Ngāi Tūmapūhia-a-Rangi Hapū Inc
[2024] NZHC 309
•26 February 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-232; CIV-2017-485-267 CIV-2017-485-259; CIV-2017-485-224 CIV-2017-485-221; CIV-2017-485-260
GROUP M, STAGE 1(A)
[2024] NZHC 309
UNDER the Marine and Coastal Area (Takutai Moana) Act 2011 IN THE MATTER OF
An application for an order recognising Customary Marine Title and Protected Customary Rights
Continued…
Hearing: 4-18 September; 21-28 September; 6 October; 19 October and
25-27 October 2023
Site visits on 19-20 September; 10 October and 24 November 2023
Appearances:
D C F Naden, M Sreen, S M Yogakumar, H J Fletcher,
A Crawford and C Smith for Ngāi Tūmapūhia-a-Rangi Hapū and Ngāi Tukōkō and Ngāti Moe
T Bennion and O Ford Brierley for Ngāti Hinewaka
R Siciliano, C Mataira and K Katipo for Rangitāne o Wairarapa and Rangitāne o Tamaki nui-ā-Rua
J P Ferguson and J E Judge for Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua
M Houra for Te Ātiawa
C Hirschfeld and H Clatworthy for Te Hika o PāpāumaB Lyall and H Swedlund for Ngāi Tūmapūhia-a-Rangi Ki Motuwairaka Inc, Ngāi Tūmapūhia-a-Rangi Ki Okautete Inc and the Kawakawa 1D2 Ahu Whenua Trust
B Scott and R Wales for the Seafood Industry Representatives J Prebble and D Kleinsman for the Attorney-General
H Harwood for South Wairarapa District Council
Judgment:
26 February 2024
JUDGMENT OF GWYN J
Re Ngāi Tūmapūhia-a-Rangi Hapū Inc [2024] NZHC 309 [26 February 2024]
BY Ngāi Tūmapūhia-a-Rangi Hapū Incorporated,
on behalf of Nga Uri O Ngāi Tūmapūhia ā Rangi Hapū (CIV-2017-485-232)
Kahura James Watene on behalf of Ngāi
Tūkoko and Elizabeth Lily Te Piki Watene on behalf of Ngāti Moe (CIV-2017-485-267)
Ngāti Hinewaka Me Ōna Hapū Karanga Charitable Trust on behalf of Ngāti Hinewaka (CIV-2017-485-259)
The Rangitāne Tū Mai Rā Trust, on behalf of the hapū of Rangitāne o Wairarapa and Rangitāne o Tamaki nui-ā-Rua
(CIV-2017-485-224)
Trustees of the Ngāti Kahungunu ki
Wairarapa Tāmaki nui-ā-Rua Settlement Trust on behalf of Ngāti Kahungunu ki Wairarapa
Tāmaki nui-ā-Rua (CIV-2017-485-221)Te Ātiawa ki Te Upoko o Te Ika a Maui Potiki Trust on behalf of Te Ātiawa
(CIV-2017-485-260)
INTERESTED PARTIES
Sue Taylor for Ngāi Tūmapūhia-ā-Rangi ki Mōtūwairaka Incorporated and Sam Morris, Lynall Morris, and Jason Morris for Ngāi
Tūmapūhia-ā-Rangi ki Ōkautete Incorporated
Kawakawa 1D2 Ahu Whenua Trust
Seafood Industry Representatives
Attorney-General
Greater Wellington Regional Council
Hutt City Council
South Wairarapa District Council
Carterton District Council
Masterton District Council
Landowners Coalition
Council of Outdoor Recreation Associations of New Zealand Incorporated
TABLE OF CONTENTS
Whakataukī
Whakatakinga | Introduction [1]
Ngā tono | The applications [3]
Figure 1: Original application area map [4]
Ngā kaitono | The applicants [5]
Te Ātiawa [7]
Rangitāne [9]
Ngāti Hinewaka [14]
Ngāi Tūkoko and Ngāti Moe [19]
Ngāti Kahungunu [23]
Ngāi Tūmapūhia [28]
Whakapapa [31]
Rohe tono | The application area [35]
The dual pathway — Crown engagement applications [41]
Ngā rōpū whai pānga | Interested parties [48]
Hearing; site visits [54]
Relevant background materials [56]
Te ture | The law [62]
Anga whakatureture | Legislative framework [62]
Definitions [62]
Customary Marine Title (CMT) [68]
Court of Appeal decision in Whakatōhea [71]
Holds the specified area in accordance with tikanga [79]
Exclusive use and occupation without substantial interruption [88] “Without substantial interruption” [96]
Exclusivity/Shared CMT [97]
Standard and burden of proof [100]
Navigable rivers: is customary title extinguished in law? [104]
The pūkenga report [109]
Mana moana agreement (shared agreement) [119] Figure 2: Mana moana agreement map [120] Kawakawa 1D2 Ahu Whenua Trust (Kawakawa Trust) [157]
What evidence is required to meet the statutory tests? [178]
“Holds the specified area in accordance with tikanga” [178]
Mana [182]
Marae/papakāinga [183]
Land ownership [184]
Kaitiakitanga [185]
Rāhui [187]
Tapu [188]
Customary usages (fishing and kaimoana gathering) [189]
Manaakitanga [190]
“Exclusive use or occupation without substantial interruption” [192]
The five coastal rohe – CMT [194]
Tūrakirae to Mukamukaiti [197]
Holds the specified area in accordance with tikanga [200] Te Ātiawa [200]
Rangitāne [224]
Ngāti Hinewaka [233]
Ngāi Tūkoko and Ngāti Moe [238]
Exclusive use and occupation 1840 to the present day [243] Te Ātiawa [243]
Rangitāne [256]
Ngāti Hinewaka [259]
Ngāi Tūkoko and Ngāti Moe [265]
Conclusion [276]
Mukamukaiti to Kawakawa Point [279]
Holds the specified area in accordance with tikanga [280] Ngāti Hinewaka [281]
Ngāi Tūkoko and Ngāti Moe [302]
Rangitāne [345]
Exclusive use and occupation 1840 to the present day [359] Rangitāne [359]
Ngāi Tūkoko/Ngāti Moe [361]
Ngāti Hinewaka [372]
Conclusion [393]
Kawakawa Point to Āwhea River [394]
Holds the specified area in accordance with tikanga [395]
Exclusive use and occupation from 1840 to the present day [422]
Conclusion [437]
Āwhea River to Te Unuunu [438]
Holds the specified area in accordance with tikanga [439] Ngāi Tūmapūhia [439]
Ngāti Hinewaka [476]
Rangitāne [492]
Exclusive use and occupation 1840 to the present day [502] Ngāi Tūmapūhia [502]
Hinewaka [532]
Rangitāne [536]
Conclusion [544]
Te Unuunu to Whareama [545]
Holds the specified area in accordance with tikanga [546]
Has exclusively used and occupied it from 1840 to the present day [559]
Conclusion [576]
Seaward boundary of CMT [577]
Conclusion [610]
“Without substantial interruption” [615]
Tikanga as it applies to substantial interruption [626]
Degree of substantial interruption required [628]
Does commercial fishing amount to a substantial interruption? [632]
Conclusion [660]
Remoteness [663]
Protected customary rights [675]
Protected customary rights orders sought in this case [687]
Ngāti Kahungunu [688]
Rangitāne [689]
Ngāti Hinewaka [690]
Ngāi Tūkoko and Ngāti Moe [693]
Ngāi Tūmapūhia [694]
Te Ātiawa [695]
Taking, using, gathering, managing and/or preserving natural and physical resources
[698]
Material from whales [700]
Whitebait (īnanga and kōkopu) [704]
Utilising, managing, preserving and/or developing tauranga waka and traditional routes of travel [709]
Holding wānanga [713]
Undertaking and implementing cultural practices such as rāhui and blessings [714]
General right of kaitiakitanga for the purposes of conservation measures and practices
[718]
Kaitiakitanga of customary fisheries [729]
Gathering of karengo/seaweed, kelp [764]
Traditional practices — use of the maramataka and gathering of resources for rongoā purposes [771]
Other applications [780]
Rangitāne [781]
Ngāti Kahungunu [785]
Ngāti Hinewaka [791]
Ngāi Tūkoko and Ngāti Moe [799]
Ngāi Tūmapūhia [804]
Te Ātiawa [809]
Wāhi tapu and protection of cultural sites [811]
Ngā ōta | The orders [813]
CMT orders [813]
PCR orders [814]
Wāhi tapu [815]
Stage 2 hearing [816]
Addendum [819]
APPENDIX I - Original application area map
Figure 1: Original application area map
APPENDIX II – Overlapping applications map
Figure 3: Overlapping applications map
Figure 4: Overlapping applications map (overview)
APPENDIX III – Mana moana agreement map
Figure 2: Mana moana agreement map APPENDIX IV – Questions for the Pūkenga APPENDIX V – Pūkenga Report
APPENDIX VI – Summary of applicants and whakapapa
Ngāti Kahungunu [1]
Rangitāne [6]
Relationship between Rangitāne o Wairarapa and Rangitāne o Tāmaki nui-ā-Rua [13]
Ngā Tūmapūhia-ā-Rangi hapū [16]
Ngāti Hinewaka [22]
Te Ātiawa [34]
Ngāi Tūkoko and Ngāti Moe [39]
Ngāi Tūkoko [37]
Ngāti Moe [41]
Interconnected whakapapa [47]
Whakataukī
Ko ō tatou whakapono ngā kaiwehewehe i a tātau. Ko ō tātau moemoeā me ō tātau pākatokato ngā kaiwhakakotahi i a tātau.
It is our truths that are actors of separation. It is our dreams and difficulties that act to unify us.1
Whakatakinga | Introduction
[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act) recognises customary interests of Māori in the common marine and coastal area.2
[2] The marine and coastal area is the area between high-water springs and the 12 nautical mile limit of the territorial sea.3 The Takutai Moana Act creates three new types of legal interest. First, a right to participate in conservation processes; second, a customary marine title; and third, a protected customary right.4 These legal interests may be granted to iwi, hapū or whānau groups.5
Ngā tono | The applications
[3] In Stage 1(a) of this proceeding the Court was asked to determine whether the six applicant groups are entitled to orders recognising customary marine title (CMT) and/or protected customary rights (PCRs) in the hearing area.6 The hearing area relates to a part of the common marine and coastal area in south Wairarapa, starting in the south at Tūrakirae Head and moving east and north up the Wairarapa Coast to the southern bank of the Whareama River, and extending from the line of mean high-water springs, out to the territorial sea limit.
1 Hinemoa Elder Aroha: Māori wisdom for a contented life lived in harmony with our planet (Penguin Random House, Auckland, 2020) at 93, quoting a whakataukī by Te Wharehuia Milroy (Ngāi Tūhoe).
2 Marine and Coastal Area (Takutai Moana) Act 2011 [Takutai Moana Act], s 7.
3 Section 9(1).
4 Part 3.
5 Section 9(1), definition of “applicant group”.
6 HC Wellington CIV-2017-485-259, 28 June 2022 (Minute of Churchman J); and see also HC Wellington CIV-2017-404-481, 9 November 2022 (Minute of Churchman J).
[4]The hearing area is depicted in Figure 1 below.7
Figure 1: Original application area map
Ngā kaitono | The applicants
[5]The applicants are:
(a)Trustees of the Rangitāne Tū Mai Rā Trust, on behalf of Rangitāne o Wairarapa and Rangitāne Tamaki nui-ā-Rua (CIV-2017-485-224) (Rangitāne);
(b)Trustees of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust, on behalf of Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua (CIV-2017-485-221) (Ngāti Kahungunu);
(c)Ngāti Hinewaka Me Ōna Karangaranga Trust, on behalf of Ngāti Hinewaka (CIV-2017-485-259) (Ngāti Hinewaka);
7 A landscape depiction of the area is at Appendix I. See also Appendix II which shows the original overlapping applications.
(d)Kahura James Watene on behalf of Ngāi Tūkoko Ngāti Moe (CIV- 2017-485-267) (Ngāi Tūkoko and Ngāti Moe);
(e)Ngāi Tūmapūhia-ā-Rangi Hapū Inc on behalf of Nga Uri o Ngāi Tūmapūhia a Rangi Hapū (CIV-2017-485-232) (Ngāi Tūmapūhia);
(f)Te Ātiawa ki Te Upoko o Te Ika a Māui Pōtiki Trust, for the benefit of the people of Te Ātiawa (CIV-2017-485-260) (Te Ātiawa); and
(g)George Ngatai Matthews on behalf of Te Hika o Pāpāuma (CIV-2017- 404-481) (Te Hika o Pāpāuma).8
[6]A brief summary of each of the applicant groups is set out below.
Te Ātiawa
[7] Te Ātiawa ki Te Upoko o Te Ika a Maui Potiki Trust (Te Ātiawa) represents the people of the iwi of Te Ātiawa no runga i te Rangi, as well as several Ātiawa hapū, including Ngāti Te Whiti, Puketapu, Hāmua, Te (or Ngāti) Matehōu and Taranaki Whānui combined within their takiwā.
[8] The beneficiaries of the Te Ātiawa ki Te Upoko o Te Ika Maui Potiki Trust whakapapa to Te Ātiawa in Taranaki and Ngāti Awa in the Bay of Plenty, among other Te Ātiawa groups with the eponymous tīpuna Rauru and Te Awanuiārangi. In respect of the area relevant to the Stage 1(a) hearing, the Te Ātiawa hapū with interests include:
(a)Ngāti Te Whiti;
(b)Puketapu;
(c)Taranaki Whānui;
(d)Ngāti Hāmua; and
8 See [40] below which notes that Te Hika o Pāpāuma’s application is now to be heard at Stage 1(b).
(e)Te Matehōu.
Rangitāne
[9] The application is brought by the trustees of the Rangitāne Tū Mai Rā Trust. The Trust is a post-settlement governance entity for both Rangitāne o Wairarapa and Rangitāne o Tamaki nui-ā-Rua. Rangitāne is made up of a number of hapū, set out in the Rangitāne Tū Mai Rā Trust Deed and the Rangitāne o Wairarapa Tāmaki nui-ā- Rua Deed of Settlement. Ngāti Hāmua is the principal or primary hapū of Rangitāne o Wairarapa. The hapū listed within the Deed of Settlement also include Te Hika o Pāpāuma and Ngāi Tūkoko. The Trust was ratified in 2013 and established in 2014 to receive and administer settlement redress from the Crown to Rangitāne, which was provided through the 2016 Deed of Settlement. The Trust represents all iwi members who whakapapa to Rangitāne and who may benefit from the Deed of Settlement.
[10] The Rangitāne application was originally filed to ensure that Rangitāne interests in the takutai moana were protected. The application extends across the entire Rangitāne takiwā, from Tūrakirae in the south to Poroporo in the north. That part of the area north of the southern bank of the Whareama River is being heard as part of the Stage 1(b) hearing.
[11] Rangitāne makes this application in support of hapū interests and as a korowai application for those Rangitāne hapū with interests in the takutai moana, but recognising the specific hapū applications before the Court.
[12] In respect of the area covered by this Stage 1(a) proceeding, the relevant Rangitāne hapū with interests include:
(a)Ngāti Hāmua;
(b)Ngāti Hinetauira;
(c)Ngāti Māhu;
(d)Ngāti Meroiti;
(e)Ngāi Tūkoko; and
(f)Te Hika o Pāpāuma.
[13] The Trust wishes to ensure that their hapū who are not represented by other applications — Ngāti Meroiti, Ngāti Māhu, Ngāti Hinetauira and Ngāti Hāmua — are appropriately recognised in the orders made.
Ngāti Hinewaka
[14] The applicant, Ngāti Hinewaka Me Ōna Hapū Karanga, refers to all persons who whakapapa to any of:
(a)Ngāti Hinewaka
(b)Ngāti Rangaranga
(c)Ngāti Rongomaiaia
(d)Ngāti Te Kawekairangi
(e)Ngāti Pārera
(f)Ngāti Te Aokino
(g)Ngāi Te Ao
(h)Ngāti Māhu
(i)Ngāti Hikarara
(j)Ngāti Hikawera
(k)Ngāti Kahukuranui
(l)Ngāti Ngapu o te Rangi
(m)Ngāti Hinetauira
(n)Ngāi Tuohungia
(o)Ngāti Rua
(p)Ngāti Rākaiwhakairi
(q)Ngāti Rākairangi
(r)Ngāi Tūkoko9
[15] The phrase “me ona Hapū Karanga” means related or associated hapū, that also have their own distinct hapū identities.
[16] This is reflected in the statutory acknowledgement for the coastal marine area in the Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act 2022.10
[17] For the purposes of this judgment I refer to Ngāti Hinewaka Me Ōna Hapū Karanga as the Karanga or Ngāti Hinewaka, as distinguished from Ngāti Hinewaka hapū.
[18] Ngāti Hinewaka sought recognition orders for their customary interests between Te Unuunu in the north, proceeding south around Mātakitaki-a-Kupe (Cape Palliser) to the western shore of Lake Ōnoke.
Ngāi Tūkoko and Ngāti Moe
[19] The applicant group is comprised of two hapū: Ngāi Tūkoko and Ngāti Moe. Ngāi Tūkoko and Ngāti Moe are both hapū of Ngāti Kahungunu.
9 Ngāi Tūkoko also claims separately.
10 Section 28.
[20] Ngāi Tūkoko is principally from the Tuhirangi-Pirinoa area, and Ngāti Moe from the Pāpāwai-Greytown area.
[21] The application is made by Kahura James Watene, of Ngāi Tūkoko. Elizabeth Lily Te Piki Watene is the representative or spokesperson of Ngāti Moe.
[22] As with the other applicants, Ngāi Tūkoko and Ngāti Moe’s third amended application seeks orders on the basis of shared exclusivity for the areas, and between the hapū, as agreed by the parties.
Ngāti Kahungunu
[23] The Trustees of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust are the applicants, on behalf of Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua.
[24] The Ngāti Kahungunu Settlement Trust was established in March 2017 and is the post-settlement governance entity for the confederation of hapū comprising Ngāti Kahungunu ki Wairarapa and Ngāti Kahungunu ki Tāmaki nui-ā-Rua (Ngāti Kahungunu). The objects and purposes of the Ngāti Kahungunu Settlement Trust include to progress applications under the Takutai Moana Act on behalf of Ngāti Kahungunu claimants, marae, hapū and whānau.
[25] The application is advanced as an overarching or korowai application for all Ngāti Kahungunu hapū, marae and whānau with interests in the takutai moana of the Wairarapa and Tāmaki nui-ā-Rua. The application was filed in order to ensure that the interests of all Ngāti Kahungunu hapū in that takutai moana could be recognised in the event that in the event that the relevant Ngāti Kahungunu hapū did not file their own applications.
[26] After the Ngāti Kahungunu application was filed it became apparent that various other Ngāti Kahungunu hapū or hapū karanga (groupings of related or associated hapū) had also filed applications. These are the applications on behalf of Ngāti Hinewaka, Ngāi Tūkoko and Ngāti Moe, Ngāi Tūmapūhia-ā-Rangi and Te Hika o Pāpāuma. The last of these is now to be considered in the Stage 1(b) hearing.
[27] These applications are supported by Ngāti Kahungunu. As with the other applicants, Ngāti Kahungunu has filed an amended application which reflects the applicants’ collectively agreed position.11 Other than Te Ātiawa, all of the hapū identified in the five areas of shared exclusivity in the mana moana agreement are hapū of Ngāti Kahungunu and/or Rangitāne. All are named within the list of Ngāti Kahungunu hapū in the Trust Deed of the Settlement Trust and in the definitions in s 13 and sch 1 of the Settlement Act.12
Ngāi Tūmapūhia
[28] Ngāi Tūmapūhia-ā-Rangi hapū (Ngāi Tūmapūhia) is a hapū of Ngāti Kahungunu and Rangitāne.
[29]The application is filed by Ngāi Tūmapūhia-ā-Rangi Hapū Inc.
[30] Ngāi Tūmapūhia’s application area runs from the northern bank of the Whareama River, along the coastline south to the southern bank of the Pāhaoa River and 12 nautical miles out to sea from all points along that coastline. That part of the application area from the southern bank to the northern bank of the Whareama River is to be considered in the Stage 1(b) hearing.
Whakapapa
[31] The establishment of descent lines (whakapapa) and familial relationships (whanaungatanga) is critical in identifying which applicant group or groups held a specified area in accordance with tikanga. As Churchman J noted in Re Edwards Whakatōhea,13 it is for the applicants to define and describe their own whakapapa; it is the Court’s role to consider whether, based in part on the whakapapa evidence provided by the applicants, the tests for CMT and PCR have been met. “Put simply, the Court does not act as a final arbiter defining the whakapapa of the applicants”.14
11 The mana moana agreement, discussed at [119]–[156] below.
12 Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act 2022.
13 Re Edwards Whakatōhea [2021] NZHC 1025, [2022] 2 NZLR 772 [Re Edwards] at [301].
14 At [301].
[32] The Court’s task in this regard was simplified by the mana moana agreement in which all hapū along the coastline of the application area have acknowledged one another’s mana tuku iho in respect of different parts of the coastline, in accordance with their shared tikanga. The agreement is a graphic illustration of their shared whakapapa links. For that reason it has not been necessary to consider different perspectives and points of emphasis regarding the history of, and relationships between, the applicant groups. Ultimately the applicants did not seek to litigate those matters. In general terms I am able to conclude that the applicant groups have been able to establish their whakapapa links to the application area, going back to the earliest Māori settlement. In terms of tikanga, they have been able to establish their mana in respect of the whenua and takutai moana by that whakapapa and through discovery, the naming of and relationship with geographical features, long and continuous occupation and raupatu.
[33] Although individual hapū may choose to emphasise one line of descent over another, all of the hapū of the south Wairarapa coastline share common whakapapa, giving rise to obligations of whanaungatanga.
[34] Most of the applicants provided detailed whakapapa, which informed their evidence. A summary of the applicants and/or a brief summary of the whakapapa evidence provided is attached to this judgment as Appendix VI.
Rohe tono | The application area
[35] The Stage 1(a) application area is depicted at Figure 1, attached to this judgment as Appendix I.
[36] Two of the applications encompassed the entire hearing area and extend into the Stage 1(b) area:
(a)Rangitāne, seeking recognition of CMT and PCRs in the common marine and coastal area (CMCA) between Tūrakirae Point north to Arataura (Poroporo), between the line of mean high-water springs and out to the territorial sea limit.
(b)Ngāti Kahungunu, seeking recognition of CMT and PCRs in the CMCA between Tūrakirae Head north to Poroporo between the line of mean high-water springs and out to the territorial sea limit.
[37] Three of the applications, as filed, fell entirely within the hearing area. Two of those were therefore heard in full in Stage 1(a):
(a)Ngāti Hinewaka, seeking recognition of CMT and PCRs in the CMCA between Lake Ōnoke (Lake Ferry) and Te Unuunu (Flat Point), between the line of mean high-water springs and out to the territorial sea limit.
(b)Ngāi Tūkoko and Ngāti Moe, seeking recognition of CMT and PCRs in the CMCA between Lake Ōnoke in the northwest and Mātakitaki-a- Kupe in the southeast and out to the territorial sea limit.
[38] The third, Ngāi Tūmapūhia’s application, seeks recognition of CMT and PCRs in the CMCA between the southern bank of the Pāhaoa River and the northern bank of the Whareama River on the Wairarapa Coast, between the line of mean high-water springs and out to the territorial sea limit. As filed, it was entirely within the Stage 1(a) hearing area. However, during the course of the hearing, by agreement, the hearing area was amended so as to remove the Whareama River from Stage 1(a) and add it to the Stage 1(b) hearing area. As a consequence, that part of Tūmapūhia’s application encompassing the Whareama River will be heard in the Stage 1(b) hearing.
[39] Te Ātiawa has a much smaller overlap with the Stage 1(a) hearing area, and its applications were determined to the extent of their overlap only. Te Ātiawa seeks recognition of CMT and PCRs in the CMCA between Pipinui Point on the west coast of the North Island, around to Mukamukaiti (Windy Point), including “all natural lakes, rivers, and streams on the landward side of mean high-water spring[s]” out to the territorial sea limit. Te Ātiawa’s application overlaps with the hearing area from Mukamukaiti in Palliser Bay west to Tūrakirae Head, between the line of mean high- water springs at Mukamukaiti and out to the territorial sea limit at a point southwest of Tūrakirae Head.
[40] Te Hika o Pāpāuma seeks recognition of CMT and PCRs in the CMCA between the mouth of the Whareama River (southern bank) and Poroporo, between the line of mean high-water springs and out to the territorial sea limit. At the start of the hearing Te Hika o Pāpāuma’s application overlapped with the Stage 1(a) hearing area in respect of the Whareama River. As noted above, during the course of the hearing, the hearing area was amended and Te Hika o Pāpāuma’s application will now be heard in the Stage 1(b) hearing.
The dual pathway — Crown engagement applications
[41] Section 94 of the Takutai Moana Act provides for two pathways for the recognition of CMTs and PCRs. One is by application to the High Court under s 100 of the Act, which is what this proceeding is concerned with. The other is by reaching an agreement with the Crown, under s 95 (Crown engagement). The Crown need not enter into an agreement.15 If it does, the agreement takes effect through an Order in Council (for a PCR) or bespoke legislation (for CMT).16
[42] Applicants had until 3 April 2017 to file an application to engage directly with the Crown, or to be heard in the High Court, or both.17 385 applications were filed for Crown engagement and approximately 202 applications were filed in the High Court.18 Many applicants filed in both pathways.
[43] The six applicant groups in this case have also submitted applications under the Act for Crown engagement.
[44] In addition, Sue Taylor for Ngāi Tūmapūhia-ā-Rangi ki Motuwairaka Inc and Sam Morris, Lynall Morris and Jason Morris for Ngāi Tūmapūhia-ā-Rangi ki Okotete Inc have filed an application for Crown engagement (Crown engagement parties), but have not filed a corresponding application with the High Court. These two entities participated in the Stage 1(a) hearing as interested parties and filed evidence
15 Takutai Moana Act, s 95(3).
16 Section 96(1).
17 Section 100(2).
18 Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report
(Wai 2660, 2020) [Takutai Moana Report Stage 1] at 24.
supporting the application advanced by Ngāi Tūmapūhia in the area from the southern bank of the Whareama River down the coast to Te Āwhea.
[45] There is no provision for an application under s 95 to be treated by the Court as an application under s 100, or vice versa. As Churchman J observed in Re Edwards, the lack of interconnection between the two pathways has caused difficulties. The Takutai Moana Act does not specifically address the question of how to proceed when a claim for recognition orders being advanced through litigation overlaps with a different claim by another applicant group, proceeding by way of direct engagement.19
[46] In the Court of Appeal’s judgment on appeal from Re Edwards Miller J did not accept that a Court can force a recognition order on a party which has exercised its right to pursue the Crown engagement pathway instead.20 Justice Miller accepted that an injustice might result if the Court were to find that exclusivity were shared by two groups but was forced to dismiss an application by one of them on the ground that the other had not submitted to the Court’s jurisdiction, electing instead to pursue Crown engagement.21
[47]But the Judge thought such an outcome was unlikely in practice:22
The second group, which I will call the interested party, will have had an opportunity to resist the applicant’s claims to sole or shared exclusivity in the proceeding. The Court will have made findings on the evidence. The Crown need not negotiate a recognition agreement with the interested party, and I doubt it would do so where the Court had heard from that party and found that they did not enjoy sole exclusivity but rather shared it with an applicant group. The Court, having heard evidence, is likely to have been in a better position than the Crown to decide whether the statutory criteria have been met. Such agreement between the Crown and the interested party may be even less likely where, as in this case, the interested party had filed its own application before the statutory deadline but not brought it on for hearing. Contrary to the view taken by Churchman J, but subject to what I said above about pleadings, the Court might make findings as to shared exclusivity, then adjourn the proceeding to allow an opportunity for a tikanga process among affected groups and engagement with the Crown. This process need not cause unreasonable delay.
19 Re Edwards, above n 13, at [405].
20 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504 [Whakatōhea] at [236].
21 At [237].
22 At [238].
Ngā rōpū whai pānga | Interested parties
[48] As the Court of Appeal noted,23 there are no defendants in a proceeding under the Takutai Moana Act, only applicants and interested parties.
[49] In addition to Ngāi Tūmapūhia-ā-Rangi ki Mōtūwairaka Inc and Ngāi Tūmapūhia-ā-Rangi ki Ōkautete Inc, other interested parties who filed notices of appearance24 in relation to the Stage 1(a) hearing were:
(a)Kawakawa 1D2 Ahu Whenua Trust (Kawakawa Trust) which owns land abutting part of the marine coastal area within the hearing area and is an interested party in respect of Ngāti Hinewaka’s application. The Kawakawa Trust called evidence.
(b)NZ Rock Lobster Industry Council Ltd, Pāua Industry Council Ltd, Fisheries Inshore New Zealand Ltd and the New Zealand Federation of Commercial Fishermen Inc (together, the Seafood Industry Representatives group or SIR) which called evidence.
(c)South Wairarapa District Council which filed evidence in relation to its assets within, and its uses of, the sea in the hearing area but did not seek to actively participate in the hearing.
(d)Hutt City Council which did not actively participate in the hearing and was granted leave to be excused from it. The Council has requested the right to participate in any further stage of the hearing if the Court is minded to grant orders under the Act, in relation to a precise area(s) to be subject to the orders and/or any specific matters/conditions arising or in relation to the proposed orders (including in respect to wāhi tapu).
(e)Masterton District Council which did not take a position on the merits of the application and did not actively participate in the hearing.
23 At [236].
24 Takutai Moana Act, s 104.
(f)Carterton District Council which did not take a position on the merits of the application and did not actively participate in the hearing.
(g)Greater Wellington Regional Council which did not actively participate in the hearing and was granted leave to be excused from the hearing.
(h)The Landowners Coalition which filed a Notice of Appearance dated 19 February 2018 but has taken no steps in the proceeding.
(i)The Council of Outdoor Recreation Associations of New Zealand Inc, which filed a general Notice of Appearance for all Takutai Moana Act applications for recognition orders, on 12 August 2017, but took no part in this proceeding.
[50] It is anticipated that the local and regional body interested parties may wish to participate in any further stage of the hearing related to the precise area to be subject to any orders made and/or any specific matters/conditions arising or in relation to the proposed orders (including in respect to wāhi tapu).
[51] The Attorney-General also appeared as an interested party, as in all previous proceedings under the Takutai Moana Act. As I acknowledged during the course of the proceedings, the Attorney-General is not an “interested party” in the same sense as the “tangata whenua” interested parties25 and the SIR, each of which has a direct interest in the outcome of the applications. As Churchman J acknowledged in Re Rihari (on behalf of Ngāti Torehina ki Mataka Hapū/Iwi of Niu Tireni),26 the role of the Attorney-General is to appear in the “interests of the public” to ensure the Court has all relevant information before it and to assist in the interpretation and application of the Act through legal submissions.
[52] In this hearing, counsel for the Attorney-General made submissions on the approach to interpreting the legislation and applying the tests for CMT or PCR and, at
25 In this proceeding, Kawakawa Ahu Whenua Trust, Ngāi Tūmapūhia-ā-Rangi ki Motuwairaka Inc and Ngāi Tūmapūhia-ā-Rangi ki Okautete Inc.
26 Re Rihari (Ngāti Torehina Ki Mataka Hapū/Iwi of Niu Tireni) [2019] NZHC 2658 at [2](f).
my request, provided an assessment of the evidence proffered by each of the applicants and whether it met the tests for CMT and/or PCRs.
[53] The Attorney-General called evidence from three witnesses, which I will refer to later.
Hearing; site visits
[54] The hearing took place at a conference centre in Whakaoriori (Masterton). It began on 4 September 2023. After five weeks, the Court took an adjournment for the preparation of the pūkenga report and closing submissions. Site visits were organised by Ngāi Tūmapūhia, Ngāti Hinewaka, Ngāi Tūkoko and Ngāti Moe and the Kawakawa Trust. The Judge, pūkenga, High Court Registrar and counsel (for those parties who wished to attend) took part in the site visits on 19 and 20 September, 10 October and 24 November 2023, respectively.
[55] The delivery of closing submissions was deferred to enable counsel to consider the Court of Appeal’s decision in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board (Whakatōhea) which was released on 18 October 2023. Submissions were delivered from 25 to 27 October 2023 inclusive. Overall, the Court sat for eight weeks with four adjournments.
Relevant background materials
[56] A number of reports have provided useful context to this hearing and were referred to in the parties’ submissions. For example, the Waitangi Tribunal’s report on its inquiry into the district called Wairarapa ki Tararua, which extends from the southern coast of the eastern side of the North Island up to southern Hawke’s Bay.27 In particular, the Tribunal’s report highlights the dramatic loss of Māori land in Wairarapa ki Tararua, beginning in June 1853.
27 Waitangi Tribunal The Wairarapa ki Tararua Report Volume I: The People and the Land (Wai 863, 2010) [Wairarapa Report Volume I]; and Waitangi Tribunal The Wairarapa ki Tararua Report Volume II: The Struggle for Control (Wai 863, 2010) [Wairarapa Report Volume II].
[57] The Waitangi Tribunal has already undertaken in two reports a national, historical and contemporary survey of customary rights in the foreshore and seabed. Conclusions from those surveys provide a useful background against which the Court can consider customary interests specific to the Wairarapa Coast.
[58]In its 2004 report, the Waitangi Tribunal said:28
The foreshore and sea were and are taonga for many hapū and iwi. Those taonga were the source of physical and spiritual sustenance. Māori communities had rights of use, management and control that equated to the full and exclusive possession promised in the English version of the Treaty. This promise applied just as much to the foreshore and seabed as, in 1848, it was found to apply to all dry land. There is in our view no logical, factual, or historical distinction to be drawn. In addition to rights and authority over whenua, Māori had a relationship with their taonga which involved guardianship, protection, and mutual nurturing.
[59] This view was confirmed in the Tribunal’s 2023 report, which was published during the course of this hearing:29
We accept that some parts of te takutai moana – for example, fishing grounds or areas containing wāhi tapu – are more significant to Māori than others. However, the evidence given during this inquiry demonstrates that, for the claimants, the entire takutai moana in their rohe is a taonga. That some areas within it are more significant than others does not undermine the status of te takutai moana as a whole.
…
In contrast, we heard no evidence to suggest that some parts of te takutai moana are not considered a taonga. On the strength of the evidence we heard, we conclude that the marine and coastal area as a whole is a taonga that has significant importance to Māori.
[60] The Tribunal’s report outlines its concerns about some aspects of the Takutai Moana Act, including the statutory test for CMT. In the Stage 2 Report the Tribunal found that the statutory regime itself is not compliant with te Tiriti o Waitangi and Treaty of Waitangi principles.30 While the Tribunal’s report is not binding on the Court, it provides relevant context and, as a number of applicants submitted,
28 Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at [2.1.8].
29 Waitangi Tribunal Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 2 Report
(Wai 2660, 2023) [Takutai Moana Report Stage 2] at 50.
30 At [6.5.4].
highlighted the significance of the Court considering the history of the Takutai Moana Act and its purpose and preamble.31
[61] Of more general relevance is He Poutama, the study paper released by Te Aka Matua o te Ture | the Law Commission, which reviews the role of tikanga concepts in state law.32 The paper provides an account of what tikanga is and addresses how tikanga and state law might best engage.
Te ture | The law
Anga whakatureture | Legislative framework
Definitions
[62] Central to the Takutai Moana Act (and replacing the term “foreshore and seabed”) are the terms “marine and coastal area” and “common marine and coastal area”.33 Rights recognised under the Act apply in the CMCA, which is a subset of the marine and coastal area.
[63]The “marine and coastal area” is defined as follows:
marine and coastal area—
(a)means the area that is bounded,—
(i)on the landward side, by the line of mean high-water springs; and
(ii)on the seaward side, by the outer limits of the territorial sea; and
(b)includes the beds of rivers that are part of the coastal marine area (within the meaning of the Natural and Built Environment Act 2023); and
(c)includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
(d)includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b)
31 The Stage 2 report was issued on 4 October 2023, prior to the Court of Appeal decision in
Whakatōhea, above n 20, where the Court did undertake such a consideration.
32 Te Aka Matua o Te Ture | Law Commission He Poutama (NZLC SP24, 2023).
33 Section 9.
[64] The “coastal marine area” within the meaning of the Resource Management Act 1991 (RMA) is defined at s 2 of the RMA:
coastal marine area means the foreshore, seabed, and coastal water, and the air space above the water—
(a)of which the seaward boundary is the outer limits of the territorial sea:
(b)of which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of—
(i)1 kilometre upstream from the mouth of the river; or
(ii)the point upstream that is calculated by multiplying the width of the river mouth by 5
[65]This definition means the CMA boundary may extend up a river for a distance.
[66] The “common marine and coastal area” is defined in the Takutai Moana Act as follows:
common marine and coastal area means the marine and coastal area other than—
(a)specified freehold land located in that area; and
(b)any area that is owned by the Crown and has the status of any of the following kinds:
(i)a conservation area within the meaning of section 2(1) of the Conservation Act 1987:
(ii)a national park within the meaning of section 2 of the National Parks Act 1980:
(iii)a reserve within the meaning of section 2(1) of the Reserves Act 1977; and
(c)the bed of Te Whaanga Lagoon in the Chatham Islands
[67] The Takutai Moana Act accords the CMCA a special status, such that neither the Crown nor any person is capable of owning it.34 This special status does not affect the exercise of customary rights as recognised under the Takutai Moana Act, or the lawful use of, or any lawful activity in, the CMCA.35
34 Section 11(1) and (2).
35 Section 11(5)(a) and (b).
Customary Marine Title (CMT)
[68] Section 58(1) of the Takutai Moana Act establishes a two-limb test for the recognition of CMT. It provides:
(1)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
(b)has, in relation to the specified area,—
(i)exclusively used and occupied it from 1840 to the present day without substantial interruption; or
(ii)received it, at any time after 1840, through a customary transfer in accordance with subsection (3).
[69]The rights that attach to CMT were summarised by Miller J in Whakatōhea:36
CMT is the most extensive form of statutory right provided for under MACA. CMT is a (non-alienable) interest in land.37 It is a territorial right, not merely a usage right. A group which holds CMT over a specified area does not have the right to exclude people from that area: public rights of access, navigation and fishing are … expressly carved out and protected by ss 26–28. But the group has certain rights set out in ss 60 and 62 of MACA including permission rights under the Resource Management Act (RMA permission right),38 and certain conservation statutes;39 a right to protect wāhi tapu and wāhi tapu areas;40 prima facie ownership of newly found taonga tūturu;41 ownership of certain minerals;42 and the right to create a planning document for the area.43 The group may use, benefit from or develop a customary marine title area, but is not exempt from obtaining any relevant resource consent, permit, or approval that is required under another enactment for the use and development of that customary marine title area.44
[70] Matters that can be taken into account in determining whether CMT exists are set out in s 59:
59 Matters relevant to whether customary marine title exists
36 Whakatōhea, above n 20, at [134] per Miller J and see also [391] per Cooper P and Goddard J.
37 Takutai Moana Act, s 60(1).
38 Sections 66–70.
39 Sections 71–75.
40 Sections 78–81.
41 Section 82.
42 Section 83.
43 Sections 85–93.
44 Section 60(2).
(1)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—
(i)own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:
(ii)exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and
(b)if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.
(2)To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(a)(ii).
(3)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.
(4)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
(b)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:
(ii)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:
(iii)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:
(iv)a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified area:
(v)a road that directly abuts the specified area:
(vi)a railway line that directly abuts the specified area.
Court of Appeal decision in Whakatōhea
[71] The Court of Appeal’s decision in Whakatōhea45 is the first substantive appellate decision under the Takutai Moana Act.
45 Whakatōhea, above n 20, at [39]–[63] per Miller J and [384] per Cooper P and Goddard J.
[72] Both Miller J and the majority judgment of Cooper P and Goddard J traverse the legislative history and purpose of the Act in some detail.
[73] Justice Miller discusses Attorney-General v Ngati Apa,46 where the Court of Appeal determined that the Māori Land Court had jurisdiction to determine claims of customary ownership to areas of the foreshore and seabed. In part to overcome that decision, the Foreshore and Seabed Act 2004 was enacted. As the Preamble to the Takutai Moana Act records, the policy underpinning the Foreshore and Seabed Act was found (by the Waitangi Tribunal, the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Special Rapporteur) to have breached te Tiriti o Waitangi/the Treaty of Waitangi and to have a discriminatory effect on whānau, hapū and iwi.47
[74] The Preamble to the Takutai Moana Act describes the scheme of the Act as follows:
(4)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 and the coastal marine environment for future generations:
…
[75] As the majority of the Court of Appeal noted,48 the purpose statement is central to the interpretation of s 58, which sets out the CMT test. It says:49
4 Purpose
(1)The purpose of this Act is to—
(a)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
(b)recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
46 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).
47 Whakatōhea, above n 20, at [52].
48 At [381].
49 Takutai Moana Act, s 4.
(c)provide for the exercise of customary interests in the common marine and coastal area; and
(d)acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).
(2)To that end, this Act—
(a)repeals the Foreshore and Seabed Act 2004 and restores customary interests extinguished by that Act; and
(b)contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c)gives legal expression to customary interests; and
(d)recognises and protects the exercise of existing lawful rights and uses in the marine and coastal area; and
(e)recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area—
for its intrinsic worth; and
(ii)for the benefit, use, and enjoyment of the public of New Zealand.
[76] Consistent with that purpose, s 5 repeals the Foreshore and Seabed Act and s 6 provides for the restoration of customary rights that were extinguished by the Foreshore and Seabed Act. Those customary rights are “given legal expression” in accordance with the Takutai Moana Act.
[77] Section 7 confirms that the Takutai Moana Act is intended to take account of te Tiriti/the Treaty:
Treaty of Waitangi (te Tiriti o Waitangi)
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,—
(a)in subpart 1 of Part 3, for the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area; and
(b)in subpart 2 of Part 3, for customary rights to be recognised and protected; and
(c)in subpart 3 of Part 3, for customary marine title to be recognised and exercised.
[78] In summarising the importance of these provisions, the majority of the Court of Appeal said:50
The consistent theme of these provisions is that MACA is intended to restore customary interests in the common marine and coastal area that were extinguished by the 2004 Act. Those interests are to be “given legal expression” in accordance with MACA.51 Or, as it is put in the Preamble, translated into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations. Section 7 expressly 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.
Holds the specified area in accordance with tikanga
[79] The Court of Appeal confirmed that when assessing the first limb of the CMT test (s 58(1)(a)), the focus should be 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.”52 So, for example, a group may hold an area in accordance with tikanga, where tikanga requires the permission of that group to be sought before others access the area or use resources within it.53 “Holds in accordance with tikanga” reflects the Te Ture Whenua Maori Act 199354 definition; “[t]here is no connotation of ownership, but rather that it is retained or kept in accordance with tikanga Maori”.55
[80] The Takutai Moana Act makes extensive use of tikanga concepts and te reo Māori terms. The assessment is expressly not focused on the group’s practical ability to exclude others from entering certain areas,56 given that Māori were increasingly deprived of this ability since the British assumed sovereignty in 1840.57
50 Whakatōhea, above n 20, at [384] (emphasis in original).
51 Takutai Moana Act, s 6(1).
52 Whakatōhea, above n 20, at [403] (emphasis in original).
53 At [403].
54 Section 129(2)(a), the definition of Māori customary land.
55 Whakatōhea, above n 20, at [397], citing da Silva v Aotea Māori Committee (1998) 25 Tai Tokerau MB 212 (25 TTK 212) at 217.
56 Whakatōhea, above n 20, at [429].
57 At [426](d) and [429].
[81] Rather, the touchstone for the first limb of the test is whether, from a tikanga perspective, the applicant group can be considered the group possessing the requisite mana to determine who may access and use the area, irrespective of whether they possess the practical means of doing so.58 One of the Act’s purposes is to “recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua”. 59 In Miller J’s minority judgment, he conceptualises mana tuku iho as “the inherited right or authority to speak for a specific part of the common coastal and marine area.”60
[82] The first limb of the test for CMT under s 58(1)(a) requires that an applicant group “holds” the specified area in accordance with tikanga. The test is whether the group currently uses and occupies the area, in a manner consistent with the nature of that area and it requires the group to have control or authority over the area according to tikanga. The majority accepted that evidence of activities that show control or authority of the area, 61 as opposed to simply carrying out a particular activity in that area, 62 will be of particular importance in distinguishing a “holding” of the area from the use of the area to the other particular resource.63
[83] Accordingly, in order to determine whether the first limb of the CMT test has been met, it is necessary to define the relevant tikanga of the area in question that demonstrates control or authority over the ability to access and use the area.
[84] Justice Miller’s judgment identifies the elements of mana over land and its occupants which can be considered historic methods of controlling an area.64 Dr Joseph’s pūkenga report includes a similar list.65 The elements referred to by Miller J include:
58 At [429] and [434].
59 Section 4(1)(b).
60 Whakatōhea, above n 20, at [133]; and see also Takutai Moana Act, s 9(1).
61 Whakatōhea, above n 20, at [401].
62 At [401].
63 At [401]–[404] per Cooper P and Goddard J. To similar effect, see [140] per Miller J.
64 At [167], referring to Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 303–308, and [168] where the judgment identifies further, post- colonial elements of control.
65 Dr Robert Joseph Pūkenga Report (17 October 2023) at [75] and see [109]–[118] below. See this report in full at Appendix V to this judgment.
(a)military action taken to displace existing occupants (take raupatu, take ringa kaha and take pakihiwi kaha);
(b)occupation;
(c)intermarriage with tangata whenua women;
(d)marking out in some way a rohe which the group is capable of defending;
(e)naming of places;
(f)establishment of urupā;
(g)establishment of tūahu (shrines);
(h)establishment of kāinga;
(i)placing of wāhi tapu;
(j)adoption of a group name;
(k)approval and acceptance of neighbouring iwi.
[85] Justice Miller’s judgment also refers to the relational values of tikanga.66 Where an applicant group can provide adequate evidence of the activity set out above, their “cultural exchanges or practices” will be imbued with sufficient whanaungatanga, mana, manaakitanga, utu, kaitiakitanga and tapu to satisfy the first limb of the s 58 test. Justice Miller confirmed that the interconnectedness encompassed by whanaungatanga is traced through whakapapa links.67
[86] The focus on applying tikanga to control access does not require that the tikanga is always successfully implemented in the face of third party or non-Māori
66 Whakatōhea, above n 20, at [127].
67 At [127].
activities that override or are not undertaken consistently themselves with tikanga (such as commerical fishing) where there is no ability to lawfully restrict access.68
[87] The Court of Appeal accepted that, in the case under appeal, it was appropriate to ask the pūkenga which groups, if any, held a specified area in accordance with tikanga. That was plainly a question of tikanga within the scope of s 99 of the Act.69 Although, as Miller J noted, it is a question on which a Court cannot defer to the pūkenga, but must reach its own conclusion.70 Justice Miller also added that it would have been appropriate to ask the pūkenga whether any applicant group exclusively used and occupied a specified area, as that too is in part a question of tikanga.71
Exclusive use and occupation without substantial interruption
[88] The second limb of the s 58 test, unlike the first limb, does not refer to tikanga. But the Court of Appeal held that s 58 establishes a “single test” which must be interpreted as a whole.72 The concept of exclusive use and occupation, in s 58(1)(b), must be viewed through the lens of tikanga, not that of the common law alone.73
[89] The majority in Whakatōhea concluded that it is “exceptionally difficult” to reconcile the text of s 58(1)(b) with the purposes of the Takutai Moana Act. The majority considered a literal reading of this limb of the test would mean that it was “likely there would be few areas of the foreshore or seabed where CMT could be made out”:74
Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests. And it would do so by a side wind, by setting a threshold for recognition of CMT that could not be met as a result of matters that would not otherwise affect common law recognition of customary title.
[90] The majority considered this outcome would be inconsistent with the te Tiriti/the Treaty, as well as the purpose of the Takutai Moana Act set out in s 4 and
68 At [401]–[404], [424]–[426] and [434] per Cooper P and Goddard J.
69 At [266] per Miller J and [360] per Cooper P and Goddard J.
70 At [266] per Miller J.
71 At [266].
72 At [138].
73 At [138].
74 At [416] per Cooper P and Goddard J.
the statement in s 7 that the Act recognises and promotes the exercise of customary rights to take account of te Tiriti/the Treaty.75
[91] The majority accept that use of a particular resource in an area will not, without more, amount to exclusive use and occupation of that area.76 There must be a “strong presence” in the area, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the area in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.77
[92] The majority also observed that the second limb of the CMT test must 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.”78 It identifies a number of factors relevant to that assessment.79
[93] The majority did not accept a submission made by the Landowners Coalition Inc and SIR that an applicant group needs to demonstrate both an intention and an ability to exclude others (including non-Māori) from the relevant area, from 1840 to the present day.80 The majority considered that such a requirement would be unjust and unprincipled, given the ability to exclude others was “taken away from Māori customary owners by the law as it was understood for most of the relevant period.”81
[94] Justice Miller is critical of the majority’s approach to the requirement in the second limb for exclusive use and occupation since 1840. The Judge characterises the majority’s approach as unjustifiably discounting the literal meaning of s 58 in an attempt to give effect to the purpose in s 4,82 and “amount[ing] to a presumption that rights in existence in 1840 have survived to the present day.”83
75 At [416].
76 At [422].
77 At [422].
78 At [426].
79 At [426].
80 At [429].
81 At [429].
82 At [189] per Miller J.
83 At [196].
[95] Justice Miller concludes that “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.”84 The legal inability of the applicant group to resist trespass through force or common law must be set aside when considering capacity to exclude.85
“Without substantial interruption”
[96] The Court’s discussion of the phrase “without substantial interruption”, in s 58(1)(b)(i), of the Act is traversed at [615]–[674] below.
Exclusivity/Shared CMT
[97] The Court of Appeal was unanimous that it would be inconsistent with the scheme of the Act to have two or more overlapping CMTs in the same area. However, all three members of the Court had no difficulty in a single grant of recognition in favour of two or more groups of a single CMT, in respect of a particular area, noting that such a grant is most likely where the groups make a joint application, or where they make separate applications, but each acknowledges the shared rights of use and occupation of the other groups.86
[98] The majority took a different view from Miller J in relation to a situation where there are two applicant groups, neither of which acknowledges the rights of the other. The majority did “not see any contradiction in a finding that two applicant groups hold a specified area in accordance with tikanga vis-à-vis all other groups and individuals, and between them exclusively use and occupy the area, while at the same time vigorously contesting their mutual rights as between themselves.”87 The majority said:88
A refusal to recognise CMT in those circumstances would effectively mean that areas that were unquestionably in Māori customary ownership in 1840 were taken out of Māori ownership, and customary rights and interests lost, because a currently unresolved tikanga difference between two or more hapū
84 At [162] and [165]–[172].
85 At [180] and [170].
86 At [439] per Cooper P and Goddard J.
87 At [440].
88 At [442].
cannot be resolved in the High Court in the context of competing applications for CMT.
[99]In contrast, Miller J said:89
… a court may not be satisfied of exclusivity in the absence of evidence that other groups recognise an applicant group’s rights (or a satisfactory account of why such evidence is lacking). Consensus is even more important for shared exclusivity, which rests on evidence that the groups concerned shared control of an area to the exclusion of others.
Standard and burden of proof
[100] Section 106(2) of the Takutai Moana Act requires the applicant for CMT to prove that the specified area:
(a)is held in accordance with tikanga; and
(b)has been used and occupied by the applicant group from 1840 to the present day.
[101] Section 106(2)(b) does not include the words “exclusively” and “without substantial interruption” contained in s 58(1)(b)(i).
[102]The Court must be satisfied that an applicant group:90
(a)holds the specified area in accordance with tikanga (s 58(1)(a)); and
(b)has exclusively used and occupied the specified area from 1840 to the present day, without substantial interruption (s 58(1)(b)(i)).
[103] However, s 106 does not require that all elements be proved by an applicant group. Both the majority and Miller J concluded that it is not for an applicant group to establish that their occupation was exclusive from 1840 to the present day and was not substantially interrupted. If the applicant group proves the two aspects above, that will be sufficient for the Court to draw an inference that the s 58 test is met, unless
89 At [172] per Miller J.
90 Takutai Moana Act, s 106.
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 1840.91
Navigable rivers: is customary title extinguished in law?
[104] CMT and PCRs do not exist if extinguished as a matter of law.92 The party relying on extinguishment bears the onus of proving it.93
[105] At the outset of the hearing the Whareama river mouth, which forms part of Te Pāpāuma’s and Ngāi Tūmapūhia’s application areas, was within the Stage 1(a) hearing area. The opening submissions for the Attorney-General and Te Pāpāuma addressed the question of extinguishment and specifically whether the bed of the Whareama River within the CMCA (or any other river within the application area) vested in the Crown under s 14 of the Coal-mines Amendment Act 1903 (CMAAA), preserved by s 354(1)(c) of the RMA. The submissions for the Attorney-General were that the language of s 14 clearly shows that beneficial property in the riverbed of navigable rivers was vested in the Crown in 1903, and the reference to “absolute property” in s 14 demonstrates Parliament’s intended effect of the section.
[106] The Attorney-General’s submissions also addressed the question of navigability of the Whareama River. In response, Te Hika o Pāpāuma submitted that the Whareama River was not navigable and that therefore title in the riverbed has not been extinguished.
[107] The issue of extinguishment and rivers is dealt with briefly in in Whakatōhea.94 The Court of Appeal concluded CMT is available in riverbeds that fall within the marine and coastal area and were vested in the Crown under the CMAAA. Under s 11(3) of the Takutai Moana Act, any previous vesting of the CMCA in the Crown under the CMAAA was reversed. Justice Miller concludes that, while s 58(4)
91 Whakatōhea, above n 20, at [435]–[436] per Cooper P and Goddard J.
92 Takutai Moana Act, ss 58(4) and 51(1)(c) respectively.
93 Section 106.
94 Whakatōhea, above n 20, at [239]–[244] per Miller J.
contemplates that CMT may be extinguished in law, the provision appears to contemplate extinguishment of CMT by means other than Crown ownership that was subsequently reversed.95 The judgment of the majority does not address the point, so it may be taken that the Court is unanimous on this point.96
[108] The effect of the Court of Appeal judgment is that extinguishment no longer arises in this Stage 1(a) proceeding. First, as discussed, the Court of Appeal has confirmed that the CMAAA is not effective in extinguishing CMT with regard to the Whareama River. Second, because the Whareama River has now been moved from the Stage 1(a) hearing to Stage 1(b), the issue must be dealt with separately. The remaining issue concerning the Whareama River is where the boundary of the CMCA lies. That will be addressed in the Stage 1(b) hearing.
The pūkenga report
[109] Dr Robert Joseph was appointed by the Court as pūkenga, on the proposal of Ngāi Tūmapūhia, Ngāi Tūkoko and Ngāti Moe and Rangitāne. No other party opposed the appointment.97 Suggested questions for the pūkenga were set out in Churchman J’s minute and, in the absence of a response from any party, were finalised, at the start of the hearing, in the following terms:
(a)What tikanga does the evidence establish or support applies in the area that is the subject of the applications before the court?
(b)What aspects of tikanga should influence the assessment of whether or not the area in question, or any part of it, is held in accordance with tikanga?
(c)Which applicant group or groups hold the application area, or any part of it, in accordance with tikanga?
95 At [244] per Miller J.
96 At [360] per Cooper P and Goddard J.
97 HC Wellington CIV-2017-485-259, 8 November 2022 (Minute of Churchman J).
(d)Who, in fact, are the iwi, hapū or whānau groups that comprise each applicant group or groups?
(e)Having regard to the evidence, what tikanga is relevant to the protected customary rights claimed by the applicants?
[110] During the course of the hearing I invited counsel to consider whether the questions for the pūkenga needed to be amended or supplemented. Memoranda were filed by the applicants and the Attorney-General, setting out proposed amendments to the pūkenga questions.
[111] After hearing from counsel on 5 and 6 October 2023, and consulting with the pūkenga, I finalised the amended questions for the pūkenga, taking account of the joint memorandum of counsel and the mana moana agreement (discussed below).98 Those questions are attached to this judgment as Appendix IV. The pūkenga filed his report on 18 October 2023 and was available for questioning by the parties on 19 October 2023.
Dr Joseph’s report provides an important source of expert advice for the Court.
[113] The report sets out the following as tāhuhu (fundamental signposts of tikanga):99
(a)Wairuatanga — acknowledging the metaphysical world — spirituality
— including placating the departmental Gods’ respective realms;
(b)Whakapapa — genealogy and the intergenerational and interconnectivity of all humans and the natural world;
(c)Whanaungatanga — maintaining kin relationships with humans and the natural world, including through protocols of respect, and the rights,
98 See Appendix IV; and HC Wellington CIV-2017-404-481, 9 October 2023 (Minute of Gwyn J).
99 Pūkenga Report, above n 65, at [40].
responsibilities and obligations that follow from the individual’s place in the collective group;
(d)Mana — encompasses intrinsic spiritual authority as well as political influence, honour, status, control, and prestige of an individual and group;
(e)Tapu — 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;
(f)Noa — free from tapu or any other restriction; liberating a person or situation from tapu restrictions, usually ritually through karakia and water;
(g)Utu — maintaining reciprocal relationships and balance with nature and persons;
(h)Mauri — recognition of the life-force of persons and objects;
(i)Hau — respect for the vital essence of a person, place or object;
(j)Rangatiratanga — effective leadership; appreciation of the attributes of leadership;
(k)Manaakitanga — enhancing the mana of others especially through sharing, caring, generosity and hospitality to the fullest extent that honour requires;
(l)Aroha — charity, generosity; and
(m)Kaitiakitanga — stewardship and protection, often used in relation to natural resources but also community and governance responsibilities and obligations.”
[114] Dr Joseph agreed that the tikanga indicia and values listed in his report could be grouped under the following overarching concepts:
(a)intensity of Māori association;
(b)whakapapa and the relevant tāke (how land was obtained);
(c)exercising control and authority of the resource; and
(d)obligations in the nature of kaitiakitanga.
[115] The pūkenga report confirms that the following activities may demonstrate a group’s control or authority over the CMCA according to customary rules and interests:
(a)exercising manaakitanga, for example by permitting access and sharing what is gathered;
(b)acting as kaitiaki by protecting and looking after the takutai moana for future generations;
(c)observing the tikanga associated with an area, for example the tikanga associated with wāhi tapu as a way of restricting a specific act or use of an area;
(d)exercising mana and rangatiratanga in manifest ways, for example through advisory and tribal committees which encompass a level of authority over a particular rohe;
(e)acknowledgement of a group’s mana or customary authority in an area by other groups;
(f)the ability to place customary restrictions on access and the taking of resources, for example through the establishment of rāhui;
(g)knowledge that particular fishing grounds or rocks belong to a particular group by descent; and
(h)restricting or regulating access to the CMCA across abutting and in the ownership of all, or under the control of, the applicant group or members of it, where that occurs in accordance with tikanga.
[116] In Re Reeder, the Court considered this list, while not definitive, to be a useful guide for assessing the evidence of the applicants before the Court as to whether the test under s 58(1) has been met.100
[117] During cross-examination on his report, Dr Joseph confirmed that the following are controlling activities:
(a)stopping and querying recreational fishers about over-fishing and under-sized catch;
(b)the authorising of customary take by tangata kaitiaki;
(c)the placing of rāhui following a drowning, whale stranding or for conservation purposes; and
(d)protecting wāhi tapu by restricting knowledge of their location.
[118]The pūkenga report is appended to this judgment as Appendix V.
Mana moana agreement (shared agreement)
[119] At the beginning of the hearing, there were seven applicant groups. Two of the applications encompassed the entire hearing area and there were other overlaps between applications. There were also disputes about representation.
100 Re Reeder [2021] NZHC 2726, [2022] 3 NZLR 304 at [53].
[120] As a result of kōrero during the course of the hearing, at the conclusion of the hearing, but before the pūkenga report was delivered and before the Court heard closing submissions, the applicants filed a joint memorandum of counsel setting out their agreement as to area and hapū and coastal demarcation points within the hearing area, in six coastal rohe.101 Those coastal rohe are set out in Figure 2 below.102 The parties refer to the agreement as the mana moana agreement.
Figure 2: Mana moana agreement map
[121] Each of the applicants then filed amended applications for recognition orders which, for the relevant coastal rohe, were consistent with the terms of the mana moana agreement and seek CMTs on the basis of shared exclusivity. On that basis the applicants submitted that the Court was not required to determine issues of overlaps within the hearing areas.
[122]By the time of closing submissions, the Court was faced with a unique situation
— all hapū along the coastline of the application area have acknowledged one
101 One of which will now be encompassed in the Group M Stage 1(b) hearing.
102 Also attached in landscape form as Appendix III.
another’s mana tuku iho in respect of different parts of the coastline, in accordance with their shared tikanga.
[123] The applicants say that the shared exclusivity of use and occupation is reflected throughout the evidence of the witnesses for all applicants, demonstrating ahi kā. On the basis of that evidence, orders for CMT could have been sought across the entire Stage 1(a) area of the takutai moana at an iwi level. I observe that, similar to Re Edwards,103 at the outset of this case some of the applications, from Rangitāne, Ngāti Hinewaka and Ngāti Kahungunu, were “korowai” applications, filed on behalf of all of that iwi’s hapū. There were applications before the Court consistent with shared exclusivity as proposed.
[124] What may have seemed at the outset of the hearing to be a conflict (in terms of overlapping application areas, representation and/or mandate), or an impediment to reaching resolution as to who should hold rights, proved to be the opposite. That is, the close interconnectedness and close whakapapa of all applicants.
[125] Through the mana moana agreement, the applicants have collectively agreed that CMT should be recognised and held at a hapū level. The determination of the names of those hapū is a matter of tikanga that appropriately sits with the applicants. Counsel submits that in a consensual position such as this, the Court should not be prepared to “lift the veil” to question the integrity of the arrangement. It is the sum of the evidence that counts in determining whether the statutory tests have been met.
[126] The mana moana agreement was brought to the Court by rangatira with mana. Dr Joseph acknowledges the significance of the agreement, after “decades of mana korero, mana rangatira, and mana whakahaere which is in effect a modern day Wairarapa Moana Maunga Rongo Kawenata.”104 Dr Joseph remarked that, through the mana moana agreement, “kua ea – a state of balance has been achieved”.105
103 Re Edwards, above n 13, at [177]–[187].
104 Pūkenga Report, above n 65, at [123].
105 At [124].
[127] The pūkenga’s report observes106 “how readily they may prove their claims in the takutai moana area, and how impossible it is to contradict them if they only agree amongst themselves.”
[128] The mana moana agreement represents a contemporary exercise of rangatiratanga on the part of the iwi and hapū applicant groups. It is in itself a customary agreement in accordance with tikanga.
[129] I accept and agree with the pūkenga’s assessment that the division of the application area into five coastal rohe in this application area, as set out in the mana moana agreement, is an appropriate representation of customary interests and thus a customary agreement in accordance with tikanga. The mana moana agreement is the applicants’ collective agreement that CMT should be recognised and held at a hapū level. It reflects that when the applicants speak of areas held in accordance with tikanga, they do so on an agreed basis.
[130] It was clear from the evidence before the Court that there is a shared tikanga in relation to the occupation and use of the takutai moana along the South Wairarapa coast. By the mana moana agreement all hapū named in it acknowledge each other’s mana tuku iho in accordance with that shared tikanga. Interwoven and interconnected relationships through whakapapa and whanaungatanga are a significant component of the accepted tikanga along the South Wairarapa coast. This tikanga is the basis of, and allows for, the shared exclusive interests between various hapū along the coast.
[131] Except for Te Ātiawa, all of the hapū who seek CMT orders are hapū of Ngāti Kahungunu and/or Rangitāne. All are named within the list of Ngāti Kahungunu hapū in the Trust Deed of the Ngāti Kahungunu Settlement Trust and in the definitions in s 13 and sch 1 of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Claims Settlement Act 2022. The historical evidence before the Court from both professional historians (Tony Walzl and Bruce Stirling) and the tangata whenua (for example, Haami Te Whaiti, Dr Takirirangi Smith, Robin Potangaroa and Steven Chrisp) makes it clear that the entire Wairarapa and its takutai moana, within the Stage 1(a) hearing
106 At [51], referring to the judgment of Chief Judge Fenton in 1870, reprinted in Alex Frame “Kauwaeranga Judgment” (1984) 14 VUWLR 227 at 244.
area, was within the customary ownership and control of Ngāti Kahungunu and Rangitāne in accordance with tikanga as at 1840. That is consistent with the view of the Waitangi Tribunal in its Wairarapa ki Tararua Report.107
[132] There are close whakapapa links between those iwi. The evidence demonstrates:
(a)The whakapapa connections between the applicant groups connect them to not only their tīpuna, but to one another and to the takutai moana.
(b)The hapū have collectively exercised mana and rangatiratanga over the takutai moana, from before 1840 until today, through their continued kaitiakitanga duties and responsibilities, caring for Papatūānuku and Tangaroa, and ensuring through their tikanga that there is kaimoana left for future generations.
(c)The hapū have used the takutai moana along the entire Wairarapa coastline to feed their whānau, hapū and iwi since before 1840 until now, based on mātauranga that was passed down through the generations.
(d)Hapū groups used and occupied one another’s whenua and moana at different times, as part of sharing with each other as part of the manaakitanga on the coast.
[133] This interconnectedness was demonstrated in the evidence of many witnesses. By way of example, Piriniha Te Tau of Rangitāne talked of all hapū and iwi along the coast being connected in some way through whakapapa, and of “shared” interests along the coast. Joseph Potangaroa, also of Rangitāne, confirmed the ability to collect kaimoana in areas physically occupied by other groups. Throughout his evidence Steven Chrisp talked of Rangitāne as “part of the story along the Coast, jointly with other whānau”. Robin Potangaroa of Ngāti Kahungunu similarly talked of the
j. The rohe provides sufficient sustenance for the people over time and other necessities are obtained through trade.
k. The new iwi is able to defend its rohe and can call on allies to help to defend the estate.
l. The new iwi is approved by the neighbours and its presence is validated by the experience.
163) 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, as well as for assessing PCRs.
164) 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.
165) Furthermore, when Māori signed the Treaty of Waitangi in 1840, rangatira (chiefs) expected the Crown to protect their rangatiratanga (chieftainship) over the taonga (valued natural resources), and that the taonga would be sustained for future generations in perpetuity. In return, Māori were prepared to share with the British, and subsequently, the New Zealand Crown thus acknowledging a respectful kawenata relationship for sharing the resources of the nation.
166) I believe Māori are still prepared to enter into respectful tikanga relationships with landowners, fishers and others where they are prepared to extend manaakitanga and whanaungatanga to share the responsibility of the sustainable well-being of the takutai moana for all New Zealanders.
167) Whatever the outcomes of the current MACA hearing, maintaining the mana of the Wairarapa Moana claimants and the integrity of tikanga Māori are imperative. 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.
168) In conclusion and with utmost respect, it is my modest opinion that the Wairarapa Moana claimant groups to this hearing have shown that their tikanga customary laws and institutions are flourishing, vibrant and that they are still relevant, and it appears that they may have delivered on the statutory tests, inter alia, in ss. 51 and 58, Marine and Coastal Area (Takutai Moana) Act 2011, for PCRs and CMT in accordance with their contemporary tikanga.
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 17th day of October 2023
Dr Robert Joseph
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2. Durie, E, ‘The Process of Settling Indigenous Claims’ (Indigenous Peoples: Rights, Lands, Resources, Autonomy International Symposium and Trade Show, Vancouver Trade & Convention Centre, British Columbia, Canada, 20 – 22 March, 1996).
3. Mead, H, “The Nature of Tikanga” (Unpublished Manuscript Paper presented to Mai i te Ata Hāpara Conference, Te Wānanga o Raukawa, Otaki, 11–13 August 2000).
Unpublished Manuscripts
1. Pei Te Hurinui Jones Papers, (ATL, MS-Papers-0358).
2. Walker R, “Changes to the Traditional Model of Māori Leadership” (Unpublished, Auckland, 1992).
APPENDIX VI – Summary of applicants and whakapapa
Ngāti Kahungunu
[1] Ngāti Kahungunu is a confederation of approximately 110 hapū descended from the eponymous tipuna, Kahungunu. Kahungunu was the son of Tamatea who commanded the Tākitimu waka.
[2] Many of the Ngāti Kahungunu hapū retain their own distinct hapū identity, and there are also close inter-relationships and overlaps between hapū (reflected in the common reference to Ngāti Kahungunu ‘hapū karanga’ in this region), with the result that some persons refer to or emphasise a particular hapū (rather than, or as well as, Ngāti Kahungunu as an iwi) when identifying themselves, even where they have multiple inter-connected affiliations through whakapapa.
[3] The primary Ngāti Kahungunu coastal hapū (or hapū karanga) are generally acknowledged to be Te Hika o Pāpāuma, Ngāi Tūmaphia ā Rangi and Ngāti Hinewaka. However, these and other hapū karanga groupings also embrace and/or acknowledge the coastal interests of other hapū, including for example Ngāti Moe and Ngāti Tūkoko, as the list of hapū set out in the definition of “Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua” in the trust deed of the Ngāti Kahungunu Settlement Trust reflects.
[4] Ngāti Kahungunu ki Wairarapa-Tāmaki Nui ā Rua tupuna means an individual or individuals who:
(a)exercised customary rights by virtue of being descended from Kahungunu and one or more of Hamua, Hinewaka, Kahutapere, Kaiparuparu, Kirikohatu, Mahanga, Manawatu, Moeteao, Moetekakara Nuku, Pakuia, Pouri, Raekaumoana, Rakaihikuroa through Te Rangitataia or Umuroa or a recognised ancestor of Te Uma Whanui, Rakairangi, Tapuke, Te Matau, Te Opekai, Te Rangihakahaka, Te Rangihirawea, Te Rehunga and Tuohungia, Te Hinaariki, Te Rangitawhanga, Te Whakumu, Tuhakeke, Tūkoko, Tumapuhiaarangi, Tumaiteuru, Tuohungia, Tupurupuru, Turanga,
Turaumoa, Waipuhoro and/or any other recognised ancestor of a Ngāti Kahungunu ki Wairarapa-Tāmaki Nui ā Rua hapū; and
(b)exercised those customary rights predominantly in relation to the Ngāti Kahungunu ki Wairarapa-Tāmaki Nui ā Rua area of interest at any time after 6 February 1840.
[5] Ngāti Kahungunu’s mana and kaitiakitanga over their rohe, including the takutai moana, was reflected in the Coastal Marine Area Statutory Acknowledgement that was provided by the Crown and recorded in the Ngāti Kahungunu ki Wairarapa- Tāmaki nui-a-Rua Deed of Settlement. The statement of association for that coastal marine area records:1
Ngāti Kahungunu trace their ancestry and connection to the coastal marine area from Tautāne to Turakirae from the earliest inhabitants through to the successive waves of Ngāti Kahungunu migrations into the district.
Ngāti Kahungunu migrations into Wairaraapa and Tāmaki nui-a-Rua were generally peaceful and achieved through “tuku” whereby land was gifted by the local inhabitants in return for tangible objects such as waka. This led to local inhabitants migrating whilst others remained and intermarriage ensued with protection given by the migrants. On occasion where there was resistance to Ngāti Kahungunu overtures, our ancestors simply took the land, describing this in the Native Land Court as giving the land “mana”.
The three Ngāti Kahungunu hapū karanga synonymous with the coastal marine area are:
1.Te Hika o Pāpāuma;
2.Ngāi Tūmapūhia-ā-Rangi; and
3.Ngāti Hinewaka.
These hapū were and continue to be seen today as tuturu hapū of Ngāti Kahungunu.
On the arrival of the sacred waka “Tākitimu” to Rangiwhakaoma (Castlepoint), there alighted one of the most famed tohunga on the waka, none other than Tūpai, who when he set up his whare wananga taught Rongokako, the son of Tamatea Arikinui, the rangatira of Tākitimu.
The district of Wairarapa ki Tāmaki nui-a-Rua in the 19th Century was known as “Te Rohe o Rongokako”, an acknowledgement of our Ngāti Kahungunu whakapapa and history.
1Ngāti Kahungunu ki Wairarapa-Tāmaki-nui-a-Rua Deed of Settlement, Schedule: Documents, Part 2, Statements of Association, at 5–6.
Ngāti Kahungunu occupied numerous pā and kāinga along the length of the coastal marine area from Tautane (where the headstone of a celebrated Ngāti Kahungunu chief is) to Turakirae which following the inter-iwi wars in the late 1830’s became the south Western boundary for Ngāti Kahungunu.
Ngāti Kahungunu’s interests along the coastal marine area are through traditional rights of whakapapa and occupation as descendants of Ngāti Kahungunu.
Ngāti Kahungunu are the kaitiaki for urupā all along the coastal marine area, some of which are in continued use today.
…
Rangitāne
[6] Rangitāne trace their connection to the coastal marine area from Te Aho a Maui (Cape Turnagain) to Tūrakirae back to the earliest Māori ancestors. The archaeological sites of early Māori coastal settlement, such as those in Palliser Bay, date from the period of Rangitāne occupation. Traditionally, Rangitāne maintained their ancestral relationship with the coastal area for at least 28 generations through migrations to seasonal fishing camps, and knowledge of ancestral relationships and usage rights.
[7] Rangitāne’s story commences with the arrival of the Kurahaupō waka at Nukutaurua on the Mahia Penninsula. This waka carried three principal rangatira, including Rangitāne’s tipuna, Whātonga (who was closely related to Kupe).
[8] Whātonga settled for a period at Nukutaurua before moving south towards Heretaunga. When Whātonga finally left Heretaunga he travelled south towards Tāmaki nui-ā-Rua, eventually settling in the Manawatū and Wairarapa regions.
[9] On his arrival in Manawatū, Whātonga married his second wife, Reretua. This marriage produced his second son, Tautoki. Tautoki eventually married Te Waipuna and gave birth to the eponymous ancestor, Rangitāne.
[10] Within the Wairarapa Marine and Coastal Area, Turia and Hinematua were important ancestors. The descendants of this union were known as Ngāti Hinematua and were clearly and consistently recognised as belonging to Rangitane.
Tumapuhia ... came from Heretaunga originally to his hapu, the Ngāti Hinematua, on the Rangitane side.2
The statement is correct that Tumapuhia's descent [was] from Hinematua and Rangitane and that is how he gained the land ... Tukoroua was the paramount owner. He was descended from Ngataierua, the son of Hinematua of Rangitane.3
My hapu is Ngaitumapuhia ... I derive my right through Tumapuhia. My take is ancestral occupation . Tumapuhia is my ancestor. The 'take' is descended from Tukoroua. He belonged to Ngatihinematua. Hinematua was the original owner of the land).4
I can state the nature of my claims. They are ancestral and occupation. Have occupied permanently. My ancestral claim is from Hinematua.5
[11] Ngāti Hinematua people maintained mana whenua and mana moana over the Wairarapa Marine and Coastal Area over several generations.
2 Tamati Te Apatu in Te Maipi Maori Land Court Hearing 1888; 8 Wairarapa MB 493 (8 WAI 493).
3Tamati Te Apatu in Te Maipi Maori Land Court Hearing 1888, 9 Wairarapa MB 18-20 (9 WAI 18- 20).
4 Taiawhio Te Tau in Te Mai pi Maori Land Court Hearing, 1888; 9 Wairarapa MB 49 (9 WAI 49).
5(Karaitiana Te Korou in Mata ikona Subdivision Hearing MLC 211895:295) 21 Wairarapa MB 295 (21 WAI 295).
[12] These Tīpuna of Ngāti Hinematua played critical roles in the various tuku whenua to incoming groups. They and their descendants intermarried with the newcomers to create the range of interests along the Wairarapa Coast.
Relationship between Rangitāne o Wairarapa and Rangitāne o Tāmaki nui-ā-Rua
[13] For Rangitāne o Wairarapa, the close relationship with Rangitāne o Tāmaki nui-ā-Rua stems from the tipuna Te Rangiwhaka-ewa who is a direct descendant of the eponymous ancestor, Rangitāne, and of the principal Rangitāne ancestor of the Wairarapa, Hāmua. Hāmua is also a direct descendant of Rangitāne.
[14] As noted in Rangitāne’s Deed of Settlement of their historical Treaty of Waitangi claims, Ngāti Hāmua is the matua hapū for Rangitāne. The eminent historian Dr Angela Ballara has noted “every time Hāmua’s genealogy was traced in the Land Court, it was given from Rangitāne. In no cases was it traced from… any other ancestral line.”6
[15] The descendants of Te Rangiwhaka-ewa’s children, Parikoau and Tamahau, became important tīpuna for both Rangitāne o Wairarapa and Rangitāne o Tāmaki nui- ā-Rua. They are connected through Hāmua and Te Rangiwhaka-ewa.
Ngā Tūmapūhia-ā-Rangi hapū
[16] Ngā Uri ō Tūmapūhia ā Rangi hapū is a hapū of Ngāti Kahungunu and of Rangitāne.
[17] Ngāi Tūmapūhia’s ancestors arrived in Aotearoa aboard the Kurahaupō and Takitimu waka. The hapū derives its customary rights in their traditional rohe from Hinematua who, during the 19th century Wairarapa Native Land Court title investigation hearings, was described by nearly all hapū as the “original owner of the land”. It is said that most hapū in the Wairarapa region descend from Hinematua.
[18] Hinematua married Tūria, the great-great-great-great grandson of Kupe. Their offspring are the founding ancestors of the hapū of Wairarapa. Ngāi Tūmapūhia are one such hapū.
[19] Tūmapūhia-ā-Rangi, the eponymous ancestor of Ngāi Tūmapūhia a Rangi, was born in Waimarama, which is situated just south of Te Kauwae-a-Māūi (Cape Kidnappers) (“Tūmapūhia”). Tūmapūhia descended from Kahungunu and was related to many prominent rangatira of his time. He also descended from Rakaimoari and Te Ao Haeretahi; the former being a mokopuna of the Ngāti Kahungunu chief, Rakaihaikuroa, and the latter being a mokopuna of Hinematua and Tūria:
6Heather Angela Ballara, “The Origins of Ngāti Kahungunu” (PhD Thesis in History, Victoria University of Wellington, 1991) at 160.
[20]The offspring of Tūmapuhia and Hine te Ao are set out below:
[21]Ngāi Tūmapuhia hapū trace their whakapapa to the ancestor Tūmapuhia.
Ngāti Hinewaka
[22] Ngāti Hinewaka me Ōna Hapū Karanga refers to all persons who whakapapa to any of:
(a)Ngāti Hinewaka
(b)Ngāti Rangaranga
(c)Ngāti Rongomaiaia
(d)Ngāti Te Kawekairangi
(e)Ngāti Pārera
(f)Ngāti Te Aokino
(g)Ngāi Te Ao
(h)Ngāti Maahu
(i)Ngāti Hikarara
(j)Ngāti Hikawera
(k)Ngāti Kahukuranui
(l)Ngāti Ngāpuoterangi
(m)Ngāti Hinetauira
(n)Ngāi Tuohungia
(o)Ngāti Rua
(p)Ngāti Rākaiwhakairi
(q)Ngāti Rākairangi
(r)Ngāi Tūkōkō
[23] In the Wairarapa the two prominent iwi are Ngāti Kahungunu and Rangitāne. The whakapapa of the Wairarapa hapū overlap in many respects, and many hapū can claim association with both iwi. Ngāti Hinewaka me Ōna Hapū Karanga is made up of hapū who in the main identify with Ngāti Kahungunu.
[24] This is reflected in the Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act, Statutory Acknowledgment for the Coastal Marine area, states:
Ngāti Kahungunu trace their ancestry and connection to the coastal marine area from Tautane to Turakirae from the earliest inhabitants through to the successive waves of Ngāti Kahungunu migrations into the district.
Ngāti Kahungunu migrations into Wairaraapa and Tamaki nui-a-Rua were generally peaceful and achieved through "tuku" whereby land was gifted by the local inhabitants in return for tangible objects such as waka. This led to local inhabitants migrating whilst others remained and intermarriage ensued with protection given by the migrants. On occasion where there was resistance to Ngāti Kahungunu overtures, our ancestors simply took the land, describing this in the Native Land Court as giving the land "mana".
The three Ngāti Kahungunu hapū karanga synonymous with the coastal marine area are:
1.Te Hika o Papauma;
2.Ngai Tūmapūhia-a-Rangi; and
3.Ngāti Hinewaka.
These hapū were and continue to be seen today as tuturu hapū of Ngāti Kahungunu.
On the arrival of the sacred waka "Takitimu" to Rangiwhakaoma (Castlepoint), there alighted one of the most famed tohunga on the waka, none other than Tūpai, who when he set up his whare wananga taught Rongokako, the son of Tamatea Arikinui, the rangatira of Takitimu.
The district of Wairarapa ki Tamaki nui-a-Rua in the 19th Century was known as "Te Rohe o Rongokako", an acknowledgement of our Ngāti Kahungunu whakapapa and history.
Ngāti Kahungunu occupied numerous pa and kainga along the length of the coastal marine area from Tautane (where the headstone of a celebrated Ngāti Kahungunu chief is) to Turakirae which following the inter-iwi wars in the late 1830's became the south Western boundary for Ngāti Kahungunu. Ngāti Kahungunu's interests along the coastal marine area are through traditional rights of whakapapa and occupation as descendants of Ngāti Kahungunu.
...
[25] The phrase “Me Ōna Hapū Karanga” means related or associated hapū in addition to Ngāti Hinewaka, that also have their own distinct hapū identities. Ngāti Hinewaka me Ōna Hapū Karanga hapū can be grouped according to the closeness of association through whakapapa and their shared lands.
[26] Ngāti Maahu, Ngāti Te Kawekairangi, Ngāti Rongomaiaia, Ngāti Parera, Ngāi Te Ao and Ngāti Te Aokino occupied the lands from Te Unuunu to Te Awaiti.
[27] Ngāti Rangaranga occupied lands with Ngāti Hinewaka around Te Oroi. Rangaranga was a sister of Hinewaka’s husband Tamaitohikura.
[28] Ngāti Rakaiwhakairi, Ngāi Tūkoko, Ngāti Rakairangi, Ngāti Ngapuoterangi and Ngāti Rua occupied the lands around Turanganui and also Wairarapa Moana.
[29] Hinewaka originally came from Heretaunga to Awhea. Mōkaiwhenua kore and Mōkai Waipawa of Ngāitaumata were living there and gave the land from Te Wahapouri to Oroi to Hinewaka. Hinewaka and her people occupied the pā at Te Maire.
[30] A second tuku was made by Hikapuku as he was leaving for the South Island to Hinewaka “E hine e tēnei ānō te whenua me ngā tāngata” giving her the rest of his land from Opouawe to Te Tawhiti (site of the Cape Palliser lighthouse) near Matakitaki. Hikapuku was a descendant of Kahungunu and Te Aomatarahi and also was descended from Hineterangi.
[31] Hinewaka’s fourth child, Te Upoko, married Te Whakatakahia, the great grandson of Te Rangitāwhanga (son of Hinetauira and Rākaiwerohia). Their granddaughter Te Puhinahina, a child of Te Akituoterangi, married Te Aopakurangi, who belonged to Ngāti Hakeke and Ngai Tamanuhiri and lived at Te Kawakawa. The couple were arguing about his adultery when Te Aopakurangi struck Te Puhinahina with his fist to the back of her neck, which killed her. When word of Te Puhinahina’s death reached her father, Te Akituoterangi, he was at Te Whanganui a Tara and sent word to others of Ngāti Hinewaka, Te Kohai and Pahura, to seek retribution for the death of their sister. A taua was put together which also consisted of Te Hikaopapauma, Ngai Tumapuhiaarangi and Ngāti Rongomaiaia. These coastal hapū are closely related and consistently supported one another during times of warfare.
[32] The place where the taua attacked Te Aopakurangi’s people became known as Waiwhero because of the stream flowing red with blood. Hinewaka’s brother, Pakiua, is credited with this success. Then, by deception, Horewai pa at Te Kopi was also taken. Thus, having been defeated in battle, land is given over to the victors, a practice
which is embodied in the expression ‘Mate tangata, riro whenua’ and as retribution for the death of Te Puhinahina.
[33] Hinewaka and her husband Tamaitohikura share several ancestors of Ngai Tara, Rangitāne, Ngāti Ira and Ngāti Kahungunu iwi whose descendants have occupied the Wairarapa coastal and wider east coast regions for many hundreds of years.
Te Ātiawa
[34] Te Ātiawa ki te Upoko o te Ika a Māui Pōtiki are part of the “Awa” people. They whakapapa with Te Ātiawa in Taranaki and Ngāti Awa in the Bay of Plenty among other Te Ātiawa groups with the eponymous tīpuna Rauru and Te Awanuiarangi.
[35] Te Ātiawa whakapapa and their respective relationship derives its customary rights in their traditional rohe consists of both the east and west coast to the earliest known tīpuna associated with the head of the fish – Kupe.
[36] Te Ātiawa’s claim extends from the traditional land boundary markers that begin at the northern lateral boundary extending from Pipinui Point in the east, with a right line following a seaward boundary continuing along the outer limits of the
territorial sea. The eastern lateral boundary is a right line landward to Mukamukaiti, thereto Windy Point.
[37] More specifically, and as espoused by the peace agreement between Te Ātiawa and the Wairarapa tribes – then led by Tutepakihirangi (the successor to Nukupewapewa) – established the Remutaka and Tararua ranges as the boundary line between Wairarapa tribes to the east, and Te Ātiawa to the west which form the basis relevant to the application of Te Ātiawa to customary interests in the coastal area from Tūrakirae to Mukamukaiti.
Live, all of you, on this side of the boundary mountains – you on this side, I on the other. I will call those mountains our shoulders; the streams that fall down on this side are for you to drink; on the other side for us.
[38] The peace made use of the facts of Te Wharepouri and Te Puni’s land sales to demarcate their lands. Further sequences of arranged marriages, together with the exchange of gifts and the release of prisoners, cemented the peace in the traditional custom.
Ngāi Tūkoko and Ngāti Moe
Ngāi Tūkoko
[39] Tūkoko, the eponymous ancestor of Ngāi Tūkoko, descended from Whātonga, Iratūroto, Kahungunu and Rangitāne, as shown in the whakapapa below:
[40] Ngāi Tūkoko and Ngāti Moe are hapū of Ngāti Kahungunu. Ngāi Tūkoko is principally from the Tuhirangi-Pirinoa area, while Ngāti Moe is from the Papawai- Greytown area.
Ngāti Moe
[41] Ngāti Moe and their eponymous ancestor Moe Te Ao trace their descent from Whātonga, Iratūroto, Kahungunu, and Rangitāne. Tūkoko was Moe Te Ao’s uncle. Her father, Tūteremoana, was Tūkoko’s brother. Moe Te Ao married Whakahirangi to seal a peace agreement between Tūteremoana’s people, Taraia and Te Aomatarahi.
Moe Te Ao’s twins from this marriage, Mahangatīkaro and Mahangapuhia, became significant tīpuna for the hapū.
[42] Ngati Moe trace their whakapapa to their tīpuna Moe Te Ao and to the banks of the Ruamahanga River:
[43] Moe Te Ao married Te Whakaihirangi of Ngāti Ira to bring peace between the two tribes. She gave birth to her twin boys along the riverbank of the Ruamahanga which starts from the maunga Tararua and flows through the rohe on the east side of the Wairarapa townships, into the lake, and then out to sea. The birth of her son, Mahanga Tikaro, was difficult so she was taken to a sacred place called Toko a Hinemoko, near Pāpāwai. A karakia was performed over Moe Te Ao because of the difficult birth. Moe Te Ao was then moved to Te Awakairangi and gave birth to Mahanga Puhua there. Moe Te Ao was later beheaded by a Rangitāne taua (war party). Tikaro’s daughter, Tumaiteuru and Puhua’s son, Aoteki, married and gave birth to Hiatangata (I).
[44] Hiatangata (II), Tumaiteuru’s great-granddaughter, gave birth to Te Whatahoronui. Te Whatahoronui married Aromea and they lived together in Waka a Pāua, near Martinborough. Aromea’s brother, Nuku Pewa Pewa, was Ngāti Kahungunu’s war chief.
[45] Te Whatahoronui’s daughter, Te Aitu o Te Rangi (I), was an important tīpuna for Ngāti Moe. Ngāti Moe had to defend its mana whenua when, in the early 1800s, a Ngāti Toa taua invaded the South Wairarapa. Te Aitu o Te Rangi was captured by Ngāti Toa and taken to Kapiti Island. After her release, she married John M Jury. On her return to Waka a Pāua, she discovered the greenstone Hoe called Kauorarangi, which was hidden at the base of a tree where she grew up. She believed that discovering this meant that the land belonged to her and so she claimed it.
[46] Te Aitu o Te Rangi and John M Jury had a son named John Alfred Te Whatahoro Jury. He was another important tīpuna of Ngāti Moe. Te Aitu o Te Rangi and John M Jury built their home at Ngaki a Totara on the island called Te Ureta (Jury’s Island). John Alfred Te Whatahoro Jury was a Ngati Kahungunu scholar, recorder, and interpreter. He was known for his roles as chairperson of the Māori Parliament in 1892 and as a tohunga.
Interconnected whakapapa
[47] The whakapapa of Ngāi Tūkoko and Ngāti Moe affirms the inter-hapū and intra-hapū connections. As noted above, Tūkoko and Moe Te Ao were uncle and niece respectively. Through their descent from the ancestors Whātonga, Iratūroto, Kahungunu and Rangitāne, Ngāi Tūkoko and Ngāti Moe connect to the other hapū of Palliser Bay.
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