Edwards (Whakat�hea Stage Two) No. 7 - [2022] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-817

[2022] NZHC 2644

UNDER the Marine and Coastal Area (Takutai Moana) Act 2011

IN THE MATTER OF

BY

BY

BY

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an application for an order recognising Customary Marine Title and Protected Customary Rights

the late Claude Augustin Edwards (deceased), Adrian Edwards and others on behalf of Te Whakatōhea

Dean Flavell on behalf of Hiwarau C, Turangapikitoi Waiōtahe and Ōhiwa of Whakatōhea (CIV-2017-485-375)

Larry Delamere on behalf of Pākōwhai Hapū (CIV-2017-485-264), and Te Whānau-a- Apanui (CIV-2017-485-278)

Tracy Francis Hillier on behalf of

Ngāi Tamahaua Hapū (CIV-2017-485-262), and Te Hapū Titoko o Ngāi Tama

(CIV-2017-485-377)

Muriwai Maggie Jones on behalf of Ngāi Tai (CIV-2017-485-270), and Muriwai Maggie Jones and Te Aururangi Davis on behalf of Ririwhenua Hapū (CIV-2017-485-272)

Te Ūpokorehe Treaty Claims Trust and others on behalf of Te Ūpokorehe (CIV-2017-485-201)

Christina Davis on behalf of Ngāti Muriwai Hapū (CIV-2017-485-269)

Pita Tori Biddle and Karen Stefanie Mokomoko on behalf of Te Uri o

RE EDWARDS (WHAKATŌHEA STAGE TWO) NO. 7 [2022] NZHC 2644 [13 October 2022]

BY BY

BY

Whakatōhea Rangatira Mokomoko

(CIV-2017-485-355)

Te Rua Rakuraku on behalf of Ngāti Ira o Waiōweka (CIV-2017-485-299)

John Hata, Te Ringahuia Hata and Antoinette Hata on behalf of Ngāti Patumoana (CIV-2017-485-253)

Whakatōhea Māori Trust Board on behalf of Whakatōhea Hapū (CIV-2017-485-292)

Hearing:
14-25 February 2022

Further submissions received on:
4 March (x2), 8 March (x2), 21 March 2022,
30 March, 31 March (x2), and 8 July 2022

Counsel:

B Cunningham for:

Te Whakatōhea (CIV-2011-485-817)

Hiwarau C, Turangapikitoi Waiōtahe and Ōhiwa of Whakatōhea (CIV-2017-485-375)

Pākōwhai Hapū (CIV-2017-485-264)

Te Whānau-a-Apanui Hapū (CIV-2017-485-278) C Panoho-Navaja for:

Ngāi Tamahaua Hapū (CIV-2017-485-262)

Te Hapū Titoko o Ngāi Tama (CIV-2017-485-377) E Rongo for:

Ngāi Tai (CIV-2017-485-270)
Ririwhenua Hapū (CIV-2017-485-272)

B Lyall for Te Ūpokorehe Treaty Claims Trust (CIV-2017-485-201)

M Sharp for Ngāti Muriwai Hapū (CIV-2017-485-269) K Ketu and C Ratapu for Te Uri o Whakatōhea Rangatira

Mokomoko (CIV-2017-485-355)

A Sykes for Ngāti Ira o Waiōweka (CIV-2017-485-299) G Davidson for Ngāti Patumoana (CIV-2017-485-253)

Interested Parties:
K Feint KC for Ngāti Ruatakenga (CIV-2017-485-292)

H Irwin-Easthope and K Tarawhiti for Te Rūnanga o Ngāti Awa (CIV-2017-485-196)

N Coates for Te Rūnanga o te Whānau-a-Apanui (CIV-2017-485-318)

R Roff, R Budd and S Gwynn for Attorney-General A Green and M Jones for Whakatāne District Council T Reweti for Ōpōtiki District Council

R M Boyte for Bay of Plenty Regional Council B Scott for Seafood Industry Representatives

Judgment: 13 October 2022

JUDGMENT (NO. 7) OF CHURCHMAN J

[Re Edwards (Whakatōhea Stage Two)]

TABLE OF CONTENTS

PART I

Introduction [1]

The parties [9]

Successful applicants at Stage One [9]

PART II

Legal issues [13]

Effect of application of the Act on tikanga [14]

Wāhi tapu and maps [16]

Statutory context [19]

Substantial interruption [20]

Regional Authorities’ infrastructure [23]

Other areas of “substantial interruption” [34]

Unique legal status of CMCA [44]

Records of titles within the takutai moana [48]

Specified freehold land [53]

Roads [54]

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

Case: [2022] NZHC 2644
Decision Date: 13 October 2022

CaseChat Overview and Summary

In the case of Re Edwards (Whakatōhea Stage Two) No. 7, the High Court of New Zealand, Wellington Registry, was tasked with considering recognition orders for Customary Marine Title (CMT) and Protected Customary Rights (PCR) under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicants, various Māori groups, sought recognition of their traditional rights and interests in specific marine areas. The legal issues included the effect of the Act on tikanga, the delineation of wāhi tapu, and the impact of third-party structures and infrastructure on the applicants' rights. The Court held that the Ōpōtiki Harbour Development Project substantially interrupted the applicants' holding of the relevant area in accordance with tikanga, necessitating its exclusion from the CMT order. The Court also clarified the unique legal status of the common marine and coastal area (CMCA) and the requirements for CMT and PCR orders, emphasizing the need for accurate maps and survey plans. The Court directed the successful applicants to supplement their evidence and set a case management conference for further proceedings. The decision highlighted the complexities of balancing traditional tikanga with statutory requirements and the need for precise delineation of rights and boundaries in the takutai moana.

Orders