The Waitangi Tribunal has found the way the Crown is managing claims under the Marine and Coastal Area (Takutai Moana) Act is in breach of the Treaty of Waitangi and prejudicially affects Māori.
The legislation replaced the controversial Foreshore and Seabed Act in 2011.
It allows Māori to gain legal recognition of their customary rights in the marine and coastal area, which includes the high tide mark on a beach and the seabed 12 nautical miles out.
Under the Act, Māori had until April 2017 to engage directly with the Crown, or apply to the high court to have their customary interests recognised under the law. Applicants could opt for both application pathways if they wished.
The Tribunal found the Act is in breach of the treaty because it:
- Failed to provide adequate and timely information about the Crown engagement pathway for applicants.
- Failed to put in place adequate policies to ensure that the high court pathway and the Crown engagement pathway could operate cohesively.
- Breached the Treaty of Waitangi by not funding all reasonable costs incurred by the applicant.
- Failed to actively support efforts to resolve overlapping interests in the marine and coastal area, enable timely access to funding for applicants in the Crown engagement pathway, and fund judicial reviews for Crown engagement applicants.
The Tribunal recommends that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles.
It asked the Crown to:
- Urgently address the lack of cohesion between the two application pathways.
- Consider the Legal Aid scheme to make applications affordable.
- Improve the Crown’s support for applicants seeking to resolve overlapping interests.
The Tribunal has suggested that the Crown provides applicants with funding and administrative support, access to facilitators and mediators, and access to Tikanga-based resolution processes.
Part two of the Tribunal’s inquiry will look into the substance of the Act itself.
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