Justice Minister Paul Goldsmith Photo: RNZ / Samuel Rillstone
The government has confirmed plans to make it harder for Māori to prove customary claims on coastlines, but denies it will reopen the Foreshore and Seabed debate.
Those seeking Customary Marine Title will again need to prove they have had continuous exclusive use and ownership of the area since 1840, Justice Minister Paul Goldsmith says.
The move to amend section 58 of the Marine and Coastal Area Act was set out in the National-NZ First coalition agreement, "to make clear Parliament's original intent".
That 2011 Act superceded the contentious Foreshore and Seabed Act of 2004. Section 58 requires an applicant group to prove they have exclusively used and occupied an area from 1840 to the present day, without substantial interruption.
This allows claims for Customary Marine Title, which recognises iwi, hapū or whānau connection to a part of the marine and coastal area.
It cannot be sold and has no effect on public access, fishing or other recreational activities, but grants rights over resource consents, conservation, consultation rights over marine mammal watching and coastal policy, and ownership of various minerals and protected objects.
A judgment by the Court of Appeal last year found groups only needed to show they had enough control over the area that they could keep others from using it, and situations where the law itself had preventing them from doing so could be ignored.
Goldsmith said the government disagreed with the Court of Appeal's ruling, saying it had "materially reduced the threshold".
He said the government would introduce legislation to overturn the decision, "to ensure the wider public has confidence these tests are interpreted and applied consistently".
"What we're trying to do is balance the fact that all New Zealanders have an interest in what goes on on the coast and customary marine title, as I say, gives valuable rights to the holders of it. So it was always set as a high test - it's not an impossible test, it's a high test."
The nine cases that had already been decided in the courts - or had been decided and were under appeal - would remain unchanged, he said.
However, cases that were still live before the courts or were undetermined would need to meet the higher threshold set by the government's new legislation.
Goldsmith said the changes in the legislation would overturn the reasoning from the Re Edwards Court of Appeal case, and from all High Court since then that related to the test.
It would also define and clarify the terms "exclusive use and occupation" and "substantial interruption", require applicants to prove exclusive use and occupation from 1840 to the present day, and clarify sections of the law to "operate more in line with its literal wording".
He said the government did not believe it was reopening the debate over the foreshore and seabed, saying they were "simply seeking to restore" the test set down by the previous National government's introduction of the 2011 law.
The government was choosing to legislate the decision rather than take it to the Supreme Court because "we didn't want to wait the extra time, it could be many months before we get a decision there, meantime cases are being heard and made and it's our intention to do this more swiftly".
Goldsmith said the bill was being drafted to be introduced in mid-September.
