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Steve has spent the last 45 years building a life he was proud of—raising a family, growing his business, and working hard every step of the way. But now, for the first time in decades, he was thinking about something new: retirement.

 

The thought was both exciting and overwhelming. Should he downsize to a smaller home? Maybe move into a retirement village? What about his Will—did he have one and if so, was it up to date? And who would make decisions for him if one day he couldn’t?

 

That’s when Steve decided it was time to talk to someone who understood the journey ahead—someone who specialised in elder law.

 

At Edmonds Judd, Steve found the guidance he needed. The team took the time to sit down with him, listen to his concerns, and explain everything. This helped Steve put a clear, confident plan in place—updating his Will, setting up Enduring Powers of Attorney, and walking through the legal details of retirement village living. Most importantly, they made sure Steve’s wishes—and his family—were protected.

 

Steve created an estate plan that matched his life now—not the one he had twenty years ago. Steve knew that his family would be protected, and that his wishes would be carried out no matter what the future held.

 

He learned that retirement planning wasn’t just about money—it was about peace of mind.

 

“It’s not just legal paperwork,” Steve told his children Luke and Sally one evening, “It’s making sure you’re all taken care of, no matter what.”

 

Thanks to Edmonds Judd, Steve now looks forward to his next chapter in his life with confidence and clarity.

Rachael Beattie


Over the fence

Employer obligations: mental health

As an employer, you have a duty of care for both the physical and mental health of your employees’ health.

Health and Safety at Work Act 2015 (HSWA): Under the HSWA, you have an obligation to minimise the stress and mental health impacts that arise from within your workplace. This includes monitoring increased workloads to ensure your employees are not overexerted and stressed, investigating any bullying claims and ensuring a safe working environment.

Employeesrights: Your employees are not obliged to disclose a mental health condition unless it will directly impact their ability to safely perform their role. If you ask about a mental illness that directly impacts their ability to perform their role safely, they must tell the truth. There is a risk of disciplinary action if they do not provide you with the correct information.

You cannot discriminate against any employee (or potential employee) if they have a mental illness. These discriminations could be:

  • Not offering a job due to their disclosed mental illness
  • Not promoting as a consequence of their mental illness, or
  • Providing less favourable terms of employment as a result of their mental illness.

Employee action for perceived discrimination: If your employee believes they are being discriminated against, they may wish to discuss this with you to try and resolve the matter. If this is not successful or not appropriate, they can seek support from the Employment Mediation Services, raise a personal grievance or make a complaint to the Human Rights Commission.

What can employers do? You can help to facilitate a positive working environment and take steps to protect your employees by:

  • Providing support if a traumatic work event occurs
  • Offering flexible working environments including hours/days worked and the location for work to be completed by, for example, using other machines
  • Allowing time off to attend appointments
  • Providing resources such as counselling, work mentoring or stress management courses, and
  • Changing your employee’s duties.

It is important that you talk with your employees and take necessary steps to support them the same way you should protect their physical wellbeing.


Firearms reform 2025

Government considers current legislation to be outdated and overly complicated

The government is currently undertaking a comprehensive reform of our firearms laws; it aims to modernise the Arms Act 1983 which it considers to be outdated and overly complicated. The overhaul is the fourth phase of a commitment to reform the firearms regulatory system following on from three previous phases implemented after the 2019 Christchurch mosque shooting.

Public consultation on the proposed changes took place earlier this year.

 

Proposed changes

Key proposals include:

  • Rewriting the Arms Act 1983 entirely to create a more coherent and effective legislative framework that balances public safety with the rights of lawful firearms users
  • Strengthening Firearms Prohibition Orders, expanding the criteria and allowing the courts to impose Orders on gang members and associates convicted of drug, firearms or violent offences
  • Reviewing the Firearms Registry to assess its effectiveness and identify areas for improvement. The government aims to ensure it is promoting public safety without imposing unnecessary burdens on lawful firearms owners
  • Transferring the Firearms Safety Authority (to be renamed the Firearms Licensing Authority) from the responsibility of New Zealand Police to the oversight of another government entity. The government believes this will enhance independence and effectiveness of firearms administration, and
  • Amending the regulations of shooting clubs and ranges to ensure their facilities are operating safely and compliantly while supporting legitimate activities of firearms enthusiasts.

 

Potential benefits

The proposed reforms have several potential benefits, including:

  • Improved public safety with stricter controls and strengthened Firearms Prohibition Orders
  • Better regulation and oversight to modernise outdated laws
  • More effective firearms licensing through an independent Firearms Licensing Authority, allowing police to focus their resources more on illegal firearms and gang-related gun violence rather than administrative licensing work
  • Enhanced gun owner responsibilities through increased requirements for safe storage, record-keeping and reporting, and
  • Stronger measures against gun trafficking through stricter background checks, licensing and a well-regulated system.

With each benefit, however, shortcomings follow. Potential drawbacks include:

  • Possible overreach and bureaucracy leading to inefficiencies, delays and higher administrative costs
  • Limited impact on criminals and gangs given most gun crimes involve illegally obtained firearms, unaffected by strict laws. Police unions have expressed concerns that moving licensing away from the police could weaken police ability to monitor gun-related crime
  • Compliance challenges, with some gun owners struggling to comply with new laws due to lack of awareness or financial barriers, such as affording secure storage or meeting new licensing requirements
  • Potential for unintended consequences, such as over-regulation leading to more non-compliance or a larger black market, and
  • Farmers and pest controllers who rely on firearms for work may face unnecessary restrictions affecting their business operations.

Federated Farmers has been particularly vocal about the rewrite, noting that the changes over the previous government’s term were ‘a whole lot of really silly, impractical amendments’ that have made it harder for people to access firearms.

Farmers have noticed how those changes have made it harder but cannot identify anything that has made it easier. Farmers have a genuine need for firearms and gun laws need to be more straightforward for those who need reasonable access to firearms.

The government has now completed public consultation; it aims to pass the new firearms legislation before the end of its current term in 2026.


Tenancy terminations and pets

The Residential Tenancies Amendment Act 2024 has significantly updated the Residential Tenancies Act 1986 and the laws governing the relationship between landlords and tenants.

Some of these updates took effect on 30 January and others are expected to  roll out in the remainder of 2025. These updates transform the rights and obligations of landlords and tenants – for better or for worse. We summarise the key updates below.

Termination of tenancies

No reason needed to terminate tenancy: Since 30 January 2025, landlords are no longer required to provide a reason to their tenants for terminating a periodic tenancy; they simply have to state they are giving 90 days’ notice of termination. For clarity, a ‘periodic tenancy’ is a standard tenancy with no end date, unlike a ‘fixed term’ tenancy which lasts for a set amount of time, say 12 months. Before 30 January 2025, landlords had to give grounds for terminating a tenancy, such as for demolition or extensive renovations.

Terminating on ‘special grounds’: Landlords now only need to give 42 days’ notice when they are terminating the tenancy on special grounds, including if a family member needs to live in the property as their main residence, or the property has been sold and needs to be vacated for the new owners to take over. Until 30 January,  landlords had to give 63 days’ notice.

More rights for tenants: The legal rights and abilities of tenants have also increased. Tenants now have up to 12 months to apply to the Tenancy Tribunal for an order declaring a termination notice to be unlawful and that the landlord has retaliated against the tenant for enforcing their legal rights, or in response to legal actions taken against the landlord by another person or body. If a tenant applies within 28 days of receiving the termination notice, they can request that the notice be cancelled.

Before 30 January 2025, tenants only had 28 days to apply to the Tenancy Tribunal in respect of a notice in general.

Tenants also now only need to give 21 days’ notice for ending a periodic tenancy. Previously, they had to give at least 28 days’ notice.

The Amendment Act also confirms that tenants may leave their tenancy at shorter notice if they, or one of their dependents, are experiencing family violence.

It will be interesting to see how these amendments play out, especially when reviewing future decisions of the Tenancy Tribunal, including where tenants dispute termination notices. We touch upon other changes and updates to the powers of the Tenancy Tribunal below.

As an aside, the ways in which landlords and tenants can give notice to one another has changed. The Amendment Act confirms that landlords and tenants can give notices in more modern ways, such as over text or messenger, rather than a physical written notice.

Pets

In the second half of 2025, we expect to see major law changes relating to pets kept in rental premises. Landlords will be able to require their tenant to pay a ‘pet bond,’ on top of their original bond, which can  be an additional two weeks’ rent on top of the original bond. A tenant must obtain their landlord’s written consent to keep a pet on the premises. A landlord may refuse the request only on reasonable grounds, including the premises not being suitable for the type of pet or vice versa. It could be that the breed of dog is too large, and/or the nature of the breed is considered destructive or aggressive and/or could be disruptive to neighbouring properties.

If a tenant’s pet dies during the tenancy, the tenant is entitled to ask for the return of the pet bond from the landlord less any compensation for any damage, and reasonable wear and tear attributable to the pet.

We look forward to seeing how these new rules relating to pets play out.

Tenancy Tribunal

Since 20 March 2025, the Tenancy Tribunal should become quicker and more efficient in its day-to-day operations. The Tribunal now has, for example, the ability to determine matters ‘on the papers’ (considering an application and response, then making a decision) without the need for a hearing.

In more complex and technical cases, and where there are major factual disputes, however, it is likely that the Tribunal will still require a proper hearing.


Fences may not create friendships, but they do help make properties look tidy and defined. However, disagreements over who should pay for them can quickly turn a friendly wave into a frosty silence. Fortunately, the Fencing Act 1978 sets clear rules to help property owners handle fencing disputes without unnecessary stress.

 

Who Pays for the Fence?

If you are building or replacing a fence on a shared boundary, your neighbour is generally required to share the cost—provided the fence is “adequate,” meaning it’s reasonably fit for purpose. Before you start digging, discuss your plans with your neighbour. If you cannot agree, the Fencing Act provides a formal process to resolve disputes.

 

A Formal Process with Strict Timeframes

If you want your neighbour to contribute, you must serve them with a fencing notice detailing the fence type, cost, and who will build it. They have 21 days to agree or object. If they don’t respond, they are deemed to have accepted and must pay their share.

 

If they object, they must issue a cross-notice within 21 days, outlining their concerns or suggesting changes. If no agreement is reached, mediation, arbitration, a Disputes Tribunal, or a District Court ruling may be needed.

 

Common Fencing Issues

What if my neighbour wants a premium fence, but I prefer something simple?
They can only require you to pay half the cost of an adequate fence—not a luxury upgrade.

 

What if my neighbour sells their house mid-process?
You will need to start over with the new owner.

 

Can my neighbour refuse to let the builder step onto their land?
Yes, but you can seek a court order for reasonable access.

 

What if they damage the fence?
They must cover the full repair cost.

 

What if urgent repairs are needed while they are overseas?
You can fix the fence and recover half the cost when they return.

 

Fencing Around Swimming Pools

If your neighbour installs a swimming pool near the boundary, they must fence it in. You may need to contribute, but only up to the cost of a standard boundary fence.

 

Height Restrictions

Most fences can be built without needing council consent. However, local council rules may impose restrictions, particularly in heritage areas, so it is always worth checking before starting work.

 

Need Help?

Navigating fencing laws can be tricky but getting it right the first time saves headaches. If you need advice or assistance, the team at Edmonds Judd are here to help your fencing project go smoothly— hopefully without neighbourly disputes turning into courtroom battles.

 

Fiona Jack


Luke’s juggling a lot right now—his first baby on the way, a crash in Sally’s Tesla, and new business work piling up. But his biggest challenge? His employee, John.

John does not have the experience he made out during his interview and he is not able to complete tasks given to him.

Luke has done his best to mentor John and to train him on the job, but John doesn’t seem to want to learn or improve. Luke is at his wits’ end as his business can’t continue like this. Luke has no idea what to do to fix the situation with John and is not sure if he can just let John go.

First things first, Luke pulls up a copy of John’s employment agreement to see what it says about dealing with poor performance. Luckily for Luke, the employment agreement sets out exactly what he should do as his agreement sets out a process for addressing poor performance. He also recalls his lawyer telling him that the Employment Relations Act requires employers to act in a fair and reasonable way and to act in good faith towards John.

Luke has also realised that he can’t just fire John for his poor performance.

Luke can see that his mentoring John was a good start, but it is clear to him that he now needs to take the formal steps set out in the employment agreement to let John know that he is concerned about his performance and that he will place him on a performance improvement plan.

After having a chat with his lawyer, Luke finds out that some of the steps that he is going to need to take are:

  1. Identify the issues with John’s performance: clearly identify the performance problem, whether it’s related to the quality, quantity, or timeliness of John’s work.

 

  1. Communicate his concerns to John: Luke decides to invite John to a meeting to discuss his performance. He’s then going to meet with John to discuss the performance issues, explaining what areas need improvement and why it’s affecting the workplace.

 

  1. Provide support and clear expectations: Luke realises he needs to offer support, so, he has decided to offer John some further training and additional resources. He’s also going to set clear, achievable performance goals and a reasonable timeframe for improvement, and let John know the possible consequences if his performance does not improve.

 

  1. Monitor John’s progress: Luke has set up some reminders in his diary to monitor John’s progress towards meeting the set performance goals and provide regular feedback during meetings.

 

  1. Hold a formal review: If John’s performance doesn’t improve, Luke will arrange a formal review meeting for John to respond to the feedback.

 

  1. Implementation of further performance improvement plans, final warning or dismissal: If there is still no improvement, Luke now knows that he has some options about how to proceed from there – such as a performance improvement plan, issuing a final warning, or, in more serious cases, proceeding with dismissal.

Luke has decided to keep in touch with his lawyer as he works through the process with John to make sure that he meets his obligations as an employer. He’s keeping his fingers crossed that John will improve, and that a formal review and other actions won’t be necessary.

 

Kristin O’Toole

 

 

 


Gloriavale

De-banked!

The Christian Church Community Trust and associated entities (commonly known as Gloriavale) has received a great deal of media attention.

In particular, various allegations have been made that its leaders:

  • Breached a number of employment obligations, including using forced labour and child labour
  • Physically and sexually abused members of the community, including children, and
  • Ignored their legal obligations towards the people in its community, including ensuring their safety.

For many years, Gloriavale has banked with the Bank of New Zealand (BNZ). In July 2022, BNZ notified Gloriavale that it intended to end its contractual relationship and stop providing banking services.

 

 

What happened next?

BNZ originally gave Gloriavale three months to make new banking arrangements. This was extended by agreement, but BNZ did not agree to an extension beyond 30 November 2022.

Gloriavale tried, but was unable, to make alternative banking arrangements within that timeframe. Gloriavale then sued BNZ[1]; it said that BNZ had an obligation to provide it with continued banking services, particularly where there are no other options available. However, as litigation can take many years, this did not solve the problem that BNZ intended to terminate the banking relationship immediately.

Gloriavale therefore made a separate legal application for an injunction. The injunction case was brought alongside the main legal case. The main case argued that BNZ had to provide Gloriavale with continued banking services; this may take years to determine.

The injunction case argued that BNZ had to provide banking services until the main legal case had been determined. The High Court agreed with Gloriavale in the injunction case, but the Court of Appeal overturned that decision in December 2024. The result is that Gloriavale must find a new bank to use while the main legal case against BNZ goes through the court system. This is very significant in light of the evidence that Gloriavale has not been able to find another bank.

 

 

The arguments

An injunction will only be granted where there is a serious question in the main court case. In this case, the question was whether Gloriavale could seriously argue that BNZ was not entitled to end the banking relationship.

BNZ argued that its terms and conditions allowed it to terminate a banking relationship whenever it wishes. Just as a customer can fire a bank at any time, a bank can fire a customer. The bank’s terms and conditions allowed it to decline to provide any product or service without needing to give a reason. It simply no longer wanted to work with Gloriavale.

Gloriavale argued that BNZ had to act reasonably and, that if it was concerned about recent allegations, it should have asked Gloriavale for more information rather than giving notice of termination with no warning. BNZ might have been wrong, and it would be unfair for the bank to cancel if they did not at least take steps to find out if they were right.

 

 

Court of Appeal decision

The Court of Appeal found that the main court case was weak. The banking contract did not require BNZ to undergo any kind of consultation process, to act reasonably or to verify any concerns it might have before terminating the banking relationship. BNZ did not act in bad faith; it had concerns that the Gloriavale community acted inconsistently with a variety of basic human rights and it no longer wanted Gloriavale as a customer. This was actually quite reasonable, as it transpired that other banks also did not want to work with Gloriavale.

Other arguments made on behalf of Gloriavale were similarly not persuasive.

While the Court of Appeal was only considering the issues on an interim basis, and the main court case would still continue to a full court hearing, the court did not find that Gloriavale had strong enough arguments to justify forcing BNZ to provide banking services in the meantime. It therefore overturned the High Court’s decision to issue an injunction.

 

 

What next?

Gloriavale is a complicated commercial enterprise and it will need to find alternative banking arrangements. It will be interesting to see which trading bank will offer those services, when it seems that a number of banks have already declined.

It will also be interesting to see what happens in the underlying court case. Gloriavale is still arguing that the BNZ could not terminate the banking relationship. While the Court of Appeal doesn’t think the arguments were strong, it is possible that a later judge will disagree after hearing the full argument. Gloriavale could still be successful and, if so, could pursue BNZ for any losses suffered due to the termination.

Banks are in a position of power in their customer relationships. Their terms and conditions usually let them terminate a relationship with a customer at any time. This is highly relevant for people or organisations that do not have many options.

[1] Bank of New Zealand v The Christian Church Community Trust & Ors [2024] NZCA 645.

 

 

 

 

DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Luke is very excited about the impending birth of his first child and is taking the time to reflect on his life so far. As he is driving to the store to pick up some groceries, he recalls the first job he ever had – working as a bartender in a lovely little Scottish pub in Dunedin. His pay wasn’t significant back in those days, but he worked hard and he saved his pennies. It wasn’t long before he’d saved up enough to go on a big holiday!

Luke had always dreamed of flying to Indonesia to see the Komodo dragons in the wild. Once he was sure he had enough in the bank, he went to ask his manager, Mr Moyes, if he could have some time off.

“Tell me lad,” Mr Moyes said, furrowing his brow, “how long have you been working for me now?”

“Why, nearly six months, Mr Moyes! I reckon I deserve a break” Luke said, sheepishly. Beads of sweat began to drip down his pimply face.

“Well, Luke,” Mr Moyes began, shifting uncomfortably in his seat, “it’s not that I don’t think you deserve a nice holiday. Aye, you’re an excellent worker, and you have a knowledge of whisky as fine as any Scotsman! But I just wonder, won’t the shortfall from the lack of wages during your holiday be an issue?”

Luke gulped.

“But sir, I thought I would simply take annual leave. After all, I’ve accrued ten days’ worth. That’s more than enough for my holiday, assuming it doesn’t take longer than that to find the Komodo dragons.”

“Well, you see Luke,” Mr Moyes responded, offering a wry grin. “Here in Aotearoa New Zealand, you can’t actually take annual leave until you’ve been working continuously at the same place for 12 months. You continue to accrue it, yes, but there’s no entitlement to actually take the accrued leave until your first anniversary of employment. You can take annual leave you’ve accrued before then, but this is at my sole discretion, being your gaffer and all”.

“Oh,” Luke exclaimed, crestfallen. He had so been looking forward to travelling to Indonesia. Mr Moyes looked him up and down and sighed.

“Tell ya what lad, I think we’ll manage without you. You can take the leave you’ve accrued, no problem”.

Luke jumped for joy. He was going to Indonesia! He paused, wondering if he could try his luck further.

 

“Actually Mr Moyes, how would you feel if I went to Indonesia for three weeks instead of two?” Mr Moyes jumped out of his seat.

“That’s a bit cheeky!” he said, his eyes as big as wagon wheels. “But alright, you can take leave that you haven’t accrued yet in this country too, also at my own discretion. Just be warned, though. If you leave my employ before you’ve accrued that extra week of leave, I’ll require you to pay me back. Every cent!”

Mr Moyes’s warning fell on deaf ears though, as Luke could think only about Indonesia, sipping on coconuts and surveying the local fauna.

Of course, Mr Moyes was right.  Most employees are entitled to four weeks of annual holidays, and they start accruing this leave from their first day on the job. Accrued leave then sits there, unused, until the 12-month anniversary of your employment. Your employer can let you take the leave you’ve accrued before the 12-month anniversary, but this is at their sole discretion.

 

You can also take leave before you’ve accrued it but this can be risky, as you may have to pay your employer the difference, if you resign before it’s accrued.


Luke snapped back to reality. He hadn’t worked for Mr Moyes for some time now, but he would always remember his words and his warning. He smiled, and thought about the life lessons he would pass down to his child. Unfortunately, contemplating this was very distracting for Luke, and he crashed into the car in front of him! Luckily, no one was hurt, but Luke wondered what Sally would think of him crashing her brand new Tesla…

 

Jamie Graham


In a recent decision of the Human Rights Review Tribunal an employer has been ordered to pay an ex-employee damages of $60,000 for interfering with the employee’s privacy.

 

The CEO invited the employee out of the office for a coffee meeting. During that meeting, the CEO gave the employee a letter detailing concerns about the employee’s performance. While they were out of the office, a director of the employer took the employee’s work laptop, personal USB flash drive, and personal cell phone from the employee’s desk without the employee’s consent or knowledge.

 

About a week later, the employee’s employment was terminated.

 

The employer later returned the personal cell phone, but did not return the personal information that had been stored on the work laptop or the employee’s USB drive.

 

Despite several requests over a long period of time, the employer failed to return the employee’s personal information and USB drive. Instead, the employer effectively blocked the employee’s attempt to obtain the return of his information, engaging in a range of tactics that delayed the return of the information.

 

The Tribunal found that the employer had collected the employee’s personal information when uplifting the laptop, cell phone and USB. It went onto find that the employer had breached information privacy principles 1, 2, and 4 of the Privacy Act 1993 because the employer had not collected the personal information for a lawful purpose or directly from the employee, and the personal information was collected in circumstances that were unfair and constituted an unreasonable intrusion on the employee’s personal affairs.

 

The Tribunal went on to determine that the breaches were an interference with the employee’s privacy as they had caused significant humiliation, injury to feelings and loss of dignity to the employee. In support of this finding, evidence had been provided by the employee that three weeks after the collection of his information, he was formally diagnosed with acute anxiety and depression, prescribed antidepressants, and sleeping medication. The employee had also started attending counselling.

 

The employer argued that the health conditions were caused by the loss of work, not by breaches of the collection principles. However, the collection does not need to be the sole cause of the consequences suffered.

 

Emails and other correspondence in evidence showed that the health conditions were attributable to distress about the collection of the information, including the inability to retrieve it, and not knowing who had seen it, and who was using and sharing the personal information

 

The Tribunal also found that the collection had caused the employee loss and detriment when he couldn’t complete his tax return on time, leading to a penalty. It also negatively affected his interests as it impacted his health, his career prospects and removed access for him to a personal USB and he did not have access to all his personal information that had been on his laptop.

 

The Tribunal found that an award of damages of $60,000 appropriately reflected the significant level of humiliation, loss of dignity and injury to feelings experienced by the employee because of the wrongful collection of his personal information.

 

A prompt return of the personal information wrongly collected would have significantly reduced the humiliation, loss of dignity and injury to feelings experienced and therefore the amount of any award.

 

This claim was decided under the Privacy Act 1993 because the actions all occurred prior to that act being replaced by the Privacy Act 2020. However, it is still relevant to conduct under the 2020 Act – information privacy principles 1 – 4 and the test to show an interference with privacy has remained largely unchanged.

 

The decision is: BMN v Stonewood Group Ltd [2024] NZHRRT 64.

 

Joanne Dickson


Changes for CMT applicants

The government proposes to overturn a 2023 Court of Appeal decision covering Māori customary rights to the foreshore and seabed. It is of the view that the court’s decision gives too much power to iwi and hapū over what happens on ‘too much’ of New Zealand’s coastal areas.

The Marine and Coastal Areas (Takutai Moana) (Customary Marine Title) Amendment Bill will result in only a small fraction of the coastline (about 10%) being available for customary marine title (CMT) which the government alleges was the intention of the 2011 legislation on which the Court of Appeal ruled.

 

Defining the foreshore and seabed

The seabed is the land that is completely submerged underwater (the sea around the coast).[1]

The foreshore is the land that is regularly covered by the tide (the wet part of the beach).[2]  It includes land covered by high tides in spring, the space occupied by the air and water above the land, and the soil and rock under it.

 

Marine and Coastal Area (Takuati Moana) Act 2011

In 2011, the National-led government replaced the Foreshore and Seabed Act 2004 with the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). Crown ownership of the foreshore and seabed was replaced with a ‘no ownership’ regime.

Under MACA, iwi could apply to the court or negotiate with the Crown for CMT over a particular area.  However, these interests could not prevent existing rights and uses such as fishing, aquaculture and public access. Iwi or hapū applicants are required to meet two conditions under MACA to apply for CMT:

  1. It must hold the area in accordance with tikanga, and
  2. It must have exclusively used and occupied the area from 1840 to the present day without substantial interruption.[3]

In establishing CMT, matters to be considered include whether the applicant group or its members exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day.

 

2023 Court of Appeal decision

In the 2023 case of Re Edwards,[4] the Court of Appeal judgment eased the test for CMT. Minister for Treaty of Waitangi Negotiations, Paul Goldsmith, said that the court’s decision effectively meant that exclusive use no longer had to be demonstrated, opening up much more of the country’s coastline to CMT than what was intended when the MACA was passed.

 

Amendment Bill

Mr Goldsmith said the Amendment Bill would ensure the tests were interpreted and applied as originally intended when MACA was introduced by increasing the threshold of the test.

However, the Attorney-General appealed the Court of Appeal’s decision in Re Edwards and, on 2 December 2024, the Supreme Court unanimously granted the appeal, stating that the Court of Appeal majority erred by taking an unduly narrow approach.[5]

A consequence of the Supreme Court’s judgment is that the Amendment Bill may no longer be necessary, because the Supreme Court has already reversed the Court of Appeal’s interpretation of MACA.

 

Aquaculture implications

The real impact of CMT’s on farmers is on the aquacultural farming communities.

Resource consent is required to occupy the seabed for aquaculture. While a CMT holder does not have ownership rights over public access, a holder does have veto rights on any resource consents required for activity by others or for the development of the area in question.

However, given the Supreme Court’s decision, irrespective of the Amendment Bill, we may see fewer resource consents being vetoed by CMT holders.

If you are a CMT holder and have any queries around your access, please don’t hesitate to contact us.

 

 

 

[1] 5, Foreshore and Seabed Act 2004.

[2] 5, Foreshore and Seabed Act 2004.

[3] 58, Marine and Coastal Area (Takutai Moana) Act 2011.

[4] Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252.

[5] Whakatōhea Kotahitanga Waka (Edwards) v Attorney-General [2024] NZSC 164

(2 December 2024).

 

 

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650