Over the last few years, Ātiawa ki Whakarongotai Charitable Trust has been progressing a Takutai Moana application on behalf of te iwi o Te Ātiawa ki Whakarongotai.
Led by Tīhema Baker, our Takutai Moana application is for the recognition of customary marine title (CMT) of the Kāpiti coastline from Kūkūtauākī in the north, to Whareroa in the south.
Recognition of customary marine title provides our iwi with a range of rights over this area, including:
- The right to veto resource consents
- The right to veto certain conservation activities
- The ability to apply for additional protections for wāhi tapu area
- Involvement in coastal policy planning
- Ownership of newly found taonga tūturu
- Ownership of non-Crown minerals
- The right to create a planning document of the CMT area that must be taken into account by a range of public bodies such as councils.
Customary marine title does not give us ownership or enable us to prevent public access to the Kāpiti coastline.
To gain recognition of customary marine title, iwi can either make an application to the High Court or engage directly with the Crown. We have prioritised the High Court pathway.
In May and June this year, a number of iwi members presented evidence on behalf of Te Ātiawa ki Whakarongotai at a High Court hearing. A second court hearing is set down for October or November 2024, where court-appointed pūkenga (tikanga experts) will present their evidence. We expect a determination about whether or not our CMT is recognised by the end of the year.
Government’s proposed changes to legislation
In July 2024, the Minister for Treaty of Waitangi Settlements, Paul Goldsmith, announced the Government’s intention to make changes to the Marine and Coastal Area (Takutai Moana) Act 2011.
While there are a number of proposed changes, the key point is that the Government intends to make the legal test to prove CMT harder to meet. Currently, applicants have to prove that they have exclusively held the takutai moana in accordance with their tikanga since 1840. The Government’s changes will mean that applicants have to instead prove that they have exclusively used and occupied the takutai moana, in the same way that property is used and occupied.
Further, the Government intends that these amendments will have retroactive effect to July 2024. Any determinations made between now and whenever the amendments are passed will be overturned, and applications will need to be reheard in accordance with the new legal test.
This means that if the amendments are passed into law, our Takutai Moana application will effectively be made redundant.
Even if our CMT is recognised, the retroactive effect of the amendments will overturn that decision. Our entire application will need to be reheard in a new hearing, along with every other applicant in that hearing. This includes our ART Confederation partners, Ngāti Raukawa and Ngāti Toa.
Te Arawhiti funding changes
The costs to participate in the High Court process are high. For this reason, we rely on funding from Te Arawhiti. All of our costs to date, including legal costs, research, and project management, have been covered by Te Arawhiti.
However, earlier this year, Te Arawhiti announced that funding for the 2024/25 financial year would be capped. The effect of this decision is that some of the costs to continue participating in the High Court process will need to be covered by the Trust.
This decision will significantly impact us if the Government’s proposed amendments are passed into law. Given the high costs to date, it is unlikely we would be able to participate in another hearing if it is not funded by Te Arawhiti.
The considerations we need to make given the proposed changes to legislation
We recognise that in order to implement the changes to legislation, the Government will be required to take the proposed changes to Select Committee and seek and consider public submissions.
This means that it is possible that the changes will be amended to better meet the feedback gained from the public. However, it is also possible that the Government ignores the feedback and continues with their proposed changes regardless.
As a result, the primary consideration we need to make is whether to continue with our Takutai Moana application at this time. Given Te Arawhiti has significantly reduced its funding for Takutai Moana applications, the financial burden to the iwi will be significant.
Tīhema, our legal team and the Board are still considering the options available to us at this time and we will update you in the near future.
It is important to note that when submissions about the proposed changes are sought to be heard at Select Committee, the Trust is committed to making a submission on behalf of the iwi.
Additionally, we encourage all our whānau to also make submissions to ensure that we have a strong voice in discussions around Takutai Moana.