The Waitangi Tribunal has found the coalition government’s proposed Marine and Coastal Area (Takutai Moana) Act changes to be a gross breach of the Treaty.
The tribunal came to that conclusion in its Takutai Moana Act 2011 Urgent inquiry stage 1 report issued today.
The Marine and Coastal Area|Takutai Moana Act was introduced in 2011 to replace the controversial Foreshore and Seabed Act 2004.
The Takutai Moana Act restored customary interests, removed in the 2004 act by introducing statutory tests and awards to recognise customary interests and provide public access.
Under the act Māori can obtain legal rights recognising their customary interests in the form of either customary marine title (CMT) or protected customary rights.
The CMT recognises customary interests that iwi, hapū and whānau have had in the common marine and coastal area since 1840.
The act provides two application pathways: They can do either or both - an application to the High Court or direct engagement with the Crown.
Takutai Moana Act changes
The coalition government has said it intends to make amendments to the act, which would make it harder for hapū, uri and beneficiaries to get customary marine title.
The proposed changes saw strong opposition from iwi. Te Rūnanga o Ngāti Whātua went forward with a lawsuit, which gained support from other iwi leaders including those of Ngāti Kahungunu and Te Aupōuri.
Ngāti Wai leader Aperehama Edwards confronted Minister Paul Goldsmith at the Iwi Chairs Forum in a video published on Instagram.
Edwards said, “We’ll never accept you exercising an authority you do not have. You do not have the authority to determine the extent of our mana tuku iho over the moana.”
In late August, the Waitangi Tribunal agreed to an urgent inquiry due to the importance of the customary rights at stake, the immediacy of impacts on Māori and the lack of an alternative remedy.
The inquiry panel was Judge Miharo Armstrong, Ron Crosby, Professor Rawinia Higgins and Tā Pou Temara.
Today, the Waitangi Tribunal released The Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report in pre-publication format.
‘Departed from orthodox decision-making’
The tribunal’s urgent inquiry stage 1 report considered the Treaty compliance of the policy development process the government followed in seeking to amend the act. The report also considered the proposed amendments and whether they caused prejudice to Māori.
Claimants also raised another issue in the inquirythe misman, agement of funding for applications for customary marine title under the act, which will be addressed in a future stage of the inquiry.
The tribunal found the Crown departed from orthodox and responsible policy-making in several ways.
It observed the regular dismissal of advice from officials and that the process was rushed, which meant important steps had not been taken. A key omission was the failure to follow a transparent and evidence-based approach.
Instead, the tribunal said the approach to policy development was categorised by ideology and blind adherence to pre-existing political commitments at the expense of whānau, hapū and iwi. And because of this, the tribunal found the Crown failed to meet the standards as a treaty partner.
Specific Treaty breaches
The tribunal found the Treaty had been breached in several ways:
• A dismissal of official advice, and important steps not taken in the policy development process, resulted in the Crown breaching the principle of good government.
• The Crown failed to consult with Māori during the development of the proposed amendments, despite repeated advice from officials; it only offered to consult with Māori after decisions were made; and it reduced that limited offer of consultation even further to suit its own deadline to amend the act before the end of 2024. This was a breach of the principle of partnership.
• The Crown breached the principle of tino rangatiratanga by exercising kāwanatanga over Māori rights and interests in te takutai moana without providing any evidence for one of its key justifications, namely that the public’s rights and interests required further protection beyond what was already provided by the Act. The Crown also failed to inform itself of Māori interests.
• The Crown’s consultation with commercial fishing interests, which already have statutory protection, before finalising the proposed amendments, while failing to consult with Māori, was a further breach of the principle of good government.
• The Crown had breached the principle of active protection and the principle of good government by failing to demonstrate how it arrived at its understanding of ‘Parliament’s original intent’ and by seeking to amend the Takutai Moana Act before the Supreme Court could hear the matter.
• The Crown had breached the principles of active protection and good government by proposing amendments that were applied retrospectively (from July 25, 2024 onwards). As a result, applicants would be forced to have their cases reheard, burdening them emotionally and financially through no fault of their own, and placing further strain on tribal relationships. Retrospectivity also meant some applicants who would have been granted customary title under the old test might find themselves unable to meet the standards of a new test.
‘Illegitimate exercise of kāwanatanga’
To give effect to Treaty principles, the tribunal recommended:
• the Crown should halt its current efforts to amend the Takutai Moana Act;
• the Crown should make a genuine effort for meaningful engagement with Māori; and
• the focus of this engagement should be on the perceived issues of permissions for resource consents, rather than interrupting the process of awarding CMTs.
The tribunal emphasised these recommendations should be implemented to restore a fair and reasonable balance between Māori interests and those of the public in te takutai moana.
If the government proceeded with the amendment, the tribunal said it would be an illegitimate exercise of kāwanatanga. The tribunal cautioned the Crown that on the strength of the evidence received, to proceed would significantly endanger the Māori-Crown relationship.
Minister Goldsmith said in a statement to Te Ao Māori News the government remains firm in its position.
“The threshold for Customary Marine Title is not impossible to meet, but was set high intentionally by Parliament due to the valuable rights that come with CMT,” Goldsmith said.
