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-GeneralH 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…
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