Government seeks to pass this law before year ends: Treaty Negotiations Minister Paul Goldsmith
The New Zealand government has announced that legislation aiming to provide certainty around the manner of granting of customary marine title for the country’s coastlines has passed its first reading in Parliament.
Paul Goldsmith – New Zealand’s minister for arts, culture, and heritage; minister of justice; minister for state owned enterprises; and minister for Treaty of Waitangi negotiations – called attention to the proposed law.
“Customary Marine Title gives the holder valuable rights, including the ability to refuse some resource consents in the area, such as for renewals of some private assets like wharves, or aquaculture expansion,” Goldsmith said in a news release of the New Zealand government. “However, last year the Court of Appeal in Re Edwards issued a decision that changed the nature of the test and materially reduced the threshold.”
The proposed legislation will include a declaratory statement that overturns the reasoning of the rulings in Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025 and Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 50, as well as the reasoning of all New Zealand High Court decisions since the Re Edwards ruling in connection with the test for customary marine title.
“All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test in 2011 before Customary Marine Title could be granted,” said Goldsmith in the news release. “Therefore, as part of the National-New Zealand First coalition agreement, the Government is ensuring these tests for applications directly with the Crown or through the Courts are interpreted and applied as originally intended.”
The test for customary marine title, upon being restored, will be applicable to applications pending at the time of his policy announcement last 25 July, Goldsmith explained in the news release.
The proposed legislation will also add text to s. 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 to define and to clarify the terms “exclusive use and occupation” and “substantial interruption” and will amend s. 106 on burden of proof to clarify that applicant groups have to prove exclusive use and occupation from 1840 until the present.
The proposed law will also clarify the relationship between s. 58 and the framing sections of the Marine and Coastal Area Act – specifically, the preamble, purpose, and Treaty of Waitangi provisions – in a manner that permits the operation of s. 58 in accordance with its literal wording.
“The Select Committee process will provide an important opportunity for public scrutiny of the Bill,” Goldsmith said in the news release of the national government. “The Government intends to pass this legislation before the end of the year.”
Late last August, the New Zealand Herald reported that Goldsmith said that the government’s approach was expected to “reduce the 100% of coastline subject to Customary Marine Title to 5%”, according to notes from a meeting with seafood industry representatives.
Goldsmith said that this claim came in the course of a “free-flowing discussion” and had no basis in any analysis, NZ Herald reported at the time.
