Clarkson - [2021] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2011-485-789

[2021] NZHC 1968

IN THE MATTER OF
An application by CATHERINE CLARKSON AND OTHERS for a

customary marine title pursuant to section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011

Hearing:
9-13 and 23 November 2020 (further submissions received

27 May 2021)

Counsel:

C M Clarkson in person

J P Ferguson for Ngāti Kahungunu L Watson for Ngāti Kere

R A Siciliano for Te Rāngitane
A B Goosen and G L Melvin for Attorney-General
C F Finlayson QC, A C Dartnall and P R Corish for Landowner’s Coalition Inc

C B Hirschfeld and C J Tennet for Te Hika o Pāpāuma M Smith for the Smith whānau

M G Conway and L E Phillips for Hawke’s Bay Regional Council B Scott for seafood industries representatives

Judgment:

30 July 2021

JUDGMENT OF MALLON J

Table of contents

Introduction [1]

The applicants [2]

The application area [6]

Interested parties (overlapping claims) [12]

Other interested parties [19]

Pūkenga [25]

Application history [27]

The MACA Act [32]

Overview [32]

RE CLARKSON [2021] NZHC 1968 [30 July 2021]

Application [37]

Customary marine title [38]

Protected customary rights [43]

Whakapapa [45]

The history of land/whenua ownership [49]

Pre-Native Land Court [49]

The Native Land Court decision [53]

Subsequent changes [58]

Applicant’s evidence of ownership [60]

Resource management 1900 to 1960 [69]

Applicant group’s evidence [71]

Introduction [71]

Association with the area [73]

Collecting karaka berries [80]

Kaimoana [81]

Karengo [90]

Urupā [93]

Environmental impacts [94]

Ngāti Kere evidence [98]

Rangitāne evidence [113]

Te Hika o Pāpāuma evidence [122]

Other interests and activities [124]

Other evidence [142]

Issues with the application [145]

Application area definition [145]

The applicant group [149]

Mandate of applicant group [158]

Land ownership [173]

Other connections [181]

Disproportionate claim [196]

Who “holds” the specified area [202]

Overlap with other areas [230]

Alternative outcomes [237]

Result [241]

Appendix One Appendix Two Appendix Three Appendix Four Appendix Five Appendix Six Appendix Seven
Introduction
[1] This is the third application under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act) for an order recognising customary marine title (CMT) to have proceeded to a substantive hearing. The first was Re Tipene, in which a CMT over a 200 m radius from a landing rock to the southwest of Rakiura (Stewart Island) was granted to the Supervisors of the islands of Tamaitemioka and Pohowaitai on behalf of Rakiura Māori on those two islands.1 The second was Re Edwards, in which CMTs and protected customary rights (PCR) in the eastern Bay of Plenty were granted to several applicant groups, with the specifics yet to be determined.2 This third application has been brought by a whānau and it relates to a marine and coastal area on the eastern coast of the central North Island.
The applicants
[2] The application (the Clarkson application) is made by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Clarkson [2021] NZHC 1968
Case: [2021] NZHC 1968
Decision Date: 30 July 2021

CaseChat Overview and Summary

The Clarkson application was brought before the High Court of New Zealand by Catherine Clarkson, Ketepunga Kaylene Clarkson, and Ketepunga Matana Clarkson (collectively, the applicants) seeking recognition of customary marine title (CMT) over a marine and coastal area on the eastern coast of New Zealand's North Island. The application area ran from Finlay's Reef to the south side of Cape Turnagain, covering approximately 14.6 km of coastline and extending 12 nautical miles out to sea. The application was brought under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). Four other applications for CMT in the same area were also before the court, and the parties involved in those applications did not seek to have their claims determined in this proceeding. The court dismissed the Clarkson application, finding that the applicants did not meet the statutory test for a CMT as they did not hold the application area in accordance with tikanga and had not demonstrated that they had a mandate from all those with interests in the area to bring the application on their behalf.

Orders