Foreshore and Seabed, Again

The Marine and Coastal Area (Takutai Moana) Act 2011 (MCAA) is the latest legislation concerning the foreshore and seabed in New Zealand, enacted on 31 March 2011.
The MCAA followed the Foreshore and Seabed Act 2004 (FSA).
Historical context includes:
- Formation of the National Party’s minority government in November 2008, which relied on a Confidence and Supply Agreement with the Māori Party.
- Māori Party's emergence from the 2003-2004 foreshore and seabed crisis, partly triggered by the Court of Appeal decision in New Zealand Māori Council v Attorney-General (Ngati Apa).
- The government’s reaction to the Ngati Apa decision was to establish a Ministerial Review Panel to reassess the FSA, leading to the recommendation for the repeal of the FSA.

The primary legal question centers around whether Māori descent groups, hapū, and iwi can assert customary rights over the foreshore and seabed, particularly the area between high-water mark and the territorial sea boundary (currently set at 12 nautical miles).
The issue is more complex than mere customary rights and involves significant questions of jurisdiction concerning the Māori Land Court.

Māori Land Court:
- Established in 1865 to convert Māori customary titles into freehold grants.
- Has existed in a form similar to its current state since then.
- Jurisdictionally significant in determining ownership and rights related to land under customary tenure.
Court Decisions:
- The Court of Appeal decisions in In re Ninety-Mile Beach and Ngati Apa are pivotal in determining the jurisdiction of the Māori Land Court concerning land below the high-water mark.
- Ninety-Mile Beach concluded the Court lacked jurisdiction; however, Ngati Apa found it did.
- The legislative response typically favored statutory reforms rather than common law adjustments.

Immediate legislative response to the Court of Appeal's decision was an enactment of the FSA, which:
- Vested all foreshore and seabed in the Crown, effectively abolishing Māori customary rights.
- Established criteria for the recognition of customary interests but did not support effective claims for Māori rights.

The Tribunal found the FSA discriminatory, arguing it targeted Māori rights unfairly, violating the principles of the Treaty of Waitangi.
The findings highlighted that the FSA marginalized Māori property rights by abolishing customary claims while preserving rights for non-Māori.

The FSA unified the legal regimes relating to foreshore and seabed under Crown control, with the intent of providing certainty and access for the public.
It introduced:
- Territorial Customary Rights (TCRs) and Customary Rights Orders (CROs), but with very restrictive criteria that practically discouraged Māori applications.
- A requirement for proof of exclusive use and occupation, which many Māori groups found challenging.
No successful applications for TCRs or CROs were recorded during the FSA's operation.

The MCAA repealed the FSA and introduced new principles aimed at improving rights recognition:
- Claims for customary rights can now be made under statutory criteria while acknowledging the Treaty of Waitangi.
- Introduced clearer definitions of rights granted under customary marine titles as compared to the previous legislation.
Section 11 establishes the common marine and coastal area, indicating this land belongs to no one but serves the public.

The MCAA provides:
- The land is not owned by the Crown or any individual.
- Customary marine title groups can exercise ownership over non-nationalized minerals within their customary marine title areas.
New definitions and criteria increase the clarity and potential for recognition of Māori rights, although challenges still exist.

There is skepticism about the MCAA's uptake by Māori, given historical disillusionment regarding the foreshore and seabed debate.
Many Māori may prioritize negotiations over formal applications for customary titles due to past experiences.
The successful recognition of rights under the MCAA will depend on how well Māori groups can navigate the set requirements.
- What is this implying?
Continuing complexities in coastal law raise concerns over climate change implications and necessitate a comprehensive review of all relevant legislation.

The MCAA represents a substantial legal shift; however, ambiguities around concepts like exclusivity and the practical use of the act remain.
It marks an effort to reconcile competing interests in the foreshore and seabed issue but continues to face significant historical and political challenges.