Ng�ti P�hauwera (Stage 2) - [2023] NZHC 15

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-821

[2023] NZHC 15

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

IN THE MATTER OF

BY

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

Ngāti Pāhauwera (CIV-2011-485-821) Ngāti Pārau (CIV-2017-485-246)

Ngāi Tahu ō Mōhaka Waikare (CIV-2017-485-235)

Maungaharuru-Tangitū Trust (MTT) (CIV-2017-485-241)

Hearing:
23-26 May 2022

(last submissions received 25 November 2022)

Counsel:

R N Smail and E A James for Ngāti Pāhauwera Development Trust (CIV-2011-485-821)

M K Mahuika, L A V Underhill-Sem and T W Afoa for Ngāti Pārau (CIV-2017-485-246)

D C F Naden, S M Yogakumar and L K Millington for Ngāi Tahu ō Mōhaka Waikare

(CIV-2017-485-235)

K M Anderson and M J Dicken for Maungaharuru-Tangitū Trust (MTT) (CIV-2017-485-241)

B Lyall for Mana Ahuriri Trust
R Roff and S Gwynn for Attorney-General

H P Harwood for Hawke’s Bay Regional Council M Williams for Pan Pac Forest Products Limited A Williams for Seafood Industry Representatives

Judgment:

19 January 2023

JUDGMENT OF CHURCHMAN J

[Ngāti Pāhauwera Stage 2]

Re Ngāti Pāhauwera (Stage 2) [2023] NZHC 15 [19 January 2023]

TABLE OF CONTENTS

PART I[1]

Introduction[1]

The parties[8]

PART II[11]

The law[11]

Draft orders – requirements[12]

Boundaries of the takutai moana[17]

Substantial interruption[27]

Wāhi tapu[32]

Preliminary issues [34]

Status of Ngāti Matepū[34]

Pan Pac outfall pipeline[40]

River mouths[45]

Moveable boundaries[56]

Napier Harbour shipping lanes[66]

PART III [74]

CMT 1 – Ngāti Pāhauwera between Poututu Stream and Pōnui Stream[75]

Holder of the order[75]

Boundaries[76]

Wāhi tapu[79]

CMT 2 – Ngāi Tahu and Ngāti Pāhauwera between the Pōnui Stream and the

Waikari River [93]

Holder of the order

[94]

Boundaries

[105]

Ngāi Tahu’s draft order[110]

CMT 3 – MTT between Arapaoanui and Te Uku [114]

Holder of the order[114]

Boundaries[115]

Waipātiki Marine Farm – substantial interruption[117] CMT 4 - Ngāti Pārau and MTT jointly over Pania Reef[130] Holder of the order[130]

Boundaries[132]

CMT 5 – Ngāti Pārau at Hardinge Reef, Marine Parade and the Ahuriri Estuary [139]

Holder of the order[139]

Boundaries[140]

PCR – Ngāti Pāhauwera [154]

What was recognised at Stage One?[154] Consistency of draft order and maps with Stage One findings and the Act[155]

PCR – Maungaharuru-Tangitū Trust [167]

What was recognised at Stage One?[167] Consistency of draft order with Stage One findings and the Act[168]

PCR – Ngāti Pārau [191]

What was recognised at Stage One?[191]

Consistency of draft order with Stage One Findings[193]

General comments on PCRs[209]

PART IV [210]

Conclusion[210]

PART I

Introduction

[1] In a judgment dated 22 December 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] The focus of the Court at Stage Two is on s 109 of the Act.2 Section 109(1) provides that an applicant group in whose favour the Court grants recognition…

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: [2023] NZHC 15
Decision Date: 19 January 2023

CaseChat Overview and Summary

This case involves an application for recognition of customary marine title (CMT) and protected customary rights (PCR) in the marine and coastal area under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act). Several applicants sought recognition of their rights, and the court granted recognition orders to some of them in the Stage One hearing. In the Stage Two hearing, the applicants were required to submit draft orders for approval by the court. The court examined the draft orders and maps filed by the applicants and made findings on various legal issues, such as the boundaries of the takutai moana, substantial interruption, and wāhi tapu. The court also addressed preliminary issues, such as the status of Ngāti Matepū, the Pan Pac outfall pipeline, river mouths, and moveable boundaries. The court found that some of the draft orders and maps filed by the applicants were inconsistent with the findings of the Stage One judgment and the requirements of the Act. The court directed the applicants to amend their draft orders and maps accordingly and adjourned the matter to a case management conference to be held in approximately six months' time.

Orders