Edwards (Whakat�hea Stage Two) No. 7
[2022] NZHC 2644
•13 October 2022
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
BY
BY
BY
BY BY
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 2022Counsel:
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]
Conservation areas and reserves [60]
Marine farms [64]
Accommodated infrastructure [68]
Disjunctive vs conjunctive – definition of accommodated infrastructure [72]
Jurisdiction of the Court in respect of accommodated infrastructure
and activities [78]
Analysis [80]
Reclamation [82]
CMT boundary angles [88]
Positions of the parties [89]
Analysis [99]
Wāhi tapu [104]
Wāhi tapu adjacent to land [117]
Wāhi tapu – shared exclusivity? [135]
Restrictions and prohibitions [142]
Stage One findings [153]
Approach [156]
Particular issues relating to Te Ūpokorehe [157]
Nature of CMT [158]
The Court’s findings [167]
Te Ūpokorehe’s position at the Stage Two hearing [170]
Who represents Te Ūpokorehe? [177]
PART III
CMT and PCR orders [183]
Draft CMT orders [183]
Submissions [185]
Ngāti Ruatakenga [185]
Ngāti Ira o Waiōweka [190]
Ngāti Patumoana [192]
Ngāi Tamahaua [195]
Te Ūpokorehe [197]
Ngāti Ngāhere [199]
Te Runanga o Ngāti Awa [200]
Ngāi Tai and Ririwhenua [203]
Ngāti Muriwai [205]
Te Uri a Whakatōhea Rangatira Mokomoko [208]
CMT 1 [211]
Mandate requirements for CMT [211]
Case law [212]
Positions of the parties [213]
Evidence of Mr Amoamo and Ms Hata [219]
Discussion [222]
Finding in respect of Ngāti Patumoana [225]
Whakatōhea Māori Trust Board [227]
General observations on who should hold recognition orders [229]
CMT 1 – Maraetōtara to Tarakeha [231]
Wahi tapu claims [231]
Ngāi Tamahaua [234]
Te Ahiaua [237]
Otaotupuku [239]
Awahou and Paengatoitoi [240]
Tawhitinui and Akeake [241]
Tai Haruru, Kotukutuku/Puketapu, Te Ana o Ani Karere, and Ōpēpē Stream [242]
Restrictions and prohibitions [248]
Ngāti Ira o Waiōweka [261]
Te Totara [264]
Restrictions and prohibitions [268]
Ngāti Patumoana [269]
Onekawa urupā [273]
Maraerohutu [277]
Whanaungakore kaitiaki [281]
Restrictions and prohibitions [282]
Ngāti Ruatakenga [306]
Te Ūpokorehe [311]
Onekawa Pā/Te Mawhai Pā [324]
Taumata Kahawai [325]
Te Ahiaua [327]
Tarewarewa [331]
Te Rua o Parewarewa [332]
Maromahue Marae [333]
Te Parenui o Pukeni Otao [334]
Paepae Aotea [337]
Te Tukina Rae o Kanawa [338]
Te Rae o Kanawa [340]
Pukeahua [341]
Te Toka o Waiotahe [343]
Hamatatua and Rururerehe [344]
Analysis of wāhi tapu claims within CMT 1 that were made by more
than one applicant [345]
Te Kārihi Pōtae/Te Kahiripōtae Urupā [345]
Tuamutu/Tuamotu Urupā [354]
Te Arakotipu [357]
Te Roto [359]
Paerata and Ōpōtiki Mai Tawhiti/Te Arautauta Waka Landing [364]
Maraetōtara [373]
Waiaua River [379]
Tirohanga Stream [391]
Restrictions and prohibitions [394]
CMT 2 – Ōhiwa Harbour [401]
Ngāi Tamahaua [405]
Ngāti Awa [406]
Uretara Island [410]
Te Tukirae o Kanawa [413]
Taipari [416]
Te Ūpokorehe [420]
The entire Ōhiwa Harbour [421]
The balance of Te Ūpokorehe’s claims [433]
Analysis of wāhi tapu claims within CMT 2 that were made by more
than one applicant [435]
Ihukatia Pā [435]
The area of the coastline surrounding Tauwhare Pā and enclosing
Te Kopu ō te Ururoa [439]
Omere and Otao [443]
CMT 3 [444]
Te Rangi [448]
Tarakeha [451]
Awaawakino and Te Toka a Rūtaia [454]
Restrictions and prohibitions [457]
PCR orders [464]
Limitations on the exercise of PCR [468]
Ngāti Muriwai [472]
Ngāti Ira o Waiōweka [489]
Te Uri o Whakatōhea Rangatira Mokomoko [502]
Ngāi Tamahaua/Te Hapū Tītoko o Ngāi Tama [509]
Te Ūpokorehe [515]
A – “Customary harvest of whitebait in the Ōhiwa Harbour and surrounds” [521]
B – “Access to taonga and archaeological sites in rohe for kaumatua
assessment of kaitiaki obligations” [523]
D – “Control and removal of mangroves in Ōhiwa Harbour” [524]
F – “Kaitiaki over the harvest of wiwi (sea rush) for use and preparation
of traditional kai” [525]
G – “Protection of mussels through control of starfish in Ōhiwa Harbour” [526]
I – “Collection of iron deposits at Te Tawai for use in kōwhaiwhai” [527]
J – “Protection of rare plants, wild orchids, wiwi (sea rush) that does not grow anywhere else, and other rare plants in and around the area of
Te Karaka Stream. Extraction of invasive species and clean-up pollution” [528] K – “Rāhui and customary recovery processes for reburying koiwi” [532] L – “Harvest of red ochre at Te Oneone” [533]
N – “Culling of black backed gull” [534]
O – “Customary harvest and use of natural and physical resources
where they grow or are found within the PCR area” [536]
P – “Customary harvest of the following resources from within
application area …” [537]
Ngāti Ruatakenga [540]
PART IV
CONCLUSION AND SUMMARY [543]
APPENDIX A
PART I
Introduction
[1] In a judgment dated 7 May 2021 in relation to the Stage One hearing, I granted recognition orders to several applicants finding that they had met the tests for Customary Marine Title (CMT) or Protected Customary Rights (PCR) under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act).1
[2] In this decision following the Stage Two hearing, the focus of the Court is on s 109 of the Act. Section 109(1) provides that an applicant group in whose favour the Court grants recognition by way of PCR or CMT must submit a draft order for approval by the Registrar or the Court.
[3]Section 109(2) is prescriptive as to what a recognition order must specify:
(a)the particular area of the common marine and coastal area to which the order applies; and
(b)the group to which the order applies; and
(c)the name of the holder of the order; and
(d)contact details for the group and for the holder.
[4]Section 109(3) requires additional information for a PCR:
(a)a description of the right, including any limitations on the scale, extent, or frequency of the exercise of the right; and
(b)a diagram or map that is sufficient to identify the area.
[5] Section 109(4) sets out important mandatory requirements for what an order for CMT must include:
(a)a survey plan that sets out the extent of the customary marine title area, to a standard of survey determined for the purpose by the Surveyor-General; and
(b)a description of the customary marine title area; and
(c)any prohibition or restriction that is to apply to a wāhi tapu area within the customary marine title area.
1 Re Edwards (No. 2) [2021] NZHC 1025.
[6] Despite the clarity with which s 109 sets out the matters that the Court must consider in Stage Two proceedings and the limited focus of the Stage Two hearing, many of the applicants made submissions and called evidence that went far beyond the limited matters that can be addressed when considering whether the requirements of s 109 have been met. Some submissions treated the hearing as if it were a type of appeal and tried to convince the Court that aspects of the Stage One decision should be changed; others forgot that the Court’s jurisdiction stops at the landward limit of the takutai moana and sought protection for wāhi tapu that were clearly inland of mean high-water springs (MHWS) or for PCR rights that related to activities that occurred somewhere other than the takutai moana. Others sought orders in respect of matters that had not been specified in their original applications or in the orders granted and others invited the Court to make declarations that had nothing to do with s 109 matters at all.
[7] None of the applicant groups who had obtained CMT orders filed survey plans which complied with the requirements of the Act. A number of the groups who obtained PCR orders also did not file a diagram or map as required by s 109(3)(b).
[8] All of this unnecessarily complicated the hearing. The absence of documentation that is required to be filed necessitates that this decision has to be an interim one. The Court acknowledges that, because this is the first case where many of the issues set out in s 109 have been considered and because of the technical difficulties experienced in the preparation of survey plans, it is appropriate to give the successful applicants the opportunity to supplement their evidence in accordance with the Court’s directions. However, applicants in future cases where the same issues arise should not assume that the Court will follow the same course.
The parties
Successful applicants at Stage One
[9] There were three different geographic areas where specified applicants met the tests set out in s 58 of the Act for CMT:
(a)CMT 1: a jointly held order for Ngāti Ira o Waiōweka, Ngāti Patumoana, Ngāti Ruatakenga, Ngāi Tamahaua, Ngāti Ngāhere and Te Ūpokorehe from Maraetōtara in the west to Tarakeha in the east and out to the 12 nautical mile limit;
(b)CMT 2: in relation to the western part of Ōhiwa Harbour, a jointly held CMT between the six Whakatōhea hapū and Ngāti Awa; and
(c)CMT 3: between Tarakeha and Te Rangi and out to the 12 nautical mile limit, an order of CMT for Ngāi Tai.
[10] A number of the applicants were granted recognition orders by way of PCR, pursuant to s 51 of the Act, these were:
(a)Ngāti Muriwai;
(b)Ngāti Ira o Waiōweka;
(c)Te Uri o Whakatōhea Rangatira Mokomoko;
(d)Ngāi Tamahaua;
(e)Te Ūpokorehe; and
(f)Ngāti Ruatakenga.
[11] In respect of the proposed PCR orders, I invited the successful applicants to prepare draft recognition orders, and engage in kōrero with other parties, including those who were successful in establishing that they met the tests for CMT.2 Not all of the successful applicants took up that invitation.
[12] After the hearing, Crown Regional Holdings Limited made an application to participate as an interested party. Effectively, this was so that it could be an interested
2 At [670].
party in the appeals. The basis of this application was that it was now the holder of the resource consents for the Ōpōtiki Harbour Development Project, such consents having been transferred to them by the Ōpōtiki District Council. It now has sole responsibility for the construction of the project, and holds it as an asset. It did not seek leave to file any additional evidence or submissions, given that had already been done on its behalf by the Ōpōtiki District Council. In the absence of any opposition, that application was granted on 24 May 2022.3
3 Re Edwards (Te Whakatōhea) No. 6 [2022] NZHC 1160.
PART II
Legal issues
[13] Before addressing the specific applications, I need to make some comments of general application in respect of legal issues that have arisen. I note also that throughout this judgment I use the terms “common marine and coastal area” (CMCA), and “takutai moana” interchangeably.
Effect of application of the Act on tikanga
[14] In order to correct a misapprehension that seems to run through some submissions, I note that the Court does not determine tikanga, that is not its role, that is a matter for iwi and hapū, and the proper authorities on tikanga.4 It is the Court’s role to consider the evidence of tikanga submitted by the parties to assess whether it meets the statutory tests, where tikanga is a matter that the Court is required to have regard to.
[15] Nothing in this decision purports to revoke or amend existing rights exercised in accordance with tikanga. The purpose of this decision is only to give legal effect to the recognition orders granted by the Court in the terms that those rights are recognised by the Act.
Wāhi tapu and maps
[16] At the Stage Two hearing, many of the claims for recognition of wāhi tapu related to areas that were not in the common marine and coastal area as described in s 9 of the Act. The Court has no jurisdiction under the Act outside of the takutai moana.
[17] This Stage Two decision involves the necessity to draw lines on maps. In the Stage One decision the difficulty of synthesising tikanga with western proprietorial concepts, including the drawing of lines on maps to delineate boundaries was
4 Re Edwards (No. 2), above n 1, at [272]; see also Ellis v R [2022] NZSC 114 at [181] per Winkelmann CJ, at [102]-[122] per Glazebrook J, and at [270]-[272] per Williams J.
highlighted.5 However, as the Act stipulates that recognition orders in terms of those rights that the Court is authorised to grant, must be depicted on maps, the Court must attempt, as best it can, to do that, notwithstanding the inevitable tension with tikanga.
[18] Perhaps the greatest challenge in this case is to identify the boundaries of wāhi tapu in a way that meets the need for certainty as to the location of each individual wāhi tapu. The mechanisms in the Act governing sanctions for breaching wāhi tapu restrictions need to be capable of actually being enforced. This challenge includes taking into account the flexible nature of the concept of tapu, including the fact that, in some instances, tapu may exist at some times and not others and that the intensity of the tapu and the nature of any restrictions that might be required to protect it, decrease the further away one gets from the source of the tapu.6
Statutory context
[19] The statutory purposes, legislative history, and legal concepts relevant to the Act were set out in the Stage One judgment from paragraphs [22]-[171]. However, for present purposes, some elaboration is required.
Substantial interruption
[20]In the Stage One judgment, the Court held that:7
(a)while the physical activities authorised by a grant of resource consent may have the practical effect of amounting to a substantial interruption to the exclusive use and occupation of part of a particular specified area, the fact that a Council has issued a resource consent pre-dating the commencement of the Act does not automatically have that effect;
(b)the parts of the Ōpōtiki Harbour Development Project that result in the issue of a certificate of title on the basis that the land involved has risen
5 At [286]–[300].
6 See the discussion at [106] below.
7 Re Edwards (No. 2), above n 1, at [188]-[271].
above MHWS, will no longer be in the takutai moana, and so are unable to be included in a CMT order;
(c)the parts of the Ōpōtiki Harbour Development Project that fall outside the definition of reclaimed land will need to be considered on the same basis as other third-party structures in the takutai moana; and
(d)the fact that third parties undertake both commercial and recreational fishing activities in the specified area does not amount to a substantial interruption of the holding of the specified area in accordance with tikanga.
[21] The Court recognised in the Stage One decision and in Re Ngāti Pāhauwera,8 that the presence of some structures could amount to substantial interruption on account of their interference with the applicant group’s ability to undertake customary activities in the takutai moana over which the structure sits, or within its immediate surrounds. This is ultimately a question of fact.9 It will depend on the nature, scale and intensity of the structure or activity, and its impact on the ability of applicants to show the requisite standards have been met.10 There is no presumption that third party structures substantially interrupt customary rights in a specified area.11
[22] For example, the Pan Pac Pipeline in the Whirinaki area was held to amount to a substantial interruption in Re Ngāti Pāhauwera because the factual evidence demonstrated that there had been significantly reduced use of the area from the 1980s onwards, due to the effect of pollution on the kaimoana in that area.12 What was important in that determination, was what the evidence established in respect of the actual occupation and use of the area in accordance with tikanga.
8 Re Edwards (No. 2), above n 1, at [252]; Re Ngāti Pāhauwera [2021] NZHC 3599 at [235].
9 Ngāti Pāhauwera, above n 8, at [232].
10 Re Edwards (No. 2), above n 1, at [230].
11 Ngāti Pāhauwera, above n 8, at [235].
12 At [232].
Regional Authorities’ infrastructure
[23] For the reasons detailed below, I am satisfied that those parts of the Ōpōtiki Harbour Development Project that do not fall within the definition of reclaimed land have substantially interrupted the applicant’s holding of the relevant area in accordance with tikanga, and that this area should be excluded from CMT 1.
[24] The Ōpōtiki Harbour Development Project was described in the opening submissions of counsel for the Ōpōtiki District Council as:
[A] significant regional infrastructure project to redevelop the Ōpōtiki harbour into a fully functional deep-water harbour, capable of supporting a large aquaculture industry. Supported by more than $100 million dollars in central and regional government funding, the Harbour Project is the most significant collection of infrastructure occupying the CMCA area that is the subject of these proceedings. Work on the Harbour Project is now well advanced and on track for completion by mid-2023.
[25]In order to complete the project, the relevant resource consents authorise:
(a)erection of 400m-500m training walls (200m of which are located in the CMCA), dredging and depositing of more than 50,000m³ of foreshore and seabed around the Waiōweka River mouth (Consent 65563);
(b)vegetation clearance, earthworks of up to 10,000m³, constructing two 5000m² construction compounds, stockpiling construction materials, cutting through an existing sandspit to create a new harbour entrance, earthworks associated with the disposal of up to 450,000m³ of dredged material to land; and associated discharge of sediment-laden water (Consents 65565, 65569);
(c)activities associated with constructing the harbour entrance and closing the Waiōweka River mouth including the erection, maintenance, and removal of temporary and permanent structures in, on, under and over the foreshore and seabed, removal of material, discharge of sediment and water, disturbance of the foreshore and seabed, taking and diversion of coastal water (Consent 65566);
(d)activities associated with dredging 50,000m³ of material per year from the entrance channel, temporary structures in the CMCA, discharge to the CMCA, disturbance of the foreshore and seabed, taking of coastal water and depositing material in the CMCA (Consent 65567); and
(e)maintenance dredging and earthworks, as well as the associated discharge of contaminated water (Consent 65568).
[26] The general public have been excluded from the area since mid-2021, and this exclusion will continue until late 2023. This is necessary for the project’s safe construction. The evidence shows that the project extends over 500 metres into the takutai moana past the mouth of the Waiōweka River and MHWS. The offshore dredging area is, at its widest, over a kilometre long and includes two training walls 200 metres in length.
[27] Regular temporary exclusions will be necessary for the ongoing maintenance of the harbour works following completion. The ongoing maintenance of the project involves dredging of materials, active management of accretion and erosion, and maintenance work for the training walls. This will involve heavy machinery accessing both sides of the harbour to either remove or add sand and/or other materials. These activities will continue for as long as the harbour exists.
[28] I have therefore concluded that the Harbour Development Project has substantially interrupted the applicants’ holding of the relevant area in accordance with tikanga, because the project is fundamentally changing the landscape and use of this part of the takutai moana on a substantial scale, and has a major impact on the use and occupation of this area. While Te Whakatōhea have supported the project, the reality is that it is of a nature so as to, during construction and its ongoing operation, remove the ability of the applicant groups to exclusively use and occupy the area in accordance with tikanga.
[29] The goal of the project is to allow larger boats access to Ōpōtiki Harbour, so as to allow for a fully functioning deep-water port, through which the aquaculture industry is expected to grow. The area over which the consent holder will be legally
obliged to ensure the safe operation of the port under the Health and Safety at Work Act 2015, is large enough to disrupt the exercise of customary interests.
[30] What is presently lacking and will need to be provided so that one accurate survey plan can be drawn up for CMT 1, is a map accurately depicting the boundaries of the Ōpōtiki Harbour Development Project.
[31] In his second affidavit dated 1 February 2022, Gerard McCormack, on behalf of Ōpōtiki District Council, included as exhibit “B” an aerial photograph of the area in respect of which consents had been granted. That may provide the starting point for an accurate map.
[32] At [15] of the same affidavit, Mr McCormack noted full copies of the resource consent documentation could be obtained from the Bay of Plenty Regional Council website using their mapping software. That may also assist in creating an accurate map.
[33] I therefore direct that Ōpōtiki District Council/Crown Regional Holdings Ltd provide to the applicants an accurate map of the area of the Ōpōtiki Harbour Redevelopment Project of a sufficient standard to be able to be incorporated into the survey plan required by s 109(4)(a).
Other areas of “substantial interruption”
[34] I do not include as substantial interruptions Council-owned assets that enhance the ability of people to use the takutai moana for recreational activities or those things that have a maritime safety function such as navigation buoys or safety signage or structures with the purpose of environmental protection or monitoring. The relevant regional and local authorities have an established network of a variety of infrastructure within their boundaries. For example, the Ōpōtiki District Council described its infrastructure as including:13
…a reticulated network and land disposal area for [wastewater], stormwater collection, treatment and disposal system, sea walls protecting property, jetties and boat ramps, and roads, bridges, and cycleways.
13 Affidavit of Aileen Lawrie, 2 February 2022, at [11].
[35] The Ōhiwa Consents RM16-0129, 40268, 66262, and 65904 have not substantially interrupted the holding by the applicants either of the CMT 1 or CMT 2 areas in accordance with tikanga. Nor has Consent RM20-0615, for the construction of cycleway bridges from Ōpōtiki to the Waiōtahe River. Nor have any of the activities or consents associated with stormwater control, port assets, harbour assets or transportation put in evidence by the Whakatāne District Council had the effect of substantially interrupting the use and occupation in accordance with tikanga of the application areas. As individual assets, they have not substantially interrupted the exclusive use and occupation of the takutai moana by the applicants. This conclusion applies as well to the consents covered in the evidence of the Bay of Plenty Regional Council of their assets in the Waiōweka River and the Ōhiwa Harbour.
[36] If anything, the activities and structures associated with these consents can be seen to enhance the use of the relevant area by the applicants and others, rather than as substantially interrupting the exercise of customary rights. For example, the structures in and around the banks of the Maraetōtara Stream enhance and protect the use of the environment, rather than inhibit it. This is consistent with the views of the Court at Stage One. No evidence was submitted to the Court that established that in a wholesale sense, infrastructure owned and controlled by the relevant regional authorities (with the exception of the Harbour Project due to its scale and the ongoing aspect of exclusion) substantially interrupted the use and occupation of the applicant groups in accordance with tikanga. I include the wharf at Port Ōhope in this group of structures.
[37] Under Consent 65984, there is an outfall pipe which carries treated effluent from the Ōhope Wastewater Treatment Plant, into the moana, within the area of CMT 1. The consent was granted by the Bay of Plenty Regional Council to the Whakatāne District Council in November 2016, but the outfall has been used since 1974 and currently services all of Ōhope.
[38] At any point the discharge cannot exceed 1500m3 per day. The point of discharge is less than one kilometre directly out from Ōhope Beach MHWS (approximately 550m), at a point between Maraetōtara and the entrance to Ōhiwa Harbour, perpendicular with the coastline. The area occupied in the ocean by the
outfall structure is not more than five metres in width, and the consent expires in September 2035.
[39] The description of the outfall site in the application for the consent provides that “there are no rock outcrops or reef habitats within the vicinity”, and that both Te Ūpokorehe and Ngāti Awa were consulted in respect of the proposal. The application also noted that there remained opposition to the outfall, in that it affects Ngāti Awa mahinga mātaitai. Commitments were made by local authorities during the application for the current consent period, to move towards a land-based disposal system so as to reduce the adverse impact of discharge on culturally significant areas in the moana. Also, the:
discharge is a continuation of the existing system which has been monitored for at least ten years. In this time there have been no adverse effects identified in relation to the quality of the environment. The commitment to improvements to the treatment system will produce a higher quality effluent and thereby reduce impacts on the environment.
[40] In a report assessing the environmental effects of the discharge, undertaken as part of the renewal application for Resource Consent 65984 in the early 2000s, shellfish samples were collected to ascertain the effects of discharge on quality. The report states:
These shellfish samples were gathered as per the resource consent requirements. However on a number of occasions, divers were unable to find any shellfish in the designated area, and on most occasions when shellfish were found in the area, they were small mussels growing directly on the diffuser. Often no shellfish were found, or [there was] insufficient fish to make up a representative sample. This is reflective of the open mobile sandy seabed in the area. Higher populations of shellfish are found closer in shore.
[41] Notwithstanding this, there was evidence of samples of shellfish that were unsafe for human consumption in the area near the diffuser, particularly after rainfall, contrasting with samples taken closer to the shore which were safe to eat. The evidence therefore shows that the outfall pipe has had more than a negligible effect in its immediate environmental surrounds, although there is also evidence that the effect of dairy farm outflow into the Whakatāne River and then out into the moana has had a much greater environmental impact on the nature of kaimoana in the broader area. Glenn Cooper, who gave evidence for the Whakatāne District Council, deposed that
there are no formal restrictions in place (nor have they ever been needed) around the diffuser, but that generally shellfish are not gathered in the area, although water quality had improved throughout the last 20 years.
[42] Te Ūpokorehe submitted that the outfall pipeline merely changed the nature of the use of the area, rather than totally eradicated it, so as to constitute substantial interruption. They submitted that use of an area for food gathering had been replaced with kaitiaki responsibilities of monitoring the environmental impact of the outfall. They said that tikanga evolves to adapt to changing circumstances and so the presence of an outfall pipeline without more does not constitute substantial interruption. Te Ūpokorehe sought, through this submission, to distinguish the effluent outfall pipe from the Pan Pac outfall pipe referred to in the Ngāti Pāhauwera decision.14
[43] The evidence of the interruption of the use and occupation of the area around the outfall pipeline is not as overwhelming as it was in the case involving the Pan Pac outfall pipeline. There is some evidence that the outfall pipeline has caused some kaimoana at some times, to be unfit for human consumption, and that patterns of kaimoana gathering have changed. But it cannot be said that the presence of this structure has resulted in an impact of sufficient magnitude for there to have been a substantial interruption which would result in its exclusion from the CMT area.
Unique legal status of CMCA
[44] The Act gives the common marine and coastal area a unique legal status. Section 11(2) provides that neither the Crown nor any other person owns or is capable of owning the CMCA. The Act also operates to divest any ownership interest of the Crown and every local authority but, importantly for the purpose of drawing accurate boundaries of the CMCA, not land situated in the CMCA owned by other entities.15
[45] An exception to the divestment of Crown and local authority-owned land is provided by s 11(5)(e) which preserves the right of the Crown to designate land in the CMCA as having a special status. That special status can include conservation areas,
14 Re Ngāti Pāhauwera, above n 8.
15 Section 11(3).
reserves (of various sorts), and national parks. The identification of areas with such special status is therefore necessary in order to accurately survey the boundaries of the CMCA.
[46] However, there is yet another complicating feature in relation to those areas which have a special status where part of such an area, after the commencement of the Act, as a result of erosion or other natural occurrence ceases to be land and becomes part of the CMCA. I address the implication of this in relation to the preparation of survey plans in further detail below.
[47] In order to assist those responsible for preparing survey plans and maps of the CMCA for the various recognition orders, I will set out what land is, and is not, to be included within the CMCA.
Records of titles within the takutai moana
[48] Brendan Mulholland, giving evidence on behalf of the Attorney-General, detailed various parcels of land for which freehold title existed, or which were identified as Crown land which has never been alienated and therefore had not had a freehold title. The majority of these were in the Ōhiwa area.16 He also identified a number of gazetted reserves which were wholly or partially in the takutai moana.
[49] Richard Jennings, who also gave evidence on behalf of the Attorney-General, identified additional roads and parcels of land beyond those covered by Mr Mulholland.
[50] It is therefore necessary to clarify what effect the existence of such parcels of land has on the ability of the Court to grant CMT in respect of the relevant areas.
[51] Section 9 of the Act defines the common marine and coastal area as the area that is bounded by the line of MHWS and by the outer limits of the territorial sea other than:
16 A notable example given by Mr Mulholland as to an area of land for which freehold titles existed but which was now inundated by the sea is the area at Ōhiwa Spit.
(a)specified freehold land located in that area; and
(b)any area that is owned by the Crown and has the status of any of the following kinds:
(i)a conservation area within the meaning of s 2(1) of the Conservation Act 1987.
(ii)a national park within the meaning of s 2 of the National Parks Act 1980.
(iii)a reserve within the meaning of s 2(1) of the Reserves Act 1997.
[52] Specified freehold land means any land that immediately before the commencement of the Act is:
(a)Māori freehold land within the meaning of s 4 of Te Ture Whenua Māori Act 1993; or
(b)set apart as a Māori reservation under Te Ture Whenua Māori Act 1993; or
(c)registered under the Land Transfer Act 2017 and in which a person other than the Crown or local authority has an estate in fee simple that is registered under that Act; or
(d)subject to the Deeds Registration Act 1908 and in which a person other than the Crown or a local authority has an estate in fee simple under an instrument that is registered under that Act.
Specified freehold land
[53] Mr Mulholland and Mr Jennings identified a number of areas that, prior to the commencement of the Act, consisted of Māori freehold land, a Māori reservation that was registered under the Land Transfer Act 2017 or was subject to the Deeds Registration Act. Appendix 1 to the Crown’s closing submissions in this case helpfully collates this evidence. These areas do not form part of the takutai moana. Therefore the proposed CMTs will have to be re-drafted in accordance with the data set out in this evidence.
Roads
[54] Unformed roads located in the takutai moana are treated differently to specified freehold land. Section 14(1) of the Act provides that:
Any road, whether formed or unformed, that is in the marine and coastal area on the commencement of this Act is not part of the common marine and coastal area.
[55] The Court was provided with evidence that both formed and unformed roads existed within the marine and coastal area.17
[56] The Act treats unformed roads located in the CMCA differently to formed roads.
[57]Section 14(3) says:
If, on the day before any quinquennial anniversary,18 an unformed road to which subsection (1) applies continues in existence as an unformed road, then that road is deemed to be stopped, and becomes part of the common marine and coastal area on that anniversary, unless a current certificate has been signed and dated in respect of that road.
[58]Section 14(5) also provides that:
An unformed road that, after the commencement of this Act, comes into existence in the marine and coastal area is part of the common marine and coastal area.
[59] In closing submissions, counsel for the Crown confirmed that there were no certificates signed in respect of the unformed roads identified in the evidence of Mr Mulholland and Mr Jennings. Therefore, those unformed roads have now become part of the common marine and coastal area and are available for inclusion within any grant of CMT. All of the unformed roads can be included in the survey plan prepared for the three CMTs.
Conservation areas and reserves
[60] There was evidence of the existence of both conservation areas and reserves in the marine and coastal area.19
17 See exhibit BM-01 to the affidavit of Brendan Patrick Mulholland, 1 February 2022; exhibits RJ- 01 to RJ-16 to the affidavit of Richard James Jennings, 31 January 2022; and exhibit AG-01 to the affidavit of Ashley Neville Gould, 8 June 2020.
18 A quinquennial anniversary is one which marks the fifth, tenth or fifteenth anniversary of the passing of the Act.
19 See exhibit BM-01 to the affidavit of Brendan Patrick Mulholland, 1 February 2022; and exhibits RJ-01 to RJ-10 in the affidavit of Richard James Jennings, 31 January 2022.
[61] The Act is clear that s 11(3) automatically divests Crown or local authority title to land in the CMCA, and that s 11(5)(e) also permits the Crown to set aside part of the CMCA for a specific purpose, thereby removing land from the CMCA. However, where after the commencement of the Act, as a result of erosion or other natural process, any land (including reserves, conservation areas, and/or national parks) becomes part of the CMCA, it ceases to be a reserve, conservation area and/or national park. That appears to be the result of the words “any land” contained in s 13(2), which relates to land other than a road that is owned by the Crown or a local authority.
[62] The presumption contained in s 13(2) does not affect Māori freehold land or other land not owned by the Crown or a local authority. However, although areas of land owned by the Crown or a local authority (other than roads) were excluded from the CMCA at the commencement of the Act, s 13(2) appears to have the effect of making those parts of reserves, national parks or conservation areas which, as a result of erosion or other natural process occurring since the Act’s commencement, available for inclusion in the CMT.
[63] Exhibit BM-01 to the affidavit of Mr Mulholland noted that there was evidence that parts of certain reserves had eroded, and that if the areas now appearing to be in the coastal marine area had eroded since the commencement of the Act, then they would have become part of the coastal marine area available for an award of CMT.20 Unfortunately there was no evidence upon which I could conclude that the erosion of these reserves had occurred since the Act commenced. This means that the various reserves identified in the evidence before the Court which have been affected by erosion and which are now wholly or partly in the coastal marine area are excluded from inclusion in CMT. However, if such erosion does occur in the future, this means that the boundaries of any CMT order which is affected in this fashion will have to be re-drawn. All other conservation areas and reserves identified in the evidence of Mr Mulholland and Mr Jennings as being located in the takutai moana are excluded from the areas available for the award of CMT. The boundaries for the CMT orders in the present case must be prepared on the basis of the current geographic situation.
20 Section 13(2).
Marine farms
[64] There are three small oyster farms in Ōhiwa Harbour. However, the evidence did not establish that their presence had interfered with the applicants’ ability to carry out customary activities to the extent that could be said to amount to substantial interruption. These farms have been in operation for some time, the original consents having been issued approximately 20 years ago. The structures do not restrict access to the takutai moana around them, or prohibit traditional or recreational food gathering, and this is recorded in the resource consents that authorise them. The evidence before the Court was that all parts of the Ōhiwa Harbour continue to be used for customary activities notwithstanding the presence of the oyster farms, which are approximately two hectares in size. The farms have not had the effect of limiting the applicant groups who undertake customary activities in the area.
[65] Te Ūpokorehe submitted that the Ōhiwa Harbour farms could be distinguished from the Pan Pac outfall pipeline. In that case there was a significantly reduced use of the area, owing to the effect of pollution on kaimoana. I accept that submission. The areas occupied by these marine farms remain available for inclusion in CMT 2.
[66] Turning to Eastern Sea Farms Limited 3,800-hectare marine farm, which sits roughly 8.5 kilometres from the coast of Ōpōtiki. The Whakatōhea Māori Trust Board owns 54 per cent of Eastern Sea Farms Limited, which was established in 2001. Resource consent was granted in 2009 for a period of 20 years, with the right to renew. The first five years of the farm’s operation involved only research, prior to being fully commercialised.
[67] Although sizeable, the marine farm does not inhibit access to, or navigation through, the takutai moana. According to the original resource consent application, the farm was never intended to inhibit access or navigation. Coupled with this, is the fact that the marine farm’s existence seems entirely consistent with the continued use and occupation of the area in which it is located, by the applicant groups in accordance with tikanga. It is majority owned by Whakatōhea, and the Trust Board’s goal is to progress and ensure the flourishing of the iwi as a whole. I conclude that the existence of the marine farm has not substantially interrupted the applicant’s holding of the area
in accordance with tikanga. Its continued functioning is consistent with the award of CMT over the area, and so the area it occupies is available for inclusion in CMT 1.
Accommodated infrastructure
[68] During the course of the hearing, there was some dispute as to the meaning of the concepts of “accommodated activities” and “accommodated infrastructure” as those terms are set out in s 63 of the Act. Some applicants and interested parties also invited the Court to express an opinion on what infrastructure or activities in the area covered by this hearing could be considered “accommodated” activities or infrastructure.
[69] For the reasons I will now set out, I feel able to offer some views on the meaning of the statute, and will do that, but consider that expressing any opinion on whether any specific activity or infrastructure meets the tests in s 63 goes beyond the jurisdiction of the Court and is not appropriate in this decision.
[70] I start by explaining the connection between a recognition order for CMT and accommodated activities or infrastructure. Accommodated activities are able to be carried out in a CMT area with s 63(a) providing that such activities are:
expressly excluded under s 64(1) from the exercise of an RMA permission right or a conservation permission right by a customary marine title group;
[71] The concept of accommodated infrastructure is defined in s 63 in a way that has created some confusion as to whether the three criteria set out in s 63 are conjunctive in the sense that all three are required to be met or whether the third criteria is an alternative to the first two. If the latter interpretation is correct, then one consequence could be that infrastructure owned by private entities or individuals could be “accommodated infrastructure”. The definition in s 63 says:
Accommodated infrastructure means infrastructure (including structures and associated operations) that is–
(a)lawfully established; and
(b)owned, operated, or carried out by 1 or more of the following:
(i)the Crown, including a Crown entity:
(ii)a local authority or a council-controlled organisation:
(iii)a network utility operator (within the meaning of section 166 of the Resource Management Act 1991):
(iv)an electricity generator (as defined in section 2(1) of the Electricity Act 1992:
(v)a port company (as defined in section 2(1) of the Port Companies Act 1988):
(vi)a port operator (as defined in Part 3A of the Maritime Transport Act 1994):
(c)reasonably necessary for:
(i)the national social or economic well-being; or
(ii)the social or economic well-being of the region in which the infrastructure is located.
Disjunctive vs conjunctive – definition of accommodated infrastructure
[72] The issue is whether the word ‘and’ should be read into subparagraph (b)(vi), so that the reasonably necessary test is an additional requirement that needs to be met in addition to (a) and (b). The alternative proposition is that the definition should be read disjunctively – that is, whether the word ‘or’ should be read into subparagraph (b)(vi), so that the reasonably necessary test is separated and sufficient on its own to meet the definition.
[73] The legislative development and subsequent amendment to s 63 indicates that (a), (b) and (c) are to be read in conjunction with one another, and that the word ‘and’ after (b)(vi) needs to be implied to achieve the purpose of the statute.
[74] When the Act first came into effect, the definition of accommodated infrastructure was explicitly conjunctive, with the word ‘and’ being present at the end of subparagraph (b)(vi).21 Consequential amendments listed in Schedule 2 to the Maritime Transport Amendment Act 2013, meant that the previous description of a ‘port operator’ needed to be changed. This amendment appears to have been inserted into the Act without consideration of the context or placement of the amendment
21 Marine and Coastal Area (Takutai Moana) Act 2011 (as enacted), s 63.
within the wider subsection. As a result of this amendment, the ‘and’ disappeared from the definition.
[75] Given the nature of this amendment as a consequential amendment necessary to give effect to Maritime Transport legislation, it is highly unlikely that the legislators intended to fundamentally change the operation of the definition of accommodated infrastructure. The Select Committee report of the Māori Affairs Committee on the Act supports this conclusion.22 The natural reading of the definition would also suggest that without the presence of the word ‘or’, that both (b) and (c) need to be satisfied, especially as Parliament has used the word ‘or’ throughout the definition within each both (b) and (c).
[76] The definition of accommodated infrastructure includes “associated operations”. Also exempted from being affected by the RMA permission right, ‘associated operations’ are defined broadly as activities that are necessary for the functioning of an accommodated infrastructure, which includes the relocation of existing infrastructure. If the definition of accommodated infrastructure is read disjunctively, thereby bringing in privately owned structures, then those structures would be able to be relocated anywhere within a CMT area while being exempt from the RMA permission right. This is unlikely to have been intended by Parliament and would potentially undermine the bundle of rights associated with a grant of CMT.
[77] For these reasons, I therefore conclude that the definition should be read conjunctively.
Jurisdiction of the Court in respect of accommodated infrastructure and activities
[78] Ms Roff, counsel for the Attorney-General, in closing submissions submitted that:
The Attorney-General’s position is that the Court has no jurisdiction to make specific findings or determinations as to whether an activity or piece of infrastructure falls within the definition of “accommodated activity” and, if relevant, “accommodated infrastructure”. The Act makes it clear that where between a customary marine title group and a person who owns, operates or
22 Select Committee report of the Māori Affairs Committee on the Marine and Coastal Area (Takutai Moana) Bill, at 18.
carries out an activity [there is a] dispute whether that activity is an accommodated activity, such cases are to be determined by the Minister for [Land Information] and that decision is final.
Commentary in the departmental report goes some way to explaining the rationale behind the Minister [for] Land Information being responsible for disputes over whether activities are accommodated or not. The report notes the Minister’s “expertise with activities in the marine and coastal area”, and how the function aligns with other roles of that Minister within the statutory regime.
(footnotes omitted)
[79] At the other end of the spectrum is the view that the Court does have jurisdiction to make determinations on this matter. To this effect, counsel for the Bay of Plenty Regional Council submitted that:
It is acknowledged that any specific factual disagreements that arise in future over whether an existing activity is accommodated are to be resolved by the Minister [for] Land Information. However, in my submission, it is open to this Court to reach findings on the correct interpretation and application of the statutory criteria for accommodated activities. This will also assist the Regional Council as consent authority when it is processing other applications for activities that could be considered “accommodated”.
Analysis
[80]The relevant statutory provisions are ss 64(3) and (4) of the Act. They provide:
(3)Subsection (4) applies if, in relation to whether an activity is an accommodated activity, there is a dispute between–
(a)a customary marine title group; and
(b)the person who owns, operates, or carries out the activity that is the subject of the dispute.
(4)Either party to the dispute may refer the dispute to the Minister for Land Information for resolution.
[81] The Act therefore clearly grants the Minister exclusive jurisdiction to determine such a dispute and the Court has no jurisdiction in relation to this question.
Reclamation
[82] The Act sets out a comprehensive regime relating to the status and vesting of reclaimed land.23 Under s 29 of the Act, reclaimed land is defined as permanent land formed from land that formerly was below the line of MHWS and that, as a result of a reclamation is located above the line of MHWS, but does not include:
(a)land that has arisen above the line of MHWS as a result of natural processes, including accretion; or
(b)structures such as breakwaters, moles, groynes, or sea walls.
[83] Land reclaimed other than by natural processes whether lawfully or unlawfully is vested in the Crown as its absolute property, although by different mechanisms.24 The Act does not affect the common law in relation to accretion and erosion.25 In short, the Act vests reclaimed land from the common marine and coastal area as the absolute property of the Crown, outside of the exceptions in subpart 3 of the Act.26 If reclaimed land is subject to subpart 3, then it is unable to be included in CMT or PCR orders.
[84] There is some dispute over the effect of reclamations that are not yet complete pursuant to the Harbour Development Project, particularly at the Waiōweka River mouth.
[85]As the Court stated at Stage One:27
For the reasons that relate to other reclamations, the part of this proposal that results in the issue of a certificate of title on the basis that the land involved has arisen above the line of mean high-water springs, means that it is no longer within the takutai moana and therefore no longer falls within the area in respect of which CMT can be issued. That leaves those aspects of the proposal that fall outside the definition of reclaimed land in s 29 of the Act and could be described as “structures such as breakwaters, moles, groynes or seawalls”. Such structures need to be considered on the same basis as other third-party structures in the takutai moana such as pipelines.
23 Re Ngāti Pāhauwera, above n 8, at [276], citing Re Edwards (No. 2), above n 1, at [231]-[250].
24 Marine and Coastal Area (Takutai Moana) Act 2011, s 30.
25 Section 13(1).
26 Above n 1, at [239].
27 At [250].
[86] Although the reclamation of areas involved in the Harbour Development Project is consented and well underway, it is not yet complete. The issue is therefore whether the areas which are in the process of being reclaimed should be excluded from the area in respect of which CMT is granted.
[87] Section 113 of the Act provides that a recognition order must not be sealed before the disposal of any appeal. The orders made at the Stage One hearing are all subject to appeal and will not be heard by the Court of Appeal for some time. It is possible that there may be further appeals to the Supreme Court. It therefore appears that the reclamation associated with the Harbour Development Project will be complete before any recognition order is able to be sealed. Accordingly, it is appropriate for such reclamation areas to be excluded from any recognition order.
CMT boundary angles
[88] The Stage One findings regarding CMT provided for the CMT areas to extend out to the 12 nautical mile limit. The way that the eastern Bay of Plenty curves means that if boundaries are depicted by straight lines which start at MHWS and proceed due north, CMT 1 and CMT 3 will overlap with the rohe moana of neighbouring applicant groups. The maps filed by Julia Glass provided an indicative view of the boundaries of each CMT area, but the applicants disagree as to the exact bearings of each of the boundary lines. The issue is whether the boundary lines at Maraetōtara, Tarakeha, and Te Rangi should be angled due north, towards the middle of Whakaari/White Island, or along some other bearing. In this respect the Court must be mindful of the presence of other parties across the Bay of Plenty, who are yet to have their full applications heard, particularly Ngāti Awa to the west, as well as Ngāi Tai and Te Whānau-a-Apanui to the east.
Positions of the parties
[89] Ngāi Tamahaua submitted that the angle issue could be resolved if the applicants were allowed further time to reach an agreement. However, Ngāi Tamahaua also produced exhibits during the hearing which appeared to advocate for boundary
lines at the Maraetōtara Stream and Tarakeha pointing due north.28 Ngāti Awa and Te Whānau-a-Apanui alleged that this created an area for CMT 1 that went beyond the area depicted in the map attached to Ngāi Tamahaua’s original application.
[90] Tracey Hiller, who gave evidence for Ngāi Tamahaua was cross-examined by Ms Rongo for Ngāi Tai on the boundary lines Ngāi Tamahaua proposed. Ms Rongo established that if Ngāi Tamahaua’s view was adopted, the boundary at Tarakeha would cut across the rohe moana of Ngāi Tai, and eventually Te Whānau-a-Apanui. Ms Hiller was also cross-examined by Mr Mahuika for Te Whānau-a-Apanui, as to the difference between Ngāi Tamahaua’s proposed boundaries and the map attached to their amended application. Ngāi Tamahaua’s amended application shows an eastern boundary line that is angled in a north-western direction, towards Whakaari – whereas the boundaries Ms Hiller proposed at the hearing pointed due north. Ms Hiller accepted that these two positions were different.29
[91] Ngāti Ruatakenga submitted that at Maraetōtara, the boundary should sit at the middle of the stream. In respect of Tarakeha, Ngāti Ruatakenga endorsed the view of Te Riaki Amoamo, that the boundary should follow the ridgeline of the headland out to sea. They also submitted that in order to avoid boundaries cutting across the rohe of neighbouring iwi, that the boundary lines need to angle inwards as they head out to sea. At the hearing, Te Riaki Amoamo said that the boundary line at Tarakeha should follow the angle of a surveyed boundary on the Tarakeha headland, between the Ōpape and Torere blocks.30 This proposal would angle the boundary line at Tarakeha slightly in a north-westerly direction.
[92] Mr Amoamo later supported the use of the Tarakeha ridge as the boundary, given that such landmarks were historically used to define customary boundaries between iwi, especially as they could be seen from a long distance out to sea.31 However, he did not revise his position on what the angle of the boundary line should be.
28 Re Edwards Stage Two Notes of Evidence, at 6-7.
29 At 31.
30 At 88-89; see also Exhibit 11 Tarakeha Boundaries.
31 Re Edwards Stage Two Notes of Evidence, at 357.
[93] Muriwai Jones and Toriana Tapuke’s evidence for Ngāi Tai was that the boundary lines for CMT should be from Te Rangi, out to Te Paepae o Aotea, around Whakaari, and then back to Tarakeha.32 This position would result in the boundary lines pointing in a north-westerly direction, but more so than the angle proposed by Te Riaki Amoamo. This view was contested by Ms Feint for Ngāti Ruatakenga on the basis that the angle proposed by Ngāi Tai would cut across into the rohe moana of Te Whakatōhea. Toriana Tapuke based the view that the boundaries should be angled towards Te Paepae o Aotea on the view that “at the end of life and when our loved ones pass away, our belief is that our people swim out to [Te Paepae o Aotea]”.33
210 Section 51(1)(b).
PART IV
CONCLUSION AND SUMMARY
[543] On the basis of the information presented at the Stage Two hearing, the Court is not presently able to finalise any of the recognition orders. The findings and observations set out in this decision are intended to address the various issues relating to the content of the recognition orders where there has been uncertainty. It will hopefully allow accurate survey plans and maps of the type required by the Act to be prepared and submitted.
[544] In some instances, the Court has indicated that if further evidence is submitted on a particular topic that may permit the recognition on a CMT of a wāhi tapu or wāhi tapu conditions. Any further evidence must be limited to filling the gaps identified by the Court, and must be explicit in doing so.
[545] In other instances, the Court has explained why either wāhi tapu status or wāhi tapu conditions are not available. The fact that parties have been invited in some instances to file further evidence on a particular point should not be taken as an invitation to all parties to challenge any findings of the Court that they disagree with. Those sorts of challenges are matters for an appeal.
[546] I adjourn this matter to a case management conference on a date to be allocated by the Registrar in approximately six months’ time. The Registrar will advise whether that CMC is to be held in Rotorua, by VMR, or by a combination of those means.
[547] I expect all successful applicants to have filed and served the required additional information identified in this decision no later than one week prior to the date to be notified for the CMC. Any interlocutory applications in relation to matters arising out of this decision must also be filed and served within the same timeframe.
[548] I anticipate that, following the CMC, the recognition orders can be made on the papers on the basis of the further information supplied.
[549] The joint memorandum of counsel dated 21 January 2022 filed with the proposed draft CMT orders, indicated that there were ongoing discussions in relation to matters such as the key principles that would guide the CMT holders in making decisions. The memorandum also indicated that it was intended that the CMT orders be recorded in te reo Māori first with an English translation accompanying them. If that is still the parties’ intention, they will need to file draft orders reflecting that.
[550] If the parties continue to be unable to reach agreement, in order to finalise the CMT, the Court will have to make a decision as to who the nominated holders of CMT 1 and CMT 2 will be. It is likely that this will be six named individuals, each of the individuals representing one of the successful applicant groups, in respect of CMT 1 and, in respect of CMT 2, seven named individuals, each individual representing one of the successful applicants.
[551] It is not for the Court to impose a structure on the applicant groups as to an incorporated or other entity that might hold the CMT. However, if the parties, in accordance with tikanga, agree upon an appropriate entity, the Court is able to consider that and, if satisfied that it meets the requirements of the Act, approve it.
Churchman J
Solicitors:
Legal Hub Lawyers, Auckland for CIV-2011-485-817, CIV-2017-485-375, CIV-2017-485-264, and CIV-2017-485-278
Wackrow Williams & Davies Ltd, Auckland for CIV-2017-485-262 and CIV-2017-485-377 Kāhui Legal, Wellington for CIV-2017-485-318
Oranganui Legal, Paraparaumu for CIV-2017-485-27 and CIV-2017-485-272 Te Mata Law Ltd for CIV-2017-485-272
Lyall & Thornton, Auckland for CIV-2017-485-201 Te Haa Legal, Otaki for CIV-2017-485-269 McCaw Lewis, Hamilton for CIV-2017-485-355 Whāia Legal, Wellington for CIV-2017-485-196
Annette Sykes & Co, Rotorua for CIV-2017-485-299 and CIV-2017-485-292 Bennion Law, Wellington for CIV2017-485-253
Tu Pono Legal Limited, Rotorua for CIV-2017-485-292 Ranfurly Chambers Ltd, Auckland for CIV-2017-404-482 Greig Gallagher & Co, Wellington for CIV-2017-485-185
Franks Ogilvie, Wellington for Landowners Coalition Incorporated
Cooney Lees Morgan, Tauranga for Bay of Plenty Regional Council and Ōpōtiki District Council Chapman Tripp, Wellington for Seafood Industry Representatives
Crown Law, Wellington for Attorney-General
Counsel:
K Feint KC R Roff
M Sharp B Tupara
APPENDIX A
[1] The wāhi tapu claims made by Te Upokorehe within the Ōhiwa Harbour CMT, that have not been addressed, and in respect of which further information and accurate maps, are required, are:
(a)Waikaria;
(b)Wairapuhia;
(c)Tunanui;
(d)Kawakawa Pā;
(e)Panekaha Pā;
(f)Te Unga Waka;
(g)Hauauru Pā;
(h)Wainui Marae;
(i)Te Poka;
(j)Te Hauhau Pā;
(k)Whitiwhiti;
(l)Paparoa;
(m)Ohakana;
(n)Taupari;
(o)Nga Kanohi o Makuiri;
(p) Awaroa; (q)
Paparoa Pā;
(r)
Te Kauri Point;
(s)
Waikirikri Pā;
(t)
Motuorei Point;
(u)
Nga Kuri a Taiwhakea;
(v)
Toritori Point;
(w)
Whakarae Pā;
(x)
Te Araioio o Panekaha;
(y)
Te Karamea Pā;
(z)
Paripari Pā;
(aa)
Te Tahora Reserve;
(bb)
Motuotu;
(cc)
Te Peke;
(dd)
Otane te ihi;
(ee)
Te Motu;
(ff)
Rae Toka;
(gg)
Te Ru (Nukuhou River);
(hh) Tarua;
(ii) Pa o Karatehe; (jj) Turangapikoi;
(kk) Te Waingangara Stream; (ll) Matekerepu;
(mm) Kererutahi; (nn) Te Hou; (oo) Oparaoa; (pp) Onerau; (qq) Te Karaka; (rr) Roimata Pā;
(ss) Piniko;
(tt) Awa Awaroa; (uu) Hiwaru;
(vv) Te Tawai;
(ww) Taumata Hinaki;
(xx) Poukoro Tu; (yy) Parahamuti;
(zz) Patua Island; (aaa) Kutarere Marae; (bbb) Te Kakaho; (ccc) Wairua iti; (ddd) Te Rere Koau; (eee) Te Wehi;
(fff) Oheu Pa; (ggg) Te Mauku Pā;
(hhh) Te Kaokaoroa o Pahora;
(iii) Te Ruatuna; (jjj) Maunga Karetu; (kkk) Paewiwi;
(lll) Kopua o Te Pu; (mmm) Hokianga; (nnn) Pukerotu; (ooo) Taheke;
(ppp) Mairerangi; (qqq) Pukeruru Point;
(rrr) Te Ana o Rutaia; (sss) Papawhariki; (ttt) Aaroa;
(uuu) Opari;
(vvv) Te Herenga Waka o te Ao Kohatu; (www) Toki toki;
(xxx) Te Mika;
(yyy) Tipare Kotuku; (zzz) Whangakopikopiko; (aaaa) Ua Whaipata; (bbbb) Tahurarua;
(cccc) Te Ana Pokia; (dddd) Te Hurike; (eeee) Otakanui; (ffff) Pae Manuka; (gggg) Te Wharau;
(hhhh) Te Ana o Muru-te-kaka;
(iiii) Wharekura Pā;
(jjjj) Te Korokoro; (kkkk) Te Kai Ara Ara;
(llll) Te Ipu o Te Mauri; and (mmmm) Paerata Pā.211
211 Paerata Pā was numbered as site 102 in Maude Edward and Wallace Aramoana’s list of wāhi tapu sites, but was not marked on any of the maps submitted by Te Ūpokorehe.
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