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| Marine and Coastal Area (Takutai Moana) Act 2011 | |
|---|---|
| Title | Marine and Coastal Area (Takutai Moana) Act 2011 |
| Enacted by | New Zealand Parliament |
| Enacted | 2011 |
| Status | Current |
Marine and Coastal Area (Takutai Moana) Act 2011 The statute replaced prior proprietary arrangements for the New Zealand foreshore and seabed dispute 2003–2004 and established a legal regime for the marine and coastal area in Aotearoa New Zealand; it created processes for recognition of customary interests while asserting public access principles. The Act interacts with decisions from the High Court of New Zealand, Court of Appeal of New Zealand, and the Supreme Court of New Zealand and shaped subsequent negotiations between Ngāi Tahu, Te Rūnanga o Ngāti Porou, and other iwi and hapū.
The Act emerged after the Foreshore and Seabed Act 2004 controversy involving the Labour Party (New Zealand), the New Zealand Māori Council, and litigants including Ngāti Apa, leading to the 2003 Court of Appeal of New Zealand decision that affirmed common law rights. Political responses from the New Zealand National Party, Act New Zealand, and the Māori Party influenced the drafting that followed the 2008 New Zealand general election and the formation of the Fifth Labour Government of New Zealand coalition negotiations. Judicial guidance from cases such as Ngāti Apa v Attorney-General and international instruments cited by claimants, including the United Nations Declaration on the Rights of Indigenous Peoples, framed debates during parliamentary committee stages.
The Act abolishes Crown ownership claims asserted under the Foreshore and Seabed Act 2004 and establishes the marine and coastal area as held in common law subject to public rights, echoing principles found in the Te Ture Whenua Māori Act 1993 and customary rights jurisprudence from the Waitangi Tribunal. It creates recognition pathways for exclusive customary marine title and non-exclusive customary interests, linking to concepts adjudicated in the Muriwhenua fishing rights litigation and case law from the High Court of Australia only as comparative material. The statute mandates consideration of customary rights of Ngāi Tūhoe, Ngāti Awa, Te Arawa, and other claimant groups during applications reviewed by the High Court of New Zealand.
Claimants must follow procedures administered by the Ministry of Justice (New Zealand) and lodge applications that demonstrate continuous and exclusive use akin to tests applied in R v Symonds (1847)-era jurisprudence and later clarified in the Court of Appeal of New Zealand decisions. The Act requires evidentiary material including whakapapa accepted in processes used by Waitangi Tribunal inquiries and comparative anthropological reports like those filed in the Ngāi Tahu Sea Fisheries Commission matters. Applicants may seek declarations of exclusive customary marine title or recognition of non-exclusive customary interests, with appeals directed to the High Court of New Zealand and ultimately the Supreme Court of New Zealand in some instances.
The statute altered trajectories for settlements negotiated under frameworks involving Te Puni Kōkiri, Landcare Research, and iwi authorities such as Ngāti Whātua Ōrākei and Tainui. Recognition outcomes affect resource consent processes overseen by regional councils like Auckland Council and Environment Canterbury, and intersect with fisheries rights administered by Ministry for Primary Industries (New Zealand). Claimant successes and denials influenced kaupapa established in Waitangi Tribunal reports, reshaping expectations among Māori Land Court stakeholders and community leaders including figures from Te Rūnanga o Waikato and Ngāti Kahungunu.
Litigation testing the Act’s provisions reached the High Court of New Zealand in cases brought by groups such as Ngāti Tama, Ngāti Mutunga, and Te Whānau-ā-Apanui, with appeals to the Court of Appeal of New Zealand and select matters considered by the Supreme Court of New Zealand. Decisions referencing this statute interacted with precedents like Ngāti Apa v Attorney-General and later analyses in cases involving salmon farming and marine farming disputes near Marlborough Sounds and Hauraki Gulf. Judicial interpretation addressed thresholds for exclusive customary marine title and procedural fairness reflecting principles from the New Zealand Bill of Rights Act 1990.
Administration involves coordination between the Ministry of Justice (New Zealand), regional councils such as Bay of Plenty Regional Council, the Department of Conservation (New Zealand), and local iwi authorities including Ngāpuhi and Ngāti Porou. The Act’s roll-out required establishing guidance materials, databases of claim areas used by councils and the Land Information New Zealand, and mechanisms for dispute resolution comparable to settlement processes negotiated by Office of Treaty Settlements. Capacity-building initiatives involved partnerships with universities including University of Auckland and Victoria University of Wellington for research into customary rights evidence.
Critics from organisations such as the Māori Party and advocacy groups linked to Ngāti Whātua argued the Act insufficiently restored tino rangatiratanga, while commentators aligned with the New Zealand National Party and ACT New Zealand raised concerns about public access and certainty for infrastructure projects including ports at Auckland and Lyttelton. Academic critiques from scholars at University of Otago and legal analyses in fora like the New Zealand Law Society highlighted evidentiary burdens and potential conflicts with statutory frameworks administered by Fisheries New Zealand and the Environmental Protection Authority (New Zealand).
Category:New Zealand legislation