Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (Court of Appeal)
In 2003 the Court of Appeal surprised the government of the day by ruling that Māori might be able to show customary ownership of areas of te takutai moana and that the Māori Land Court had the power to consider this question and then recognise that ownership. The government responded with the Foreshore and Seabed Act 2004 – this gave the government (“the Crown”) legal ownership of the foreshore and seabed, and extinguished (cancelled) any customary rights that Māori might have, including the ability to have ownership claims to the foreshore and seabed investigated.
After widespread protest from Māori, and criticism from the Waitangi Tribunal and the Human Rights Commission, the Foreshore and Seabed Act was abolished and replaced with Te Takutai Moana Act in 2011. The new Act restored the possibility of customary title in the marine and coastal area, and gave Māori some scope to gain recognition of their customary interests, if they took their claim to the government or the courts by April 2017 (see below, “Pathways for recognition of customary rights in te takutai moana”).
Te Takutai Moana Act 2011, ss 6, 9(1), 11
Te Takutai Moana Act deals with an area it calls the “common marine and coastal area” – this means the marine and coastal area except for existing Māori freehold land and other areas privately owned by New Zealanders, and except for conservation areas, national parks and public reserves. The Act abolished the ownership rights of government (both central and local) in this common marine and coastal area. It instead gave the area a “special” legal status, so that in general it’s incapable of being owned by anyone.
Many Māori are still unhappy with the new Act, and believe that the real effect of the Act is little different from the earlier Foreshore and Seabed Act.
Te Takutai Moana Act 2011, s 12
Note: The areas that Te Takutai Moana Act applies to are those parts of the coastal and marine area that aren’t currently owned by anyone (they’re called the “common coastal and marine area”). In general the Act says that there can’t be any new owners for those currently unowned areas. However, the government can still take parts of the common coastal and marine area and make them conservation areas, national parks or public reserves. Those areas would then be Crown land.