Govt to Restore Parliament’s Customary Marine Title Test Amid Legal Challenges

The New Zealand Government has announced it will proceed with legislation designed to restore Parliament’s original test for granting Customary Marine Title (CMT), reinforcing the high standards established in the Marine and Coastal Area (Takutai Moana) Act 2011. Treaty Negotiations Minister Paul Goldsmith confirmed that the move follows extensive legal developments and careful governmental consideration, aiming to balance the recognition of Māori customary rights with the protection of broader public interests in coastal waters.

Legal Context and Government Response

In recent years, the legal framework surrounding Customary Marine Title has faced significant scrutiny. Last year, the Government introduced legislation to overturn the Court of Appeal’s ruling in Re Edwards, which it considered inconsistent with Parliament’s original intent. That legislation sought to amend the Marine and Coastal Area Act by reinstating the stringent test Parliament established in 2011 for recognizing customary marine rights.

However, the Supreme Court later ruled that the Court of Appeal’s decision was flawed, validating the Government’s concerns but also signaling that more comprehensive legislative action was necessary. Minister Goldsmith stated, “The Supreme Court’s determination was helpful, but after appropriate consideration, the Government has decided it doesn’t go far enough.”

The Proposed Legislation: Reaffirming High Standards

The Government’s current Bill, already before the House, is intended to uphold the original test for applications for Customary Marine Title, whether pursued directly with the Crown or through the Courts. This ensures a consistent legal threshold for applicants seeking formal recognition of customary rights over marine and coastal areas.

Customary Marine Title is significant because it grants holders critical rights. These include the ability to refuse resource consents within the area—such as renewals of private assets like wharves or expansions of aquaculture operations. This control underscores the importance of the title and the necessity of maintaining rigorous criteria before such rights are granted.

Protecting the Interests of All New Zealanders

The Marine and Coastal Area Act 2011 was designed to legally recognize Māori customary rights while safeguarding the interests of all New Zealanders in coastal waters. Parliament deliberately set a high evidentiary bar for CMT to ensure that the granting of such rights is carefully controlled and balanced against national interests.

Minister Goldsmith emphasized, “All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test before Customary Marine Title could be granted.” The Government’s move to restore this test aligns with a commitment made in the National/NZ First coalition agreement to amend section 58 of the Act and clarify Parliament’s original intentions.

Impact on Current and Future Applications

If the legislation passes, it will have retrospective effect, applying to any court decisions made since the Government announced its policy on 25 July 2024, as well as all pending applications under either the Court or Crown engagement pathways. This means that applications which have not yet been determined will be reassessed under the reinstated test.

Recognizing that some applicants will face additional legal and procedural costs due to the re-hearing of their claims, the Government has allocated up to $15 million in additional funding to assist these applicants.

Timeline and Outlook

The Government intends to pass this legislation by the end of October 2025, signaling a firm commitment to uphold a legislative framework that carefully balances the recognition of Māori customary rights with the broader public interest in New Zealand’s marine and coastal areas.

By reinforcing the original standards for Customary Marine Title, the Government aims to provide clarity and certainty in a complex and sensitive area of law that touches on indigenous rights, resource management, and national heritage.