2 days ago
Supreme Court gives green light to riverbeds' inclusion in Māori customary marine title orders
The Supreme Court has found riverbeds can be included in Māori customary marine title orders, if other legal tests are met.
That comes from the second part of the Court's judgement on claims to customary rights in the harbours, river mouths, beaches and seascape of the eastern Bay of Plenty.
The first judgement released in December 2024 addressed the meaning of section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), which sets out the test Māori groups must meet to have their customary rights recognised.
It also overturned a previous Court of Appeal decision in 2023 which made it easier to gain customary title.
This second judgement resolves the remaining seven issues on the seven separate appeals which were heard together.
All this as the government forges ahead with plans to amend the law in question over fears that the 2023 Court of Appeal decision could have made it significantly easier for Māori iwi, hapū and whānau to have their customary rights over parts of the coastline recognised.
Navigable rivers
In this case one of the orders for customary title included the confluence of the Waiōweka and Ōtara rivers near Opōtiki.
"Navigable river" in this case means a river of sufficient width and depth (whether at all times so or not) to be used for the purpose of navigation by boats, barges, punts, or rafts. The court accepted that the relevant portion of the rivers in question is navigable.
The definition of "marine and coastal area" in MACA includes the beds of rivers that are part of the coastal marine area as that term is defined in the Resource Management Act 1991.
The Attorney-General submitted that previous Acts of Parliament were intended to "vest the full beneficial ownership - akin to freehold title - in navigable riverbeds in the Crown."
The court found that previous Acts were not sufficiently clear to extinguish customary rights or title to the beds of navigable rivers.
The court concluded that "the beds of navigable rivers form part of the common marine and coastal area as defined in MACA, and recognition orders may extend to them".
The court found the impact of these findings on the CMT claims in the Eastern Bay of Plenty, particularly in relation to the confluence of the Waiōweka and Ōtara rivers, can be dealt with by the High Court.
Timeline
October 2023, just days after the 2023 General Election, a Court of Appeal decision made granting customary marine title easier
In November 2023, the coalition agreement between National and NZ First includes a commitment to overturn the Court of Appeal decision
September 2024, the Waitangi Tribunal recommends the Crown halt its efforts to amend the Takutai Moana Act
That same month the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is introduced to Parliament
December 2024, the first Supreme Court judgement overturns the Court of Appeal decision. The government hits pause on the amendment bill
August 2025, the government presses ahead with the law change.
