Marine and Coastal Area (Takutai Moana) claims have a long road ahead
Given we are an island nation, New Zealanders have a significant relationship with our coast and waters. Ignoring the relationship of Māori with the coast and waters is not consistent with Parliament’s approach to improving its relationship with Māori.
Across New Zealand 587 iwi, hapū and individuals have sought recognition of their customary rights in the common marine and coastal area by filing applications under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).
The tests the Crown has set for it to be willing to recognise those relationships is hard to meet and the process for proving they can be met has only just started.
Over the last year the experience of MACA Act applicants (Applicants) has already shown that seeking recognition of customary rights is not an easy road.
Claims could provide a form of title or rights
As a result of lodging claims, all Applicants must be notified of resource consent applications relating to their rohe. This systematic provision of information is ensuring that they learn more about what is happening in their area of concern. They otherwise do not have any rights until their claims are established and either agreed directly with the Crown or determined by the High Court.
If an iwi, hapū or whānau is granted customary marine title they will have some rights to determine what activities are undertaken in the area, including a type of veto to activities in their title area (described as a Resource Management Act permission right relating to resource consent applications and a conservation permission right relating to certain conservation activities). The group will also have the right to be notified and consulted on other matters relating to their rohe (area subject to their claim).
Protected customary rights can also be recognised in relation to customary activities within a rohe. These provide fewer benefits for claimants. An iwi, hapū or whānau that has protected customary right will not require resource consent to carry out the customary activity (e.g., collecting hāngi stones or launching waka in the common marine and coastal area). Plus, resource consents cannot be granted for other activities that would have an adverse effect on the protected customary right.
The Crown is overloaded with claims
The Crown set a deadline of 3 April 2017 for MACA Act applications to be filed. As the deadline approached, the Crown received an influx of applications with 385 Applicants seeking Crown engagement and 202 opting to be heard in the High Court. The Crown has adopted a case management system of categorising Applicants according to the geographic location of their rohe (area subject to their claim). Further to this, case management hearings are being held by the Crown throughout the country from 28 May 2018 to 27 June 2018. Beyond general case management, the Crown is focusing on the nine applications where the Minister for Treaty of Waitangi Negotiations on behalf of the Crown, has already decided to engage with the Applicants.
The MACA process is proving to be expensive for Applicants and interested parties
Since 3 April 2017 Applicants have been required to file a number of notices and memoranda in accordance with the Court’s directions. Many applicants and interested parties have raised concerns with the Court about the cost of this process. Now that Applicants are being notified about proposed resource consent applications relating to their rohe, they are also involved in providing comments on those applications.
Waitangi Tribunal inquiry questions the validity of this MACA Act process
On 14 May 2018 all Applicants were notified that the Waitangi Tribunal is launching an inquiry into the MACA Act. This inquiry was brought to address two main questions:
- Do the procedural arrangements and resources provided by the Crown under the MACA Act prejudicially affect Māori holders of customary marine and coastal area rights in Treaty of Waitangi terms when they seek recognition of their rights? (first stage); and
- To what extent, if at all, are the MACA Act and Crown policy and practice inconsistent with the Treaty of Waitangi in protecting the ability of Māori holders of customary marine and coastal area rights to assert and exercise those rights? (second stage).
All Applicants are given the opportunity to be involved in the inquiry by filing a notice of interested party by 20 June 2018. The first stage of the inquiry will be particularly important for Applicants as many have faced extensive costs from the High Court process. The second stage of the inquiry goes to the core of the MACA Act and questions its ability to deliver a fair recognition of customary rights.
If you would like further information about the MACA Act process or how the MACA Act may affect your activities in the common marine and coastal area, please contact one of our experts.
Who can help
Partner - Environment and Planning
Rachel provides advice on all aspects of environmental and resource management law for private and public sector clients – from design through to approval, implementation and operation.
Rachel has advised extensively on requirements for resource consents, including major industrial and infrastructure projects, and implications of planning requirements. She has significant experience in obtaining complex environmental and project approvals for developers, and advises on other environmental issues including pollution licensing and contaminated land.
Her commercial experience means Rachel can provide practical, down-to-earth solutions to environmental problems in any context – corporate transactions, planning projects or site management.
In recognition of her environmental expertise, Rachel is President of the New Zealand Resource Management Law Association.
Partner - Environment and Planning
Bianca is a specialist in resource management and environmental law. She provides advice on all aspects of the Resource Management Act 1991 and related legislation. She has experience across a broad range of development projects and environmental issues, including in the commercial, industrial, infrastructure, aquaculture, forestry and energy sectors. Bianca’s clients value her knowledge of their business and her clear commercial advice on resource consent and planning process.
Bianca has extensive experience of the Proposed Auckland Unitary Plan, with direct involvement in the regional policy statement, business, transport, heritage and air quality chapters. She also acted for several clients to achieve an uplift in zoning or area specific precinct controls.
Bianca also has experience in the related fields of the Public Works Act and the Local Government Act, including development contributions and private development agreements.
Special Counsel - Environment and Planning
Clare is a Special Counsel in our environment team
She has extensive expertise across the range of environmental work – from obtaining and managing designations, consents and other authorisations for infrastructure, commercial and industrial clients to advising on the environmental aspects of international financing arrangements.
She also advises on public law and Public Works Act issues.
From her experience in the state sector, Clare has in-depth knowledge of how central and local government work.
Stephanie de Groot
Senior Associate - Environment and Planning
Stephanie is a Senior Associate in the Environment Team. She specialises in providing advice on all aspects of environmental and resource management law to private and public sector clients including property developers, infrastructure providers and clients in the commercial, industrial, oil and gas, aquaculture and forestry sectors.
Stephanie is experienced in advising on a broad range of issues from consenting, planning and regulatory compliance through to due diligence for major acquisitions and divestments and environmental dispute resolution. She regularly advises on complex and contentious matters.
Stephanie has a science background, and in addition to her legal qualifications has a bachelor of science majoring in geography and environmental science. She also has previous experience in the regulatory services department of the Auckland Regional Council (now Auckland Council), contributing to the former air quality, industrial and trade processes and coastal teams.