Amaia Watson contemplates the constitutional authority for the Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act 2025.

He kākano i ruia mai i Rangiātea.

Hei tīmatanga – Introduction

This paper argues that the Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act 2025 (the Amendment Act),^[1] is fundamentally inconsistent with tino rangatiratanga.  First, by examining the Act itself, we see the changes to the test for customary marine title (CMT) impose a conception of Māori authority that sits incompatibly with the authority granted to Māori under Te Tiriti o Waitangi/The Treaty of Waitangi (Te Tiriti).^[2] Secondly, the inconsistency continues through the process undertaken by the Crown in formulating the amended test. Finally, at a deeper constitutional level, the question is whether the Crown, through Parliament, has the authority to do this at all.  If the Crown claims the authority to make (and amend) the rules governing the recognition of Māori authority over the Takutai Moana, then from where does that authority derive?  It is a conclusion that echoes a constant critique made over many years by Moana Jackson: a challenge that he laid down to not simply critique Crown action in terms of its substantive or procedural impact on Māori rights, but to further question that authority itself. If the Takutai Moana legislation is inconsistent with tino rangatiratanga, this paper concludes that there is no constitutional authority for the legislation itself.

Kōrerorero – Discussion

Moana defined “rangatiratanga” as meaning independence, and “mana” as the expression of sovereign power.^[3] “Tino rangatiratanga” is the full chiefly authority exercised by a particular kinship group over all its taonga.^[4] This inherent authority was affirmed in He Whakaputanga,^[5] and guaranteed under Te Tiriti. The signing of Te Tiriti guaranteed Māori rights to exercise tino rangatiratanga over their lands, their villages and all their taonga,^[6] extending to matters ‘both tangible and intangible’.^[7] In the context of the takutai moana, this includes fisheries and coastal marine life which have been recognised as taonga subject to Māori authority and use in accordance with tikanga.^[8]

The Marine and Coastal Area Act 2011 (MACA),^[9] created a statutory pathway for Māori to seek recognition of their rights over the takutai moana. During the process of its enactment, MACA was subject to many criticisms, but was described by the Crown as a genuine attempt to balance interests and reconcile the damage of the Foreshore and Seabed Act 2004 (FSA).^[10] MACA commenced with a declaration that no one owned the common marine and coastal area, including the Crown.^[11] It then reversed the previous extinguishment of customary rights,^[12] and created an opportunity for Māori to seek recognition of these either in Court or through direct negotiations with the Crown.^[13] Māori seeking to exercise their customary rights could apply for recognition orders; either CMT or a protected customary right.^[14]

The Act

Prior to the Amendment Act, s 58 of MACA set out the requirements that applicants needed to satisfy in order to be granted CMT.^[15] Applicant groups were required to demonstrate that they held the specified area in accordance with tikanga and “exclusively used and occupied it from 1840 to the present day without substantial interruption”.^[16] The concept of “substantial interruption” operated as the primary disqualifying mechanism within the exclusivity test.^[17] The scope of this concept was initially constrained by s 58(2), which provided that resource consents granted in the area did not qualify as a “substantial interruption”.^[18]

The Supreme Court in Whakatōhea interpreted the meaning of s 58 and further narrowed the operation of “substantial interruption”.  The Court emphasised that the statutory language of s 58 set a threshold, that the wording “substantial interruption” is aggressive and thus requires more than “mere interference”.^[19] Furthermore, the “substantial” element acknowledges the historical realities of our country recognising that since 1840 some impairment of Māori rights is likely to have occurred due to colonisation but that this should not automatically defeat these claims.^[20]

In 2024, the Coalition Government announced their intention to amend s 58 and tighten the test to “make clear Parliament’s original intent”.^[21] These amendments reverse key aspects of the judicial interpretation of s 58. Section 58(1A)(b) provides that exclusive use and occupation without substantial interruption cannot be purely based on cultural or spiritual association with the area.^[22] Meanwhile section 57B provides an expanded definition of substantial interruption.^[23] With a broader definition of what can negate an exclusive use and occupation, the test becomes stricter and more difficult to satisfy.

Rather than recognising tino rangatiratanga as an inherent authority the test requires Māori claimants to translate their customary relationship into the language of Western property law systems. This is inconsistent because it does not allow tino rangatiratanga to stand on its own terms, and in its own tikanga context. Customary rights are derived from whakapapa, through the authority of mana, and exercised by way of rangatiratanga by each relationship that whānau and hapū have to their coastal resources.^[24]  The amendment Act subverts this into a form of “Marine Title” which is hollow and lacking in authority.  The narrow ‘veto’ right for CMT holders is in the context of wāhi tapu, which again must be established and proven to the satisfaction of the Minister and/or the Court.^[25]

The process

The process that Parliament followed to make this law compounds the substantive issue. First, from a purely Western perspective of propriety, the Act operates retrospectively and explicitly cuts across existing CMT and property rights. It came into effect from the date of the Minister’s announcement on 25 July 2024, rather than the date it was enacted in 2025.^[26] The amendments, therefore, do not simply change the test for future applications of CMT, they also alter the legal position of existing applications and decisions. Claimants who have spent years litigating under one legal framework, are then forced to have their claims re-heard under the higher threshold.

This is problematic from both a Te Tiriti and rule of law perspective. Māori applicant groups entered litigation under MACA as it existed at the time. Retrospectively changing MACA undermines the certainty that parties should be able to expect when pursuing legal claims. This is at odds with a core legal principle as enacted by s 12 of the Legislation Act 2019.^[27] More fundamentally, the retrospective application of the Amendment Act raises questions about the Crown’s obligations as a partner under Te Tiriti.^[28] A relationship where one party can unilaterally change the rules is difficult to characterise as a partnership.

Furthermore, the process by which the Amendment Act was developed clearly falls short of meaningful partnership. Te Tiriti created a relationship that requires, at the very minimum, the duty to consult on all major issues.^[29] This duty is heightened to requiring Māori agreement where their rights are being directly affected.^[30] The takutai moana is a taonga in te ao Māori meaning decisions affecting it require engagement at the highest level.^[31] However, the Act and it’s changes were introduced unilaterally, reflecting a process that falls short of genuine partnership.

The authority

However, the inconsistency with tino rangatiratanga has a more fundamental and constitutional aspect. Where does the Crown’s presumed authority to make these laws about Māori taonga come from? Often, critiques of the law end before this question is asked. We assume that the Crown can introduce policies and laws, so long as it acts reasonably and in good-faith. We assume that Parliament is sovereign and therefore can legislate with impunity.

Limiting the critique of law to its substantive impact, or the process followed, confines us to operating within a Crown-defined legal framework. In doing so we risk accepting foundations that cannot give meaningful expression to tino rangatiratanga.^[32] Why then should a Crown-defined legal order which cannot give effect to fundamental Māori principles be the starting point for determining the parameters of Māori authority? Moana Jackson planted this question long ago, repeatedly challenging us to look beyond the Crown’s exercise of authority and ask where that authority came from and what it’s limits are.^[33]

Te Tiriti is the foundation of the Crown’s authority. It established a relationship in which the Crown was granted authority to exercise kāwanatanga while Māori retained their rights to exercise tino rangatiratanga. This means the Crown’s right to govern is neither absolute nor unfettered but exists alongside the continuing exercise of rangatiratanga.^[34] Therefore, the authority the Crown possesses must be understood within, and constrained by, the constitutional relationship Te Tiriti created.^[35]

This is further complicated when one considers on what constitutional basis does the Crown possess unilateral authority to determine the status of the takutai moana if Māori never ceded sovereignty? This is not a theoretical discussion – the Waitangi Tribunal concluded that Māori in the far North never ceded sovereignty. ^[36] Therefore, the grant of kāwanatanga cannot be understood to have amounted to unlimited authority to determine the legal status of taonga nor to define the circumstances in which authority over these taonga will be recognised. The question then is not simply whether Parliament has exercised its legislative power reasonably or consistently with Treaty principles (and in the case of the Takutai Moana legislation, it has not), but whether it can legitimately assume the authority to determine the conditions upon which Māori authority will be reconciled in the first place.

Moana Jackson left us with this kākano, a wero, to keep asking these questions about our constitutional assumptions. It is easy to stop asking once an assumption has become embedded in law. But the takutai moana legislation provides an opportunity for us to question it again.

Ngā kupu āpiti – Notes

[1] Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act 2025.

[2] Te Tiriti o Waitangi/ The Treaty of Waitangi 1840.

[3] Moana Jackson “Changing Realities: Unchanging Trusts” (1994) 10 A.J.L.S 115 at 121.

[4] Waitangi Tribunal, Hauora Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575 2019), at 27.

[5] He Whakaputanga o te Rangatiratanga o Nu Tireni 1835.

[6] Waitangi Tribunal Tino Rangatiratanga me te Kāwanatanga: The Report on Stage 2 of the Te Pararahi o te Raki Inquiry (Wai 1040, 2023, vol 1), at 39.

[7] Waitangi Tribunal, Ngā Mātāpono - The Principles: The Interim Report of the Tomokia Ngā Tatau o Matangireia – the Constitutional Kaupapa Inquiry Panel on the Crown’s Treaty Principles Bill and Treaty Clause Review Policies – Pre Publication Version (Wai3300, 2024), at 77.

[8] Waitangi Tribunal Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report - Pre-Publication Version (Wai 3400, 2024), at 10.

[9] Marine and Coastal Area (Takutai Moana) Act 2011.

[10] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua [2024] NZSC 164, [2024] 1 NZLR 857, at [77]–[79]; Marine and Coastal Area (Takutai Moana) Act 2011, s 4.

[11] Marine and Coastal Area (Takutai Moana) Act, above n 9, s 11.

[12] Section 6.

[13] S 100; s 95.

[14] S 98.

[15] Marine and Coastal Area (Takutai Moana) Act, above n 9, s 58.

[16] Section 58.

[17] Whakatōhea, above n 10, at [12].

[18] Marine and Coastal Area (Takutai Moana) Act, above n 9, s 58(2).

[19] Whakatōhea, above n 10, at [194].

[20] At [194].

[21] Hon Paul Goldsmith “Restoring the Test for Customary Marine Title” (5 August 2025).

[22] Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act), above n 1, s 58(1A)(b).

[23] Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act, above n 1, s 57B(1)(c)(iii).

[24] Hirini Moko Mead “Mana Whenua, Mana Moana: Authority over the Land and the Ocean” in Tikanga Māori: Living by Māori Values (Huia Publishers, 2016), at 255-256.

[25] Section 78-81.

[26] Marine and Coastal Area (Takutai Moana) (Customary Title) Amendment Act, above n 1, s 2.

[27] Legislation Act 2019, s 12.

[28] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 at 664 [Lands case].

[29] New Zealand Māori Council v Attorney-General [1989] 2 NZLR 142 at 152 [Forests case].

[30] Ngāi Tahu Māori Trust Board v Director General of Conservation [1995] 3 NZLR 553 at 560–561; Waitangi Tribunal Ngā Mātāpono, above n 7, at 50.

[31] Waitangi Tribunal, above n 6, at 10.

[32] Helen Potter and Moana Jackson Constitutional Transformation and Matike Mai: a kōrero with Moana Jackson (Economic and Social Research Aotearoa, 2018), at 05.

[33] Moana Jackson “Changing Realities: Unchanging Trusts” (1994) 10 A.J.L.S 115 at 117, 126.

[34] Waitangi Tribunal Te Mana Whatu Ahuru: Report on Te Rohe Pōtae claims (Wai 898, 2018-20), at 196-197, 203.

[35] Malcolm Mulholland and Veronica Tawhai “Constitutional Transformation: An Interview with Moana Jackson” in Weeping Waters: The Treaty of Waitangi and Constitutional Change (Huia Publishers, Wellington, 2011) 325 at 329.

[36] Waitangi Tribunal He Whakaputanga me Te Tiriti/The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o te Raki Inquiry (Wai 1040, 2014, vol 1), at 526-527.

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