The goverment is “creating the illusion of a threat to justify passing legislation,” writes lawyer Toni Talamaivao, pictured here third from right with Ngātiwai, after giving evidence in the Wai 3400 MACA Urgent Inquiry hearings last year. (Photo supplied)

The government’s plan to re-write Takutai Moana law and apply it retrospectively is dangerous and constitutionally inappropriate, writes Toni Talamaivao.

The government’s proposed changes to the Marine and Coastal Area (Takutai Moana) Act 2011 — the MACA Act — represent a serious step backwards for Māori rights, for constitutional integrity, and for the relationship between the Crown and tangata whenua.

Earlier this week, the government confirmed it would proceed with the MACA Amendment Bill, which it plans to pass by October this year. The Minister for Treaty of Waitangi Negotiations, Paul Goldsmith, who is fronting the bill, says it will ensure that “the tests for applications are upheld as originally intended”.

It’s important to be clear about what this means.

The MACA Act was passed in 2011 to replace the discredited Foreshore and Seabed Act 2004, which had attempted to extinguish Māori customary rights in the marine and coastal area and triggered nationwide protests. While imperfect, the MACA Act provided iwi, hapū and whānau with a legal pathway to seek recognition of their existing rights through the courts or direct engagement with the Crown. Māori engaged with the process in good faith. Applications were made, and after years of delay, court hearings finally began.

Now, with the MACA Amendment Bill, the government is attempting to change the rules halfway through the game. It raises the threshold for recognition, making it significantly harder for Māori to succeed, despite having already invested enormous time and resources into these cases.

The Waitangi Tribunal found the bill to be a “gross breach” of Te Tiriti and said it would “significantly endanger the Māori-Crown relationship”.

Natalie Coates, co-president of Te Hunga Rōia Māori o Aotearoa (the Māori Law Society), described the bill as “akin to a scorched earth policy in relation to Māori rights and interests.”

Worse, the bill applies retrospectively. Any MACA court decision issued since July 24, 2024, will be invalidated and must be reheard. This includes several hearings held last year, some running for up to 12 weeks. All that effort, expense and emotional toll may now count for little.

Retrospective lawmaking is constitutionally dangerous and generally only permitted in exceptional circumstances. It undermines a core principle of the rule of law, which is that people are entitled to know what the law is at the time their rights are being decided. Changing the law after the fact, because the government doesn’t like the outcome, undermines the principles of legal certainty and fairness.

It also breaches the fundamental principle of the separation of powers. Parliament makes the law, and the courts interpret and apply it. Here, the courts have interpreted the MACA Act in a way that the government disagrees with, so it’s now trying to rewrite the law. That is constitutionally inappropriate.

The New Zealand Law Society has warned that the bill raises serious rule of law concerns and undermines the constitutional balance between branches of government. These are foundational principles of our legal system. They are the core concepts taught to every first-year law student. To violate them is to disregard the most basic safeguards of a functioning democracy.

Despite these red flags, I find the most troubling part of the bill is the way the government is trying to justify it.

Prime Minister Christopher Luxon said the purpose is to “restore the law to what Parliament originally intended.” Paul Goldsmith has claimed that the courts have strayed from MACA’s purpose and that the bill is needed to bring it back in line.

That is not true.

Chris Finlayson, the former Attorney-General who oversaw the passing of the MACA Act, put it bluntly in an interview with RNZ:

“These amendments do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all.”

If anyone is qualified to speak to parliament’s original intent, it’s Chris Finlayson.

Even the Supreme Court, in its landmark MACA case Re Edwards (partially decided in December 2024), made it clear that the purpose of the MACA Act is to recognise and reconcile competing interests in the marine and coastal area. The court directed that judges must interpret the law through a Treaty-consistent lens, one that is slow to conclude that coexistence between Māori and public interests is not possible.

Yet, the government said the Supreme Court’s ruling in Re Edwards “lacked clarity around Parliament’s intent”.

It seems the only “intention” this government is concerned with is its own. We are now asked to believe that the government understands the law better than the country’s highest court, and the minister who helped to write it.

Either the government possesses insight no one else in the country has, or it’s hiding behind a political agenda and hoping the public doesn’t notice.

Another misleading justification is that the bill is needed to “protect the rights of all New Zealanders”. But the problem is, the MACA Act already does that.

Anyone who has read the MACA Act or worked in this space knows that it explicitly protects public access to the marine and coastal area. Customary marine title cannot override public rights, private ownership, or existing resource consents. There is no threat to swimming, fishing, walking on the beach or doing other everyday activities.

Someone needs to explain that to the people in Hobson’s Pledge.

That is why the government’s messaging is so dangerous. They are creating the illusion of a threat to justify passing legislation that would make it incredibly difficult for Māori to have their existing rights recognised.

I have spent significant time in both MACA court hearings and the Waitangi Tribunal proceedings on these issues. I’ve seen firsthand how much work Māori all over the motu have put into this process.

These are rights that our people already hold. The only reason they are in court is because this Pākehā legal system refuses to acknowledge them without proof that soon will become even harder to show. This bill tramples on all that effort. And it especially dishonours those who have passed on without ever seeing the fruits of their labour.

This bill will torch the already fragile Māori–Crown relationship, undo two decades of progress on customary rights, and serve as yet another example of this government prioritising its own political agenda over the rights and interests of Māori.

If the government insists on proceeding, I believe it will face serious and growing resistance. As Matua Aperahama Kerepeti-Edwards, chair of my own Iwi Ngātiwai, said this week:

“We will not accept it. We will rise to meet this challenge with whatever means is required . . . we will take direct action.”

This is not only about the recognition of customary marine title. It raises broader questions about how this government honours Te Tiriti, engages with Māori, and upholds the integrity of our constitutional arrangements.

If legislation can be rewritten to suit political preferences, despite expert warnings and judicial guidance, then we should all be concerned.

Toni Talamaiovao. (Photo supplied)

Toni Talamaivao is a senior solicitor at Dixon and Co Lawyers, specialising in Māori legal issues, and refugee and immigration law. She has whakapapa to Ngātiwai and Fagaloa in Samoa, and was born and raised in West Auckland.

E-Tangata, 2025