Govt Proposes Legislation to Amend Marine and Coastal Area Act After Court of Appeal Ruling

Treaty Negotiations Minister Paul Goldsmith announced this move, expressing concerns about the Court’s ruling in Re Edwards, which he believes reduced the threshold for granting CMT.

The Government is advancing legislation to amend the Marine and Coastal Area Act, aiming to overturn a recent Court of Appeal decision that altered the test for Customary Marine Title (CMT). Treaty Negotiations Minister Paul Goldsmith announced this move, expressing concerns about the Court’s ruling in Re Edwards, which he believes reduced the threshold for granting CMT.

Under the current Act, Section 58 required applicant groups to demonstrate exclusive use and occupation of a marine area from 1840 to the present day, without substantial interruption. The Re Edwards decision modified this requirement, prompting the Government to seek legislation to restore the original standards set by Parliament in 2011.

“Customary Marine Title confers significant rights, such as the ability to refuse resource consents for activities like wharf renewals or aquaculture expansion,” said Goldsmith. “To maintain public confidence in these tests, the Government believes the higher threshold established by Parliament should be reinstated.”

The proposed amendments include:

A declaratory statement to counteract the reasoning of the Court of Appeal and High Court decisions in Re Edwards and subsequent cases related to the CMT test.

Revised language in Section 58 to clearly define ‘exclusive use and occupation’ and ‘substantial interruption’.

Clarification in Section 106 on the burden of proof, requiring proof of exclusive use and occupation from 1840 to the present.

A clearer connection between the Act’s framing sections and Section 58 to ensure the latter operates as intended.

The amendments are proposed to apply from the date of enactment, affecting all undetermined applications as of that date. Existing CMT decisions will remain in effect, but any new judgments post-enactment will be subject to the clarified test.

Goldsmith stated that the Bill’s drafting is underway, with Cabinet expected to review it for introduction in mid-September. The Government aims to balance the recognition of Māori customary rights with the interests of all New Zealanders in the marine and coastal areas.