Hon. Paul Goldsmith - Minister for Treaty of Waitangi Negotiations - recently announced the Government’s intention to progress with changes to the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act) to amend the test for Customary Marine Title (CMT).

In this article we discuss the potential impacts of the amendments to the CMT test. In short, these amendments are set to apply retrospectively, appear to make the threshold for obtaining CMT much higher, and will impair the rights of iwi, hapū, and whānau who have applied under the MACA Act for recognition of their customary interests. 

The announcement follows Court of Appeal and Supreme Court decisions interpreting the test for CMT under s 58 of the MACA Act (see our previous article). This area of law continues to be contentious and subject to political debate. 

Current MACA landscape

Under the MACA Act, iwi, hapū and whānau can apply to the High Court for recognition of customary rights in the common marine and coastal area (takutai moana). One form of recognition is a CMT order, which requires the applicant to meet the section 58 test. 

On 24 September 2024, the Government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill (Amendment Bill) into the House. The Amendment Bill’s primary purpose is to overturn the Court of Appeal’s interpretation of the section 58 test for CMT in the Re Edwards proceedings. The Justice Committee examined the Amendment Bill and released its report on 3 December 2024. As part of that process, it recommended that the Amendment Bill be passed, subject to several amendments.

On the day that the Justice Committee reported back to the House on the Bill, the Supreme Court issued its judgment on the section 58 test. In Whakatōhea Kotahitanga Waka (Edwards) and Ors v Te Kāhui and Ors, the Supreme Court clarified the judiciary’s interpretation of that test.

While the Government viewed the Supreme Court decision as helpful, the decision did not fully reflect this Government’s vision for the MACA Act. It will therefore progress the Amendment Bill for the stated purpose of ensuring the section 58 tests are upheld as “originally intended”. Notably, this will be one of the only times that the Attorney-General has succeeded in the Supreme Court and then the Government has nonetheless carried out law reform. 

What will the Amendment Bill do if passed? 

The essential purpose of the Amendment Bill is to:

1. define key requirements for recognising CMT (namely, requirements for, and for proof of, exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption); and
2. alter aspects of the law relating to the existing provisions of, and related judgments made under, the MACA Act. 

Clause 59A outlines the changes, which include:

• Defining “exclusive use and occupation” of an area for the full applicable period.
• Requiring the claimant group to have both the intention and ability to control the area exclusively over that period, without substantive interruption.
• Defining what constitutes such a substantive interruption.
• Clarifying permissible inferences and the matters to which decision-makers must have particular regard in determining whether the group has had exclusive use and occupation of that area from the start to the end of the applicable period.
• Clarifying when CMT is extinguished, for example, by the vesting of title to part of the area.
• Specifying the proof required for CMT recognition.

The Amendment Bill takes an unprecedented approach by including provisions that expressly prevail over the purpose of the Act (s 4) and the Treaty of Waitangi provisions (s 7). Typically, the purpose of an Act and the Treaty of Waitangi (whether expressly or impliedly incorporated) would guide the proper interpretation of the balance of the statute. Making this amendment sends a clear message from Parliament that the amended CMT test provisions are to be read and applied strictly.

Transitional, savings, and related provisions - retrospective application? 

The Bill applies retrospectively from 25 July 2024. Any CMT orders granted between that date and the Bill’s enactment will have no legal effect and must be reheard under the new test.

Retrospective legislation is generally discouraged, including in section 12 of the Legislation Act 2019. Groups that received decisions confirming customary rights may rightly feel aggrieved that those decisions were lawful when they were made but will now be deemed to be unlawful. 

The Government considers this necessary to ensure all applications are determined using the same test, in line with earlier awards and the original intent of the MACA Act. This approach was chosen to reduce constitutional risks arising from overturning judicial decisions that had already granted CMT, such as in Re Edwards.

Application of the Bill

If passed, the Amendment Bill will apply to:

• all undetermined applications in either the Court or Crown engagement pathways; and
• all court decisions made in a MACA Act context after 25 July 2024. 

The Government has allocated up to $15 million to contribute to the costs of applicants whose applications will need to be re-heard. It intends to pass the legislation by the end of October 2025.

Get in touch

Please contact us if you have any questions about the Supreme Court’s decision or the Amendment Bill.

We also note that the Supreme Court has recently issued a second judgment in the Re Edwards proceedings. Further articles outlining the implications of that decision will be provided in due course.

Special thanks to Oscar Wilson for his assistance in preparing this article.