The Waitangi Tribunal has found that aspects of the regime that is intended to support the implementation of the Marine and Coastal Area (Takutai Moana) Act 2011 are in breach of the principles of the Treaty of Waitangi.
In its pre-publication version of the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage One Report, the Waitangi Tribunal found that the claimants have been prejudiced by aspects of the procedural and resourcing regime that falls well short of Treaty compliance. The Marine and Coastal Area (Takutai Moana) Act 2011 repealed and replaced the controversial Foreshore and Seabed Act 2004. The 2011 Act established a statutory regime for the identification of customary interests in the Coastal Marine Area and a set of statutory mechanisms to recognise specific customary rights. The Act provides two application pathways for this purpose. Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They may also do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.
The initial claims that began this Tribunal inquiry alleged the following prejudice caused by the Act:
- The legislation prevented them from owning their takutai Moana, but left the Crown free to exercise full authority over it.
- The Act had redefined and limited their legal rights and interests to an extent that was inconsistent with the Treaty and prevented them from exercising their rangatiratanga or partnering with the Crown.
- To seek recognition of their rights, they had to comply with a unilaterally imposed statutory deadline (3 April 2017) and follow either High Court or Crown engagement processes that were cumbersome, unfair, and risky.
The Tribunal was careful to set the parameters of its inquiry in a way that did not intervene in the substance of applications to the High Court or for direct engagement with the Crown under the Act. The Tribunal determined it would conduct its inquiry in two stages. The first would focus on procedural and resourcing aspects of the regime. In the second stage of its inquiry, the Tribunal will consider the substantive nature of the Act.
In this report on Stage One, the Tribunal found that the Crown’s regime is inconsistent with Treaty obligations by failing to:
- provide adequate and timely information about the Crown engagement pathway for applicants to seek recognition of their customary rights in the marine and coastal area,
- put in place adequate policies to ensure that the High Court pathway and the Crown engagement pathway operate cohesively,
- actively and practically support efforts to resolve overlapping interests in the marine and coastal area,
- cover 100% of all reasonable costs that claimants incur in pursuing applications under the Act,
- manage real or perceived conflicts of interest in the administration of funding,
- provide sufficiently independent, accessible, and transparent mechanisms for the internal review of funding decisions,
- enable timely access to funding for applicants in the Crown engagement pathway, and
- fund judicial review for Crown engagement applicants and Māori third parties.
The Tribunal noted that it was particularly regrettable that these aspects fall well short of Treaty compliance, give the context that the Marine and Coastal Area Act was “a replacement for the controversial Foreshore and Seabed Act 2004, which left such a damaging imprint on Māori– Crown relations and the social fabric of Aotearoa New Zealand. The new legislation was an opportunity for the Crown, working with Māori, to start afresh. Instead, the Act appears to reprise many of its predecessor’s more egregious features, not least its capacity to generate grievances and division.”
Ultimately, the Tribunal recommends that the Act’s procedural and resourcing arrangements be amended urgently. The Presiding Officer notes that Māori will continue to be prejudiced “until the Crown acts to make the regime fairer, clearer, more cohesive, and consistent with its obligations as a Treaty partner.”
Ahi-kā-roa 