could amount to substantial interruption depends on its level of interference with fishing and navigation activities in the coastal marine area.

In 2021 then Minister for Treaty Negotiations, Andrew Little, revealed a new strategy for the Crown negotiations occurring under the Act alongside the High Court process. This strategy responded to conclusions made by the Waitangi Tribunal in 2020 that the MACA Act was in breach of the Treaty because of the significant delays for processing claims and because it had not funded all costs incurred by whānau, hapu and iwi going through the process.

The new strategy provided more resources for claimants and intended to shorten the timeline for resolving all claims under the Act from 100 years to between 20- 30 years.

Only a fraction of the over 500 applications for CMT (Customary Marine Title) and related orders have been considered. In addition to the court-based consideration of applications for CMT under the Act, applications can be pursued by direct negotiation with the Crown. Applications for 3 areas are underway using the negotiation pathway (d’Urville Island, Mahia, and recently Wellington/ Kapiti) with around 380 further applications filed. There are approximately 200 pending applications to the High Court for CMT orders.

The current state of the law on critical aspects for the test of CMT orders is uncertain. In those circumstances, it is prejudicial both to applicant groups and interested parties to prepare evidence and make choices concerning the extent and topics of cross-examination and submissions at hearings.

As has become clear recently, there is a significant financial burden placed upon applicant groups and interested parties for continuing to engage in proceedings that may need to be reheard following the Supreme Court’s judgment. Given the Attorney General’s and the applicant groups’ fees are ultimately paid for by taxpayers, it is in the public interest new proceedings be paused until they can proceed with certainty as to the legal test. Expectations amongst applicants still to be heard are high and the Government is currently faced with a difficult decision as to the future of the CMT process.

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