Te Ātiawa Coastal Area Claim

Background

The Marine and Coastal (Takutai Moana) Act 2011 **¹ was the result of a long and fraught debate between central government, iwi, local government, and the wider community about the ownership of the foreshore and seabed.

In 1997, the eight iwi of Te Tau Ihu o te Waka-a-Māui applied to the Māori Land Court for an order declaring the foreshore and seabed of the Marlborough Sounds Māori customary land.

This proposition was found to hold some weight by the Waitangi Tribunal, and the Government (of the day) reacted by creating the Foreshore and Seabed Act 2004, which gave ownership to all New Zealanders and administering rights to the Crown.

This created a legal challenge before the Waitangi Tribunal as a breach of the Treaty of Waitangi. As a result, the Foreshore and Seabed Act was repealed and replaced by the Marine and Coastal (Takutai Moana) Act 2011.

The Marine and Coastal (Takutai Moana) Act 2011 provided an opportunity where Iwi could apply for cultural recognition by way of a customary title or protected customary rights.

____________________________________________________________________________________  **¹    Overview by Community Law on the Marine and Coastal (Takutai Moana) Act 2011    also   Overview for Local Government on the Marine and Coastal (Takutai Moana) Act 2011  

Customary Marine Title (CMT)

A customary marine title recognises the relationship of an iwi, hapū or whānau with a part of the common marine and coastal area.

Customary marine title can’t be sold, and free public access, fishing and other recreational activities are allowed to continue in customary marine title areas.

If successful, the holder of the title would:

• have veto rights of resource consent applications, conservation permits, and
• access permissions; ownership of minerals in the title area;
• interim ownership of taonga tūturu; and
• the ability to create a planning document for the area.

Protected Customary Rights (PCRs)

With respect to protected customary rights, access rights can be granted for a customary activity like collecting hāngi stones or launching waka in the common marine and coastal area without resource consent or other permissions.

What is the test for CMT?

To get CMT requires proof that Te Ātiawa ki te Upoko:

 a)   holds the area in question in accordance with tikanga; and

 b)   has, in relation to that area, exclusively used and occupied it from 1840 to the present day without substantial interruption.

The following can be taken into account in determining whether the test is met:

• whether Te Ātiawa ki te Upoko or Te Ātiawa ki te Upoko members have owned land immediately adjoining the area from 1840 to the present day; and/or 
• whether Te Ātiawa ki te Upoko or Te Ātiawa ki te Upoko members exercise non-commercial customary fishing from 1840 to the present day.

Other evidence of the history and interests of Te Ātiawa ki te Upoko in the area is also relevant, as well as how members have used, relied on, and taken care of the takutai moana.

What is the test for PCRs?

To get recognition of PCRs requires proof that the activity:

a)   has been exercised since 1840;

b)   continues to be exercised in a particular part of the takutai moana in line with tikanga by the applicant group, whether in exactly the same or similar way or whether it has evolved over time; and

c)   has not been extinguished by law.

The following activities cannot be recognised as a PCR:

• fishing;
• commercial aquaculture;
• activities relating to wildlife
• activities relating to marine mammals; and
• activities that are not physical in some way.

This is mostly because these activities are already addressed by other laws, for example the customary fishing regulations and the commercial aquaculture settlement.

Application Claim Processes

The Act provides two (2) separate process for which Iwi can submit a claim. One is a High Court process and the other is a Crown process. In both processes, to be successful an applicant would need to prove beyond reasonable doubt:

• Their group hold the specified area in accordance with tikanga and 
• Their group have exclusively used and occupied the specified area, without substantial interruption, either:
  • from 1840 to the present day or 
  • from the time of a customary transfer until the present day.

The Ministry of Justice advised all parties (who were considering lodging applications) to apply under both processes. The information at the time provided on their website stated that the Crown process would go first and any applicant could adjourn the high court process.

High Court Process

The High Court process is run by the judiciary with Crown being a party to the process. All information must be provided upfront and legal tests will be applied by the judge(s).

When a decision is made, this can be taken to a higher authority (i.e. Appeal Court, Supreme Court) if there are issues within the decision.

Crown Process

The Crown process is one of information assessment by the Crown on information they currently hold about the Iwi under application.

Once all the information has been assessed, they come to the Iwi group and compare and test information.

The Crown then makes a decision as to whether or not the title/right can be issued. The Crown decision is final and no appeal process is available.

Te Ātiawa ki te Upoko lodged application, under both processes, for their area of interest out to the coastal limit (12 nautical miles).

The plan was to have the Crown and the High Court examine the area in isolation so that the specific areas were considered and decided upon.

The process did not work as well as the Crown would have hoped. They under resourced the departments responsible for running the Crown process and they severely underestimated the number of applications that would be received (in excess of 300).

In the early stage, the Crown stalled in the processing of these Crown applications and hence indicated that initial consultation would not happen for at least a few years.

The High Court process moved ahead with great steam. Judges have been assigned and they are working through the process and hearings have commenced.

Despite the Waitangi Tribunal enquiry **² , the High Court process will continue, and each Iwi and the Crown will need to present evidence and witnesses to further their case.

Unfortunately, the likely outcome of the High Court process will be that each Iwi will present their case on the basis that they are right and others are wrong.

There are a number of other interested iwi parties to the Te Ātiawa ki te Upoko application.

The Crown recognised that the cost of litigation will cost each party a considerable amount, and to this end created funding to support applicants. 

Te Ātiawa ki te Upoko was successful in its application and has already received reimbursement and will continue to claim.

____________________________________________________________________________  **²  The stage 2 report investigates whether the Act itself breaches Treaty principles and causes prejudice to Māori. In this report, the Tribunal finds the claimants have been, and will likely continue to be, prejudiced by aspects of the Act that breach Treaty principles.    Tribunal releases second report on marine and coastal area regime | Waitangi Tribunal

Marine and Coastal Area M

CMT ORDER

A jointly held CMT for the area between Tūrakirae Head in the west and Mukamukaiti in the east, from the mean high-water springs out to a line parallel to mean high water springs three km out to sea.

PCR ORDER

A general right of kaitiakitanga over the application area for the purposes of conservation measures and practices.

As well as Te Ātiawa the other iwi claimants in Area M are: -

Marine and Coastal Area N

As well as Te Ātiawa the other iwi claimants in Area  N are :

• Te Ātiawa
• Ngāti Toa Rangatira
• Muaūpoko
• Tupoki  Takarangi Trust
• Tiratu Williams | Patricia Grace

More about who is responsible for what.

The Marine and Coastal Area (Takutai Moana) Act 2011 provides for the special status of the Common Marine and Coastal Area as an area that is incapable of ownership.

The common marine and coastal area is the area between the line of mean high water springs (the landward boundary of the part of the beach covered by the ebb and flow of the tide) and the outer limits of the territorial sea (12 nautical miles) excluding existing private titles, the bed of Te Whaanga Lagoon in the Chatham Islands and certain conservation areas.

Common Marine and Coastal Area

Resource Management Act (RMA)

The RMA is the principal statute for managing activities in the coastal marine area. The regional coastal plan is the primary mechanism for determining what can occur in particular areas, and what the environment will be like as a result of management.

Minister of Conservation - Hon Tama Potaka **³ (started 27/11/23)

The Minister of Conservation has a range of key functions in relation to management and regulation of activities under the Resource Management Act. This includes approving national coastal policy statements and approving regional coastal plans.

The Minister of Conservation has various functions under the Marine and Coastal Area (Takutai Moana) Act including performing administrative functions which are contemplated by the Act, if the function is not conferred on a local authority or other person/s.

_________________________________________________________________________     ^**3  Apart from being the Minister of Conservation the other portfolios Hon. Tama Potaka holds are:   Minister of Crown Māori Relations – Te Arawhiti; Minister of Māori Development; Minister of Whānau Ora; Associate Minister of Housing (Social Housing) all of which started on 27/11/23.  Potaka, Tama - New Zealand Parliament (www.parliament.nz)

Regional councils

The detailed management of the environmental resources of the coastal marine area is carried out by regional councils. They prepare regional coastal plans and approve coastal consents under the Resource Management Act. The Resource Management Act allows regional councils to set, collect and retain rental for occupation.

District councils 

District councils do not have planning jurisdiction over the coastal area, but where they have coastal boundaries they are responsible for matters such as the Building Act, and can pass bylaws to control certain types of activities (e.g. dogs, drinking alcohol, driving vehicles) that could affect the public use of these areas.

Department of Conservation 

The Department of Conservation is responsible for supporting the Minister in his roles. A number of active management activities are also undertaken, such as spartina weed control, facilitating public access, health and safety responsibilities etc.

CLICK HERE to read this thought provoking articile

If members would like a copy of the PowerPoint presentation shown in the video then please send your request to contact@teatiawamauipotiki.iwi.nz.

The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill

Should this Amendment Bill be passed it will have an impact on the Trust's Claim.   With this implication at the forefront of the Project Team, the Trust Board was approached to receive instruction to raise the concerns of the team and to forward a submission on behalf of the Trust to Government.    

Submissions closed on Tuesday 15 October 2024 and are now in the Public Arena.    The Trust also requested to make an oral submission to the Government Select Committee.

The Trust would like to acknowledge the support of its submission from Palmerston North Māori Reserves Trust and Wellington Tenths Trust along with that of others who offered their tautoko.

To read the submission kindly click on the following link.

Te Ātiawa ki te Upoko o te Ika a Māui Pōtiki Trust SUBMISSION

Customary marine title: ‘No comment’ from Crown witness on Government Treaty commitments

Customary marine title: ‘No comment’ from Crown witness on Government Treaty commitments - NZ Herald

Treaty Negotiations Minister Paul Goldsmith defends 5% of coastline comment

RNZ 27 Aug, 2024 03:43 PM - Today's latest from the Coalition Government on MACA.   

27/08/2024 - Treaty Negotiations Minister Paul Goldsmith defends 5% of coastline comment

‘Dark ages’: Backlash from Ngāi Tahu after Govt marine customary title move

The NZ Herald - 26 Jul, 2024 04:05 PM

‘Dark ages’: Backlash from Ngāi Tahu after Govt marine customary title move

  Tighter rules for customary marine title return under NZ First coalition deal

 The NZ Herald -Whakaata Māori· - 26 July 2024 09:00am

Tighter rules for customary marine title return under NZ First coalition deal