Since the signing of the Treaty of Waitangi in February 1840, Māori and the New Zealand Crown have disagreed over indigenous claims to New Zealand's foreshore and seabed. In 1997, local Māori in the Marlborough Sounds applied to the Māori Land Court for a determination of the local foreshore and seabed as Māori customary land. Their application for a judicial review had been prompted by their long-standing exclusion from the local commercial mussel farming industry. Before the Land Court could release its decision, the High Court of New Zealand ruled that foreshore purchased by the Crown from Māori negated indigenous ownership and that the Crown had always owned the seabed. This decision was subsequently overturned by the Court of Appeal of New Zealand, which ruled in 2002 that the case should be heard at the Māori Land Court.[2][3]
Key provisions
The Foreshore and Seabed Act 2004 stated that the New Zealand Crown owned public foreshore and seabed including areas owned by local authorities. This law excluded 256 privately-owned foreshore and seabed parcels.[4]
The Foreshore and Seabed Act 2004 also codified public access to the foreshore and seabed for recreational and navigational purposes. It also allowed the Māori Land Court and High Court of New Zealand to protect non-territorial customary rights over public foreshore and seabed that had been exercised since 1840.[4]
The law also allowed any group to claim customary rights if they had been occupying and using a part of the public foreshore and seabed exclusively since 1840, and held continuous title to the continuous land. These rights could be established either by the High Court or through a negotiated settlement with the Crown that is established by a High Court ruling. Once these rights had been established, plaintiffs could establish a foreshore and seabed reserve or apply to the New Zealand Crown for redress.[4]
Legislative history
Protests against the Foreshore and Seabed Act 2004, which extinguished claims to aboriginal title to the foreshore and seabeds in New Zealand
In 2004, the Fifth Labour Government passed the contentious Foreshore and Seabed Act 2004, which stated that the Crown owned the foreshore and seabed except for privately owned parts.[2] The Labour Government's passage of the Foreshore and Seabed Act was prompted by pressure from its coalition partner New Zealand First and the opposition National Party, who claimed that the Court of Appeal's ruling would cause non-Māori New Zealanders to lose access to beaches, fishing grounds and harbours.[3]
In 2011, the Fifth National Government, with the support of the Māori Party, replaced the Foreshore and Seabed Act with the Marine and Coastal Area (Takutai Moana) Act 2011. This new law replaced Crown ownership of the foreshore and seabed with a "no ownership" regime. Crucially, the MACA Act allowed Māori iwi to apply to the courts or Crown for customary rights and ownership over certain areas of the foreshore and seabed.[5]
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