A senior court devises a way to stop disputes between hapū being legally fatal to their chances of being recognised for marine rights over the same shores and waters
The Court of Appeal says if two Māori groups claim customary title over the same area of coastline and sea, but do not recognise each other's claim and don't want to share the rights, the law should preserve their positions until they can sort their differences under a tikanga process.
That's instead of both being denied the rights by law.
Iwi or hapū in that position should not both lose the ability to be granted Customary Marine Title for the area in question, judges have decided, despite any doubts that the dispute could prompt over how 'exclusively' either of them could have held the area since 1840.
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The court ruled that just because each of two competing applicants opposed the other's claim, that should not mean long-held customary rights for an area should effectively be extinguished by the act of a court saying neither claim could succeed.
Instead, both could jointly be granted a Customary Marine Title (CMT) under the Marine and Coastal Area Act (MACA, which is the successor to the Foreshore and Seabed Act) and told to either negotiate a solution and return to court, or have an independent third party appointed by the court until resolution through a tikanga process.
The Court of Appeal's approach to 'shared CMT' under the Act came in an important, 160-page judgment dealing with the first appeals under MACA from the High Court findings in the Whakatōhea case in the eastern Bay of Plenty, around Ōpōtiki.
This is a third noteworthy strand of the appeal court's judgment – the other significant directions being a new approach to deciding if an applicant can prove customary rights to an area, and how claims to river mouths should be treated.
Two of the three-judge appeals panel, the court's President Mark Cooper and Justice David Goddard, set out the approach to being able to grant joint CMT to competing hapū rather than denying either the customary rights order they would separately seek.
"The result should not be a permanent loss of rights. That would be a perverse outcome inconsistent with the purpose of MACA." – Court of Appeal judgment
They diverged from their colleague, Justice Forrest Miller on this issue. "We do not share the view of [Justice] Miller that where there are two applicant groups, neither of which acknowledges the rights of the other, there can be no grant of recognition of a shared CMT.
"We do not see any contradiction in a finding that two applicant groups hold a specified area in accordance with tikanga vis-à-vis all other groups and individuals, and between them exclusively use and occupy the area, while at the same time vigorously contesting their mutual rights as between themselves."
The two judges gave an example of two neighbouring hapū who each consider themselves to have the primary connection to an area and object to the other gaining a legal recognition of such rights, despite having shared use of the area over time.
"A refusal to recognise CMT in those circumstances would effectively mean that areas that were unquestionably in Māori customary ownership in 1840 were taken out of Māori ownership, and customary rights and interests lost, because a currently unresolved tikanga difference between two or more hapū cannot be resolved in the High Court in the context of competing applications for CMT.
"Tikanga differences of this kind can take considerable time to resolve in a tikanga-consistent manner. Where it would be premature or institutionally inappropriate for the High Court to seek to determine such a difference, the result should not be a permanent loss of rights. That would be a perverse outcome inconsistent with the purpose of MACA."
The judges said in these circumstances the court could grant recognition of CMT to both groups, jointly, until they could resolve differences under a tikanga process over time. If they could not come back to court with agreement, the court could appoint a third party to hold the CMT for them until a tikanga resolution.
"We agree with Miller J that it is unsatisfactory to compel parties to hold CMT jointly where that was not sought by the parties, especially if joint ownership was actively opposed. But we consider that terms on which CMT is held by a neutral party can be devised which do not require permanent joint ownership: rather, this would be a mechanism for holding the position pending a tikanga-consistent resolution of the parties’ differences. We see this as less problematic by some considerable margin than a permanent loss of rights."
Justice Miller's view was that "MACA contemplates shared exclusivity, meaning one or more groups may apply collectively and secure CMT based on the claims of their members to exclusive use and occupation of areas held in accordance with tikanga. Groups which are politically separate entities need not make separate applications. A joint application may succeed if they can show they together hold the area to the exclusion of others.
"But MACA does not contemplate overlapping CMT. If two applicant groups were separately granted recognition orders over the same specified area, neither group could meet the s 58(1) criteria for CMT; neither would hold the specified area to the exclusion of the other. As the Waitangi Tribunal has explained, resource rights were 'complex, convoluted and overlapping'.
"MACA requires that boundaries be precisely defined not because lines on a survey plan correspond precisely to customary boundaries but because it is necessary to know who may exercise, in any given place, the rights which MACA confers on the holder of CMT. If CMT could overlap, neither group could unilaterally exercise those rights."
The MACA law was National's response in 2011 to the highly controversial 2004 Foreshore and Seabed Act brought in by Helen Clark's Labour Government after the appeal court at the time found Māori could claim customary ownership rights of their shoreline and inshore waters.
The 2004 law extinguished any customary rights and vested the foreshore and seabed in the Crown, leading to widespread Māori protest and ultimately the formation of the Māori Party.
National's compromise MACA law seven years later declared no one owned the foreshore and seabed – not Māori and not the Crown. It restored any customary rights extinguished by the 2004 law, and provided instead for Māori groups to apply for Customary Marine Title (CMT) recognising that certain areas were held by them and giving them influence over uses in those zones. It covers the area between high-water springs and the 12 nautical mile limit of the territorial sea.
Iwi and hapū around the country have lodged more than 200 court applications for customary marine title. Some have separately chosen to seek CMT in direct negotiations with the Crown.
