February 2023 Māori Law Review
Sir Edward Taihakurei Durie student essay competition 2022 – Te Ture o Takutai Moana kei muri i te kēhi o Re Edwards: examining approaches to overlapping claims for customary marine title
Sir Edward Taihakurei Durie student essay competition 2022
Te Ture o Takutai Moana kei muri i te kēhi o Re Edwards: examining approaches to overlapping claims for customary marine title
William Morrison*
Foreword by Carwyn Jones, Māori Law Review co-editor
We are very pleased to publish the winning entry from the 2022 Sir Edward Taihakurei Durie student essay competition. The winning essay was written by William Iosefa Antonio Morrison and is entitled ‘Te Ture o Takutai Moana kei muri i te kēhi o Re Edwards: examining approaches to overlapping claims for customary marine title’.
The Sir Edward Taihakurei Durie student essay competition is held annually and sponsored by the Māori Law Review. The competition is open to all undergraduate students studying law at a New Zealand law school and aims to recognise excellence in legal writing on significant and current legal issues affecting Māori.
William’s essay focuses on the pathways under the Marine and Coastal Area (Takutai Moana) Act 2011 (the MACA Act) for the resolution of overlapping Customary Marine Title applications, particularly in light of the 2021 decision of the High Court, Re Edwards (Te Whakatōhea No. 2). This was the first case to address overlapping applications under the MACA Act and, as such, it represents another significant step in the long-running efforts by Māori to receive legal recognition and protection of rights in relation to the takutai moana.
William (Taga Savai'i ma Tafitoala Safata, Sāmoa) is in his final year at Te Herenga Waka - Victoria University of Wellington, completing an LLB(Hons) and a BA majoring in Political Science. In 2022, he was Co-President of the Pasifika Law Students' Society at Te Herenga Waka.
Alongside the competition winner, our judges also indicated that they wished to highly commend the essay submitted by Claire Downey. We will publish Claire’s essay, entitled ‘Absent from the Law: The needs of Takatāpui Māori in Health, Law and Policy’, in the March issue.
Congratulations to both William and Claire.
Hei tīmatanga – Introduction
The takutai moana pertains to the Māori identity. Tangaroa (god of the sea and a manifestation of the sea itself) descends from Ranginui and Papatūānuku.[1] All Māori are connected to this whakapapa. These genealogical links inform the relationship between Māori and the ngāhere, the animals, the elements and each other.[2] It is important to begin any discussion of customary interests in the takutai moana with a recognition of this connection. This is because these contemporary legal issues and processes speak to the mamae inflicted on this whakapapa and inform the importance of recognition of custom in the takutai moana.
The Marine and Coastal Area (Takutai Moana) Act 2011 (the MACA Act) provided applicant groups with two pathways to establish legal recognition of customary marine title (CMT): negotiating directly with the Crown; or applying for a High Court order.[3] However, applicants who applied under one pathway were unable to change pathways once the limitation period ended.[4] The entirety of the common marine coastal area is subject to at least one application, many of which overlap.[5] This is the biggest and most consequential process happening with Māori land and sea tenures at present.
Re Edwards (Te Whakatōhea No. 2) demonstrated that the tikanga consistent approach of “shared exclusivity” will be applied where applicants with overlapping claims achieve consensus.[6] However, if overlapping applicants fail to achieve consensus, neither application pathway provides for a tikanga-consistent approach to achieve resolution. Though the High Court has not yet adjudicated a matter of this nature, this paper explores the different routes the court may take, considering the parameters of shared exclusivity.
It is outside the scope of this paper to articulate exactly what a tikanga consistent resolution process looks like. But I argue that the Crown negotiation pathway is best suited to assist overlapping applicants in achieving consensus, and unlike High Court litigation, it is more easily able to implement tikanga consistent dispute resolution processes.
Kōrerorero – Discussion
The puzzle pieces
Marine and Coastal Area (Takutai Moana) Act 2011
The MACA Act repealed the Foreshore and Seabed Act 2004 and sought to restore the customary interests extinguished by that Act.[7] The MACA Act primarily created two forms of rights available to be recognised, CMT and protected customary rights (PCRs). I will focus solely on the application for CMT under the Act.
CMT recognises the customary relationship of iwi, hapū or whānau with the common marine and coastal area.[8] CMT vests in the applicant groups a range of rights. Significantly, CMT holders may give or withhold permission for a new activity in the area that is carried out under resource consent.[9] For CMT to be recognised over an area, the applicant group must demonstrate that it holds part of the common marine and coastal area in accordance with tikanga[10] and has exclusively used and occupied the area without substantial interruption since 1840.[11]
Waitangi Tribunal Inquiry
The MACA Act was subject to a Waitangi Tribunal inquiry of which Stage 1 was released in 2020.[12] I will focus solely on the Tribunal’s discussion in that report regarding overlapping interests.[13]
The Tribunal found that the MACA Act provides for overlapping interests to be considered and resolved when applications are being decided.[14] But the Crown has failed to fulfil its responsibility of providing applicants with processes in both pathways that allow parties with overlapping interests to achieve resolution.[15] This procedural inadequacy likely stems from the fact that the Minister and officials initially expected relatively few Māori to apply for CMT and anticipated that no more than 4 per cent of the country’s coastline would be available for CMT.[16] The result has been a process that fails to adequately cater for the number of overlapping claims that eventuated.[17]
Re Edwards (Te Whakatōhea No. 2)
Edwards was the first case under the MACA Act to deal with overlapping applications and I will focus solely on the limb under s 58(b)(i), requiring the applicant to have exclusively used and occupied the area. Te Rūnanga o Ngāti Awa and Te Rūnanga o Te Whānau both participated in the proceedings as interested applicants who opposed Te Whakatōhea’s claims of exclusivity.[18] The Court did not consider the words “exclusive use and occupation” to require an intention and ability to control the specified area against third parties. It did, however, consider that the concept of shared exclusivity was not inconsistent with the MACA Act or with holding the area in accordance with tikanga.[19]
The High Court noted that shared exclusivity is driven by a consideration of whether the specified area is held in accordance with tikanga.[20] To establish shared exclusivity claimant groups cannot deny each other’s history in claims to title. [21] An acknowledgement of another claimant’s interest does not have to be amicable, but an acknowledgement must exist.[22]
However, shared exclusivity is not a default outcome where two competing applicant groups are each claiming they have exclusive rights.[23] This is because the applicants are required to demonstrate a consensus regarding the existence historically of shared exclusivity held in accordance with tikanga. The Court considered that jointly holding CMT avoids some of the practical problems associated with multiple CMTs for the same area being held by different parties, particularly where the parties want to exercise the rights conferred under s 62 of the MACA Act.[24]
The Court noted that while cooperation and agreement between joint holders of CMT would be needed, tikanga has historically provided for a complex web of overlapping claims. Therefore, tikanga should be able to assist parties holding CMT on a joint or shared exclusive basis on how to jointly exercise the rights conferred by the grant of CMT.[25]
Overlapping interests
Overlapping issues are inherently complex and are tied to a lineage of issues often caused by raupatu.[26] A recent Government publication cites the Waitangi Tribunal, stating that:[27]
… the essence of Māori existence was founded not upon political boundaries, which serve to divide, but upon whakapapa or genealogical ties, which serve to unite or bind. The principle was not that of exclusivity but that of associations. Indeed, the formulation of dividing lines was usually a last resort.
This whakaaro is key to understanding the existence of overlapping interests in the takutai moana. It is also key to understanding how dispute resolution processes in this space might operate in a tikanga-consistent way. Though tikanga has accommodated a complex web of overlapping interests, as cited in Edwards, it cannot be romanticised as a one-stop solution for inter-Māori disputes.[28] This is because, as the quote indicates, sometimes consensus simply cannot be reached and dividing lines must be drawn.
The Waitangi Tribunal has identified how Treaty principles and duties are relevant towards overlapping interests. These principles and duties inform the Crown’s duty to be active in facilitating the resolution of overlapping interests. The essence of Treaty partnership is the guarantee to Māori of the right to exercise tino rangatiratanga over all taonga Māori, in exchange for the Crown’s right to exercise kāwanatanga.[29] In this exchange, each party is constrained by the rights of the other, committing each to partnership.[30]
The Tribunal found that, where overlapping interests are concerned, the duty to act honourably and in good faith requires the Crown to facilitate between iwi and hapū.[31] As well as this, the Crown must seek to actively preserve and promote amicable relations with, and between, groups and aim to minimise any damage to relationships.[32] The Crown must act as best it can to effect a reconciliation between groups and assist in the preservation of all relationships.[33]
Where interests and associations are disputed by overlapping groups, the Crown does not consider that it can or should determine or adjudicate whether a group has a predominant interest or any exclusive status in an area.[34]
High Court pathway
This section will assess the potential outcomes of the High Court pathway.[35]
Shared exclusivity
The concept of shared exclusivity is inherently paradoxical through a western view of property rights. Neither Te Whakatōhea nor competing applicants could be seen to have exclusively occupied the area through a pure western property lens. Shared exclusivity, as it exists within Edwards, seems to bear the name “exclusivity” to solely satisfy the legislation. But the logic of the High Court, in not drawing distinct lines between different iwi, hapū and whānau, seems to follow the logic of the Government in dealing with overlapping claims in the Treaty settlement context.[36]
In the High Court, Churchman J applied a tikanga lens to both the MACA Act and Te Whakatōhea’s application. The Court did not consider that evidence of an express agreement in 1840 was required for there to be a finding of shared exclusivity.[37] The Court considered such a submission ignored the context and role of tikanga, as well as the evidence provided by the Pūkenga and tohunga regarding places at the takutai moana from Maraetōtara and Tarakeha and out to Whakaari, being shared between the six Whakatōhea hapū.[38]
The concept of shared exclusivity seemingly implements a tikanga approach as it empowers the complex web of overlapping rights that tikanga has historically provided for.[39] But, as discussed above, there are caveats to the applicability of shared exclusivity in the takutai moana.
Where consensus is not achieved
As discussed above, shared exclusivity cannot exist where claimant groups deny each other’s history in claims to title.[40] The MACA Act seemingly has no processes to adjudicate conflicts of this nature and the senior courts have yet to examine this issue in detail. The Waitangi Tribunal has indicated that the question of whether overlapping interests would preclude an applicant from satisfying the statutory test for CMT is a substantive interpretation question appropriate for consideration in Stage 2 of the Tribunal’s Takutai Moana Inquiry.[41]
The High Court has not yet been presented with a dispute of this nature. But by virtue of the exclusivity requirement, if this situation were to arise, the Court will be presented with multiple options. Will the court adjudicate and decide whether one group has exclusivity? Will the court draw and impose a dividing line in the disputed area? Or do overlapping applications which fail to achieve consensus outright fail to obtain recognition of CMT?[42] The MACA Act provides no guidance as to what process the Court should follow in these circumstances, highlighting yet another failure of the Act.
These options are not tikanga-consistent approaches. This is because applicants are not provided with adequate pathways to achieve resolution. As well as this, power is either removed from the hands of Māori in determining where the lines between overlapping applicants are drawn, or neither party can achieve restored recognition of their customary rights in the takutai moana at all.
Dual pathways
The dual pathway problem
The Cabinet Māori Crown Relations Te Arawhiti Committee (MCR) noted that there is a lack of cohesion between the two pathways which, if not addressed, could result in unjust outcomes for iwi, hapū and whānau groups.[43] It identified three options for addressing this problem:[44]
1. Enable a decision maker to take account of and determine all relevant applications for CMT for an application area at the same time so that if CMT is recognised no subsequent CMT decision can be made in the other pathway for the same area; or
2. Enable a CMT issued in one pathway to be varied to reflect subsequent decisions made in the other pathway; or
3. Enable a decision maker to take account of and determine all relevant applications for CMT for an application area at the same time without preventing subsequent decisions in the other pathway and enable a CMT issued in one pathway to be varied to reflect subsequent decisions in the other pathway
The MCR focuses on the jurisdictional issues that arise by virtue of the dual pathway problem. The most prevalent issue is that CMT may not be able to be recognised as the current legislation only allows for the decision-maker under the Crown pathway[45] to make determinations on Crown pathway applications, and for the decision maker under the High Court pathway to make determinations on High Court pathway applications.[46]
For example, Te Kapu o Waitaha’s application is seeking recognition in an area that overlaps with the area being considered in the Ngā Pōtiki Stage Two High Court hearing.[47] Justice Powell raised concerns orally that he may not be able to make an order recognising CMT for any applicant if the evidence shows that Waitaha Iwi shares CMT with other groups who are participating in the hearing. Justice Powell has commented on the “cascading sequence of unjust outcomes” that could result.[48]
Opening the pathways
The MCR aims to prevent unjust outcomes for Māori in the overlapping claims sphere but fails to take into account the legislative requirement for exclusivity and how this may hinder overlapping applicants.
Even if decision-makers in one pathway were able to reconcile applications in the other pathway, the concern remains that the MACA Act fails to provide adequate resolution services between applicants disputing exclusivity.[49] As a result, legislative change of this sort will have the effect of remedying some dissonance between pathways but the issues it intends to solve will remain. These issues being that parties may not be able to have CMT recognised, and parties may not be able to pursue their preferred pathway.[50]
I argue that the Crown negotiation pathway is the best suited to deal with overlapping applications which fail to satisfy the requirements of shared exclusivity set in Edwards. This is because it is a more flexible process that can more easily enable parties to engage in tikanga processes to achieve resolution.[51] Adhering to its Treaty obligations, it would be the Crown’s responsibility to fund and facilitate tikanga consistent dispute resolution processes.[52] This contrasts with the High Court pathway which, as discussed above, will have difficulty implementing tikanga processes where shared exclusivity is not satisfied.
Kōrero whakamutunga - Conclusion
Although the reading-in of shared exclusivity into the MACA Act in Edwards demonstrates promising steps forward in achieving tikanga consistent approaches to overlapping interests in the takutai moana, an array of issues remain.[53] This is because shared exclusivity cannot be satisfied where overlapping applicants are unable to acknowledge each other’s history in claims to title.
Where overlapping applicants fail to achieve consensus, the MACA Act is silent on how these may be resolved. In the High Court pathway, these applicants will, to my thinking, be provided with no tikanga-consistent options to resolve their applications. This is because the Court will likely be required to draw a line between disputed areas, or these applications will fail in their entirety.
Therefore, I argue that the Crown negotiation pathway is best suited to deal with overlapping applicants who fail to achieve consensus. This is because the Crown has an obligation to facilitate and fund parties with tikanga-consistent dispute resolution processes by virtue of its Treaty obligations.[54] Also, the negotiation pathway is more procedurally flexible and can more easily incorporate these processes. Although, in some circumstances, consensus between applicants may never be possible, it is the Crown’s obligation to try to facilitate this as part of restoring customary marine rights, which the Crown earlier cruelly abolished.[55]
Ngā kupu āpiti - Notes
* William Morrison (Taga Savai'i ma Tafitoala Safata, Sāmoa) is in his final year at Te Herenga Waka - Victoria University of Wellington, completing an LLB(Hons) and a BA majoring in Political Science. Views expressed are his own.
[1] Tina Ngata “Wai Māori: a Māori perspective on the freshwater debate” The Spinoff (New Zealand, 6 November 2018); and Te Ara “Tangaroa, god of the sea” <www.teara.govt.nz>.
[2] Tina Ngata, above n 1.
[3] Sections 62 and 95 respectively. See also Hamish Harwood and Lauren Philips "Takutai Moana Act - key developments from Re Edwards (Te Whakatōhea (No 2) and Re Ngāti Pāhauwera" (2022) April RMLA 30 at 30; and Community Law “Pathways for recognition of customary rights in te takutai moana” <www.communitylaw.org.nz>.
[4] Cabinet Māori Crown Relations Te Arawhiti Committee “Takutai Moana Dual Pathway Problem: Release of Consultation Document” (5 September 2022) MCR-22-MIN-0014 at 3; and Community Law, above n 3. The deadline for submitting an application was 3 April 2017.
[5] Harwood and Philips, above n 5, at 30.
[6] Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772. Consensus, for the purposes of this essay, means that the parties have satisfied the requirements for shared exclusivity articulated by Churchman J in Re Edwards at [166]. Note that appeals from the judgment are due to be heard by the Court of Appeal in late February 2023.
[7] Marine and Coastal Area (Takutai Moana) Act 2011, ss 5 and 6.
[8] Section 4(1)(b).
[9] Ministry of Justice Recognising customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 at 8. Some activities are excluded from this permission right. These are called ‘accommodated activities’. Marine and Coastal Area (Takutai Moana) Act, s 64 sets out the accommodated activities. The range of other rights can also be found in the report.
[10] Marine and Coastal Area (Takutai Moana) Act, above n 7, s 58(a).
[11] Section 58(b)(i).
[12] Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report (Wai2660, 2020). The purpose of the inquiry was to identify whether the Act was inconsistent with the Treaty of Waitangi. Stage One investigated whether the procedural and resourcing arrangements supporting the MACA Act breached the Treaty and prejudicially affected Māori. Stage Two, when released, will inquire into whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.
[13] Some of this commentary will likely fall within the scope of Stage Two of the Waitangi Tribunal’s inquiry.
[14] Waitangi Tribunal, above n 12, at 79.
[15] Re Edwards (Te Whakatōhea No 2), above n 6, at 79.
[16] Waitangi Tribunal, above n 12, at 79.
[17] At 79.
[18] Re Edwards (Te Whakatōhea No. 2), above n 6, at 774; and Cabinet Māori Crown Relations Te Arawhiti Committee, above n 4, at 9. Ngāti Awa was a dual pathway applicant, but their preference was to pursue determination through the Crown pathway. In order to have their CMT recognised in the overlapping area, Ngāti Awa had to participate in the High Court pathway.
[19] Re Edwards (Te Whakatōhea No 2), above n 6, at [161]. By adopting the concept of shared exclusivity, Churchman J imported a similar approach to the Canadian Courts in a similar matter. For example, Ahousaht Indian Band v Attorney-General of Canada 2007 BCSC 1162; [2007] BCJ 1730.
[20] Re Edwards (Te Whakatōhea No. 2), at [161].
[21] At [166].
[22] At [166].
[23] At [179]. This is to ensure that the process is not used as a modern attempt to resolve an overlapping claim.
[24] At [169]. Section 62 confirms a set of rights following recognition of customary marine title including a natural resource management and conservation permission rights, other protection rights and ownership rights over taonga and certain minerals.
[25] At [170].
[26] New Zealand Government “Overlapping interests: The Crown’s understanding of customary interests and associations” and “What are overlapping interests?” <www.govt.nz>. This resource replaces the ‘Overlapping interests’ content on pages 53, 54 and 55 of New Zealand Government “The Red Book” <www.govt.nz>. However, in Whakatōhea – Stage Two (no. 7) [2022] NZHC 2644 at [218], Churchman J found that the Red Book which addresses process requirements in the Tribunal for overlapping claims in this historic settlement process is not relevant to claims under the MACA Act.
[27] New Zealand Government, above n 26, at “What are overlapping interests?”. Citing Waitangi Tribunal The Ngati Apa Raupatu Report (Wai 46, 1999) at 133.
[28] Re Edwards (Te Whakatōhea No. 2), above n 6, at [170].
[29] Waitangi Tribunal, above n 12, at 11.
[30] Waitangi Tribunal Tauranga Moana, 1886-2006: Report on the Post-Raupatu Claims Volume 1 (Wai 215, 2010) at 120.
[31] Waitangi Tribunal, above n 12, at 12.
[32] New Zealand Government, above n 29, at “What principles and guidelines underpin the resolution of overlapping interests?”.
[33] At “What principles and guidelines underpin the resolution of overlapping interests?”.
[34] New Zealand Government, at “Overlapping interests: The Crown’s understanding of customary interests and associations”.
[35] Either as single pathway applicants or as dual party applicants.
[36] New Zealand Government at “What are overlapping interests?”; and Waitangi Tribunal, above n 31, at 133.
[37] Re Edwards (Te Whakatōhea No. 2), above n 6, at [180].
[38] At [180].
[39] At [170].
[40] At [166].
[41] Waitangi Tribunal, above n 12, at 81.
[42] It is outside the scope of this paper to discuss which of these options is most likely to be adopted by the High Court. Also, these options are not exhaustive.
[43] Cabinet Māori Crown Relations Te Arawhiti Committee, above n 4, at 1. This is what they identified as the “dual pathways problem”.
[44] At 1, 4 and 5.
[45] That being the Minister for Treaty of Waitangi Negotiation.
[46] Cabinet Māori Crown Relations Te Arawhiti Committee, above n 4, at 8.
[47] At 8; citing Ngā Pōtiki Stage Two HC Wellington CIV-2011-485-793, 9 August 2021 (Minute No 13).
[48] Ngā Pōtiki Stage Two, above n 47.
[49] This was the concern expressed by the Waitangi Tribunal, above n 12, at 12 and 79.
[50] Cabinet Māori Crown Relations Te Arawhiti Committee, above n 4, at Appendix 1. These issues were identified by the Committee but will not be solved by their recommended recourse.
[51] It is outside the scope of this paper to discuss what this may look like in practice.
[52] Waitangi Tribunal, above n 15, at 12 and 79.
[53] Re Edwards (Te Whakatōhea), above n 6, at [169] and [170]; and Dan Minhinnick and others "Important High Court decision on customary marine title" (June 16 2021) Russell McVeagh <www.russellmcveagh.com>.
[54] Waitangi Tribunal, above n 15, at 12 and 79; and New Zealand Government, above n 32, at “How does the overlapping issues process work?”.
[55] Marine and Coastal Area (Takutai Moana) Act, above n 7, at ss 5 and 6.
