In 2004, over twenty thousand people marched from the tip of Te Tai Tokerau to Parliament in protest of the Labour government’s decision to extinguish Māori customary property in the foreshore and seabed. Tariana Turei crossed the floor in response, forming Te Pāti Māori, which toppled the Labour government in the next election. Twenty years later, the National government wants to steal the foreshore from Māori again.

Customary property is property owned by indigenous people from time immemorial to today. This connection to the land is recognised with a grant of title. In 2003 the Court of Appeal considered Māori may have customary property remaining in the foreshore and seabed. The Labour government promptly passed legislation extinguishing all customary rights and interests in the foreshore and seabed. In 2023, the Court of Appeal considered Māori could have customary property in the foreshore and seabed. Now, National plan to overturn the Court decision again.

In 2003, getting customary property recognised would be difficult and expensive. It would have to be done through the Courts, individual title by individual title. It would be a high bar to reach, and would likely only have resulted in small pockets of customary property around the country. Even then, it was possible that this property would not be owned exclusively.

Still, the narrative ran: They’re coming to take your beaches. Billboards were plastered across the country saying “iwi vs kiwi”. No matter that any recognition of customary property was in legal infancy, with hundreds of potential outcomes. Untethered from reality, the biggest confiscation of land in a century took place with the stamp of the Governor General’s seal. The foreshore and seabed belonged to the Crown. Take raupatu.

This time, however, it is not personal. No-one can lie and say your bach is at stake. This time, it’s even more clear: the government wants to usurp Māori control over the foreshore and seabed to open the moana for wealthy interests.

In 2011, the National and Māori party government passed the Marine and Coastal Area (Takutai Moana) Act. This Act was a political compromise between the unlikely bedfellows. A confidence and supply agreement promised the Foreshore and Seabed Act would be overturned. The takutai moana now belonged to nobody. But, the Act provided a legislative test for the recognition of something called “customary marine title.” To get customary marine title an iwi, hapū or whānau had to show they exclusively used and occupied the foreshore and seabed in accordance with tikanga since 1840 without substantial interruption.

This test was intended to mimic what would’ve played out in 2003. However, customary marine title (CMT) is unique. It is closer to a bundle of rights than a grant of traditional property. Public access would be guaranteed. Successful groups would obtain the ability to veto a resource consent, to make a planning document for local government to have regard to, and wāhi tapu rights to exclude persons over sacred ground and other process-rights.

Here is the problem: What does exclusively used and occupied the foreshore and seabed since 1840 require of applicant groups? Were iwi, hapū or whānau supposed to occupy a floating kāinga, protected to the exclusion of others by a naval base, since 1840 to today? Would you have to prove more than what you got under title - exclusion of all others - for the ability to veto a resource consent?

The Court of Appeal considered that proving occupation to the exclusion of all others wasn’t in line with what Parliament intended. The use and occupation also had to be in accordance with tikanga - which provides for manaakitanga, as shown by Māori to early settlers by sharing their resources with the hapless English. It would be cruel if showing this kindness to Pākehā meant you lost your customary interests. It would be crueller still if you lost this property because early settlers threw away the manaakitanga shown to them to steal land and power.

*Ōhiwa harbour, part of the rohe in the Court of Appeal case Credit: NZ Geographic*

The Court of Appeal formulated a test grounded in reality. Hapū had to show that they had control over and occupied the area in 1840. Then, they had to demonstrate they still had use and occupation today. Hapū would have to show contemporary manifestations of control, through the lawful means that exist (for example, taua are now unlawful). If this occupation and use was largely continuous since 1840, you would get CMT. Any substantial interruption had to be something lawful. Tikanga coloured all parts of the test.

In the leading case, a group was able to gain CMT through showing they had lived beside, with and off their moana for centuries. They practiced kaitiakitanga with beach clean ups, monitoring of pīpī, running a Resource Management Team, kura kaupapa trips in the summer, and protesting to protect their moana. They demonstrated tikanga such as naming places, wāhi tapu, karakia and maramataka. They had continuous occupation - with pā on the hill overlooking the coast that could be dated back centuries, and marae overlooking the harbour. They were able to have a say over their rohe moana.

Codifying kaitiakitanga through the force of law is extremely necessary. One sad example is Pūtiki Bay, where developers wanted to build a luxury berth for mega yachts right over the top of kōrora nests. These little blue penguins are no match for big noisy construction. Protectors swam and kayaked around the construction zone in a bid to stop the works. They were beaten by security guards and arrested by forty policemen. The Court found them guilty of trespassing in their own ancestral moana. With customary marine title, mana whenua could have declined the resource consent in the first place.

Now the National government has again floated legislation to explicitly overturn the reasoning of the Court of Appeal. The amendments will change the test for customary marine title, making it significantly harder for hapū to obtain.

But why? In 2003, the line was iwi vs kiwi. That the general public, somehow always excluding Māori, would be denied access to the beach. That colonial fiction was untrue then. It is even less true now. In 2024, the public are guaranteed access to the beaches even if customary marine title is granted. Customary marine title gives hapū Māori more of a say over the coastline. It falls significantly short of actual property. That was the political compromise.

More protection over the moana is something all New Zealanders should be able to get behind. We love nature. Allowing hapū Māori more control over the coastline provides another layer of protection over the moana. Hapū Māori aren’t elected once every three years from the pockets of wealthy donors. Hapū Māori have a long enduring connection with the takutai moana - as a source of food, spiritual connection, as a tipuna. And even racist Pākehā love the beach. Noone wants to see the moana desecrated for profit.

This government knows that hapū having a say over their takutai moana will protect it against these industries who want to pillage and destroy for profit. They know that because of years of colonial impunity, racism means Māori property rights can be usurped. Ergo: with a quick legislative sweep and no compensation, Māori property rights in the foreshore and seabed are once again as good as extinguished. The coast will remain unprotected from vulturous companies polluting the moana for profit. It’s not iwi vs kiwi; it’s kaitiaki vs killing the oceans. People vs profit.

*Māori greenpeace activists confront mining ship Picture: Martin Katz*

This government might be using the language of restoration but it is clear the task is confiscation. Those stealing the beach are the rich who lock it away behind their gates, drill and overfish the seabed and kill dolphins in mega yachts. None of us can live if the oceans die. Get on the right side. Fight for iwi Māori to get the beaches back.

Lucy Birds is a Marxist feminist based in Tāmaki Makaurau who says land back

Foreshore? We've been here before!