Marine and Coastal Area (Takutai Moana) Act 2011 – recognition orders – customary marine title – protected customary rights – concept of shared exclusivity – difficulties encountered in drafting recognition orders – lack of formalised guidance – unable to comply with timetabling directions – further case management conference in eight months – preference for parties to come to agreement
Re Edwards (Te Whakatōhea Stage 2) No. 8 [2023] NZHC 1618 per Churchman J.
On 7 May 2021, the High Court issued the landmark judgment Re Edwards (Whakatohea) (No 2) [2021] NZHC 1023.
In this decision, the court granted recognition orders for customary marine title and protected customary rights to a number of applicant groups in the eastern Bay of Plenty, under the Marine and Coastal Area (Takutai Moana) Act 2011.
With respect to the “exclusive use and occupation” requirement in the Act, the court recognised the “concept of shared exclusivity” could be applied in the circumstances to allow for a single customary marine title order over the claimed area, shared between more than one applicant. Following the judgment, successful applicants were directed to draft recognition orders for finalisation.
The task proved difficult. Since 7 May 2021, all successful applicants reported problems in finalising the recognition orders. While multiple case management conferences have been held, meaningful progress remained limited.
In the latest decision, Churchman J traversed several draft recognition orders filed by seven different successful applicant groups and identified some common themes in terms of the impediments to the finalisation of the orders:
- longstanding delays in respect of preparation of accurate survey maps;
- applicant groups awarded joint customary marine title are unable to agree on matters such as wahi tapu sites and protections required for them;
- size of the areas involved;
- lack of formalised guidance from the Surveyor-General; and
- draft protected customary right orders that are inconsistent with an earlier finding or direction of the court.
Outcome: Churchman J provisionally scheduled a further case management conference eight months from the release of this decision, noting his anticipation that, at that time, the recognition orders could be finalised.
The judge also noted the “preference that prior to next CMC, the parties would have engaged kanohi ki te kanohi in accordance with tikanga to try and come to an agreement on who the holders of the relevant joint [customary marine title] order will be”.
Author’s comment: Having worked on Marine and Coastal Area Act litigation for the best part of a year, my view is that this decision highlights the practical difficulties encountered when trying to enforce concepts such as “shared exclusivity” and “overlapping interests”.
While these concepts are functional and supported by a long line of (mostly Canadian) jurisprudence, in practice it relies ultimately on parties being able to reach a consensus.
From the outset, litigation under the Takutai Moana Act has relied heavily on parties dialoguing and trying to agree on as much as possible – almost engaging in a dispute resolution process before coming to the court.
This is understandable, given the complexities of the issues faced and the sheer number of applicants. Whether it continues to be practicable within objective time and resource constraints, however, remains to be seen.
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