• CASE
LAW COMMENTARY
Customary Marine Title and Protected Customary Rights Orders Mick Strack mick.strack@otago.ac.nz A recent High Court decision (Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025) has recognised Customary Marine Title (CMT) and Protected Customary Rights (PCR) claims from a group of whānau and hapū based around part of the Bay of Plenty coastline.
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his is something of a landmark
confirmed it. However, the Wi Parata
decision, and if it is supported
decision in 1877 led to Māori custom
by higher courts, it provides very
being denied for more than a century.
useful guidance to Māori claimant
The Crown had then assumed owner-
groups applying for customary rights
ship of the foreshore and seabed. The
to the seabed and foreshore – the
Ngāti Apa case turned that assumption
takutai moana. The case also further
on its head, but then the Foreshore
entrenches tikanga as a vital part of
and Seabed Act 2004, followed by
Aotearoa common law.
the Marine and Coastal Areas (Takutai
The lengthy decision details the developing inclusion of Māori
Moana) Act 2011 intervened. In the case AG v Ngāti Apa 2003, the
customary law (Kupe’s Law) into our
Court of Appeal accepted that Māori
English derived common law system.
customary title to the foreshore and
There is the clear acknowledgment
seabed may still exist if it has not
that Māori exercised mana motuhake
been explicitly extinguished by the
and tino rangatiratanga and held
Crown, and that the Māori Land Court
customary title to the whenua and the
is where any decisions about tikanga
takutai moana over all of Aotearoa
Māori and customary title should be
in 1840. The change in sovereignty
made. That case clarified that the
effected by te Tiriti o Waitangi did not
Crown had not acquired title to the
disturb Māori customary title, in fact it
foreshore and seabed from Māori
Issue 106 October 2021
