| IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE |
| CIV--2017-485-247, 255, 302 [2024] NZHC 682 |
| UNDER | The Marine and Coastal Area (Takutai Moana) Act 2011 |
| IN THE MATTER OF | An application for orders recognising Customary Marine Title and Protected Customary Rights |
| BETWEEN | NGĀ HAPŪ O TOKOMARU ĀKAU Applicant |
| AND | TE WHĀNAU A RUATAUPARE KI TOKOMARU Applicant |
| AND | NGĀ WHANAŪ O HAUITI Interested Party |
| AND | SEAFOOD INDUSTRY REPRESENTATIVES Interested Party |
| AND | ATTORNEY-GENERAL Interested Party |
| Hearing: | 5-9, 12-16, 19-23, 28 September and 7 and 12-14 October 2022 |
Appearances: | D C F Naden, S M Yogakumar and M Sreen for Applicant Ngā Hapū L A O’Gorman QC, R A Siciliano and C T Mataira for Te Whanau A Ruataupare B R Lyall and H L B Swedlund for Whanau Hauiti B Scott and S Cvitanovich for Seafood Industry (via AVL) D A Ward and C C Barnett for Attorney-General |
Judgment: | 25 March 2024 |
Reissued Redacted Version: | 1 May 2024 |
JUDGMENT OF CULL J
[Reissued Redacted Version]
NGĀ HAPŪ O TOKOMARU ĀKAU v TE WHĀNAU A RUATAUPARE KI TOKOMARU [Reissued Redacted Version] [2024] NZHC 682 [1 May 2024]
TABLE OF CONTENTS
Para No.
Introduction [1]
The issues [8]
PART I – THE PARTIES [11]
The original claims [11]
Other parties [19]
Interested parties [19]
The role of the Attorney-General [20]
Other applications affecting Tokomaru Bay [22]
Crown engagement under MACA [23]
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 [25] The application area and boundaries [32] Common marine and coastal area [33]
Specified freehold land [37]
Reserves, conservation land and roads [40]
Rivers [42]
The boundary dispute [45]
PART II – REPRESENTATION OF CLAIMANTS [48]
The pūkenga advice [49]
Post-hearing agreement [55]
The current applications [58]
Inconsistencies in current applications [63]
Conclusion [69]
PART III – LEGISLATIVE FRAMEWORK [70]
An overview [70]
The legal tests for CMT [88]
Section 58 MACA [90]
The Court of Appeal findings in Re Edwards [92] First limb — holds the specified area in accordance with tikanga Māori [93] Second limb — use and occupation [100]
Second limb — exclusivity and substantial interruption [105]
Burden of proof [109]Ingredients of CMT test [116]
PART IV: FIRST LIMB – HOLDS in accordance with TIKANGA [121] Application of tikanga concepts to land [125] Tikanga values – the pūkenga report [130] Whakapapa of Te Aotāwarirangi and Te Whānau a Ruataupare [139] Tikanga in Tokomaru Bay [149]
Do the applicants hold aplication area in accordance with tikanga Māori? [169]
Conclusion on first limb [177]
PART V: SECOND LIMB – EXCLUSIVE USE AND OCCUPATION [178]
i. Was there exclusive use and occupation as at 1840? [179]
Tīpuna control [183]
Hapū control at 1840 [185]Third party whaling pre-1840 [193]
Analysis [199]
Conclusion on exclusive use and occupation as at 1840 [205]i. Have the claimants used and occupied the area since 1840? [206]
Use and occupation since 1840 [206]
Customary fishing [209]
Waterways and puna [239]
Wāhi tapu [242]
Pā sites [246]
Tauranga waka [247]
Ownership of abutting land [250]
Source of food, trade and voyaging [256]
Conclusion on post-1840 use and occupation [257]i.Was the applicants’ occupation since 1840 exclusive? [258]
Shared exclusivity [259]
Control and permission [267]
Third-party use [283]
Commercial activity [288]Fishing by third parties [323]
Fishing regulation [329]
Other activities by third parties [336]
Resource consents [343]
Statutory vesting of the foreshore [349]
Extinguishment [353]
Revival of customary rights and interests in the foreshore [356]
Analysis on exclusive use since 1840 [360]
Conclusion on exclusive use and occupation since 1840 [375]
Has the exclusive use and occupation been substantially interrupted? [379]
The impact of lawful commercial fishing [384]
Analysis [393]
Conclusion on commercial fishing [399]
The effect of wharf structures [402]
Analysis on wharf structure [411]
Conclusion on wharf structure [418]
Conclusion on CMT applications [419]
PART VI: WĀHI TAPU CLAIMS [423]
Statutory threshold for wāhi tapu protection [427]
What evidence is required for wāhi tapu? [442]
The evidence on wāhi tapu claims [445]
Particular wāhi tapu sites [456]
Analysis [462]
Conclusion [467]
PART VII: PROTECTED CUSTOMARY RIGHTS [470]
The application sought [470]
Legal test for protected customary rights (PCRs) [471]
Exclusions under the Fisheries Act 1996 [480]
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 [489] Kaitiakitanga of customary fisheries [496] Taking, using, gathering, managing natural and physical resources [500] Seaweed, agar and parengo [501]
Kaimoana – kelp, crabs, ngā kihi, tuna kāpō, pūpū [507]
Whitebait [508]
Sand and driftwood [514]
Utilising, managing and/or preserving tauranga waka [519]
Traditional practices [530]
Maramataka [530]
Using rongoā materials [536]
PART VIII: FINDINGS
CMT findings Directions Wāhi tapu sites
Leave and directions
PCR
Finding
Leave and directions
APPENDICES
Appendix 1(a): The application area for Ngā Hapū.
Appendix 1(b): Application area for Ngā Hapū with relevant sites. Appendix 2(a): Application area for Te Whānau a Ruataupare.
Appendix 2(b): Customary Fisheries Management area for Te Whānau Appendix 3: CMT areas recognised under the Ngāti Porou Deed Appendix 4: Site markings by witnesses in specified area on Exhibit 6. Appendix 5: Ngā Hapū o Whakapapa – the Hauiti Ancestry Chart Appendix 6(a): Te Whānau a Ruataupare Whakapapa Ancestry Chart Appendix 6(b): Whakapapa chart of Pēwhairangi whanauAppendix 7: Sites of significance with table Appendix 8: Archaeological Sites.
Appendix 9: Marae sites map.
Appendix 10: Abutting land classification. Appendix 11: Māori Freehold Land
Appendix 12: Ngā Hapū - Summary of evidence of use and occupation Appendix 13: Te Whānau a Ruataupare: Evidence of use & occupation Appendix 14: A-G’s Chronology of historical events from 1837 Appendix 15(a): Consented activities: North of Koutinui Point
Appendix 15(b) Consented activities: From Koutunui Point–Waitakeo Stream Appendix 15(c): Consented activities: Waitakeo Stream to Waiotu Road Appendix 16: Full Pūkenga Report of 6 October 2023
[Redacted].
Introduction
1.For over 400 years, two hapū, sharing the same tīpuna, have lived north of Gisborne in Tokomaru Bay. The hapū Te Whānau a Te Aotāwarirangi and Te Whānau a Ruataupare have lived, side by side, in the north and south of Tokomaru Bay to the present day. They now seek recognition for customary marine title (CMT) and/or protected customary rights (PCRs) to the common marine and coastal area in and around Tokomaru Bay under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).
1.There are two separate applications in these proceedings, one overlapping the other. Ngā Hapū o Tokomarua Ākau (Ngā Hapū) claims to represent both hapū. Its application area for CMT and PCRs spans the length of Tokomaru Bay from the north to the south. Te Whānau a Ruataupare ki Tokomaru (Te Whānau) challenged Ngā Hapū’s representation of Te Whānau a Ruataupare hapū and brought its own CMT claim for the southern end of Tokomaru Bay. The applications, therefore, overlapped. From the outset of these proceedings, and throughout the hearing, the unresolved representation issue meant that the two applicant groups could not agree on which group should hold title and how it should be held, if granted.
1.The Court-appointed pūkenga (tikanga expert), Dr Robert Joseph, addressed the vexed issue of representation and recommended that its resolution be undertaken in accordance with tikanga Māori, separate from these proceedings. The Court endorsed that approach and urged the parties to follow Dr Joseph’s recommendation of a marae-based tikanga mediation subsequent to the hearing.
1.Three important events have occurred since the hearing of this proceeding and the initial draft of the judgment. The first is the agreement reached by the applicants. On 14 August 2023, the applicants notified the Court that they, and the respective hapū, had reached an agreement at mediation, that they hold the application area jointly and that the two hapū would jointly hold such title or rights if granted, through an entity yet to be established. The current applications from Ngā Hapū and Te Whānau do not reflect that agreement.
2.Second, since the hearing of the evidence and before the delivery of this judgment, counsel for Ngā Hapū advised the Court that, with great sadness, Mr Roger Tichborne, the applicant for Ngā Hapū, passed away on 3 October 2023. I wish to acknowledge his passing and extend my condolences to his whānau and hapū.
E te Kaumatua, Roger Tichborne, moe mai, okioki mai rā, te hunga mate ki te hunga mate, tatou to hunga ora ki a tatou.
1.Third, on 18 October 2023 the Court of Appeal delivered the first appellate decision on substantive proceedings under MACA in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board (Re Edwards (CA)).1 It provides guidance on the statutory interpretation of MACA and, in particular, on the tests for recognition of CMT and PCRs.
1.As this judgment awaited the Court of Appeal’s decision, I granted all counsels’ requests to file supplementary submissions, which were received as timetabled. Those submissions have been considered in this judgment.
The issues
1.The issues for this proceeding arise out of the legal tests for recognition of CMT and PCRs under MACA. They are informed by the fact-specific evidence from, and context of, the two applicant hapū of Tokomaru Bay.
1.The issues are:
a.Who is entitled to represent the applicant hapū Te Whānau a Ruataupare?
a.Do the applicants, separately or jointly hold the specified area in accordance with tikanga?
a.Did they have exclusive use and occupation of the area at 1840?
a.Have they had the use and occupation of the area, in full or in part, since 1840 to the present day?
a.If so, was their use and occupation exclusive?
1 WhakatōheaKotahitanga Waka (Edwards)v Te Kāhuiand WhakatōheaMāoriTrustBoard [2023] NZCA 504, [2023] 3 NZLR 252 [Re Edwards (CA)].
a.Has there been substantial interruption to their exclusive use and occupation of the relevant area?
a.Should CMT recognition orders be made and over which area?
a.
a.Should PCR orders issue and in respect of which activities?
a.This judgment is divided into eight parts:
a.Part I describes the parties, the original claims, and the application area and boundaries.
a.Part II addresses the representation issue between the two claimants, their subsequent agreement, and identifies the further clarification required on representation and the application area.
a.Part III explains the legislative framework of MACA, the legal tests for CMT, and the findings of Re Edwards (CA).
a.Part IV analyses the first limb of the CMT test; whether the applicants hold the area in accordance with tikanga.
a.Part V deals with the second limb of the CMT test; whether the applicants had exclusive use and occupation of the area at 1840, post- 1840 to the present, and, if so, whether it was substantially interrupted.
a.Part VI describes and analyses the wāhi tapu claim and evidence.
a.Part VII deals with the claim for PCRs.
a.Part VIII summarises the conclusions and orders.
PART I – THE PARTIES
The original claims
a.The hearing proceeded on the basis of the two original applications, which both sought CMT over specified areas which overlapped, as described below. As a result of their subsequent agreement, the applicants and the two hapū of Tokomaru Bay now agree that if CMT and/or PCR recognition orders were granted, they would hold CMT and the PCRs jointly over the recognised area by a representative entity, yet to be established.
a.The agreement is an important development for the determination of the applications before the Court. It is relevant, however, to describe the original applications and the claims over the specified area to provide context to the evidence the Court received and the subsequent agreement reached by the two hapū.
a.The first application was from the late Mr Roger Tichborne on behalf of Ngā Hapū. Ngā Hapū is an entity so named because it contends that it represents the two hapū of Tokomaru Bay: Te Whānau a Ruataupare and Te Whānau a Te Aotāwarirangi. Mr Tichborne, along with Mr “Danny” Delamere and Mr Kemara Pēwhariangi, sought CMT for the whole application area, being the marine and coastal area from Koutunui Head south to Māwhai Point and out 12 nautical miles from all points along the named coastline. Ngā Hapū also sought PCRs in that area.
a.In its original application of 3 April 2017, Ngā Hapū applied for recognition of CMT for both hapū in the area from the Waikawa Stream in Orange Bay in the north to Te Māwhai Point in the south. The northern boundary, however, was amended because part of the area in its original application was included as part of Ngāti Porou’s rohe moana in the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill (No 2).2 After strong objection about its inclusion in Ngā Hapū’s application, an agreement was eventually reached between Ngāti Porou and Ngā Hapū. As a result of this agreement, Ngā Hapū changed their northern boundary for the purposes of their application from
2 Ngā Rohe Moana Hapū o Ngāti Porou Bill (No 2) 2018 (31-3). Later passed into legislation as the Ngā Rohoe Moana on Ngā Hapū o Ngāti Porou Act 2019.
Waikawa Stream to Koutunui Head. The 2017 map, originally filed with its application, was therefore replaced with an amended map.
a.Annexed as Appendix 1(a) is the map of the current Ngā Hapū application area and Appendix 1(b) shows the relevant sites marked in the Ngā Hapū application area. As marked on the map, the northern boundary line is Koutunui Head and the southern boundary line is in the middle of Te Māwhai. The specified area extends out 12 nautical miles and encompasses the whole of Tokomaru Bay.
a.The second application, also filed on 3 April 2017, was from the late Mr Tate Pēwhariangi, on behalf of Te Whānau. Te Whānau seeks CMT over the common marine and coastal area in the southern half of Tokomaru Bay that “extends from Waitakeo to Te Puka, and then to Te Māwhai, from a landward boundary of the mean high water springs and extending 12 nautical miles in a seaward direction”. The area as claimed, with the landward place names, is shown in a map annexed to its application and is annexed to this judgment as Appendix 2(a). Appendix 2(b) is a Fisheries Management map of the area with relevant fishing sites.
a.There were two problems arising from these applications. The first was that Te Whānau’s application area fell entirely within Ngā Hapū’s application area, being the southern half of Tokomaru Bay. Both applications were being heard concurrently. The Court was then faced with overlapping claims.
a.The second was the representation issue, with both applicants claiming the authority to represent Te Whānau a Ruataupare. While the parties’ agreement on shared exclusivity ameliorates the prohibitory effect of overlapping claims under MACA, the representation issue remains. I deal with each of these issues under Part II.3
3 Part II — Representation of Claimants at [48]–[69].
Other parties
Interested parties
a.Alongside the two applicants, Ngā Hapū and Te Whānau, there were a number of interested parties involved in the proceedings:
a.Ngā Whānau o Hauiti, whose rohe borders the application area at the southern end of Tokomaru Bay, near Māwhai Point. They did not seek to have their application determined by the Court at this point in time, as they are progressing their application through direct Crown engagement. They did not file any evidence in this proceeding but filed a notice of appearance and were represented by counsel throughout the hearing.
a.The Gisborne District Council, who filed a notice of intention to appear, adopted a neutral position on the applications, and was participating in the proceedings in a watching brief capacity only. The Council did not file any evidence in this proceeding, although it prepared and circulated a set of maps showing the Council’s assets within or directly adjacent to the application area. The Attorney-General advised that in respect of the land above the mean highwater springs, the Council is currently exploring whether any of that land can be returned to the former owners under the Public Works Act 1981.4
a.New Zealand Rock Lobster Industry Ltd, Paua Industry Council Ltd, Fisheries Inshore New Zealand Ltd and the New Zealand Federation of Commercial Fisherman Inc, together known as the Seafood Industry Representatives (Seafood Industry), appeared as an interested party. They filed and called evidence, attended the hearing throughout, and made submissions in opening, closing, and subsequent supplementary submissions.
4 All counsel were circulated with an email from the Council dated 21 April 2022.
a.The Landowners’ Coalition, having filed a notice of appearance, filed no evidence and made no appearance. Similarly, the Council of Outdoor Recreation Associations of New Zealand Inc also made a general notice of appearance but did not participate in this proceeding and nor did they file any evidence.
a.The Attorney-General appeared as an interested party.
The role of the Attorney-General
a.The Attorney-General appeared and participated fully in the proceedings in the interests of all the public, including Māori. This is consistent with this Court’s description of the Attorney-General’s role in hearings under MACA in Re Rihari (on behalf of Ngāti Torehina ki Maraka Hapū/Iwi of NiuTireni):5
The public interests that the Attorney-General represents as an interested party are the interests of all the public, such as assistance to the Court in the interpretation and application of novel legislation in an important area of the law. Such interests cannot appropriately be categorised as “non-Māori interests”. All New Zealanders, including the applicants, have an interest in seeing that the law is carefully developed, applied consistently and fairly, and that the purposes of the statute are met by the granting of such orders as meet the criteria in the Act.
a.The Attorney-General saw her role therefore as one of “independent aloofness” without taking a formal position on whether the applicants had met the test for rights in the application area.6 Dr Ward, on behalf of the Attorney-General, reinforced that the Attorney-General did not advocate for any sectional interest but provides submissions that must be “accurate, objective and restrained, and founded firmly on a tenable exposition of the applicable legal principles,” as this Court has previously directed. 7
5 Re Rihari (on behalfofNgātiTorehinaki Maraka Hapū/IwiofNiu Tireni) [2019] NZHC 2658 [Re Rihari] at [97].
6 At [97].
7 At [110] citing John McGrath QC “Principles of Sharing Law Officer Power: The Role of the New Zealand Solicitor-General” (1988) 18 NZULR 197 at 206.
Other applications affecting Tokomaru Bay
a.There have been other applications in respect of Tokomaru Bay that involve either a different process under MACA or applications under a different statute.
Crown engagement under MACA
a.There are two pathways for recognition of CMT and PCRs under MACA.8 The first is by application to the High Court under s 100, as the two applicants in this proceeding have done. The other is an engagement in a process for reaching an agreement with the Crown under s 95.9
a.An application on behalf of Ngā Whānau o Hauiti, which has been listed above as an interested party in this proceeding, is being progressed under the Crown engagement route at present. The Court is not asked to determine their claim in this proceeding. The two applicants in these proceedings, Ngā Hapū and Te Whānau, are also pursuing Crown engagement under MACA in respect of the specified area.
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
a.Under the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 (Ngāti Porou Act), there is a similar recognition of customary interests in the common marine and coastal area of the East Coast of New Zealand.10 However, there are differences between the Ngāti Porou Act and MACA.
a.The Ngāti Porou Act provides that Parts 3 and 4 of MACA do not apply to “ngā hapū o Ngāti Porou” in respect of “ngā rohe moana”.11 Thus, “ngā hapū o Ngāti Porou” may instead make applications for customary rights orders in respect of “ngā rohe moana” under the Ngāti Porou Act, which provides mechanisms for hapū management of CMT areas.
8 The Marine and Coastal Area (Takutai Moana) Act 2011, s 94.
9 Sections 94(a) and 95.
10 Re Edwards (Te Whakatōhea) (No.2) [2021] NZHC 1025 [Re Edwards (No.2)] at [392].
11 Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019, s 6. “Ngā hapū o Ngāti Porou” is defined in s 10 and “ngā rohe moana” is defined in s 11.
a.The statutory definition of “ngā hapū o Ngāti Porou” includes groups who had ratified an agreement with the Crown prior to the Ngāti Porou Act coming into force. It also provides mechanisms for non-ratifying hapū to decide to either accede to its regime and be added to the definition of “ngā hapū o Ngāti Porou” or not. A non-ratifying hapū of Ngāti Porou is defined in s 6(5) to mean:
the hapū of Ngāti Porou who are entitled to, but have not, become party to the deed of agreement and become part of ngā hapū o Ngāti Porou under section 124.
a.Thus, for non-ratifying hapū, the Ngāti Porou Act does not apply to them, and instead the MACA may apply to them in respect of “ngā rohe moana”.
a.Neither Te Whānau a Ruataupare nor Te Whānau a Te Aotāwarirangi have become a party to the Ngāti Porou deed of agreement, so do not fall within the definition of “ngā hapū o Ngāti Porou”. The Ngāti Porou Act does not apply to them. The area from Koutunui Head to Māwhai Point, encompassing Tokomaru Bay, is not included within the definition of “ngā rohe moana”.12 On the evidence presented in this hearing, the issue of whether the hapū should enter into this alternative scheme was, and still is, a topic of considerable debate in Tokomaru Bay. It led to the conflict between Ngā Hapū and Te Whānau and their overlapping claims. It is not necessary for the purposes of this judgment to traverse this conflict in detail. What is important to record is that the Ngāti Porou Act does not apply to the two applicants in this case.
a.Several areas of CMT within “ngā rohe moana” have been recognised by the Crown under the Ngāti Porou Act and have been given legal effect by secondary legislation.13 For example, On 1 February 2021, CMTs came into effect in respect of the area between Mataahu and Koutunui Head out to three nautical miles.14 The listed CMT holder was Ngā Hapū o Waipiro Takutai. The maps of these CMT areas are annexed to this judgment in Appendix 3. This raised an issue of a potential overlap between Ngā Hapū’s application area and the recognised CMT under the Ngāti Porou Act. This issue was resolved when Ngā Hapū clarified at the hearing that their
12 Section 11 and sch 2.
13 Ngā Rohe Moana o Ngā Hapū o Ngāti Porou (Recognition of Customary and Marine Title) Order 2020, schs 1–5.
14 Schedule 5.
application is from Koutunui Head, not north of it, and is therefore not overlapping with Ngā Hapū o Waipiro Takutai Kaitiaki Trust.
a.There are two further High Court applications for CMT, PCRs, and wāhi tapu protection rights filed under the Ngāti Porou Act that overlap the application area. They are applications by Ngā Hapū Takutai Kaitiaki Trust and Ngāti Wakarara – Ngāti Hau Takutai Kaitiaki Trust. Counsel for the Attorney-General recorded that the areas which overlap with the application area before this Court fall outside of “ngā rohe moana” and are therefore invalid under the Ngāti Porou Act. Those applicants have not filed notices of appearances as interested parties nor attended this hearing. Their applications, therefore, do not affect the claims by the applicants before the Court in this proceeding.
The application area and boundaries
a.Before assessing the applications, I deal with some more technical boundary issues that the applications in this proceeding raised. I will first deal with the definition of “common marine and coastal area” under MACA, its relevant exclusions and the boundary dispute, which was alive at the hearing but now appears to be resolved as a result of the parties’ agreement. I describe the dispute nevertheless.
Common marine and coastal area
a.There are a number of definitions and exclusions specified in MACA which have relevance to the application area.
a.The first is the definition of “common marine and coastal area”, under s 9 of MACA which is:
the marine and coastal area other than—
a.specified freehold land located in that area; and
a.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 section 2(1) of the Conservation Act 1987:
ii.a national park within the meaning of section 2 of the National Parks Act 1980:
i.a reserve within the meaning of section 2(1) of the Reserves Act 1977; and
a.the bed of Te Whaanga Lagoon in the Chatham Islands.
a.The “marine and coastal area” is defined under s 9 as:
a.… the area that is bounded,—
i.on the landward side, by the line of mean high-water springs; and
i.on the seaward side, by the outer limits of the territorial sea; and
a.includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and
…
a.The Attorney-General drew the Court’s attention to a number of exclusions, identified in the meaning of “common marine and coastal area”.
Specified freehold land
a.The first exclusion is “specified freehold land”. It is defined under s 9 of MACA as land that, immediately before the commencement of MACA, is Māori freehold land,15 is Māori reservation,16 is registered under the Land Transfer Act 2017 as being held in an estate in fee simple by a person other than the Crown or a local authority, or is subject to the Deeds Registration Act 1908 as being held in an estate in fee simple by a person other than the Crown or a local authority.
a.As a result of the Māori freehold land and Māori reservation exceptions, two sites contained in the application area are not a part of the common marine and coastal area. The first is the Kakepō tauranga waka site which is currently held by the Te Ariuru Marae Trustees. It is Māori freehold land and set apart as a Māori reservation by the Māori Land Court under the Te Ture Whenua Māori Act 1993. The reservation has been gazetted. As Māori freehold land, it is exempt from the common marine and coastal area. In addition, the part set aside as a Māori reservation is also above the
15 As defined under Te Ture Whenua Māori Act 1993, s 4.
16 As defined under Te Ture Whenua Māori Act, s 4.
mean high water mark, which is another reason why it is excluded from the common marine and coastal area. Thus, CMT and PCR cannot be recognised over any part of the Kakepō tauranga waka site.
a.Second, the Waimahuru Bay Scenic Reserve, being an estate in fee simple, has been vested in Te Runanga o Ngāti Porou to be administered as a scenic reserve.17 Again, it comes within the definition of specified freehold land and is exempt from the common marine and coastal area. It too does not go below mean high water mark. Thus, CMT and PCR cannot be recognised over any part of the Waimahuru Bay Scenic Reserve.
Reserves, conservation land and roads
a.There are no conservation areas managed by the Conservation Act 1987 within the application area and nor are there any reserves under the Reserves Act 1997 within the application area.
a.CMT and PCRs cannot be recognised over roads.18 Although roads abutting the common marine and coastal area may be relevant to the s 58 tests, as the Attorney-General notes, it does not appear that there are any roads within the application area nor abutting it.
Rivers
a.The “marine and coastal area” includes the beds of rivers that are part of the “coastal marine area” as defined in the Resource Management Act 1991 (RMA). Section 2(1) of the RMA defines the landward boundary for the marine and coastal area as the line of the mean high water springs, except for where that line crosses a river. In the case where the landward boundary crosses a river, the boundary shall be the lesser one of: one kilometre upstream from the mouth of the river; or the point upstream that is calculated by multiplying the width of the river mouth by five.
17 Ngāti Porou Claims Settlement Act 2012, s 16(9).
18 Marine and Coastal Area (Takutai Moana) Act, s 14.
a.A mouth of a river is defined either by agreement amongst the Minister of Conservation, the Regional Council, and the appropriate territorial authority or as declared by the Environment Court.19
a.Mr Richard Jennings, an expert cartographer called by the Attorney-General, presented evidence of a landward boundary of the common marine and coastal area at the mouth of the Mangahauini river in Tokomaru Bay. Mr Jennings, however, identified a discrepancy in the data from the Gisborne District Council, which provided for two different locations of the Mangahauini river mouth. 20 Although there is a discrepancy, it is not material to the arguments advanced by Ngā Hapū nor Te Whānau. As the Attorney-General accepts, the precise landward boundary at the Mangahauini river mouth may be determined as part of finalising the detail of any order with surveyor assistance at the Stage Two hearing.
The boundary dispute
a.At the hearing, there was an issue over the boundary between the two hapū. Given the claimants’ agreement post the hearing, I understand that this is no longer an issue for this Court. The issue arose as part of Te Whānau’s application over the southern Tokomaru Bay area. Te Whānau claims there has been a well-known boundary between the two hapū at the Waitakeo Stream. That boundary was recognised in the Native Land Court hearings in 1897–1900 and was incorporated and recorded in the Huiteananui Fisheries Management Plan.
a.In any event, the decision as to whether the two hapū are autonomous and recognise a boundary at the Waitakeo Stream is a matter which should be resolved not by the Court but by well-informed, and well-advertised tikanga based Māori hui on their respective Tokomaru Bay marae, as Dr Joseph proposes.
a.Similarly, the issue of the entity or person designated to hold any CMT title jointly, if granted, on behalf of the two hapū is to be a matter to be agreed by the two
19 Resource Management Act, s 310.
20 There is a difference in data held by the Gisborne District Council between the Council’s online mapping tool and the co-ordinates of the 12 May 1994 agreement with the Minister of Conservation.
claimant groups under their mediated agreement. This should be done before the Stage Two hearing.
PART II – REPRESENTATION OF CLAIMANTS
a.As noted, a significant issue in these proceedings was validity of representation of the hapū interests. Specifically, which claimant group had the authority to represent the hapū Te Whānau a Ruataupare and whether Ngā Hapū had that right. The pūkenga gave advice on the most appropriate way to resolve the dispute in a tikanga Māori way. I set his advice out below.
The pūkenga advice
a.Dr Joseph was asked by the parties to address the problem of representation in applying tikanga, by the following agreed questions:
…
dCan the conflicts in the whakapapa ancestry and the mana of the two applicant groups be reconciled with tikanga Māori to assist with resolving the issue of representation of the two applicant groups?
eIf not, what is the appropriate tikanga Māori to be observed and/or applied in relation to the representation of the applicant groups?
…
a.Dr Robert Joseph, who listened to the evidence on representation, considered both applicants were in breach of tikanga. He gave the parties, and this Court, expert advice by way of report and oral evidence, on how the representation of hapū interests should be resolved in accordance with tikanga Māori process and protocols. His report is attached at Appendix 16.
b.He addressed directly how the conflicts in the whakapapa ancestry, and the mana of the two applicants, could be reconciled with tikanga Māori processes to assist with resolving the issue of representation of the two applicants. He said:21
Whether the conflicts in the whakapapa ancestry and the mana of the two applicant groups can be reconciled with tikanga Māori to assist with resolving the issue of representation is fully dependent upon the political will of the two applicant groups agreeing to abide by tikanga Māori, such as the tikanga institutions of hohou i te rongo and he tatau pounamu, and the tikanga concept of ea.
a.Dr Joseph then proposed a framework for applying tikanga to the representation dispute:22
To appropriately resolve the current disputes between Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi under tikanga Māori is for them to go back and engage civilly in a number of well-advertised, well informed and well organised tikanga Māori based hui through decision-making processes by consensus on their respective Tokomaru Bay marae. Mana rangatira facilitating consensus-based discussions along with majority-based voting are the only viable processes for reconciling the tribal differences and historic mamae between the claimant groups.
a.By reference to history of resolving conflicts in a tikanga appropriate way, and by reference to evidence in this proceeding, Dr Joseph sets out how ea, or peace, may ensue after conflict:23
Tikanga Māori then is about what is appropriate human conduct in accordance with the tāhuhu values and principles noted above of Māori groupings for their circumstances at a particular point in time. Tikanga Māori then must be understood in context and will draw on precedents and the right and wrong actions of tūpuna (ancestors) to determine appropriate action.
…
By entering into tikanga Māori institutions such as he tatau pounamu and hohou i te rongo kawenata (agreements), conflict is ended and ea or peace ensues. Ea is a traditional socio-legal concept of having brought a process or series of transactions or past grievances to completion, to have avenged, reconciled differences, requited, satisfied or paid for past debts or grievances.24 The state of ea achieves balance.
21 Robert Joseph Pūkenga report (6 October 2022) at [49].
22 At [91].
23 At [29] and [61]–[62].
24 Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Herenga Waka Victoria University Press, Wellington, 2013) at 58.
Hence the conflicts in the whakapapa ancestry and the mana of the two applicant groups can be reconciled with resolving the issue of representation through tikanga Māori institutions such as hohou i te rongo and he tatau pounamu, and the tikanga concept of ea can be achieved but they are fully dependent upon the political will of the two applicant groups agreeing to abide by tikanga Māori.
a.Dr Joseph supported the suggestion of the Attorney-General that the applications could be amended to define the applicant group at a broader level, but such amendment must be done by agreement of the applicants. Dr Joseph urged the two applicant groups to resolve their differences on the marae in accordance with tikanga Māori practice.
Post-hearing agreement
a.At the conclusion of the hearing, the Court also urged the applicants to attend mediation, which they did on 14 August 2023. As noted, by joint memorandum dated 29 August 2023, counsel for the applicants provided an update to the Court and all parties.25 It records that at mediation, the applicants agreed that the two hapū, “both Te Whānau a Ruataupare and Te Whānau a Te Aotāwarirangi jointly hold and exclusively used and occupied (together) Tokomaru Bay, that being the coastal area from Waimahuru south to Te Māwhai.” It was also agreed that, if the Court made joint orders for CMT and PCRs, a new entity would be established to represent the two hapū and hold CMT on behalf of the two hapū. There was agreement in principle about the nature of such an entity.
a.Without such agreement, the Court was faced with overlapping claims. The Court of Appeal, in Re Edwards (CA), unanimously concluded that overlapping claims are inconsistent with the scheme of MACA.26 The Court agreed that such an outcome would be unworkable. The Court was divided, however, on whether there can be a grant of recognition of a shared CMT, where neither group acknowledges the rights of the other.27 The majority held that the Court can appoint a person to hold CMT for the group until a resolution can be reached in accordance with tikanga.28
25 Joint memorandum of counsel updating the Court regarding mediation and applications for Tokomaru Bay dated 29 August 2023.
26 Re Edwards (CA), above n 1, at [208]–[209] per Miller J and [439] per Cooper P and Goddard J.
27 At [205] per Miller J dissenting and [440] per Cooper P and Goddard J.
28 At [442] per Cooper P and Goddard J.
a.As a result of the applicants’ mediated agreement here, the problem has been resolved. Both applicants have agreed that, if CMT is granted, the two hapū can jointly hold CMT in the area from Waimahuru South to Te Māwhai by way of a new entity yet to be established. The agreement enables the Court to consider shared exclusivity, based on the claims of the two hapū applicants, to exclusive use and occupation of areas held in accordance with tikanga. As Miller J observes, a joint application may succeed if they can show they together hold the area to the exclusion of others.29 However, on the current applications, there is still a need for clarification of representation and the area claimed by each of the current applicants.
The current applications
a.In their joint memorandum following the mediation, counsel for the applicants considered that the agreed basis for holding a joint CMT could be made on the original applications but awaited the Court’s direction on whether amended applications were required. I directed the claimants to file amended applications to reflect the mediated agreement.
a.Te Whānau filed an amended application, in which it seeks joint CMT with Te Whanau a Te Aotāwarirangi for the southern area of Tokomaru Bay (south of Waitakeo stream) only. The application does not however claim shared CMT north of Waitakeo. Counsel for Te Whānau explains in the supplementary submission that Te Whānau considers they have met the relevant test on the evidence adduced at the hearing, notwithstanding the agreement to jointly hold the entire specified area with Te Whānau a Te Aotāwarirangi.
a.Te Whānau a Ruataupare’s evidence focussed on the area from Te Māwhai Point to the Waitakeo Stream as the stronghold and rohe of the hapū, where they assert the exercise of customary and tikanga practices. It appears that in wanting to ensure their amended application was consistent with the evidence they had adduced, Te Whānau made no further amendment to include their agreed joint interests in the area.
29 At [208] per Miller J.
a.Ngā Hapū has not filed an amended application but relies on its August 2022 application because it considers that its application reflects the mediated agreement.30 The application was made for the whole of the specified area (north and south) on the basis that the applicant entity represented both hapū.
a.The Attorney-General correctly highlights the inconsistencies in the current applications. Dr Ward submits that the mediated agreement provides that both hapū have interests in the area north and south of Waitakeo and there are two claimants purporting to represent Te Whānau a Ruataupare. In the absence of clarification over the representation issue, the Attorney-General suggested that the Court should approach the application for recognition orders by focusing on the rights of the two hapū and determine whether the two hapū have met the relevant test for joint CMT in the area specified in the mediation agreement. I consider that is appropriate.
Inconsistencies in current applications
a.To assist the claimants, I set out the three matters arising from the mediation agreement, which require clarification. The first is the area claimed. The agreement specifies the application area to be from Waimahuru south to Te Māwhai. The northern point in the original application is Koutunui Head. Waimahuru Bay is north of Tokomaru Bay and just south of Koutunui Head and north of Koutunui Point. The defining boundaries and survey points of the area will need to be clarified.
a.The second issue arising in respect of the specific area, is that Ngā Hapū seeks CMT and PCRs, in respect of the area north and south of Waitakeo, whereas Te Whānau a Ruataupare seeks CMT for the area south of the Waitakeo Stream. Even on the amended application, Te Whānau seeks the same southern area, despite the joint agreement to jointly hold and share the area north of Waitakeo.
a.Third, and most significantly, remains the issue of representation. The Court of Appeal in Re Edwards (CA) reinforced that the applicant must have the authority to seek an order on a group’s behalf. Unanimously, the Court held it was implicit in s 101 of the Act, and the definition of “applicant group”, that the applicant has the authority
30 This application is discussed at [13]–[15] of this judgment.
to seek an order on behalf of an applicant group. The Court reinforced that the applicant will need to be satisfied that they do represent the applicant group in the event of any controversy.31 The representation of Te Whānau a Ruataupare, must therefore be resolved before final orders are made, as the current applications describe both Ngā Hapū and Te Whānau as representing the hapū Te Whānau a Ruataupare
a.During the hearing a substantial amount of evidence had canvassed the meetings that were held to select the representatives of the two hapū to make the current application on behalf of Ngā Hapū. I have not traversed the evidence on how the representatives for Te Whānau were appointed by Ngā Hapū or the detail concerning the various meetings. The history of the process is now redundant as the parties have mediated an agreement that the grant of recognition orders can be held by the two hapū jointly. This is a welcome outcome, and the parties are to be commended for engaging with the mediation process.
a.I accept that there may have been an oversight or misunderstanding by counsel about the effect of amendment on their respective applications. If so, they should be given an opportunity to clarify and amend the applications to reflect the mediated agreement. If there has not been a misunderstanding, any final resolution of the representation issue, if outstanding, should follow the pūkenga’s advice and be achieved following a tikanga-consistent process.
a.For the above reasons I accept the Attorney-General’s proposal that the Court should focus on the rights and interests of the two hapū, as a practical way of dealing with the substantive issues.
Conclusion
a.I consider the appropriate course is for the Court to determine whether the two hapū have satisfied the relevant test for CMT. In the absence of any agreement on which applicant group represents the hapū Te Whānau a Ruataupare, the representation issue remains unresolved. It will need to be addressed before final orders are made, as the Court must be satisfied that the holder of the CMT represents the applicant
31 Re Edwards (CA), above n 1, at [203(b)] per Miller J and [360] per Cooper P and Goddard J.
group.32 Such an approach is consistent with Re Edwards, where the majority held that the Court can grant recognition of CMT, where both jointly or severally meet the s 58 test.33
PART III – LEGISLATIVE FRAMEWORK
An overview
a.Since the hearing, the Court of Appeal’s decision in Re Edwards delivered the first substantive judgment on the MACA legislation. The legislative history of MACA is detailed in Miller J’s judgment,34 with which the majority agree.
a.In summary, the Court of Appeal’s decision in Ngāti Apa v Attorney-General, which held that the Māori Land Court had jurisdiction to determine customary ownership of the foreshore and seabed,35 triggered the enactment of the Foreshore and Seabed Act 2004. The Foreshore and Seabed Act vested ownership of the foreshore and seabed in the Crown, preventing the recognition of Māori customary ownership. This caused controversy and the Foreshore and Seabed Act was repealed and eventually was replaced by MACA.
a.The preamble to MACA, in addition to reciting an abridged summary of the steps to the enactment of the Act, concludes by stating:
This Act takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand the coastal marine environment for future generations:
a.Thus, as the Court of Appeal confirmed in Re Edwards, MACA introduces a statutory regime for the recognition of customary interests but also protects the legitimate interests of all New Zealanders in the marine and coastal area. It accords special status to the common marine and coastal area such that no one, including the Crown, owns or is capable of owning it and thus has a status that is fundamentally
32 At [203(b)] and [275] per Miller J and [360] per Cooper P and Goddard J.
33 At [441]–[442] per Cooper P and Goddard J.
34 At [39]–[60] per Miller J.
35 Ngāti Apa v Attorney-General [2003] 3 NZLR 643 (CA).
different from the common law.36 Specifically, the special status does not affect the recognition of customary interests or any lawful use of any part of the common marine and coastal area.37
a.As the majority in Re Edwards observed, the purpose statement in s 4 of MACA is central to the interpretation of s 58.38 The recognition of Māori customary rights, and the rights of all New Zealanders, in the common marine and costal area is furthered in the four purposes of MACA:39
4 Purpose
a.The purpose of this Act is to–
b.establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
c.recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
d.provide for the exercise of customary interests in the common marine and coastal area; and
e.acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).
a.There are two other sections that are relevant to the determination of the rights granted under MACA. First, under s 6(1), customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 are restored and “given legal expression in accordance with [the] Act”. As noted in the other authorities, the rights conferred by MACA are “much narrower and more limited than the customary title and rights that Māori would have enjoyed and exercised in the foreshore and seabed as at 1840”.40
a.Second, s 7 sets out the three rights that are provided for under MACA:
In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing,—
36 Marine and Coastal Area (Takutai Moana) Act, s 11.
37 Sections 11(5)(a) and 11(5)(b).
38 Re Edwards (CA), above n 1, at [381] per Cooper P and Goddard J.
39 Note that no priority is attached to any single purpose in particular.
40 Re Edwards (No.2), above n 10, at [33].
a.
a.… for customary rights to be recognised and protected; and
a.… for customary marine title to be recognised and exercised.
a.The majority of the Court of Appeal in Re Edwards identified the consistent theme of these provisions: 41
… MACA is intended to restore customary interests in the common marine and coastal area that were extinguished by [the Foreshore and Seabed Act]. Those interests are to be “given legal expression” in accordance with MACA
… Section 7 makes the link with the Treaty of Waitangi: MACA recognises and promotes the exercise of customary interests of Māori in the common marine and coastal area “in order to take account of the treaty of Waitangi”. It does so by providing, among other things, for PCRs to be recognised and protected and for CMT to be recognised and exercised.
a.The statutory entitlements are subject to a number of express limits. The majority in Re Edwards defined the limits as twofold. First, none of the statutory entitlements amounts to ownership of any area of the common marine and coastal area.42 This, however, does not affect the recognition of customary interests, so a group that holds a PCR or CMT does not own the area in question but has a bundle of rights and interests described in MACA.
a.Second, MACA provides for the public to have certain rights in relation to the common marine and coastal area, even if that area is subject to a CMT. Those rights include rights of access,43 rights of navigation (including temporary anchoring and grounding),44 and rights of fishing.45 Thus, a holder of CMT does not have many of the rights that are commonly associated with ownership of land.46 Short of ownership, a CMT provides an interest in land. It does not include a right to alienate or otherwise dispose of any part of a CMT area.47
41 Marine and Coastal Area (Takutai Moana) Act, s 6(1); and Re Edwards (CA), above n 1, at [384] per Cooper P and Goddard J.
42 Marine and Coastal Area (Takutai Moana) Act, s 11(2) states that “neither the Crown nor any other persons owns, or is capable of owning, the common marine and coastal area”; and see Re Edwards (CA), above n 1, at [386] per Cooper P and Goddard J.
43 Marine and Costal Area (Takutai Moana) Act, s 26.
44 Section 27.
45 Section 28.
46 R Edwards (CA), above n 1, at [387] per Cooper P and Goddard J.
47 Marine and Coastal Area (Takutai Moana) Act, s 60(1)(a).
a.Despite CMT not being an ownership right, it is nevertheless a non-alienable interest in land and the most extensive form of statutory right provided for under MACA.48 It is a territorial right, not merely a usage right. Under s 62(1) of MACA, the following rights are conferred, and may be exercised under, a CMT order:
a.a RMA permission right for controlled activities;
a.a conservation permission right;
a.a right to protect wāhi tapu and wāhi tapu areas;
a.rights in relation to marine mammal watching permits;
a.rights in relation to the process for preparing or changing a New Zealand coastal policy statement;
a.prima facie ownership of newly found taonga tūturu;
a.ownership of certain minerals;
a.and the right to create a planning document.
a.A PCR is a right that has been exercised in a particular area since 1840 and continues to be exercised in a part of the common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same way, or a similar way that it evolves over time, and has not been extinguished as a matter of law.49
a.Importantly, a PCR does not include any activity that is regulated under the Fisheries Act 1996, is a commercial aquaculture activity, or involves the exercise of any commercial or non-commercial Māori fishing right or interest under s 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.50
48 Re Edwards (CA), above n 1, at [134] per Miller J and [391] per Cooper P and Goddard J, citing Marine and Coastal Area (Takutai Moana) Act, s 60(1).
49 Marine and Coastal Area (Takutai Moana) Act, s 51(1).
50 Section 51(2).
a.Tikanga Māori is integral to both the tests for CMT and PCRs. It is also a part of New Zealand’s legal framework. Tikanga is defined by s 9 of MACA as “Māori customary values and practices”. It is not for this Court to determine or define the tikanga of the applicants.
a.Tikanga plays a pivotal role in MACA, particularly in respect to the first limb of the test for CMT under s 58(1)(a), where the Court must assess whether the applicant group “holds the specified area in accordance with tikanga”. Similarly, under the second limb of the test for PCRs in s 51(1)(b), the Court must consider whether the right continues to be exercised “in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way or evolves over time”.
a.Tikanga also informs the interpretation of other provisions of MACA. Tikanga and its application to the legal tests under MACA are described in more detail in Parts IV and V and in the application of the tests for CMT and PCRs in Part VII.
The legal tests for CMT
a.The Court of Appeal in Re Edwards canvassed the legal tests to be applied for CMT under s 58(1) and, in particular, the requirements of exclusive use and occupation. But, the Court was divided on the interpretation of the statutory language. Both interpretations deserve careful consideration in the assessment of the evidence in this case.
a.In this section, I canvass the relevant CMT sections, the effect of the Court of Appeal’s majority and minority decisions in Re Edwards on determining CMT applications, and the framework I propose to adopt in applying the Court of Appeal’s findings and analysis to these CMT applications in Tokomaru Bay.
Section 58 MACA
a.Section 58 of MACA governs applications for CMT. As its provisions are the predominant focus of these applications, I set it out in full:
5Customary marine title
a.Customary marine title exists in a specified area of the common marine and coastal area if the applicant group –
a.holds the specified area in accordance with tikanga; and
a.has, in relation to the specified area, –
i.exclusively used and occupied it from 1840 to the present day without substantial interruption; or
i.received it, at any time after 1840, through a customary transfer in accordance with subsection (3).
i.For the purpose of subsection (1)(b), there is no substantial interruption to the exclusive use and occupation of a specified area of the common marine and coastal area if, in relation to that area, a resource consent for an activity to be carried out wholly or partly in that area is granted at any time between–
a.the commencement of this Act, and
a.the effective date.
…
(4) Without limiting subsection (2), customary marine title does not exist if that title is extinguished as a matter of law.
a.Importantly, s 59 identifies relevant matters to be considered when determining whether CMT exists in a specified area of the common marine and coastal area. Of particular relevance is the consideration of the applicant groups’ ownership of land abutting the specified area since 1840 to the present day,51 and the exemption of use by the public for fishing or navigation:52
5 Matters relevant to whether customary marine title exists
a.Matters that may be taken into account in determining whether customary marine title exists in a specified area of the common marine and coastal area include—
a.whether the applicant group or any of its members—
51 Section 59(1)(a).
52 Section 59(3).
i.own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:
i.exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and
a.if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.
a.To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(a)(ii).
a.The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.
a.For the purpose of subsection (1)(a)(i), land abutting all or part of the specified area means—
a.land that directly abuts the specified area; or
a.land that does not directly abut the specified area, but does directly abut any of the following:
i.a marginal strip (as defined in section 2(1) of the Conservation Act 1987) that directly abuts the specified area:
i.an esplanade reserve (as defined in section 11 of the Natural and Built Environment Act 2023), but only to the extent that it directly abuts the specified area:
i.a reserve (as defined in section 2(1) of the Reserves Act 1977), but only to the extent that it directly abuts the specified area:
i.a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified area:
i.a road that directly abuts the specified area:
...
The Court of Appeal findings in Re Edwards
i.The Court of Appeal was divided in two respects: first, the legislative requirements to prove exclusivity of use and occupation of the application area; and second, how to deal with shared exclusivity in the absence of the applicants’ agreement. I set out the Court’s findings in relation to the legal requirements for the tests under s 58(1) of MACA.
First limb — holds the specified area in accordance with tikanga Māori
i.The first limb of s 58(1) requires the applicant group to show that it holds the specified area in accordance with tikanga. Noting that this requirement appears to reflect the definition of “Māori customary land” in s 129(2)(a) of Te Ture Whenua Māori Act, under s 129(2)(a), the majority Court cited the Māori Land Court’s observation that “the important word here is ‘held’. There is no connotation of ownership but rather that it is retained or kept in accordance with tikanga Māori.”53 The Court was unanimous in finding that the focus should be on tikanga.54
i.In interpreting and applying the first limb, the majority said the focus should be on tikanga, and whether as a matter of tikanga the applicant group holds the relevant area. They considered that evidence of activities that showed control or authority over the area, as opposed to simply carrying out a particular activity in that area, will be of particular relevance in distinguishing a “holding” of the area from the use of the area to gather a particular resource.55 The Court noted that this is a contemporary inquiry with the term “holds” being in the present tense. Thus, they reasoned, the applicant group must currently use and occupy the area, in a manner consistent with the nature of that area, and must have control or authority over the area according to tikanga.
i.The majority applied a tikanga lens to the Canadian test of a group’s “intention and ability” to exclude others from land as follows:56
However in the context of Māori customary relationships with land, and the principles of whanaungatanga and manaakitanga, we consider it is more helpful to focus on the group’s intention and ability to control access to an area, and the use of resources within it, as a matter of tikanga. Permitting others to access the area and to use resources within it, as an expression of manaakitanga, is not inconsistent with control: rather, it demonstrates the exercise of authority in respect of the relevant area … The fact that permission is invariably granted, in particular to whanaunga (relatives) and others with whom there are reciprocal relationships, does not call into question the group’s control of the area. Rather, it is a manifestation of that control.
53 Re Edwards (CA), above n 1, at [140] per Miller J and [397] per Cooper P and Goddard J citing
da Silva v Aotea Māori Committee (1998) 25 Tai Tokerau MB 212 (25 TTK 212) at 217.
54 At [140] per Miller J and [401] per Cooper P and Goddard J.
55 At [401] per Cooper P and Goddard J.
56 At [403] per Cooper P and Goddard J.
i.The majority concluded that an applicant group must have had the intention and ability as a matter of tikanga to control access to the relevant area by other groups. In this way there is a distinction between the areas held by the group at that time from areas in respect of which the group could assert specific resource rights but did not otherwise control the use of the area. The majority cautioned that the use by a group of a particular resource in a specified area, coupled with an intention and ability to control the use of that resource by others, is not sufficient to establish that the area is held by that group in accordance with tikanga.57
i.Miller J reinforced that identification of tikanga is the first step in the process. He said that whether an applicant holds the specified area in accordance with tikanga, requires evidence of the local area concerned, with activities that show control or authority over the area, as opposed to simply carrying out a particular activity, such as gathering a particular resource:
[141] The group’s use and occupation must be exclusive. That is … a high standard. It is not synonymous with possession at common law, but it is concerned with the intention and ability to exclude others from the specified area. This distinguishes areas held by the group at that time from areas in respect of which the group held only specific resource rights. Use rights which are not accompanied by territorial control cannot sustain CMT.
i.Although he used a more stringent test than the majority, I consider it is important to set out Miller J’s approach, as it is relevant to the application area in Tokomaru Bay given the evidence that the Court heard: 58
[The court must further inquire into the group’s past use and occupation, asking whether exclusivity has been continuous from 1840 to the present day. Any interruption during that period must have been substantial if it is to defeat the group’s claim to continuity of use and occupation. Resource consents granted between MACA’s commencement and its effective date are deemed not to amount to substantial interruption (by implication, other resource consents may do so).
[When deciding whether CMT exists in a specified area, relevant considerations include ownership by the applicant group or any of its members of abutting land without substantial interruption since 1840, and the exercise of non-commercial customary fishing rights in the area since 1840. Use of the area by others, not being members of the applicant group, of a specified area for fishing or navigation does not, of itself, preclude the applicant group from establishing CMT; that is to say, such activities do not mean, of themselves,
57 At [404] per Cooper P and Goddard J.
58 Footnote omitted.
that the area is not held in accordance with tikanga or that the applicant group’s exclusive use and occupation has been substantially interrupted.
i.It can be seen from the above that both judgments require elements of territorial control and authority to meet the requirement in the first limb of “holds” a relevant area in accordance with tikanga. Miller J considered that s 58(1) established “a composite test” with the same elements required for “holds” as required for exclusive use and occupation,59 which is the second limb of s 58(1). I set out each of the respective considerations of the judgments under the second limb.
Second limb — use and occupation
i.The starting point, the majority held, in analysing whether the requirements of s 58(1)(b) have been met is to consider the situation that existed prior to the Proclamation of British Sovereignty in 1840.60 Customary rights must have existed as at 1840 and the applicant group must be the successor of the group that exercised those rights:
[419] The requirement that the applicant group has used and occupied the area from 1840 to the present day emphasises the need to trace the relevant customary rights back to 1840, before the British proclamation of sovereignty. The customary rights must have existed as at 1840, and the applicant group must be (or be the successor of) the group that exercised those rights at that time.
i.The majority distinguished “use” rights from a group’s ability to “hold” an area, and linked such “control” of an area with exclusive use and occupation when they said:
[421] As discussed above, the applicant group must have had the intention and ability as a matter of tikanga to control access to the relevant area by other groups. This distinguishes areas held by the group at that time from areas in respect of which the group could assert specific resource rights, but did not otherwise control the use of the area, especially where other groups also independently used the area or accessed other resources in that area. The group could not be said to exclusively use and occupy the area in such circumstances.
59 Re Edwards (CA), above n 1, at [145] per Miller J.
60 At [419] per Cooper P and Goddard J.
i.Helpfully, the majority concludes that there must be a strong presence in the area, manifesting itself in acts of occupation demonstrating the area belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.61
i.This, they said, is not defeated by access from other Māori groups:
[424] The ability of a group to meet this requirement will not necessarily be defeated by evidence of access to the area and use of resources in that area by other Māori groups. Full account will need to be taken of the core tikanga values of whanaungatanga and manaakitanga in order to understand the basis on which other groups were present in the area. As we explained above in relation to the first limb, where a group permits access by other groups to its land and to its resources, that will reflect the exercise of its mana/control in respect of that land, and (as a result) supports rather than undermines a claim to CMT.
i.It is plain that evidence of assertions of control needs to be assessed “in the round” and are context specific. The Court, therefore, needs to have regard to the context in which the claim is brought, a consideration of the applicants’ tikanga, and the additional features of the geographical landscape, remoteness, and environmental factors. Nor should the Court overlook the tikanga Māori concept of ahi kā roa, being the long burning fires, symbolising occupation or similar concepts such as hau kainga, which may be relevant to assessing interruption to use and occupation. The involvement of the applicants in Resource Management Act decisions and their ownership or control of land abutting the foreshore since 1840 are also relevant.
Second limb — exclusivity and substantial interruption
i.The majority rejected a literal interpretation of the words “exclusivity” and “substantial interruption” as those interpretations would be inconsistent with the Treaty/Te Tiriti, the assurances given in the Government’s 2010 consultation document that preceded MACA, and the purposes of MACA set out in s 4 — recognising mana tuku iho in the marine and coastal area and providing for the exercise of the customary interests in the common marine and coastal area. Further, they said, it would be inconsistent with s 7 of MACA, which recognises and promotes the exercise of customary rights in order to take account of the Treaty/Te Tiriti.
61 At [422] per Cooper P and Goddard J.
i.The majority accepted the Attorney-General’s submission that CMT is a territorial interest in an area and concluded that it was possible to interpret the text of s 58 in a manner that is consistent with the purpose of MACA by reading it in a manner that is sensitive to the materially different legal frameworks that applied before the Proclamation of Sovereignty in 1840 and of British Sovereignty onwards.62
i.The majority nevertheless addressed the relevant considerations to a determination of whether a group has exclusive use and occupation of an area without substantial interruption. They said:
[426] The requirement that a group must have exclusively used and occupied the area from the proclamation of British sovereignty to the present day, without substantial interruption, needs to be approached having regard to the substantial disruption to the operation of tikanga that resulted from the Crown’s exercise of kāwanatanga, and having regard to the scheme and purpose of MACA. Relevant factors include:
(The nature of the customary rights in issue, which in many cases will have been consistent with access by others to the area …
(The frequent and generous exercise of manaakitanga by whānau, hapū and iwi in favour of other Māori groups, and in favour of European settlers. …
(The Crown’s promise, contained in art 2 of the Treaty/te Tiriti, that Māori would continue to enjoy the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties. …
(The Crown’s arrogation to itself of the power to control access to customary lands, by prohibiting (in the exercise of kāwanatanga) the use of force to prevent incursions into an area controlled by a relevant group, and (from 1909 onwards by preventing customary owners from bringing their own proceedings in the courts to prevent unauthorised access to their customary land. …
(The longstanding and widely held (but incorrect) view that there could be no customary rights or interests in the common marine and coastal area, ultimately dispelled by this Court’s decision in Ngāti Apa. …
(The express provision in s 59(3) of MACA that use at any time by persons who are not members of an applicant group of a specified area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of CMT. … This confirms that activities engaged in by third parties in coastal areas, whether as a result of manaakitanga on the part of relevant groups or as a result of Anglocentric assumptions on the part of those third parties about their
62 At [417]–[418] per Cooper P and Goddard J.
right to do so that Māori were unable to resist, should not be seen as relevant interruptions of the customary rights that found CMT.
i.The Court then considered what the applicant had to prove for CMT by addressing the burden of proof.
Burden of proof
i.MACA makes specific provision for the burden of proof for CMT. Under s 106(2), the applicant group has the burden of proving that the specified area:
a.is held in accordance with tikanga; and
a.has been used and occupied by the applicant group, either—
i. from 1840 to the present day; or
i.from the time of a customary transfer to the present day.
a. in the case of every application for a recognition order, it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished.
a.Miller J found that s 106 does not specify that the applicant group must prove that its use and occupation since 1840 has been exclusive. As he observed, nor does the section specify who is to prove absence of substantial interruption, both of which were statutory requirements under s 58(1).63 He considered, however, that exclusivity of use and occupation requires both an intention and capacity to control the area:
[162] In my view exclusivity of use and occupation requires both an externally-manifested intention to control the area as against other groups and the capacity to do so. Exclusivity is a question of fact, heavily dependent on the characteristics of the specified area, the kinds, frequency and intensity of use, and the circumstances of claimant groups. The inquiry must be sensitive to the methods that were and are available to assert mana. It must also be sensitive to the practice of whanaungatanga and the existence of whakapapa linkages which mean that other groups may not have been physically excluded from the specified area but rather used its resources with permission of the applicant group.
a.However, Miller J reinforced that Māori groups have not lost exclusive use and occupation because they cannot in law prevent public access to the area for purpose of recreation, fishing and navigation.64
63 At [224] per Miller J.
64 Footnotes omitted.
[163] It should not be assumed that exclusivity has everywhere been lost, for two reasons. First, the mere existence and exercise of public rights secured under MACA is not inconsistent with exclusivity; put another way, Māori groups have not lost exclusive use and occupation merely because they cannot in law prevent public access to and use of the common marine and coastal area for purposes of recreation, fishing and navigation.
a.As Miller J explained, although the words “exclusively” and “without substantial interruption” in s 58(1)(b)(i) are omitted from s 106(2)(b), exclusivity is intimately connected with the requirement that the applicant group has held the area in accordance with tikanga since 1840.65 He observed that mana tuku iho incorporates the intention and ability to exclude others according to the dictates of tikanga and deduces that MACA assumes that as a matter of fact that applicant groups may have enjoyed exclusive use and occupation of the common marine and coastal area before 1840.66
a.The majority differed in their interpretation of s 106. They held that the burden of proof on the applicants is prove the elements of the test for CMT specified in s 106(2) of MACA only — without having to prove exclusivity of occupation and use. Thus, to satisfy the burden of proof, an applicant group must call evidence to satisfy the Court that:67
b.The specified area is currently held by that group in accordance with tikanga. That is, the group will need to show that as a matter of tikanga it has the authority to use and occupy the area, and control access to and use of that area by others.
a.The use and occupation of the area by that group has been continuous from 1840 to the present day (allowing for tuku, and for changes in composition and identities of customary groups.
a.To prove the contrary, that the inference under the s 58 test is not met, the opposing party must establish:68
1that the customary interests of the applicant group were not sufficient to establish effective control over the relevant area as at 1840; or
65 At [227] per Miller J.
66 At [185] per Miller J.
67 At [435] per Cooper P and Goddard J.
68 At [437] per Cooper P and Goddard J.
2after 1840, the applicant groups customary interests ceased to have the “necessary character” and
3the applicant groups effective control over the relevant area was substantially interrupted after 1840.
a.The majority concluded that if the matters specified under s 106(2) are established by the applicant, the Court is entitled to infer the other requirements of s 58, namely “exclusively” and “without substantial interruption” are satisfied unless a party alleges and establishes the contrary.69
Ingredients of CMT test
a.In summary, the majority of the Court of Appeal in Re Edwards found that “the best available reading of s 58, which respects its text and its purpose,” is to require the applicants to prove:70
b.that the applicant group currently holds the relevant area as a matter of tikanga.
a.that in 1840 prior to the proclamation of British Sovereignty, the group (or its tikanga predecessor(s)) used and occupied the area, and had sufficient control over that area to exclude others if they wished to do so. This inquiry essentially parallels the inquiry required by common law to establish customary title as at 1840.
a.Whether post-1840 that use and occupation ceased or was interrupted because the group’s connection with the area and control over it was lost as a matter of tikanga, or was substantially interrupted by lawful activities carried on in the area pursuant to statutory authority.
a.The majority held that in order to meet the test of s 58, an applicant group will need to call evidence to satisfy the Court that:71
a.The specified area is currently held by that group in accordance with tikanga. That is, the group will need to show that as a matter of tikanga it has the authority to use and occupy the area, and to control access to and use of that area by others.
a.The use and occupation of the area by that group has been continuous from 1840 to the present day (allowing for tuku, and for changes in composition and identities of customary groups).
69 At [437] per Cooper P and Goddard J.
70 At [434] per Cooper P and Goddard J.
71 At [435] per Cooper P and Goddard J.
a.The majority said further, that such evidence:72
… will be sufficient for the Court to draw an inference that the s 58 test is met, unless some other party takes it on themselves to demonstrate that the customary interests of the applicant group were not sufficient to establish effective control over the relevant area as at 1840, or have ceased to have the necessary character or been substantially interrupted after 1840…
a.I propose to adopt the following approach to the CMT test and analysis of the evidence adduced at the hearing. Adopting the majority approach in the Court of Appeal but incorporating Miller J’s considerations of exclusivity,73 I adopt the two limb test, with the second limb comprising four parts. My approach is as follows:
First limb
(i) Do the applicant groups currently hold the relevant area in accordance with tikanga?
Second limb
(In 1840, did the applicants (or their tīpuna) use and occupy the area to exclude others if they wished to do so?
(Post-1840 to the present time, did the applicants maintain the use and occupation of the area?
(If so, did the applicants have exclusive use and occupation, by maintaining territorial control over that area as a matter of tikanga?
(Was there substantial interruption of the applicants’ exclusive use and occupation by lawful activities carried on in the area under statutory authority or was the exclusivity lost as a matter of tikanga?
a.The first step is to identify the concepts of tikanga, mana tuku iho and the values to be applied to this application area. From the evidence in this case, a merger of the two approaches in the Court of Appeal seems appropriate in applying the
a.Consequently, several legal governance bodies may be perceived to represent whānau, hapū, iwi, confederations of tribes and pan-Māori groups, including:
aMāori trusts and incorporations under the Te Ture Whenua Māori Act 1993;
atrust boards;
aincorporated societies;
aprivate and charitable trusts;
aprivate statutory bodies;
a Māori councils;
afederated Māori authorities, and
arūnanga.
245 Ward, A ‘Historical claims under the Treaty of Waitangi’ in Journal of Pacific History (Vol. 28, 1993) at 181.
246 Te Puni Kōkiri and Nicholson Consulting Te Matepaeroa Looking Toward the Horizon: Some Insights into Māori in Business (Te Puni Kōkiri and Nicholson Consulting, Wellington, 2019) at 3.
a.Another plethora of Māori legal entities will emerge for processing the 200 or more claims under MACA.
a.Hence, there is much diversity in name, number, structure and use of legal entities and institutions that allege they represent whānau, hapū, iwi and other Māori group interests in different places and contexts.
a.Customary representation, the appropriate representation level, and institutional representation as noted above were discussed by most, if not all, of the Te Whānau a Te Aotāwarirangi and Te Whānau a Ruataupare ki Tokomaru claimants through Ngā Hapū o Tokomaru Ᾱkau and the respective marae whānau witnesses.
Mana Rangatira
a.One key element that is required to assist the two claimant groups to reconcile their differences to move together to process and then govern their Tokomaru MACA claims is effective rangatira leadership that can weave Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi together by blending the mana of these respective whānau, hapū and iwi groupings.
a.There is much literature on traditional rangatiratanga for effective governance leadership. Dr Hirini Mead, for example, provided a thorough analysis of traditional Māori rangatira criteria based on tikanga Māori by examining the rangatiratanga of two prominent 19th century rangatira — Te Rangikaheke of Te Arawa and Himiona of Ngāti Awa.247 Dr Mead listed the following criteria for the mandate and legitimacy of a traditional Māori rangatira that included:
a“whakapapa (genealogy);
angā pumanawa — talents;
aacceptance and confirmation by the people;
aidentity being known by other iwi (tribes);
atūrangawaewae (having a place to stand on the traditional tribal homeland);
a gender;
amana (inherited and achieved spiritual authority, influence, status); and
atapu (spiritual sanctity, avoiding risk, intrinsic sacredness, setting apart from the unclean).”248
a.Illustrious whakapapa ancestry, although important, was not enough for being an effective rangatira. Felix Keesing, the New Zealand anthropologist, commented on Ngāti Porou leadership in 1928 and stressed the distinction between descent (ascription) and meritocracy (achievement) or what he termed the mana of dignity and the mana of business when he opined:
247 HM Mead, The Mandate of Leadership and the Decision-Making Process (Te Puni Kokiri, Wellington, 1992).
2Above.
“But in Ngati Porou, from some eight generations back the “mana” of dignity has been quite severed from the “mana” of business. In all matters of ceremonial, the leadership of the hereditary chiefs of highest lineage is unquestioned; but in all matters of wisdom and business, those most competent to do so direct the tribal affairs.”249
a.While whakapapa continues to be a practical reality for ascriptive Māori leadership, rangatira are also expected to possess a range of relevant skills for achieved Māori leadership in accordance with tikanga Māori and the respective tasks at hand. Mana rangatira are those leaders who can weave the people together and who acknowledge and can blend the mana of the respective groups.
a.Dr Wi Repa of Ngāti Porou provided an interesting synopsis of a rangatira in 1926 in an obituary to his wife as a wahine rangatira:
“… The chief is someone who can bind the people at both hapū and iwi level in their endeavours. S/he is a leader. S/he starts and finishes tasks and is followed by people. S/he is described as a chief whose chiefly lines are held in regard, increased and distinguished, by other tribes.”250
a.Professor Mead also listed the required ngā pumanawa (talents) of a mana rangatira, namely:
a“knowledge and industriousness;
amediation and dispute resolution abilities; [emphasis added]
ahaving courage and being a good strategist in war;
aknowledge of the arts of carving;
aknowledge of looking after the people;
a command of the knowledge and the technology to build large canoes or houses; and
aa sound knowledge of the boundaries of tribal lands.”251
a.In a similar manner, Mahuika,252 and Te Ua253 analysed some of the credentials for traditional Māori rangatira selection and effectiveness based on ascription and achievement. Mahuika and Te Ua analysed rangatiratanga in a specific Ngāti Porou, East Coast context. Bowden in contrast, attempted to delineate
2Keesing, F, The Changing Maori, (New Zealand Board of Maori Ethnological Research, Thomas Avery & Sons, New Plymouth, 1928, Vol. 1, No. 2).
250` Te Toa Takitini, (No. 57, 1 May 1926) at 400.
251HM Mead, The Mandate of Leadership and the Decision-Making Process (Te Puni Kokiri, Wellington, 1992).
252A Mahuika, “Leadership: Inherited and Achieved,” in M King (ed) Te Ao Hurihuri: Aspects of Māoritanga (Reed Books, Auckland, 1992) at 42.
253H Te Kani Kerekere Te Ua, “Notes on Māori Chieftainship” (1955) 64(4) Journal of the Polynesian Society 488.
the different types of Māori leadership based on the principle of tapu for spiritual leadership and mana for secular leadership.254
a.Professor Ranginui Walker on the other hand, traced the changing model of Māori leadership from ascription and achievement to state and self- appointment.255 After the turn of the 20th century, achievement became more influential than ascription in the assumption of mana rangatira leadership roles.
a.Traditional leaders – mana rangatira - under tikanga Māori then had ascribed mana leadership through whakapapa but also achieved mana by developing numerous ngā pumanawa (skills) and ngā huanga (attributes) for the tasks before them that required self-discipline, self-mastery and visionary inter- generational leadership.
a.The two Tokomaru claimant groups Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi need these types of mana rangatira governed by tikanga Māori to process the current MACA claims more efficiently by blending the mana of these respective whānau, hapū and iwi groupings to lead them effectively into the future.
a.One other important specific tikanga Māori leadership skill that mana rangatira need to blend the mana of the two claimant groups going forward is the ability to facilitate consensus decision making.
Rangatira Consensus Decision-making
a.Professor Mason Durie noted that contemporary Māori governance requires a level of organisation that incorporates both tikanga Māori customary practices and the application of democratic principles, and that the two are not incompatible nor should their juxtaposition be discounted.256 The author respectfully suggests that an element of democracy through consensus decision making was customary tikanga Māori law.
a.For example, Francis Dart Fenton was the resident magistrate in the Waipa and Waikato from 1857–1858, then was civil commissioner for Waikato in 1861, and the first Chief Judge of the Native Land Court from 1865-1881.257 While resident magistrate, Fenton was impressed by the spontaneous efforts of Waikato hapū to establish rūnanga governance committees to settle grievances and punish wrongdoers for breaching law. In 1857, Fenton, writing from Whaingaroa, sent his official report on Native Affairs in the Waikato District
254R Bowden, “Tapu and Mana: Ritual Authority and Political Power in Traditional Māori Society” (1979) 14(1–2) The Journal of Pacific History 50.
255R Walker, “Changes to the Traditional Model of Māori Leadership” (Unpublished, Auckland, 1992).
2M Durie, Te Mana Te Kawanatanga: The Politics of Māori Self-Determination (Oxford University Press, Auckland, 1998) at 238.
2Francis Dart Fenton was subsequently the first Chief Judge of the Native land Court from 1865 until 1882.
and recorded an interesting observation regarding tikanga Māori governance and democracy when he opined:258
“No system of government that the world ever saw can be more democratic than that of the Maoris. The chief alone has no power. The whole tribe deliberate on every subject, not only politically on such as are of public interest, but even judicially they hold their ‘komitis’ [committees] on every private quarrel. In ordinary times the vox populi [opinions or beliefs of the majority] determines every matter, both internal and external. The system is a pure pantocracy [all powerful system], and no individual enjoys influence or exercises power, unless it originates with the mass and is expressly or tacitly conferred by them. In case of war, the old chief would be a paramount dictator: in times of peace he is an ordinary citizen. ‘Ma te runanga e whakatu i a au, ka tu ahau.’ ‘If the assembly constitutes me, I shall be established,’ is an expression I heard used by a chief of rank, and perfectly represents the public sentiment on the question.”
a.An 1861 Māori newspaper article similarly referred to this notion of tikanga Māori consensus decision-making and democracy within rūnanga, which stated:259
“But with the Maori Runanga, all must assemble together, the small and the great, the husband, the wife, the old man, the old woman and the children, the knowing and the foolish, the thoughtful and the pre- sumptuous: these all obtain admittance to the Runanga Maori, with all their thoughts and speeches: this woman gets up and has her talk and that youth gets up and has his, and the headstrong carry off the debate, whilst the elder men sit still in silence.”
a.Joel Polack, the Jewish trader in the Poverty Bay East Coast area similarly commented on Māori consensus decision making in 1840 when he observed:
“The affairs domestic and foreign are discussed by the principal chiefs in open assembly (Star Chambers or Select Committees, the terms are synonymous being as yet unknown among them) but the females are allowed to deliver their sentiments on subjects in which they are interested, and children tender of years are permitted to ask questions, and even add their mite to the discussion, and are listened to by the venerable elders, with patience and attentive gravity.”260
a.The Te Aitanga a Mahaki rangatira Te Kani Kerekere Te Ua also referred to consensus decision making in 1955 when he opined:
2FD Fenton “Reports from Mr Fenton, R.M, as to Native Affairs in the Waikato District” AJHR (1860, Session 1, E-01c) at 11.
2Te Manuhiri Tūarangi: The Maori Intelligencier (No 10, August 1861) at 10.
260Polack, J, Manners and Customs of the New Zealanders, (James Madden & Co, London, 1840) at 61.
“Chieftainship is the prerogative of the tribe. They may depose any members of the tribe from that rank where he has been indiscreet or has been unworthy to hold the position.”261
a.Te Ua added:
“Chieftainship is best described [as] a) mana tangata – where a chief has authority, influence, prestige and power over the people; b) mana whenua – where a chief inherits vast territories by ancestral rights or by conquest (ringa kaha) rules over land and people; and c) mana korero – where a chief is capable of reciting the tribal lore and history and is a pacificator in settling tribal disputes.”262
a.To appropriately resolve the current disputes between Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi under tikanga Māori is for them to go back and engage civilly in a number of well-advertised, well informed and well organised tikanga Māori based hui through decision-making processes by consensus on their respective Tokomaru Bay marae. Mana rangatira facilitating consensus-based discussions along with majority-based voting are the only viable processes for reconciling the tribal differences and historic mamae between the claimant groups.
a.With respect, seeking redress through litigation in the High Court and other Courts are generally unhelpful especially given the fact that the claimant groups are still connected relationally through shared whakapapa, shared whenua and the shared takutai moana which means they will still be living close by and interacting with each other as the hau kāinga of Tokomaru Bay which, along with the possibility of being granted CMT and PCRs under MACA, should provide some impetus to appropriately deal with and reconcile these historic and contemporary internal community grievances
a.Dr Ward for the Attorney-General made a respectful and perfectly legitimate tikanga Māori recommendation in his opening submission for the two claimant groups Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi to reconcile their differences when he referred to shared exclusivity for CMT areas when he noted:
“There can only be one customary title holder in a particular area. The requirement of exclusive use and occupation without substantial interruption in s. 58 [MACA] precludes different applicant groups who completely deny each other’s claims to exclusive use and occupation of the same area, each being granted a separate customary marine title over that area. … The Act does not support multiple customary marine title groups having separate customary marine title over the same area.
261K Te Kani Kerekere Te Ua, ‘Maori Leadership,’ ‘Notes and Queries,’ in Journal of the Polynesian Society (Vol. 64, No. 4, Auckland, 1955) at 488-490.
262 Above.
Shared exclusivity refers to a situation where 2 or more groups share an area between themselves in accordance with tikanga to the exclusion of others.”263
a.Dr Ward then recommended:
“If applicant groups agreed to do so and if it was consistent with the evidence before the Court, it may be possible for them to amend their applications so that the applicant group is defined at a broader level (or in a different way) to bring their claims on a shared basis. Any such decision should be reflected in amended pleadings before any order is made.”264
Section F: Concluding Comments
a.The witness evidence throughout the hearing readily and easily established and supported over the Tokomaru Bay takutai moana area the local tikanga Māori values of:
aWairuatanga - spirituality including placating the departmental Gods’ respective realms such as Tangaroa over the takutai moana realm;
aWhakapapa — genealogy and the intergenerational and interconnectivity of all humans and the natural world including the two claimants’ groups to each other and the takutai moana claimant area;
aWhānaungatanga — maintaining kin relationships with humans and the natural world, including through protocols of respect, and the rights, responsibilities and obligations that follow from the individuals place in the collective group;
aMana — encompasses intrinsic spiritual authority as well as political influence, honour, status, control, and prestige of an individual and group with the takutai moana area;
aTapu — restriction laws; the recognition of an inherent sanctity or a sanctity established for a purpose — to maintain a standard for example; a code for social conduct based upon keeping safe and avoiding risk, as well as protecting the sanctity of revered persons, places, activities and objects including rāhui and wāhi tapu over the takutai moana area;
aNoa — free from tapu or any other restriction such as rāhui and wāhi tapu; liberating a person or situation from tapu restrictions, usually through karakia and water;
aUtu — maintaining reciprocal relationships and balance with persons and nature including the takutai moana area;
aMauri — recognition of the life-force of persons and objects in the takutai moana claimant area;
aHau — respect for the vital essence of a person, place or object;
263Ward, D, ‘Opening Submissions of the Attorney-General,’ in the Marine and Coastal Area (Takutai Moana) Act 2011, Tichborne Ngā Hapū o Tokomaru Ᾱkau for orders recognising customary marine title and protected customary rights, (High Court, Wellington Registry, CIV-2017-485-247, 26 August 2022) para 130 at 40.
264 Above, para 133 at 41.
jRangatiratanga — effective leadership; appreciation of the attributes of leadership including effective leadership in the takutai moana claimant area;
jManaakitanga — enhancing the mana of others especially through sharing, caring, generosity and hospitality to the fullest extent that honour requires highlighting, inter alia, unfettered access to kai moana from the takutai moana claimant area;
jAroha — charity, generosity;
jKaitiakitanga — stewardship and protection, often used in relation to natural resources but also community and governance responsibilities and obligations including in the takutai moana claimant area.
a.The specific tikanga Māori laws and institutions that should influence the assessment of whether or not the area in question, or any part of it for these MACA hearings, is held in accordance with tikanga Māori includes the following indicia:
aWhakapapa identifying a cosmological connection with the takutai moana;
aExercised mana or rangatiratanga over the takutai moana;
aExercised kaitiakitanga;
aIt has a mauri – life force;
aPerformance of rituals central to the spiritual life of the hapū and whānau;
a Identified taniwha residing in the takutai moana;
aIs celebrated or referred to in waiata;
aIs celebrated or referred to in whakatauki;
a The takutai moana was relied on as a source of food;
a A source of textiles or other materials;
aFor travel or trade; and
aThere is a continuing recognized claim to land or territory in which the takutai moana is situated, and kaitiakitanga has been maintained to ‘some, if not all of the takutai moana area.
a.An additional useful list of tikanga questions for assisting with determining some aspects of tikanga Māori that should influence whether any takutai moana area is held in accordance with tikanga Māori which includes:
aHow was mana whenua [and mana moana] acquired? Ringa kaha [a strong hand], take kite [discovery], other?
aIf by ringa kaha, did the military leaders marry tangata whenua women of the land to maintain the hau (essence) of the land?
aThe land [and takutai moana] are actually occupied by people and kāinga are established;
aA rohe is marked out in some way. How? Provide a map.
aOver time urupa are established over land, tuahu (shrines) are placed in appropriate places, and kāinga are built usually near a source of water, and wāhi tapu are identified and named.
aThe new group adopts a name and becomes known among the neighbours as an identified iwi/hapū?
aThe iwi proceeds to embrace their new environment, take charge of it, and place their cultural imprint on it. One way is to rename or give names to significant features of the land [and takutai moana].
aThe rivers and swamps [and takutai moana] may be polluted with Taniwha (monsters) who often act as kaitiaki of the people to warn the children of dangers in the environment.
aThe iwi establishes alliances with neighbours and distant iwi. The mana whenua iwi can provide examples of joining with other iwi on military ventures outside their rohe.
aThe rohe provides sufficient sustenance for the people over time and other necessities are obtained through trade.
aThe new iwi is able to defend its rohe and can call on allies to help to defend the estate.
aThe new iwi is approved by the neighbours and its presence is validated by the experience.
a.It is important to also acknowledge that the above tikanga Māori indicia and tikanga Māori question lists are not exhaustive but are at least appropriate as starting points for answering what specific tikanga Māori laws and institutions should influence the assessment of whether or not the area in question, or any part of it, is held in accordance with tikanga Māori.
a.In terms of the conflicts in the whakapapa ancestry and the mana of the two applicant groups and whether they can be reconciled in resolving the issue of representation (and other issues for that matter), the relevant tikanga Māori institutions such as hohou i te rongo and he tatau pounamu, and the tikanga concept of ea can be achieved, but they are fully dependent upon the political willingness of the two applicant groups agreeing to abide by tikanga Māori.
a.Whatever the outcomes of the current MACA hearing, maintaining the mana of Te Whānau a Te Aotāwarirangi and Te Whānau a Ruataupare ki Tokomaru and the integrity of tikanga Māori are imperative.
a.As outlined throughout this report, tikanga Māori is about “doing things right, doing things the right way, and doing things for the right reasons” within a mātauranga and tikanga Māori worldview underpinned by wairuatanga and whānaungatanga relationships.
a.From my perusal of the claimant documents and by listening intently to the evidence briefs and cross examination by counsel, and without wanting to undermine the mana of any individual witness, the Te Whānau a Te Aotāwarirangi and Te Whānau a Ruataupare ki Tokomaru claimant groups through Ngā Hapū o Tokomaru Ᾱkau and the respective marae whānau groups in my opinion have not fully adhered to tikanga Māori in the lead up to and processing of these MACA claims in terms of “doing things right, doing things the right way, and doing things for the right reasons”. Tikanga Maori breaches appear to have occurred with both claimant groups.
b.While tikanga Māori inevitably adapts and evolves in time and space, we need to ensure that we do not stray so far that our contemporary tikanga Māori customary institutions and practices are no longer premised on those underlying fundamental tāhuhu –Te Ao Māori values and principles outlined earlier such as whānaungatanga, whakapapa, wairuatanga, mana, and manaakitanga.
a.In conclusion and with utmost respect, I would encourage Ngā Hapū o Tokomaru Ᾱkau, Te Whānau a Ruataupare ki Tokomaru and Te Whānau a Te Aotāwarirangi claimant groups to return to the marae and hold a number of inclusive, well publicised and well organised hui to first resolve and reconcile your differences through inclusive consensus decision making processes, and then to process and subsequently co-govern your MACA claims on a shared basis grounded in shared wairuatanga, shared whakapapa, shared whānaungatanga, shared whenua, and a shared takutai moana area, as your tūpuna did historically before the Native Land Court hearings at the end of the 19th century.
Ko te heke mai kei runga i tēnei rā me te aha e mahia ana koutou.
The future depends on today and what you do with it.
DATED this 6th day of October 2022
Dr Robert Joseph
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- AGLC
- Ngā Hapū o Tokomarua �ekau and Te Whānau a Ruataupare ki Tokomaru Applications [2024] NZHC 682
- Case
- [2024] NZHC 682
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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