What is the Marine and Coastal Area Act?

Recently, the Government released its strategy for initial engagement and support for iwi, hapū and whānau applicant groups seeking recognition of their interests under the Marine and Coastal Area (Takutai Moana) Act 2011 (the MACA).

Takutai Moana refers to the area from the Mean High-Water Springs (MHWS) to the outer limits of the 12-nautical mile Territorial Sea.

Foreshore and Seabed Act

It is important to understand that the MACA’s original purpose was to replace the Foreshore and Seabed Act 2004 (the 2004 Act).

The 2004 Act was prompted by a 2003 High Court decision regarding seven of the eight iwi at the top of the South seeking resolution of procedural difficulties in obtaining permits for commercial aquaculture ventures.

The 2003 decision stated that Māori customary rights to the foreshore and seabed could exist as a matter of law, and that the Māori Land Court had jurisdiction to hear such claims. The decision did not state that such rights exist, as they would have to be proven in Court in accordance with tikanga.

Tikanga commonly refers to customary law, but with a broader function that includes all aspects of human behaviour. Tikanga is considered flexible and adaptable to different circumstances.

The 2003 decision created fierce public debate concerning access to beaches being threatened if Māori had exclusive rights to the foreshore. This concern had little or no connection to the narrowness of the decision that claims to Māori customary rights could be heard by the Māori Land Court.

The 2004 Act vested ownership of the foreshore and seabed in the Crown, guaranteeing access for all and providing general rights of navigation and boating with no effect on the public’s ability to fish.

Enactment of the 2004 Act split the Māori caucus in the Labour Party and led to formation of the Māori Party with the commitment to replace that Act. A primary point of contention was that the 2004 Act took away the legal rights to have Māori interests determined in the Courts.

The MACA

The MACA replaces Crown ownership of the foreshore and seabed with the ‘Common Marine and Coastal Area’ (CMCA) incapable of being owned by freehold title, except those areas already in private ownership.

This is in line with legislation that regulates physical resources the Government does not own, such as fish stocks and the continental shelf.

The MACA ensures public access for all to the CMCA and protection of navigation and fishing rights, except in wāhi tapu areas (defined areas of significance, such as burial grounds).

Like the 2004 Act, the MACA includes tests to apply to claims for protected customary rights (PCR). A PCR must have been exercised since 1840 in accordance with tikanga. A PCR does not include, amongst other things, an activity regulated under the Fisheries Act 1996.

The MACA also includes tests for recognition and protection of customary marine title (CMT). A CMT may exist in a specified area if exclusively held and occupied since 1840 without substantial interruption, or subsequently received through a legitimate customary transfer, in accordance with tikanga.

PCR or CMT tests can be heard in the Courts or negotiated directly with the Government. However, there may be cause for concern where the scope of the MACA applies to local authorities.

For example, local authorities are prohibited from granting a resource consent for an activity that will, or is likely to, have more than minor adverse effects on the exercise of a PCR (with some exceptions) unless the PCR group gives its approval.

Also, a CMT includes the right to give or decline permission for activities being carried out under a resource consent in a CMT area (with some exceptions) and the right of CMT groups to create a planning document.

While the 300+ MACA applications likely mean that PCR and CMT processes will span several years, especially those with overlapping areas, it will be important to remain informed as they progress.

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Read the original articles on The Fishing Paper & Hunting News  March 2023 Issue 210