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Re Ngāti Pāhauwera

Re Ngāti Pāhauwera

Case [2021] NZHC 3599 22 December 2021

Unconscionable Conduct

Unjust Enrichment

Environmental Law

Indigenous Peoples & Native Title Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-821

[2021] NZHC 3599

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

BY

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

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

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

Hearing:
9 February–26 March 2021

Final written submissions received 21 July 2021

Counsel:

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

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

G S G Erskine, D C F Naden, S M Yogakumar and M Sreen for Ngāi Tahu ō Mōhaka Waikare (CIV-2017-485-235)

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

B Lyall and L Thornton for Mana Ahuriri Trust

R Roff, R Budd and S Gwynn for Attorney-General H P Harwood for Hawke’s Bay Regional Council M Williams for Pan Pac Forest Products Limited

A Williams for Seafood Industry Representatives

Judgment:

22 December 2021

JUDGMENT OF CHURCHMAN J

RE NGĀTI PĀHAUWERA [2021] NZHC 3599 [22 December 2021]

TABLE OF CONTENTS

PART I

Introduction [1]

PART II

The parties [3]

Ngāti Pāhauwera Development Trust (CIV-2011-485-821) [3]

Maungaharuru-Tangitū Trust (CIV-2017-485-241) [6]

Ngāti Pārau (CIV-2017-485-246) [10]

Ngāi Tahu ō Mōhaka Waikare (CIV-2017-485-235) [13]

Mana Ahuriri Trust [15]

The Attorney-General [18]

Other appearing/interested parties [19]

PART III

The factual and procedural background [20] PART IV

Legal, tikanga and technical issues [41]

Holds in accordance with tikanga [41]

Ngāi Tahu mandate [50]

Wāhi tapu [70]

Statutory framework [74]

The Ngāti Pāhauwera wāhi tapu claim [83]

Ngāi Tahu’s wāhi tapu claim [90]

MTT’s wāhi tapu claim [91]

The Attorney-General’s position [93]

Wāhi tapu in the law [99]

Relevant evidence of wāhi tapu [132]

The proposed conditions [144]

Shared exclusivity [161]

Extinguishment – the Mōhaka River [181]

Past litigation [188]

Boundaries of the takutai moana and rivers under the Act [191]

Section 58(4) of the Act and the Mōhaka River [197] Extinguishment – the Pan Pac pipeline [218] Analysis [222]

Other structures in the takutai moana  [235]
Extinguishment – the Foreshore and Seabed Endowment
Revesting Act 1991  [243]
Relevant law and analysis  [247]

Extinguishment – the Napier Port and Te Whanganui-ā-Ōrotu  [262] Waipātiki Marine Farm and substantial interruption  [280]
The dual pathway  [285]
Land block purchases, confiscation, and substantial interruption  [305] The Ahuriri purchase  [307]
The Mōhaka purchase  [309]
Raupatu  [312]
Pukenga  [321]

PART V

Analysis of the applications – CMT [378]

Ngāti Pāhauwera [378]

Poututu Stream to Pōnui Stream [381]

Ngāi Tahu claim to the south bank of the Mōhaka River [406]

Pōnui Stream to the Waikari River [415]

Ngāti Pāhauwera’s interests south of the Waikari River [424]

Ngāi Tahu o Mōhaka Waikare [427]

MTT [447]

Ngāti Pārau [483]

PART VI

Analysis of the applications – PCR [515]

Ngāti Pāhauwera Development Trust (CIV-2017-485-821) [516]

Maungaharuru-Tangitū Trust (CIV-2017-485-241) [569]

Ngāti Pārau (CIV-2017-485-246) [589]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Ngāti Pāhauwera

Details

AGLC: Re Ngāti Pāhauwera [2021] NZHC 3599
Case: [2021] NZHC 3599
Decision Date: 22 December 2021

CaseChat Overview and Summary

The court was required to decide several legal issues related to the recognition of customary marine title (CMT) and protected customary rights (PCR) for four applicant groups: Ngāti Pāhauwera Development Trust, Maungaharuru-Tangitū Trust, Ngāti Pārau, and Ngāi Tahu ō Mōhaka Waikare. These issues included determining the boundaries of the takutai moana (marine and coastal area) over which the applicants sought recognition, whether the applicants held the areas in accordance with tikanga (Māori customary values and practices), and if the applicants had exclusively used and occupied the areas without substantial interruption since 1840. The court also had to consider the applicants' claims for wāhi tapu (sacred sites) protection and the impact of past legislation, such as the Foreshore and Seabed Act 2004, on the applicants' claims.

The court's reasoning involved a comprehensive analysis of the applicants' whakapapa (genealogy), historical occupation, and tikanga practices related to the claimed takutai moana areas. The court examined evidence from various sources, including Waitangi Tribunal reports, affidavits, and expert opinions, to assess the applicants' claims. The court also considered the impact of past legislation and the need to balance the applicants' rights with the public interest and other stakeholders' rights.

The outcome of the case was that the court granted recognition orders for CMT and PCR to some extent for each of the four applicant groups. However, the extent of recognition varied depending on the strength of the evidence provided by each group. The court also made specific findings on the boundaries of the takutai moana areas, the recognition of wāhi tapu sites, and the impact of past legislation on the applicants' claims.

The final orders of the court recognised the customary marine title and protected customary rights of the applicant groups over specified areas of the takutai moana, subject to certain conditions and limitations. The court also made orders to protect wāhi tapu sites within the recognised areas and addressed the impact of past legislation on the applicants' claims. The orders recognised the rights of the applicant groups while also considering the public interest and the rights of other stakeholders, such as commercial entities and recreational users.

Orders