This article is part 1 of a series. Part 2 will provide our further comment on the implications of the decision.
The Supreme Court recently issued a decision in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea [2024] NZSC 164. This is the first case under the Marine and Coastal Area (Takutai Moana) Act 2011 (“MACA Act”) to come before the Supreme Court.
The decision relates to applications for customary marine title (“CMT”) and protected customary rights (“PCR”) under the (“MACA Act”). In particular, the decision focuses on the application and operation of s58 of the MACA Act, which sets out the test for CMT.
The Supreme Court found that the majority decision of the Court of Appeal erred in its approach to the interpretation and application of the test for CMT in s58 of the MACA Act and sets out its restatement of the test.
Background
Applications for CMT are made to the High Court, which may recognise CMT if it is satisfied that the applicant meets the requirements in s58 of the MACA Act, being that the applicant:
Holds the specified area in accordance with tikanga; and
Has exclusively used and occupied the area from 1840 to the present day without substantial interruption.
The applications were partially successful in the High Court. The High Court found that CMT was made out in respect of certain parts of the application area, but not others. That decision was appealed to the Court of Appeal.
A focus of the appeal was the interpretation and application of the test for CMT in s58 of the MACA Act. The Court of Appeal’s decision was a 2-1 majority decision, divided on the interpretation of s58. The Court of Appeal’s decision was appealed to the Supreme Court on grounds including concerns regarding the majority’s interpretation of the test for CMT.
The Supreme Court decision
The Supreme Court found that the Court of Appeal erred in its approach to the interpretation and application of s58. The decision restates the test for CMT in a way that the Supreme Court considers better reflects the text, purpose, legislative history of the MACA Act.
Throughout the decision, the Supreme Court emphasises that a theme of ‘reconciliation’ runs through the MACA Act. It found that the MACA Act recognises and attempts to reconcile competing interests, the overarching question being whether such competing interests can be accommodated together, with a focus on tikanga/Māori concepts such as mana, in a manner different to western proprietary concepts. This flavours the Supreme Courts approach to interpreting and applying the MACA Act; the decision notes that competing rights and interests should be allowed to coexist as far as possible.
Test for CMT
The Supreme Court provides additional commentary and guidance on how each of the relevant elements of the test for CMT are to be applied, however was careful to emphasise that whether CMT has been made out will always depend on an inquiry to the context and facts of the case at hand.
The Supreme Court considers the test for CMT in three parts, which the Court emphasise are interrelated and may (and often do) overlap:
Holds in accordance with tikanga [this element was generally not in contention on appeal];
Exclusively used and occupied; and
Continuity: from 1840 to the present day without substantial interruption
The decision focusses on the second and third elements, which we summarise below.
Exclusively used and occupied
The Supreme Court does not appear to significantly depart from the Court of Appeal position on this issue, which required “a ‘strong presence’ in the area manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the area in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group”.
The Supreme Court provides further guidance, including the following:
Occupation is meant in the sense of control (i.e. “mana”) rather than residence, and actual physical occupation is not required.
“Exclusive” does not mean literally to the exclusion of all others, rather extensive use of the space coupled with an intention and capacity to assert control over it is what is intended by the test – where applicant groups have maintained a strong cultural connection with an area, harvested its resources and asserted mana in some practical way, that may be sufficient.
The decision identifies a number of indicators that may support a conclusion that this part of the test is met, emphasising that the list is neither exhaustive nor cumulative. These include, for example, ownership of abutting land, Tauranga waka in the area, imposition of rahui, involvement in resource management processes, and engaging in tikanga based ceremonies in relation to the area.
Continuity: from 1840 to the present day without substantial interruption
The Supreme Court noted the difficulties with this part of the test, stating that this is the “most difficult element of the test to apply”. Referring again to the theme of reconciliation, the Supreme Court held that rights and interests should be allowed to coexist as far as possible and noted that Courts should be slow to conclude that continuity is so broken or exclusivity so compromised as to preclude the grant of CMT.
The Supreme Court provided some further guidance on how this element should be applied:
Substantial interruption has both spatial and temporal elements so both the physical extent and the duration of any interruption will be relevant, and this will require a factual assessment of context and degree. However, the decision does not provide guidance as to what will be a sufficient duration to establish substantial interruption.
Interference (as opposed to interruption) will be insufficient, as will interruptions that are not ‘substantial’. Whether the applicant group has been sufficiently “crowded out” of the claimed space by competing structures or activities – in such cases there will substantial interruption.
A key difference from the Court of Appeal is that interruptions are not limited to those expressly authorised by a statute capable of overriding customary rights. The Supreme Court found that approach too narrow. It stated “the substantial interruption inquiry is primarily a factual one, subject only to the requirement that unlawful interferences must be disregarded”.
The Supreme Court also listed activities that might contribute to substantial interruption include activities carried out under resource consent granted prior to April 2011, permanent structures in the area owned by third parties including port facilities, wharves, and jetties, and intensive and frequent use of the area by third parties e.g. commercial shipping lanes. The Supreme Court gave the example that “intensive use of the area by commercial shipping or occupation of an area by major port infrastructure, involving not just reclamation and structures at scale but also associated intensification of activity in the immediate vicinity may well amount to substantial interruption if it is ‘of sufficient duration’”.
Burden of Proof
The Supreme Court confirmed that the burden of proof is essentially as stated by the Court of Appeal, that is: applicant groups must prove that they hold the area in accordance with tikanga and that they have used and occupied the area from 1840 to the present day. If those matters are established, the burden shifts to contradictors (interested parties) to provide that use and occupation is not exclusive or has been substantially interrupted.
ChanceryGreen act for clients on MACA Act applications for CMT and PCR.