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On Tuesday 30 June 2020, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report in pre-publication format.

The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Marine and Coastal Area (Takutai Moana) Act's alleged impacts on Māori.

The Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004. Under the Marine and Coastal Area (Takutai Moana) Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. Two application pathways are provided: Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They can also choose to do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal’s report concludes stage 1 of a two-part inquiry. The first stage has considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act are Treaty-compliant and prejudicially affect Māori. The Tribunal received 92 claims for the inquiry, and a further 75 parties were granted interested party status. Hearings were held from 25 March 2019 to 2 August 2019 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins. Stage 2 of the inquiry will examine whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

In its report, the Tribunal found that the Crown did act reasonably, in good faith, and consistently with its Treaty obligations in implementing some aspects of the Act’s supporting regime. The Tribunal was also encouraged to hear that the Crown would be conducting a comprehensive review of the funding regime, with input from applicants.

Notwithstanding these positive signs however, the Tribunal found that many aspects of the Act’s supporting procedural and resourcing arrangements fell well short of Treaty-compliance and cause Māori significant and ongoing prejudice.

The Tribunal therefore recommended that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. Further recommendations included,urgently addressing a policy vacuum that continued to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways and addressing funding arrangements for claimants.

The report concludes by noting that Māori would continue to be prejudiced until the Crown took steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.