In brief:
- The Supreme Court overturned a Court of Appeal decision that expanded iwi claims for customary marine title under the MACA Act.
- The ruling reaffirmed tikanga Māori while limiting iwi claims to areas with exclusive use since 1840.
- The judgment calls on Parliament to clarify the law, ensuring policy decisions are not left to judicial interpretation.
It’s not quite that simple
Last week’s legal news that SCONZ had shot down the NZ Court of Appeal (NZCA) expansionary verdict in the Edwards case, which had made it much easier for iwi to claim customary marine and foreshore title, was greeted with resounding applause from some quarters:
Te Ao News headlined it “Supreme Court backs tikanga Māori in marine title decisions”, adding:
“A landmark Supreme Court decision has placed tikanga Māori at the heart of the legal framework in clarifying how customary marine titles (CMTs) are assessed under the Takutai Moana (Marine and Coastal Area) Act 2011 (MACA).”
Meanwhile over at Hobson’s Pledge on the other side of the debate:
“The Supreme Court of New Zealand has made an incredibly important judgement today – and one in line with Hobson’s Pledge’s advocacy and position,” announced Don Brash, noting that “[NZCA’s] radical and activist interpretation of Treaty related issues has been dealt a blow.”
Others, like the NZ Centre for Political Research director Muriel Newman, had different ideas:
“While some claimed the Supreme Court’s decision was a major victory that would effectively make all the problems with the claims process go away, nothing could be further from the truth.”
So, what are we to make of it?
In 1840, the English version of the Treaty (later ratified at Kohimarama in 1860) guaranteed iwi the possession of their forests and fisheries for as long as they wished to retain them.
Some iwi sold their beachfront land, especially in the cities, and moved away from hunter/gatherer foraging to agriculture and paid employment to fund their participation in the settler economy.
Other iwi, particularly in remote areas, maintained their fishing grounds, even after settler governments introduced law changes that – whilst they didn’t actually apply to native land – gave everyone the impression that a “Queen’s Chain” of public access existed to beaches and navigable rivers.
The assumption that the coast belonged to everybody entered the public psyche.
And thus it remained until an iwi seeking a court declaration of customary title to traditional fishing grounds in the early 2000s spooked the Helen Clark Labour government into declaring that the foreshore and seabed belonged to the Crown alone.
That law change, which directly prevented the iwi from continuing their court case, led to a break between Māori and Labour, and the formation of Te Pāti Māori, which then entered a coalition with the John Key National government of 2008. The MACA Act was passed in 2011 making it clear that Māori could apply for customary title to marine areas, provided they had enjoyed pretty much exclusive use of those areas since 1840. Understandably, few iwi could honestly make that claim and National’s Treaty Negotiations minister Chris Finlayson noted that only around 10% of the coastline would be affected – mostly in remote areas where Māori were the majority and had continued to fish and harvest where they had always done.
They key wording in MACA 2011 was that iwi had “held”, as in exercised control over “in accordance with tikanga”.
The relevant aspect of tikanga is “ahi kā”, which literally means keeping the fires burning as a show of control. If you couldn’t keep your border fires burning, you lost the territory and the right to use it.
The MACA Act defined this as iwi needing to prove they had “exclusively used and occupied it from 1840 to the present day without substantial interruption”.
The Court of Appeal and the Edwards case
The Court of Appeal, in the Edwards case, had ruled that usage of these areas by the wider community or business (such as commercial fishing) was not sufficient to qualify as a “substantial interruption” that would prove iwi fires had gone out and they therefore couldn’t make a claim.
Feeling that such a position was too harsh, NZCA instead ruled that only legislative acts by Parliament could extinguish ahi kā rights.
Naturally, iwi were delighted with that and Hobson’s Choice horrified, because it meant that iwi might be able to gain preferential rights across much of the coastline.
Hence, the Coalition government’s decision to change the law (in progress), and the Crown’s successful appeal to SCONZ.
So what has SCONZ actually done?
The Supreme Court says NZCA was too liberal. On tikanga, it noted that Māori recognised that weaker tribes could lose their rights:
“Māori descent groups in the 18th century were in a constant state of mutation, waxing and waning according to the vicissitudes of customary life. If a group asserting authority over a locality waned over time through political misfortune, a new group could replace it.
“It is also worth noting that s 58 [of MACA] does not limit who (or what) can cause a substantial interruption. Māori and non-Māori alike can substantially interrupt an applicant group’s exclusive use and occupation (assuming the purported interrupter, if Māori, is not themselves exercising shared customary rights). Prior to the Treaty, raupatu [taken by force] between Māori groups was the customary example of this kind of interruption. Moreover, customary rights can, in theory, be abandoned in a way that substantially interrupts exclusive use and occupation, as the principle of ahi kā contemplates. The question, ultimately, is not who caused the substantial interruption but whether, in fact, a substantial interruption occurred.”
SCONZ also ruled that if iwi can prove a pretty much ongoing use of an area, then the courts will be reluctant to extinguish customary rights without strong evidence. Also, if Parliament truly wants to narrow the courts’ discretion they need to speak now by including it in the upcoming Bill or hold their peace:
“It is well established that customary title and rights can only be extinguished by clear and plain statutory authority to that effect; extinguishment only occurs where Parliament’s purpose is demonstrated by express words or at least necessary implication.[275] This qualification is an important one. It is not lightly to be presumed that a statute has that effect. Customary rights are not to be extinguished by a “side wind”.[276] According to Ngāti Apa, as explained above at [7]–[9], the common law preserves customary rights until they are lawfully extinguished. MACA reflects this position in s 106(3), which establishes a presumption that customary interests have not been extinguished, absent proof to the contrary.”
Once iwi have established their authority over an area, the burden of proof will fall on objectors (community/business/Crown) to prove that the control has been “substantially interrupted” since 1840.
So, what of the complaint by some that the judgement is dangerous because it recognised tikanga?
SCONZ was ruling on a case based that was based on MACA 2011. That legislation explicitly anchors customary rights in tikanga, which makes sense given that the Treaty guaranteed Māori the ongoing use of their forests and fisheries according to their own tikanga, until such time as they gave them up.
Therefore, the Supreme Court had no option but to recognise tikanga principles – it cannot rewrite the MACA Act, only Parliament can do that.
National’s Paul Goldsmith is reviewing the SCONZ findings to decide whether the Coalition Bill to more tightly define this area of law should proceed. From where we sit, it makes sense to use legislation, carefully, and not leave it up to the court’s discretion, to spell out what the government wants as policy.
Image: 188602386 | Maori Fishing © Linda Kennard | Dreamstime.com
