The Marine and Coastal Area Act 2011

Abstract

The passing of the Marine and Coastal Area (Takutai Moana) Act (“MCAA”) by Parliament on 24 March 2011 establishes a new regime for recognition of customary rights and title over the foreshore and seabed. A Court of Appeal finding that the Maori Land Court had jurisdiction to determine claims of customary ownership of the foreshore and seabed in Ngati Apa v Attorney-General [2003] 3 NZLR 643 led to the previous Government’s enactment of the Foreshore and Seabed Act 2004 (“FSA”). The FSA removed the ability of Maori to seek recognition of their customary or aboriginal title and vested beneficial ownership of the foreshore and seabed in the Crown, but allowed existing freehold title to remain. The perceived elimination of customary title under the FSA led to the creation of the Maori Party, and adverse reports by The Waitangi Tribunal (WAI 1071) and a United Nations Special Rapporteur (E/CN.4/2006/78/Add.3, 13 March 2006). Despite the criticism of the FSA it is worth noting that many of the provisions found under the MCAA are based on those found in the earlier enactment. This article provides some comparison of the MCAA with the FSA. The principal intention of the article, however, is to describe and comment on the key components of the new legislation, particularly those that effect decision making under the Resource Management Act 1991 (“RMA”).