Plan to overturn Marine Title precedent 'taking us back to Dark Ages'

Iwi say the Government's plan to make it harder for Māori to get customary rights over the foreshore and seabed is "taking us back into the Dark Ages".

Under section 58 of the Marine and Coastal Area Act 2011 — which was superseded by the Foreshore and Seabed Act 2004 — Māori can be granted Customary Marine Title if they have exclusively occupied and used a specific area of beach since 1840 without substantial interruption, and held the area in accordance to tikanga.

However, Māori were sometimes forced off their lands or lost exclusive rights due to Crown laws.

The Court of Appeal last year ruled that Māori did not need to show they actively excluded others from using the area if the law deprived them of that ability.

Yesterday, the Government confirmed its plans to overrule that decision by amending section 58 of the Act.

"All New Zealanders have an interest in coastal waters in our country so the Parliament deliberately set a high test," Justice Minister Paul Goldsmith said.

"It's not an impossible test, it's a high test — and we believe the Court of Appeal decision materially reduced that."

Lawyer Natalie Coates said raising the bar has rendered the process pointless.

"The whole point is that this legislation was supposed to recognise something meaningful," she said.

Coates also challenged Goldsmith's claim the appeals court had "lower[ed] the threshold" for Customary Marine Title.

"They didn't lower the threshold and the standard, they just made sense of the language they were confronted with which was contradictory and difficult to interpret," she said.

It means Ngātiwai — which has been locked in a months-long legal fight for rights over the Whangārei Harbour — could be forced back to court.

"There were nine weeks of court hearings, months of collating of evidence," Ngātiwai's Aperahama Edwards said.

"Essentially, all of that work will be all but for nothing."

The High Court has yet to release its decision on whether Ngātiwai has met the test for Customary Marine Title. However, even if the judge rules in favour of the iwi before the Government's changes are passed in Parliament, it could still be overturned.

"We will not accept it, and we will collect advice and mobilise," Edwards said.

Ngāi Tahu's Justin Tipa called it "an attack on our way of life, on our Ngāi Tahu way of life".

"To undermine the rule of law, it's a retrograde move that's taking us back into the Dark Ages."

The public will have access to beaches regardless of whether the Government's plan succeeds.

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