The Courts have ruled the Crown must cover the costs of customary marine title claims, but where will the money come from?

This story has been updated to correct inaccuracies about the funding arrangements under the Marine and Coastal Area (Takutai Moana) Act. Funding was not “uncapped” as previously reported.

A landmark Supreme Court ruling could once again ensure Māori have adequate resourcing to pursue customary marine title claims, despite the government’s recent drastic raising of the threshold and lowering of available funds for claimants.

The crux of the decision isn’t about setting a blanket precedent for future advance funding claims, but rather ensuring fairness in the current case due to the Crown’s prior funding commitments and the proposed funding changes mid-appeal. However, with the Supreme Court ruling in favour of Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea, it could still set off a wave of prospective costs order (PCO) applications, potentially straining the already embattled Te Arawhiti – The Office for Māori-Crown Relations. 

How we got here

The controversial Foreshore and Seabed Act was passed in November 2005. Following the 2008 election, the National party entered negotiations with Te Paati Māori about reviewing the Foreshore and Seabed Act. In 2011, the Foreshore and Seabed Act was replaced by the Marine and Coastal Area (Takutai Moana) Act 2011, which said no one owned the foreshore or seabed and once again gave Māori the right to attempt to claim customary title.

In 2013, the Takutai Moana Financial Assistance Scheme was established to help Māori pursue Customary Marine Title (CMT) and protected customary rights (PCR) claims. It was a critical lifeline for claimants who could generally not afford the high legal costs associated with such lengthy and specialised claims. Upper funding limits for High Court applications under the scheme ranged from $156,750 to $316,750 to partially cover court costs, legal services, and preparatory expenses.

In June 2020, the Waitangi Tribunal found that the Crown’s partial funding of claimant costs breached its duty of active protection under te Tiriti o Waitangi. It recommended full, flexible, and timely funding as essential for a Treaty-compliant regime. During the eight-week High Court hearing for the Whakatōhea claims later that year, the funding provided proved insufficient, prompting the Crown to consider covering the applicants’ actual and reasonable costs.

However, a budget overhaul in 2022 capped the Crown’s court cost contributions for the 2024/2025 financial year at $140,000 per applicant for substantive hearings, $25,000 for follow-up hearings, and $30,000 for appeals.

A blow to Māori rights

Many Māori applicants felt blindsided by the funding changes. In 2020, the Waitangi Tribunal found that the Crown’s initial partial funding of CMT and PCR claims breached its Treaty obligations. It concluded that full, flexible, and timely Crown funding was essential for a Treaty-compliant regime. However, with Te Arawhiti struggling to keep up with demand, the path forward remains uncertain.

Applicants like Hūhana Lyndon, a Green Party MP and a claimant for her hapū, feared they may be waiting decades for their day in court, noting that due to the current financial constraints upon the hearings process, their whānau and trust claim will not be heard until 2050, underscoring the urgency of the crisis.

While applicants like Te Kāhui have chosen to seek PCOs to secure funding, the court found that alternative options are also available, such as a judicial review. This option would have involved challenging the funding decisions of Te Arawhiti directly in the High Court, potentially alleging that the agency’s budgetary cuts violated Māori rights under te Tiriti o Waitangi. However, the time-sensitive nature of the litigation may have driven applicants toward the PCO route as a more immediate solution.

A watershed moment

The Supreme Court’s unanimous decision to grant a PCO to Te Kāhui, which includes four hapū appealing the decision around changes to recognition of CMT and PCR, sets a major precedent. By covering the applicants’ legal costs before the case’s merits are even determined, the Court found that in exceptional cases of public interest, the Crown must fund applicants to ensure fairness.

The decision now potentially opens the door for other iwi and hapū to seek similar financial support, potentially creating a floodgate of applications for PCOs with similar applications.

With over 200 claims pending under the Act, many applicants will likely feel empowered to argue that the Crown’s current funding arrangement is insufficient. The ruling states PCOs can be awarded where an applicant’s case is of significant public importance, seriously arguable, and they lack the means to fund their legal representation. Hundreds of current applications and subsequent appeals may satisfy these criteria and future applicants could argue that the Te Kāhui case sets a precedent for requiring the Crown to maintain a level of financial support to avoid disadvantaging claimants, especially in public-interest cases like those involving MACA claims. However, the Court made it clear that the specific facts of this case – particularly the timing of the Crown’s change in funding and the importance of the case as the first MACA appeal – were key factors in its decision.

A government department under pressure

The Court’s ruling requires the Crown to fund $105,000 in legal costs for the group’s application for CMT under the Marine and Coastal Areas (Takutai Moana) Act 2011. While the decision could have positive effects for hundreds of pending marine title claims, it also threatens to overwhelm the funding capacity of Te Arawhiti and complicate Māori access to justice.

Te Arawhiti, the government agency responsible for managing these claims, is already facing a pending restructure and severe funding crisis. Since then, the strain on the system has escalated dramatically. Te Arawhiti’s chief executive, Lil Anderson, revealed that the agency had faced an “unprecedented” surge in funding requests jumping from 30 inquiries a month to 30 a week. With demand outpacing the available funds, the agency was forced to cap next year’s funding at $12 million, a significant drop from the $30 million needed to cover this year’s costs.

Anderson acknowledged the severity of the crisis, stating that Te Arawhiti could no longer commit to paying for hearings already scheduled in the High Court for 2025. Claimants, like Ngāti Ruanui, have expressed frustration, arguing that the funding freeze of the Takutai Moana Financial Assistance Scheme effectively removed Māori rights by making it financially impossible to continue legal battles for customary marine rights.

Show me the money

The Supreme Court’s ruling not only requires the Crown to fund the case of Te Kāhui but also sets a critical precedent that other claimants could leverage. With more applicants likely to seek PCOs to offset their legal costs, the limited resources of Te Arawhiti will likely come under even greater strain.

Lawyers representing applicants have already sounded the alarm, with some owed between $45,000 and $100,000 for unpaid legal services. The  financial woes of Te Arawhiti have left both claimants and their legal teams scrambling, with the government agreeing to a one-off payment of $17 million to clear debts but uncertainty looming over next year’s budget.

Paul Goldsmith, minister for treaty negotiations, stated cabinet has no plans to fund the assistance scheme at the same level going forward, calling the current expenditure “unsustainable.” However, with the Court’s decision and claimants continuing to demand justice, the government faces mounting pressure to find a solution that doesn’t undermine Māori rights.

The Supreme Court’s decision could be a game-changer for Māori claimants seeking justice under the Takutai Moana Act. While Te Kāhui has won an essential victory, the broader implications for the funding capacity of Te Arawhiti – and the Crown’s responsibilities under te Tiriti o Waitangi – are now under the spotlight. With more claimants likely to pursue PCOs, the government may be forced to revisit how it funds and supports these critical legal battles. Whether it can meet the rising demand for justice while balancing its strained resources remains an open and urgent question.

This is Public Interest Journalism funded by NZ On Air.