Re Ngāti Pāhauwera
[2021] NZHC 3599
•22 December 2021
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]
Ngāi Tahu ō Mōhaka Waikare (CIV-2017-485-235) [595]
PART VII
Conclusion [598]
Stage 2 hearing [600]
APPENDIX 1: PUKENGA REPORT
APPENDIX 2: WHAKAPAPA SUMMARY
Early occupation [8]
Early tūpuna and waka [10]
Papatūānuku, Ranginui, and Ngā Atua Māori [10]
Tamatea and the Takitimu waka [18]
Paikea [27]
Tahupōtiki [36]
Kahungunu [38]
Mahu Tapoanui [44]
Pania and Moremore [46]
Specific whakapapa of the applicant groups [49]
Ngāti Pāhauwera [49]
Maungaharuru-Tangitū Trust [58]
Ngāi Tahu ō Mōhaka Waikare [78]
Ngāti Pārau [87]
Ka kati a Tangitū Tangitū closes
Ka huaki a Maungaharuru Maungaharuru opens Ka kati a Maungaharuru Maungaharuru closes Ka huaki a Tangitū Tangitū opens1
PART I
Introduction
[1] The Trustees of the Ngāti Pāhauwera Development Trust on behalf of Ngāti Pāhauwera, as well as three other applicant groups, have applied under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) for recognition orders for Customary Marine Title (CMT), Wāhi Tapu Protection and Protected Customary Rights (PCR) in Hawke’s Bay. The area of coastline involved in the various applications before the Court extends from a point approximately 11km south of the entrance to Napier Harbour, northwards to the northern bank of Poututu Stream which is just south of Wairoa.
[2] This judgment is divided into seven parts. Part I is the introduction, and summary of the case. Part II details the parties and their applications. Part III provides a brief factual and procedural background to the case. Part IV considers the legal, tikanga, and technical issues. Part V is an assessment of each party’s CMT application, while Part VI is an assessment of each party’s PCR application. Part VII is the conclusion.
1 This is one of a number of whakataukī (proverbial sayings) that emphasise the two food sources (mahinga kai) of the tangata whenua in the region covered by these applications, namely the sea (specifically the Tangitū reefs) and the mountains (Maungaharuru).
PART II
The parties
Ngāti Pāhauwera Development Trust (CIV-2011-485-821)
[3] Ngāti Pāhauwera are a confederation of hapū located around Mōhaka in northern Hawke’s Bay. Their traditional iwi rohe/tribal boundaries are based on those set down by Te Kahu o Te Rangi, a principal tupuna of Ngāti Pāhauwera who lived before the time of the Treaty of Waitangi.
[4] Since 2012, the definition of Ngāti Pāhauwera as represented by the Ngāti Pāhauwera Development Trust has been set out in s 12 of the Ngāti Pāhauwera Treaty Claims Settlement Act 2012, which provides that:
12 Meaning of Ngāti Pāhauwera
(1)In this Act, Ngāti Pāhauwera means—
(a)the collective group composed of individuals who descend from 1 or more Ngāti Pāhauwera ancestors and who are members of 1 or more of the Ngāti Pāhauwera hapū listed in Schedule 1; and
(b)every whānau, hapū, or group to the extent that it is composed of individuals referred to in paragraph (a); and
(c)every individual referred to in paragraph (a).
(2)In this section, Ngāti Pāhauwera ancestor means a recognised ancestor of any of the Ngāti Pāhauwera hapū who exercised the customary rights predominantly in relation to the core area of interest at any time after 6 February 1840.
(3)For the purposes of subsection (1)(a), a person is descended from another person if descended from that other person by—
(a)birth; or
(b)legal adoption.
(4)In this section, customary rights means rights according to tikanga Māori (Māori customary values and practices), including—
(a)rights to occupy land; and
(b)rights in relation to the use of land or other natural or physical resources.
[5] Ngāti Pāhauwera seek recognition orders for CMT, Wāhi Tapu Protection, and PCR in the application area. The boundaries of the application area are:
(a)on the landward side, by the line of mean high-water springs; and
(b)on the seaward side, by the outer limits of the territorial sea; and
(c)on the Northern end, by the Northern bank of the Poututu Stream; and
(d)on the Southern end, by the Esk River.2
Maungaharuru-Tangitū Trust (CIV-2017-485-241)
[6] The Maungaharuru-Tangitū Trust (MTT) is a post-settlement governance entity established in 2012 to represent a collection of hapū including Ngāti Kurumōkihi, Ngāti Marangatūhetaua (sometimes referred to as Ngāti Tū), Ngāti Whakaari, Ngāi Tauira, Ngāi Te Ruruku Tangoio and Ngāi Tahu. The trustees of the Maungaharuru-Tangitū Trust have filed under the Act for recognition orders, specifically PCR and CMT over its application area, on behalf of these hapū.
[7] Shane Taurima, Chief Executive of the Trust, gave evidence that membership is open to any person who can whakapapa to the following tūpuna:
(a)Tataramoa (for Ngāti Kurumōkihi);
(b)Tūkuapa I (for Ngāti Marangatūhetaua);
(c)Whakaari (for Ngāti Whakaari);
(d)Tauira and Mateawha (for Ngāi Tauira);
2 The Esk River is also referred to as Waiohinganga. Other geographic features which are mentioned in this decision by both Māori and Pākehā names are Punakērua/Tait’s Beach, Whakaari/Flatrock, Moeangiangi/Ridgemount, Te Whanganui-a-Orotu/Ahuriri Estuary/Napier Inner Harbour. There are also te reo Māori place names which are spelt slightly differently such as Waikari/Waikare, Arapaowanui/Arapaoanui and Panepoa/Panepaua. These different names and spellings are used interchangeably throughout the decision.
(e)Te Ruruku, through Hēmi Puna and Taraipene Tuaitu (for Ngāi Te Ruruku (ki Tangoio); or
(f)Tahumatua II (for Ngāi Tahu).
[8] The marae for the hapū is located at Tangoio, approximately 20km north of Napier. Ms Tania Hopmans, the Deputy Chief Executive of the Trust, explained in her affidavit the whakapapa behind the Trust and its coastal rohe:
The name Maungaharuru-Tangitū, used in the name of our post settlement governance entity (and the previous incorporated society), encapsulates who the Hapū are that we represent, our key traditions and the resources we have enjoyed for many, many generations from our customary lands and coast.
Maungaharuru is the maunga tapu (sacred mountain) which defines our western boundary. But the maunga is more than that: it is the source of essential sustenance for the Hapū and the waters flowing from the maunga feed the streams, rivers, aquifers, lakes, wetlands and sea and all those waterbodies come within the realm of Tangaroa-i-te-Rupetu (the spiritual guardian of the moana and waterbodies, and all within them). Tangaroa’s realm is interconnected therefore from a mātauranga Māori perspective, and viewed as an indivisible whole…
Tangitū is the coast and sea adjacent to the lands of the Hapū; it is also the Hapū kaitiaki (guardian) which takes the shape of a whale, and it contains innumerable taonga (treasures) and resources which have fed and nurtured the Hapū over many generations.
…
From Maungaharuru to Tangitū lies our takiwā. Our most significant whakatauākī (tribal proverb) describes this relationship and the interdependence of the mountain and the sea:
Ka tuwhera a Maungaharuru, ka kati a Tangitū, Ka tuwhera a Tangitū, ka kati a Maungaharuru.
When the season of Maungaharuru opens, the season of Tangitū closes, when the season of Tangitū opens, the season of Maungaharuru closes.
[9]The MTT application details the boundaries of the application area as follows:
(a)northwards to a point past the Waitaha River;
(b)southwards to Keteketerau from the mean high-water springs on the landward side;
(c)southeast to Pania Reef; and
(d)out to 12 nautical miles at sea.
Ngāti Pārau (CIV-2017-485-246)
[10] Ngāti Pārau are a cross-applicant seeking to have their application decided in this hearing. They are based in Te Whanganui-ā-Ōrotu (also known as Ahuriri Estuary) and are a hapū of Ngāti Kahungunu. As set out in the affidavit of Mr Roderick Hadfield, Ngāti Pārau descend from the tūpuna of Pitaka Te Otupeka and Tareha Te Moananui (a rangatira of Ngāti Kahungunu hapū, including those in the Ahuriri area). Mr Hadfield deposed:
The interests in the lands and seas to our immediate north are our whanaunga, Ngāti Hinepare, Ngāti Mahu and Ngai Tawhao. This boundary is traditionally based on whakapapa and the continued exercise of rangatiratanga by Ngāti Pārau.
The interests in the lands and seas to our immediate south are our whanaunga, Ngāti Hawea. This boundary is marked by Te Umuroimata and an old pā near Park Island and out to Pania reef, this boundary is considered a wāhi tapu site for Ngāti Pārau.
[11] The primary marae of Ngāti Pārau is Waiohiki Marae, which is located in Waiohiki, south of Taradale. The marae connects ancestrally to the waka Tākitimu, the maunga Hikuranga and Ōtātara, and the awa Tūtaekurī.
[12] In their 2017 application to this Court for CMT and PCR recognition orders under s 98 of the Act, Ngāti Pārau describe their boundaries as follows:
(a)on the landward side, by the line of the mean high-water springs; and
(b)on the seaward side, by the outer limits of the territorial sea; and
(c)the northernmost landmark of the application area boundaries being the Ahuriri harbour entrance and Ahuriri inner-estuarine area; and
(d)the area extending out to include Pania Reef, then heading across on an easting bearing out to 12 nautical miles; and
(e)the area out to 12 nautical miles from the northern most point heading south along the 12 nautical mile boundary until it intersects on an eastern bearing with the southernmost landmark; and
(f)the southernmost point ending approximately 11 km south of the old harbour entrance at the southern end of the Tutae o Mahu block.
Ngāi Tahu ō Mōhaka Waikare (CIV-2017-485-235)
[13] The Ngāi Tahu application seeks recognition orders for PCR, CMT and wāhi tapu recognition over the following area:
(a)starting at the mouth of the Mōhaka River in the north;
(b)to the mouth of the Waiohinganga/Esk River in the south;
(c)beginning at the line of the high tide springs; and
(d)extending to the outer limits of the territorial sea.
[14] Ngāi Tahu submit that since 1840, they have maintained a continuous presence on what is their ancestral land overlooking the coastline between the Mōhaka and Esk Rivers, which has been concentrated at or around the mouth of the Waikari River, and that their connection to the coastline has not been broken as a result of Crown land purchasing or confiscation. Counsel submit that Ngāi Tahu’s ancestral rights have primacy over the Ngāti Pāhauwera Development Trust and the Maungaharuru-Tangitū Trust, which are confederations of a number of hapū who do not have such ancestral rights. Counsel submitted that Ngāi Tahu ō Mōhaka Waikare are neither part of, nor represented by, either the Ngāti Pāhauwera Development Trust or the Maungaharuru- Tangitū Trust.
Mana Ahuriri Trust
[15] The Mana Ahuriri Trust is a post-settlement governance entity representing the hapū of Ngāti Hinepare, Ngāti Māhu, Ngāti Matepū, Ngāti Pārau, Ngāi Tawhao, Ngāti Tū, and Ngāi Te Ruruku.
[16] The Trust has signed a deed of settlement with the Crown on 2 November 2016 which includes a statutory acknowledgement of the Ahuriri hapū coastal marine area.
The trust has sought to engage directly with the Crown for recognition of CMT and PCR over the statutory acknowledgment area.
[17] As a result, the Trust appeared at the Ngāti Pāhauwera hearing, but did not wish for its application to be determined at this time, and appeared in relation to the part of its statutory acknowledgment area that overlaps with the application areas of Ngāti Pāhauwera and the other cross-applicants.
The Attorney-General
[18] The Attorney-General on behalf of the Crown gave notice that he wished to appear as a party to the Ngāti Pāhauwera proceedings. The Attorney-General sought to be heard on the evidence and law relating to the applications and in relation to the public interest.
Other appearing/interested parties
[19] The following parties also filed notices signalling their intention to appear at the hearing:
(a)Pan Pac Forest Products Ltd (Pan Pac): Pan Pac filed a notice of appearance for the Ngāti Pāhauwera proceeding, on the basis that it has an interest in the applications to be heard arising from its ownership and operation of a pulp mill located at Whirinaki, and is the holder of a number of resource consents issued under the Resource Management Act 1991 (RMA) including for the discharge of treated effluent from the pulp mill into the marine and coastal area subject to the applications. Pan Pac, in its notice of appearance, reserved the right to oppose the applications to the extent that, if granted, the recognition orders would prevent or hinder continued lawful operation of the pulp mill, including in reliance on all existing and any future resource consents granted to it under the RMA. In opening submissions, counsel for Pan Pac submitted that (at least in relation to Whirinaki), there is insufficient evidence to establish a PCR over the application area, and that questions arise as to whether, so far as Whirinaki is concerned, that the
applicants ‘hold’ that area in accordance with tikanga and have exclusively used and occupied it since 1840. Overall, Pan Pac submitted that the recognition orders sought by way of PCR or CMT relative to Whirinaki specifically, should not be made. Counsel played an active part in the hearing.
(b)Council of Outdoor Recreation Associations of New Zealand (CORANZ): CORANZ filed a notice of intention to appear as an interested party in the proceeding on the basis that it has an interest in the matter to protect the rights of the outdoor recreation community for recreation in and use without restriction of the area subject to the application. CORANZ did not participate in the hearing itself.
(c)Hawke’s Bay Regional Council (the Council): The Council filed a notice of its intention to appear and be heard in the proceeding on the grounds that the application is within its jurisdiction (particularly in relation to its regulatory responsibilities over the application area under the RMA), that it owns and operates infrastructure within the application area which provide local services, and that if granted, the application could impact on the exercise and administration of the Council’s regulatory functions and provision of local services. The Council was neutral as to whether any of the applicants had satisfied the statutory tests to the requisite standard of proof for CMT and PCR. Counsel participated in the hearing, to ensure that the scope and terms of the rights sought to be provided for in any orders do not disproportionately affect the Council’s interests, and that the terms of any orders made by the Court are certain and workable.
(d)The New Zealand Seafood Industry Representatives: NZ Rock Lobster Industry Council Ltd, Paua Industry Council Ltd, Fisheries Inshore New Zealand Ltd and the NZ Federation of Commercial Fishermen Inc (collectively referred to as the “Seafood Industry Representatives”) filed a memorandum dated 14 August 2017 giving notice that they wish to appear and be heard in respect of all applications under the Act, as
organisations mandated to represent the holders of individual transferrable quota allocated in perpetuity throughout New Zealand fisheries waters under the Fisheries Act 1996. In relation to this particular proceeding, counsel for the Seafood Industry Representatives filed late evidence in the form of two affidavits expressing their position on the applications.
PART III
The factual and procedural background
[20] The history of Ngāti Pāhauwera’s application for their claimed rights and interests over the takutai moana in their rohe stretches back over three decades. It is important to briefly cover the history of this application, for two reasons. Firstly, evidence from earlier applications and hearings, including the Māori Land Court, the Planning Tribunal, three Waitangi Tribunal inquiries, and a Crown-appointed independent assessor’s report was adduced in this hearing. Some of the evidence is of particular use and/or importance to this Court’s determination as to whether Ngāti Pāhauwera has met the statutory tests under the Act. Secondly, going back over the history of Ngāti Pāhauwera’s application provides a small but significant illustration of how long Ngāti Pāhauwera have been attempting to have their claimed rights and interests in the takutai moana recognised, and also explains how they became a “priority applicant” under the Act.
[21] In the late 1980s, Ngāti Pāhauwera opposed the imposition of a water conservation order over the Mōhaka River, including the River mouth (included in the area of Ngāti Pāhauwera’s current application). A special tribunal was convened to determine the application, which recommended that the conservation order be made, and prepared a draft order. Ngāti Pāhauwera objected to that draft order, and a Planning Tribunal was set up to assess the objections. The Tribunal ultimately determined that it had no legal authority to consider the evidence put forward by Ngāti Pāhauwera, and in April 1992, recommended that the draft order be made.
[22] Also in 1992, and in response to the Planning Tribunal’s decision, Ngāti Pāhauwera, through a rangatira of their iwi, Ariel Aranui, filed a claim to the Waitangi Tribunal concerning their rangatiratanga over the Mōhaka River. Broadly, Ngāti Pāhauwera’s position was that their rangatiratanga over the River was confirmed and guaranteed in Article Two of Te Tiriti o Waitangi/the Treaty of Waitangi, and had never been relinquished. They argued that the making of a water conservation order without their consent would usurp their rangatiratanga and amount to a breach of the principles of the Treaty.
[23] This claim resulted in the Mohaka River Report, where the Waitangi Tribunal recommended that a water conservation order should not be made unless and until discussions between Ngāti Pāhauwera and the Crown resulted in an agreement on a regime for the control and management of the Mōhaka River.3 The Tribunal also recommended that the Crown should enter into discussions with Ngāti Pahauwera as a Treaty partner with a view to reaching agreement on the vesting of the bed of the river from the Te Hoe junction to the river mouth. As noted by counsel for Ngāti Pāhauwera in their opening submissions, the Crown did not negotiate with Ngāti Pāhauwera on these recommendations, and the water conservation order was ultimately imposed in December 2004.
[24] In the 1990s, Ngāti Pāhauwera were involved in two other Waitangi Tribunal inquiries in the Hawke’s Bay area. Firstly, the Whanganui-ā-Ōrotu Inquiry, which concerned Ahuriri Lagoon, also known as Te Whanganui-ā-Ōrotu or the Napier Inner Harbour.4
[25] Ngāti Pāhauwera originally participated in that inquiry as part of the claimant group with interests in the area, but were removed from that group shortly before the hearing started. In its report, the Tribunal concluded that Ngāti Pāhauwera did have certain shared interests in the area due to whanaungatanga/whakapapa connections, their claim to tangata whenua status over Te Whanganui-ā-Ōrotu could not be substantiated on the whakapapa evidence given.5 The Tribunal noted:6
Ngati Pahauwera asked that they be rightfully included or joined as principal claimants to Te Whanganui-a-Orotu. We cannot accede to that request. Indeed, it may well be that only those with tangata whenua status could have done that. In the event they chose not to. We do not doubt, however, that the Wai 55 claimants will honour their clearly stated intention to recognise, in accordance with tikanga Maori, the rights and interests of their whanaunga, Ngati Pahauwera.
[26] Secondly, the Mōhaka ki Ahuriri inquiry, which related to a district inquiry by the Waitangi Tribunal over the Hawke’s Bay, across three geographical subdivisions.7
3 Waitangi Tribunal Mohaka River Report (Wai 119, 1992) at 6.4.
4 Waitangi Tribunal Te Whanganui-a-Orotu Report (Wai 55, 1995).
5 At 192.
6 At 193.
7 Waitangi Tribunal Mohaka ki Ahuriri Report (Wai 201, 2004).
This included the northern division, which was described as the “traditional tribal territory of Ngāti Pāhauwera”.8 In its report, the Tribunal found that the Crown had breached Te Tiriti in its dealings and transactions with Ngāti Pāhauwera, and stated that:9
…despite the Crown having ignored the Tribunal’s recommendations in the Mohaka River Report 1992, we believe that it still needs to negotiate with Ngati Pahauwera over the management of the river.
[27] Following the passing of the Foreshore and Seabed Act 2004, three members of Ngāti Pāhauwera filed an application for a customary rights order under that Act. Ngāti Pāhauwera were the only group to have had an application heard under the Foreshore and Seabed Act, which occurred in the Māori Land Court in February 2008, at Mōhaka.
[28] Less than a month after the hearing, the Crown offered to enter into negotiations with Ngāti Pāhauwera over their customary rights order application, and their historical Treaty claims. This led to an adjournment of the Ngāti Pāhauwera application in the Māori Land Court under the Foreshore and Seabed Act. However, while Ngāti Pāhauwera were able to sign a deed of settlement on their Treaty claims in December 2010,10 negotiations had not been completed by the time the Foreshore and Seabed Act went under review, and the current Act was passed. The Māori Land Court Customary Rights Order application was automatically transferred to the High Court under the new Act.11
[29] Negotiations and engagement between the Crown and Ngāti Pāhauwera continued. In 2014, as part of the negotiations, Ngāti Pāhauwera collated evidence of their rights and interests in the takutai moana, which was provided to an independent assessor. The Minister for Treaty Negotiations at the time, the Hon Chris Finlayson QC, established the non-statutory position of independent assessor in order to provide
8 At xxiii.
9 At 20.4.
10 The Ngāti Pāhauwera Claims Settlement Act was eventually passed in 2012.
11 Section 125(3) of the Act directs that this Court give priority to applications transferred to it from the MLC ahead of any other applications. The term “priority” therefore refers only to the entitlement of the applicant group to have their application heard before the applications of non- priority applicants. Other than in this respect, priority applications do not have any greater status or merit than other applications.
an independent, non-binding opinion on the extent to which the tests were met. The Hon John Priestly QC was appointed to this role, and released his report in December 2015.
[30] In his report, the independent assessor found that Ngāti Pāhauwera had established a legal basis for the following:
(a)CMT in their favour in respect of the area claimed in the common marine and coastal area between Poututu Stream and Pōnui Stream out to a distance of 250m, but importantly, excluding the Mōhaka River mouth, because it was deemed to be navigable and therefore vested in the Crown;
(b)recognition of wāhi tapu under s 78 in the CMT area, limited solely to negotiated tikanga fishing practices and rāhui for short periods; and
(c)establishment of certain PCRs.
[31] In August 2016, the Minister issued an offer to enter into negotiations for a recognition agreement in respect of CMT over a particular area (namely between the Waihua River mouth and Pōnui Stream and between the mean high-water springs and mean low-water springs but not including the Mōhaka River mouth), albeit smaller than the area recommended by the independent assessor. The Minister did not consider that on the basis of the evidence presented to him, the tests for PCRs or wāhi tapu protection under the Act were met in any part of the Ngāti Pāhauwera application area.
[32] A draft recognition agreement was prepared in 2017, but was never fully accepted or finalised, and in 2017, Ngāti Pāhauwera’s application to this Court under the Act was amended to its current form.
[33] The boundaries of Ngāti Pāhauwera’s application area have changed in the manner that I now outline. In June 2005, the Ngāti Pāhauwera Development Trust applied to the Māori Land Court for customary rights orders under s 48 of the
Foreshore and Seabed Act 2004. In 2006, the southern boundaries of this application were amended. To support the amended application, an affidavit of Mr Toro Waaka, a kaumātua of Ngāti Pāhauwera and Chair of the Ngāti Pāhauwera Development Trust, was filed.
[34] Mr Waaka’s affidavit included two maps. The first map (Map One) detailed the immediate Ngāti Pāhauwera foreshore and seabed area under discussion for the purposes of the amended application (an area between the Poututu Stream and Waikari River mouth), while the second map (Map Two) detailed the remaining area of Ngāti Pāhauwera interests south of the Waikari River mouth, stretching down to the Esk River mouth. The title of Map Two stated that it was “for historical and geographical context only”.
[35] In March 2017, the Development Trust on behalf of Ngāti Pāhauwera filed an application for recognition of CMT and rights under the Act. This application differed from the Foreshore and Seabed application in that the southern boundary of the application area had formally been extended down to the Esk River mouth, rather than being used as a pointer for “historical and geographical context only”. An additional affidavit by Mr Waaka was filed in support of this application. In his affidavit, Mr Waaka acknowledged the amendment and extension of the application area to the Esk River mouth as the southern boundary, stating that this was consistent with, and supported by, his previous evidence given in the Māori Land Court Foreshore and Seabed Act application, including his 2007 affidavit (containing Map One and Map Two), which were annexed to the current affidavit.
[36] On 2 June 2017, the Crown filed a series of maps setting out the approximate geographical area of each application under the Act. These maps were revised on 30 June 2017. In the map provided on 2 June 2017, the southern boundary of the Ngāti Pāhauwera application was the Esk River. No change was made to this boundary in the revised map provided on 30 June 2017.
[37] In March 2018, as a result of a minute of Collins J dated 21 March 2018, this Court required all applicants to file memoranda with a map which showed accurate boundaries of the application area so that the location of boundaries and the compass
bearings of the boundary lines between seaward and landward boundaries were identifiable.12
[38] On 13 April 2018, in response to the minute of Collins J, the Ngāti Pāhauwera Development Trust filed a memorandum informing the Court that they would provide a map and that they were in the process of engaging a contractor to complete the work. The memorandum also referred to Map One and Map Two included in Mr Waaka’s 2017 affidavit. The Development Trust stated in the memorandum that these maps “together generally comprise the application area”, although they did note that the maps were originally prepared as evidence before the Māori Land Court, and the points cited were therefore not necessarily accurate.
[39] On 13 December 2018, the Development Trust filed a memorandum through their counsel labelled “Ngāti Pāhauwera High Court Application Area”. This included a map which detailed extended boundaries of the application area, south of the Esk River mouth and down to Bluff Hill in Napier. In response to this, the Maungaharuru- Tangitū Trust applied to strike out part of the application for recognition orders made by the Ngāti Pāhauwera Trust (the respondents) under s 107 of the Act, filed on 15 March 2017. Specifically, the strike-out related to the part of the application area that extended south, below the Esk River mouth.
[40] MTT contended that the application area detailed in the 13 December 2018 map was much larger than the boundaries detailed by the Ngāti Pāhauwera Trust in their original 2017 application. They submitted that the enlarged boundaries constituted a new application that was barred under the Act.13 As a result, MTT submitted that the part of the Ngāti Pāhauwera application that detailed the enlarged boundaries should be struck out. This Court granted the strike-out application, and the part of the Ngāti Pāhauwera application that comprised the extended application area was struck out.14
12 Minute (No.2) of Collins J HC Wellington CIV-2017-485-000218, 21 March 2018.
13 The deadline in which a new application could be made expired on 3 April 2017 under s 100(2) of the Act.
14 Re Ngāti Pāhauwera (Strike Out Application) [2020] NZHC 1139.
PART IV
Legal, tikanga and technical issues
Holds in accordance with tikanga
[41] Section 58 of the Act provides that CMT 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 subs (3).
[42] The legal requirements in relation to s 58, in particular the standard and burden of proof were examined in detail in Re Edwards (Te Whakatōhea (No. 2)15 as was the meaning of the words “holds the specified area in accordance with tikanga” and I will not repeat what was said there but simply adopt those observations.
[43] As set out in Part IV of Re Edwards, the starting point in analysing whether the takutai moana has been held in accordance with tikanga, is to look at the whakapapa (descent lines) and whanaungatanga (familial relationships) of the applicant groups.
[44] Detailed evidence was provided by all of the applicant groups as to their whakapapa. I analyse that evidence more fully in Appendix 2 to this decision. However, some general observations can be made at this point.
15 Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025 at [77]-[103], and [104]-[144].
[45] Each of the applicant groups are inter-related one with the other. That is unsurprising given that they have lived in relative proximity to each other for hundreds of years.
[46] The applicants all consider themselves to be members of the iwi Ngāti Kahungunu but they also see themselves as having distinct identities.
[47] Although they share a number of common ancestors,16 in their evidence they often chose to emphasise the differences in their whakapapa rather than their commonalities. That was particularly so in relation to Ngāti Pāhauwera, Ngāi Tahu ō Mōhaka Waikare and MTT.
[48] Whakapapa was used by all of the applicant groups to authenticate their belonging to a particular area through their connection with a specific ancestor or ancestors.
[49] As a result of the analysis set out in Appendix 2 to this decision, I am satisfied that each of the applicant groups has established their whakapapa connection to the takutai moana. Some of the whakapapa evidence given by some witnesses was challenged by other applicant groups. The Court is not the appropriate place for whakapapa issues to be resolved. It is much more appropriate for this to be done through kōrero on the marae and in accordance with tikanga. The important point for the purposes of this decision is that each of the applicant groups has clearly established whakapapa connections to a part of the whenua adjacent to the takutai moana. That is not a finding that all have held areas of the takutai moana in accordance with tikanga but means that each applicant group meets the threshold of having whakapapa which connects them to the takutai moana in question.
Ngāi Tahu mandate
[50] The mandate of Malcom Kingi to represent Ngāi Tahu ō Mōhaka Waikare has been challenged, particularly by MTT.
16 The evidence of Ms Hopmans on behalf of MTT was that some 4000 of 6000 MTT members could also whakapapa to Ngāi Tahu.
[51] The challenge does not go as far as asserting that a separate hapū of Ngāi Tahu does not exist. The closing submissions on behalf of MTT expressly acknowledged:
MTT does not suggest that Ngāi Tahu is anything other than an independent hapū, with a distinct takiwā, but that does not prevent MTT representing that hapū in these proceedings.
[52]The submissions also stated:
The representation of Ngāi Tahu by MTT is addressed as part of the legislation that established MTT as an entity and is a matter of fact for the Court to determine in light of the evidence from MTT about its mandate and who it represents.
[53] MTT specifically claim that s 12 of the Maungaharuru-Tangitū Hapū Claims Settlement Act 2014 mandates MTT to represent Ngāi Tahu in these proceedings. They say that mandate has not been revoked.
[54] Section 12(1)(b) of that Act lists Ngāi Tahu (rather than Ngāi Tahu ō Mōhaka Waikare) as one of the hapū that it represents. However, that reference to Ngāi Tahu is qualified by the definition of tūpuna set out in s 12(2)(a)(vi). The effect of that subsection is that while it refers to the tūpuna of Tahumatua II, descent from that tūpuna alone is not enough and, in order to claim membership of MTT, any Ngāi Tahu descendant with whakapapa links to Tahumatua II also needs to be descended from “…the tīpuna named in 1 of subparagraphs (i) to (v)”. Those tūpuna are exclusively MTT tūpuna. The effect of this is that, pursuant to its settlement legislation, MTT only represent members of Ngāi Tahu where those members also descend from another hapū that MTT acknowledges as being part of the MTT confederation. This has major implications for MTT’s claim to represent all of Ngāi Tahu.
[55] Those members of Ngāi Tahu who cannot whakapapa to one of the named MTT tūpuna are excluded from being members of MTT. That such people exist is undoubted. Indeed, it was the original exclusion of Malcolm Kingi from membership of MTT on the basis of a claimed lack of descent from an MTT tupuna that appears to have been the catalyst for Malcolm Kingi’s interest in, and research of, his Ngāi Tahu whakapapa.
[56] MTT is not the only entity whose Treaty of Waitangi settlement legislation refers to them representing Ngāi Tahu. The Ngāti Pāhauwera Treaty Claims Settlement Act 2012, in Schedule 1, lists the Ngāti Pāhauwera hapū and lists Ngāi Tahu as one those hapū.
[57] In closing submissions, counsel for Ngāi Tahu firmly rejected any suggestion that either MTT or Ngāti Pāhauwera represented Ngāi Tahu ō Mōhaka Waikare. The submission was:
Ngāi Tahu ō Mōhaka Waikare represent themselves and Mr Kingi has obtained the mandate to represent them in the MACA Act proceedings.
[58]The issue of mandate is contested by MTT.
[59] MTT advanced five separate grounds upon which it was said that Malcolm Kingi had no mandate to represent Ngāi Tahu:
(a)there was no valid application as Mr Kingi did not hold a mandate when he made the application in 2017;
(b)a meeting of Ngāi Tahu members on 30 January 2021 which purported to endorse a mandate could not retrospectively authorise such an application;
(c)even if the 30 January 2021 meeting did provide a mandate, there was insufficient evidence to show exclusive use and occupation “of the entire application area from 1840 until now”;
(d)what was said to be the mandate given by Ngāi Tahu members to MTT to negotiate a Treaty settlement “has not been revoked”; and
(e)that the preponderance of evidence was that the southern boundary of the Ngāi Tahu takiwā was as detailed in the Te Kuta books.
[60] In support of the contention that there is no valid application by Ngāi Tahu, counsel for MTT said that s 101(c) of the Act required that an applicant group must be
described. It said that simply describing the applicant as “Ngāi Tahu ō Mōhaka Waikare located in the Hawke’s Bay on the East Coast of the North Island of New Zealand” was insufficient. However, this cannot be reconciled with MTT’s acknowledgement that they did not dispute the existence of Ngāi Tahu as an independent hapū with its own takiwā. The only place that takiwā can be is in the Hawke’s Bay. The description was sufficient to put MTT (and its members) on notice of the claim.
[61] Counsel also referred to the definition of “applicant group” in s 9 as meaning one or more iwi, hapū or whānau groups. It was submitted that the Act does not contemplate granting CMT to an individual. It was said that Mr Kingi had identified himself as the order holder, and that this had not been mandated by a whānau, hapū or iwi at the time of filing the application. It was submitted that there was no reference to mandate in the application documents or reference to what hapū were represented.
[62] The Act does not prescribe any particular mandate process, neither does it require that an applicant, in an application, must detail the mandate it has. While it is correct that applicant groups, in order to obtain a recognition order, must be either an iwi, hapū or whānau, it is very common for individuals or groups of individuals to be named as the applicants on behalf of an applicant group. Where an applicant group is granted a recognition order, there is nothing in the Act which prescribes the name in which the order must be held. There is nothing prohibiting an applicant group authorising one or more individuals to hold the order on their behalf.
[63] In relation to Mr Kingi’s evidence that in 2007, he was given a “blessing” from a group of elders to be the spokesperson for Ngāi Tahu, MTT submit firstly, that the elders concerned have passed away; and secondly, that they could not have given a mandate to bring a claim under the Act as it was not passed until 2011.
[64] Being authorised by elders to be a spokesperson is something different to specifically being authorised to bring a claim under the Act. However, in the absence of any evidence that such authorisation did not occur, or had been revoked, it is consistent with Mr Kingi’s actions. It is also consistent with the fact that at the hui
held on 30 January 2021, Mr Kingi’s actions in bringing the claim were endorsed by the 27 people who attended.
[65] If, after the commencement of an application, the mandate is challenged, the best way of confirming the mandate would seem to be to hold a hui to confirm the will of the people who are said to be represented by the claim. This is not a matter of validating a “nullity” as submitted by MTT, it simply confirms the assertion made by Mr Kingi that he represents a group of Ngāi Tahu who are either not eligible to be, or chose not to be, represented by MTT (or Ngāti Pāhauwera).
[66] MTT are critical of the fact that the advertisement for the hui held on 30 January 2021, with its reference to “Ngāi Tahu ō Mōhaka Waikare” would not have signalled to MTT Ngāi Tahu whānau that it might necessarily affect them. This submission would seem to miss the point that Malcolm Kingi has not at any stage purported to represent people with Ngāi Tahu whakapapa who have chosen to be represented by MTT.
[67] MTT submitted “Mr Kingi is very aware that MTT represents Ngāi Tahu, but he chose not to provide the details of the hui to MTT to inform its members”. As discussed above, the only members of Ngāi Tahu that MTT represents are those who also qualify as members of MTT through having whakapapa links to a named MTT ancestor. Only such registered MTT members would have received any notification of MTT’s claims to represent them in the proceedings under this Act. There is no factual basis for MTT claiming that they represent Ngāi Tahu members who do not have MTT whakapapa links. Neither would Ngāi Tahu descendants who are not also MTT members have been notified of any claim by MTT to represent them.
[68] MTT say that Mr Kingi only represents some eight families and it is not possible that “those families alone held the entire area in accordance with tikanga since 1840 until now”. This claim confuses two separate issues. The first is whether the application by Mr Kingi is a nullity because he did not have a mandate; and second is whether, on the facts, the claims can be made out.
[69] For these reasons, I do not accept the submission that Mr Kingi’s claim was a nullity, and that he did not have any mandate. I will separately address the issue of whether the claims by Ngāi Tahu for recognition orders have been made out.
Wāhi tapu
[70] A contentious aspect of the Ngāti Pāhauwera claim is their assertion that the entirety of their claim area is either wāhi tapu or a wāhi tapu area. I therefore need to consider the extent and location of possible wāhi tapu within the application area, and whether the Act permits an entire application area to be treated as wāhi tapu. Ngāi Tahu also sought protection of wāhi tapu via the Act.
[71] MTT sought recognition and protection of wāhi tapu areas by way of a PCR order in their opening submissions. However, it appears that they no longer seek this PCR order, as it is not referred to as part of the orders sought in their closing submissions. They opposed Ngāti Pāhauwera’s claim that the entire area of the CMT claim could be categorised as wāhi tapu.
[72] For the reasons that I set out below, I conclude that wāhi tapu conditions could be utilised in limited circumstances to temporarily exclude third parties and members of the public from specified locations designated as wāhi tapu and subject to wāhi tapu conditions under a CMT order, through the implementation of a rāhui wāhi tapu condition by the parties. However, these must be specified locations. There are several discrete locations within the Ngāti Pāhauwera CMT application area that can be made subject to wāhi tapu orders but not the entire area.
[73] Several judgments of the Māori Land Court, High Court, and Environment Court, as well as this Court’s observations in Re Edwards provide a useful framework for determining a definition and statutory threshold for wāhi tapu.
Statutory framework
[74] Under the Act, an applicant seeking CMT may seek to include recognition of a wāhi tapu or a wāhi tapu area in a CMT order or in an agreement.17 A wāhi tapu protection right may be recognised if there is evidence to establish:18
(a)the connection of the group with the wāhi tapu or wāhi tapu area in accordance with tikanga; and
(b)that the group requires the proposed prohibitions or restrictions on access to protect the wāhi tapu or wāhi tapu area.
[75] Section 62 of the Act provides that an order made for CMT confers a right upon the applicant to protect wāhi tapu and wāhi tapu areas. Under s 9 of the Act, “wāhi tapu” and “wāhi tapu area” have the meanings given to those terms in s 6 of the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPTA). That Act defines those terms as follows:
wāhi tapu means a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense
wāhi tapu area means land that contains 1 or more wāhi tapu
[76] Counsel for Ngāti Pāhauwera noted that during the legislative process in which the Marine and Coastal Area (Takutai Moana) Bill was being passed through the House, the Ministry of Justice provided advice to the Māori Affairs Select Committee, on the Bill and the Historic Places Act (the predecessor to the HNZPTA) stating:19
The Marine and Coastal Area (Takutai Moana) Bill (the Bill) uses the same definition of wāhi tapu and wāhi tapu area as the Historic Places Act 1993 as outlined above. The policy intention is that there is no difference in meaning or application of these terms in the implementation of the Bill.
[77] If a CMT is recognised by the Court, a CMT order or agreement must set out the wāhi tapu conditions that apply.20
[78]The wāhi tapu conditions that must be set out in a CMT order are:21
17 Section 78(1).
18 Section 78(2).
19 Ministry of Justice Advice to the Māori Affairs Committee – Question 13: Provide advice on wāhi tapu and wāhi tapu areas (19 November 2010) at [6].
20 Section 78(3).
21 Section 79(1).
(a)The location of the boundaries of the wāhi tapu or the wāhi tapu area that is the subject of the order; and
(b)The prohibitions or restrictions that are to apply, and the reasons for them; and
(c)Any exemption for specified individuals to carry out a protected customary right (PCR) in relation to, or in the vicinity of, the protected wāhi tapu or wāhi tapu area, and any conditions applying to the exercise of the exemption.
[79] Under s 79(2), wāhi tapu conditions may affect the exercise of fishing rights, but must not do so to the extent that the conditions prevent fishers from taking their lawful entitlement in a quota management area or fisheries management area.22 Wāhi tapu conditions do not affect the exercise of kaitiakitanga by a CMT group in relation to a wāhi tapu or wāhi tapu area in the CMT area of that group.23
[80] Under s 80, wardens may be appointed by a CMT group with an interest in a wāhi tapu or wāhi tapu area,24 to promote compliance with a prohibition or restriction imposed under s 79.25 Fishery officers and/or honorary fishery officers may enforce wāhi tapu conditions imposed under s 79 if, and to the extent that, any fishing in a wāhi tapu or wāhi tapu area breaches those conditions.26
[81] Section 81 dictates that a local authority that has statutory functions in the location of a wāhi tapu or wāhi tapu area subject to a wāhi tapu protection right must, in consultation with the relevant CMT group, take any appropriate action that is reasonably necessary to encourage public compliance with any wāhi tapu conditions.27
22 Section 79(2)(a).
23 Section 79(2)(b).
24 These wardens may be appointed in accordance with s 118 of the Act, which allows the Governor- General, by Order-in-Council, to make regulations which give directions relating to the management of wardens by a customary marine title group whose customary marine title order includes prohibitions and restrictions in respect of a wāhi tapu or wāhi tapu area.
25 Section 80(1). Section 80(2) provides that appointed wardens are responsible to the CMT group for the following functions: to assist in implementing any prohibition or restriction, to enter a wāhi tapu or wāhi tapu area for the purpose of performing the warden’s functions, to advise members of the public of any applicable prohibition or restriction, to warn a person to leave a wāhi tapu or wāhi tapu area, to record any failure to comply with a prohibition or restriction if the warden has reason to believe that the failure is intentional and the name, contact details, and date of birth of a person who the warden has reason to believe is intentionally failing to comply with a prohibition or restriction, and to report to a constable any failure to comply with a prohibition or restriction in any case where the warden has reason to believe that the failure is intentional.
26 Section 80(3).
27 Section 81(1).
[82] Subsection (2) of that section further states that every person who intentionally fails to comply with a prohibition or restriction notified for that wāhi tapu or wāhi tapu area commits an offence, and is liable on conviction to a fine of up to $5000, although this provision is superseded by the offence provisions of the HNZPTA if a wāhi tapu or wāhi tapu area subject to a wāhi tapu protection right is protected by a heritage covenant under s 39 of that Act.28
The Ngāti Pāhauwera wāhi tapu claim
[83] Counsel for the Ngāti Pāhauwera Development Trust submitted that the entirety of their application area is sacred to Ngāti Pāhauwera, and that in some circumstances the application area needs protection through restriction of access. Counsel submitted that Ngāti Pāhauwera do not seek to prohibit access, but rather restrict access only in certain circumstances, specifically:
(a)if a person dies in the application area or if kōiwi are found by imposing a rāhui for a period, to be lifted by karakia after a set time; and
(b)to restrict access for those who pollute, litter, gut their fish on the beach or in the water, over-exploit or waste resources, and in relation to the river mouths in particular, to be able to exclude those who use those areas as a toilet.
[84] In Appendix Five of their opening submissions, counsel for Ngāti Pāhauwera set out the specific award of wāhi tapu protection rights which they seek from the Court:
1.1.Prohibitions/restrictions on access to the wāhi tapu/wāhi tapu area are binding, subject to the following exceptions:
1.1.1.To prevent fishers from taking their lawful entitlement in a quota management area or fisheries management area;
1.1.2.“Emergency activities” to prevent, remove, or reduce an actual or imminent danger to human health or safety or a danger to the environment or property so significant that immediate action is required, including all necessary coastal protection work undertaken in a customary marine title area
28 Section 81(3).
by a local authority or Crown agency and emergency actions under the Civil Defence Emergency Management Act 2002, Biosecurity Act 1993, Hazardous Substances and New Organisms Act 1996, Maritime Transport Act 1994, Fire Service Act 1975 and Resource Management Act 1991;
1.1.3.To exercise PCRs.
1.2.Intentional failure to comply with restrictions on access to the wāhi tapu/wāhi tapu area is an offence liable to a fine of up to $5,000;
1.3.In consultation with the CMT group, a local authority must take any appropriate action reasonably necessary to encourage public compliance;
1.4 A CMT group can appoint wardens to assist in implementing prohibitions/restrictions, advise public of prohibitions/restrictions, warn a person to leave a wāhi tapu/wāhi tapu area and report anyone intentionally failing to comply to police. Fishery officers appointed under Fisheries Act 1996 can take the same actions where they relate to fishing.
[85] In closing submissions, counsel for Ngāti Pāhauwera submitted that particular emphasis should be placed on the HNZPTA, referring to the statement mentioned above by the Ministry of Justice that the definitions in the HNZPTA and the Act were intended to be similar. Counsel submitted that the HNZPTA had a similar purpose to the Act, and that the Māori Heritage Council29 had interpreted the HNZPTA definitions a number of times through a robust process. Counsel also submitted that cases interpreting the definition of wāhi tapu under the RMA or Te Ture Whenua Māori Act 1993 were not relevant, because they did not look to the HNZPTA for guidance, were inconsistent, and placed “conspicuous reliance” on evidence from single consultants.
[86] Counsel referred to the Māori Heritage Council’s interpretation of wāhi tapu, set out in its vision statement for Māori heritage, which defined the term as:
…specific sites, areas and localities of significance to iwi, hapū and whānau life, history, culture and experience. They are usually specific sites that have substantial association with ancestors. Wāhi tapu registrations do not ascribe restrictive values to a place; they provide recognition of Māori values only.
[87] Counsel noted that a wide variety of places had been registered as wāhi tapu by the Māori Heritage Council, including reefs, pā sites, urupā, burial sites/caves,
29 The Māori Heritage Council is a part of Heritage New Zealand (formerly the Historic Places Trust) that determines applications under the HNZPTA to register wāhi tapu and wāhi tapu areas.
islands, battles sites, and rocks. Counsel also stressed that wāhi tapu and wāhi tapu areas could be in water (referring to a number of rivers, parts of the ocean, and lakes that had designated wāhi tapu status), and also that wāhi tapu areas varied in size from only a few square metres to over 200 hectares. The example of Tūranganui a Kiwa | Poverty Bay, designated as a wāhi tapu area in December 1999, was given by counsel to emphasise that wāhi tapu could be large areas, rather than just small discrete sites.30
[88] The majority of counsel for Ngāti Pāhauwera’s submissions on this issue centred on the argument that the entirety of the application area was wāhi tapu. In terms of the sacredness of the area, it was submitted that the application area was sacred to Ngāti Pāhauwera:
(a)in the traditional sense, as Ngāti Pāhauwera had many established tikanga customs and practices relating to the takutai moana passed down inter-generationally, including burying of the dead in and around the area, imposing rāhui, using the reti board, and trading hāngi stones with other iwi;
(b)in the spiritual sense, as the application area was revered, awed and respected by Ngāti Pāhauwera, with a number of their witnesses talking about their whanaungatanga relationships with the coastal environment, and the wairua of the elements within that environment;
(c)in the religious sense, as although Ngāti Pāhauwera did not describe their relationship with the application area being religious as such, witnesses referred to supernatural or transcendent controlling powers when talking about the application area, including having respect for Tangaroa;
(d)in the mythological sense (although again Ngāti Pāhauwera did not use this word to describe the sacredness of the area) because of the evidence given by witnesses which could be described as myth-like from a non-
30 However, on the New Zealand Heritage List/Rārangi Kōrero, I note that the extent of the list entry for that area describes it as “Marker reefs for Iwi/Hapū tribal boundaries and fishing grounds”. It is therefore unclear as to whether the entirety of the area is defined as wāhi tapu.
Māori view, such as the presence of taniwha, and the personification of Tangaroa as the ocean; and
(e)in the ritual sense, as evidence was given of prescribed ceremonies and procedures performed in the application area, including karakia, the use of water for healing, rāhui, and procedures around whale strandings.
[89] Counsel submitted that the entirety of the application area met the definition of both being wāhi tapu, and a wāhi tapu area. In relation to the former, it was submitted that while the largest registered wāhi tapu appeared to be around 200 hectares, there was no limit in either the HNZPTA, the Act, or the decisions of the Māori Heritage Council on a size limit. In relation to the latter, it was submitted that in the event that the whole application area was not wāhi tapu, it could still be defined as a wāhi tapu area, given that it was land which contained one or more wāhi tapu, including burial sites, tauranga waka, and reefs, all of significant importance and sacred to Ngāti Pāhauwera.
Ngāi Tahu’s wāhi tapu claim
[90] Ngāi Tahu did not refer to a condition for wāhi tapu in their opening and closing submissions. However, in both their original and amended application, Ngāi Tahu indicated that they would seek to include recognition of wāhi tapu and wāhi tapu areas in a CMT order under s 78 of the Act. In their amended originating application, Ngāi Tahu noted that various wāhi tapu and wāhi tapu areas of importance to them were located within the application area, and said that they reserved the right to include any wāhi tapu in a recognition order for CMT after a pukenga had been consulted, and historical research was carried out. However, in closing submissions, counsel for Ngāi Tahu conceded that while some of the witnesses had referred to wāhi tapu in their evidence, the exact location of these would require further specificity (potentially through archaeological evidence) not available at the time, and that this could be potentially be engaged at the second stage of the hearing. Counsel also acknowledged however, the difficulty of amending the statement of claim years after the original deadline, particularly in light of the Court’s observations on amending applications
post-deadline in Re Ngāti Pāhauwera Development Trust.31 The time for Ngāi Tahu to submit evidence in support of their claim for wāhi tapu was at the hearing. The absence of such evidence means that their claims have not been substantiated.
MTT’s wāhi tapu claim
[91] As discussed above, MTT sought a PCR order for the preservation, development, management, occupation of wāhi tapu and sites of cultural significance in its opening submissions, but did not refer to this application during closing submissions. However, like the Attorney-General MTT opposed Ngāti Pāhauwera seeking that the entirety of their application area be designated as a wāhi tapu/wāhi tapu area on the grounds that:
(a)the Act does not contemplate an entire application area being identified as a wāhi tapu area – instead the wāhi tapu provisions in the Act are intended to protect known and identifiable wāhi tapu, which Ngāti Pāhauwera had not particularised;
(b)some restrictions proposed by Ngāti Pāhauwera were uncertain, such as prohibitions on the over-exploitation or wasting of resources – because the consequences of non-compliance with a wāhi tapu condition could be significant any proposed condition should be precise; and
(c)the types of restrictions Ngāti Pāhauwera propose are capable of being regulated under other legislation, and are accordingly not required to protect wāhi tapu or a wāhi tapu area.
[92] In relation to Ngāi Tahu, MTT’s position was that it was unclear whether any recognition for wāhi tapu was actually being sought in this case, but if an entitlement to a recognition order by way of CMT could not be established by Ngāi Tahu, the issue of wāhi tapu does not arise as it would form part of a CMT order.
31 Re Ngāti Pāhauwera (Strike Out Application), above n 14.
The Attorney-General’s position
[93] Counsel for the Attorney-General took a different position to Ngāti Pāhauwera in relation to the application of the HNZPTA. While acknowledging that the HNZPTA was relevant given that it provided the definition of the terms “wāhi tapu” and “wāhi tapu area”, they submitted that these definitions should also be read in light of the Act’s text and purpose, and that a direct application of the terms in the HNZPTA and the Māori Heritage Council decisions would not provide assistance to the Court when considering whether to recognise a wāhi tapu area, given the differing text and purpose for each Act.
[94] Counsel referred to a number of definitions and criteria for wāhi tapu, which are set out below. It was submitted that while the Act does not distinguish between the values of particular aspects of wāhi tapu (with different locations having different historical or cultural values and states of tapu), claims for wāhi tapu must be objectively established, not merely asserted.32 There needed to be evidence of a widely held belief by the CMT group that the area in question was wāhi tapu or a wāhi tapu area, and that, where sought, restrictions or prohibitions on access were needed. There must be evidence on why the sites were regarded as wāhi tapu, and the nature of the activities carried out in the area were relevant to whether it could be described as sacred or tapu in accordance with tikanga. It was submitted that, although a site might be important or held to be a taonga, evidence of living in a state of noa, and for example, gathering or preparing kai at a site, would tend to suggest that it was not wāhi tapu.
[95] In support of that proposition, counsel cited Peters – Oriwa 1B1, a Māori Land Court case where Judge Ambler observed:33
I accept Marie Tautari’s evidence that from her dealings with the various kaumatua and kuia associated with the land there was never any mention of a wholesale wahi tapu which prohibited building on the land. I also accept that the existence of middens does not automatically make the place a wahi tapu. Middens signify human occupation and, in particular, the preparation of kai, which in itself is at odds with an area being a wahi tapu. While I accept that
32 Counsel referred to AA Hamilton for the Te Uri Karaka Hapu v Far North District Council and Northland Regional Council [2015] NZEnvC 012 at [82] to [83]; and Heybridge Developments Ltd v Bay of Plenty Regional Council [2012] NZRMA 123 (HC) at [51].
33 Peters – Oriwa 1B1 (2010) 8 TTK MB 210 at [16].
middens may signify historical occupation of the land, there is no cogent evidence that this particular area is a site of particular significance.
[96] Counsel acknowledged that the evidence demonstrated that a number of the applicants had a connection with wāhi tapu, for example Ngāti Pāhauwera applicants discussed:
(a)kōiwi being found close to the common marine and coastal area at Poututu, and a history of blood being spilled in the area, meaning some members of Ngāti Pāhauwera avoid going there; and
(b)despite erosion of the coastline, the mauri of wāhi tapu remained in the sea caves and sand dunes along the beach where the remains of Ngāti Pāhauwera had been buried.
[97] Despite this, counsel submitted that Ngāti Pāhauwera faced evidential challenges to the recognition and inclusion of wāhi tapu protection in any order for CMT that might be issued. While Ngāti Pāhauwera had demonstrated a spiritual connection to the takutai moana, there was a significant evidential challenge to recognising the whole of the application area as wāhi tapu. There was evidence of everyday noa activities undertaken on parts of the takutai moana which conflicted with notions of the area being sacred, and claims that the entire area was wāhi tapu appeared from the evidence to be general rather than specific, and were not widely held by all members of Ngāti Pāhauwera, again evidenced by noa activities such as kaimoana- gathering taking place across the application area.
[98] While Ngāti Pāhauwera had provided some evidence of specific locations and sites of wāhi tapu (such as the kōiwi at Poututu discussed above) there was limited evidence that restrictions or prohibitions were required to protect these discrete areas. The Attorney-General’s overall conclusion was that Ngāti Pāhauwera had not demonstrated or provided evidence that the whole application area was a wāhi tapu area, nor that wāhi tapu protection was required. Similarly, Ngāi Tahu also had not demonstrated clear evidence of the locations of wāhi tapu within its rohe, or that restrictions were needed to protect these areas.
Wāhi tapu in the law
[99] The term “wāhi tapu” is referred to in a number of other pieces of legislation. For example, the Te Ture Whenua Māori Act 1993 defines wāhi tapu as land set apart under s 338(1)(b) of that Act,34 while that particular provision dictates that the Māori Land Court or Māori Appellate Court may make an order to set apart as a Māori reservation any Māori freehold land or general land that is a wāhi tapu, “being a place of special significance according to tikanga Māori”.
[100] Under the RMA, “historic heritage” includes “sites of significance to Māori, including wāhi tapu”,35 while s 6(e) defines “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga” as a matter of national importance.
[101] I do not accept the submission of counsel for Ngāti Pāhauwera that only examples under the HNZPTA definition of wāhi tapu should be considered in this case. While that Act provides assistance on the definition of wāhi tapu, cases involving the application of the definition under the RMA or TTWMA, via the Environment Court or Māori Land Court, are also of assistance. In particular, the exercise to be undertaken by those Courts is likely to be more similar in form and substance to what this Court is required to do than the function of the Māori Heritage Council under the HNZPTA.
[102] The purpose of the HNZPTA is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.36 The functions of the Māori Heritage Council include, for example:37
(a)to ensure that, in the protection of wāhi tūpuna, wāhi tapu, wāhi tapu areas, and other historic places and historic areas of interest to Māori, Heritage New Zealand Pouhere Taonga meets the needs of Māori in a culturally sensitive manner;
(b)to develop Māori programmes for the identification and conservation of wāhi tūpuna, wāhi tapu, wāhi tapu areas, and historic places and historic areas of interest to Māori, and to inform the Board of all activities, needs, and developments relating to Māori interests in such areas and places;
34 See Te Ture Whenua Māori Act 1993, s 4.
35 See Resource Management Act 1991, s 2(1).
36 Heritage New Zealand Pouhere Taonga Act 2014, s 3.
37 Heritage New Zealand Pouhere Taonga Act 2014, s 27.
(c)to assist Heritage New Zealand Pouhere Taonga to develop and reflect a bicultural view in the exercise of its powers and functions;
(d)to consider and determine suitable applications to enter wāhi tūpuna, wāhi tapu, and wāhi tapu areas on the New Zealand Heritage List/Rārangi Kōrero; and
(e)to propose historic places and historic areas of interest to Māori to be entered on the New Zealand Heritage List/Rārangi Kōrero.
[103]By way of contrast, the Act balances a range of different purposes, including:38
(a)establishing 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)recognising the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
(c)providing for the exercise of customary interests in the common marine and coastal area; and
(d)acknowledging te Tiriti o Waitangi.
[104] Therefore, the guiding purposes which this Court must take into account when considering applications under the Act, and the essential function of the Court in this jurisdiction, differ from those guiding the Māori Heritage Council.
[105] Useful guidance on the traditional and legal definitions of wāhi tapu was provided in the Māori Land Court case of Taueki v McMillan. In that case, Judge Harvey referred to the evidence of Professor Hirini Moko-Mead in relation to wāhi tapu:39
Before turning to the case as put by the parties, consideration of the independent expert evidence is appropriate. Professor Hirini Mead provided evidence as to the historical and cultural meaning of wāhi tapu. He examined the plain meaning of the words “wāhi tapu,” and in doing so said it can be considered a place or site under religious or superstitious restrictions, beyond one’s power, inaccessible or sacred. It could thus be described as a “restricted
38 Section 4.
39 Taueki v McMillan – Horowhenua 11 (Lake) Block (2014) 324 Aotea MB 144 at [85] and [94].
zone” or as a site of very special cultural significance or as a protected zone which has a religious sanction over it and is identified or marked in some way. He said that it is expected that such a restricted zone demands a different sort of behaviour due to the sacred aspect of the restriction.
…
In summary, Professor Mead set out his view on criteria for wāhi tapu:
(a)It is a place where the revered ancestors and relatives lie;
(b)It is a place that is identified and recognised as a wāhi tapu, not only in a legal sense but culturally and traditionally as well;
(c)It is a place that remains tapu for a long period of time and the people believe this;
(d)It is a place of memories and of stories that mean much to the descendants;
(e)It can be a place where death occurred but the bones of the dead are somewhere else; and
(f)It is invariably a place that has a name.
[106] Judge Harvey went on to consider legal and statutory definitions of wāhi tapu, noting:40
Mr Clark noted that many of the provisions do not provide a definition of wāhi tapu but simply refer to their existence. Those provisions that do provide a definition are not entirely consistent. Even so, some general elements as to what constitutes a wāhi tapu include:
(a)reference to a geographical place, usually described as sacred or significant;
(b)the place is accorded its wāhi tapu status due to its traditional, spiritual, religious, mythological, cultural or historical significance; and
(c)in terms of Te Ture Whenua Māori Act 1993, there is an additional element of it being a place of special significance in accordance with tikanga Māori.
In examining the case law, Mr Clark found that on the whole there was a divergence of approach in the High Court and Environment Court as to the elements that constitute a wāhi tapu. That difference includes consideration of activities occurring within the site, identifying the location of the site, the size and scale of the site, the use of outside experts, and the emphasis placed upon oral traditional kaumātua evidence.
40 At [97]-[100].
Mr Clark noted that the Environment Court tended to take a narrow approach to the definition of wāhi tapu, showing a preference to accept the evidence of outside experts rather than kaumātua. In reliance on outside experts the Environment Court appears to have defined wāhi tapu, as including:
(a)a wāhi tapu is a specific place – geographically circumscribed usually limited to a specific place – usually very small;
(b)wāhi tapu are, by definition, strictly set apart from daily life; and
(c)wāhi tapu must be associated with religious rather than secular activities.
Conversely, according to Mr Clark the High Court tended to take a more encompassing view and was more willing to accept the oral evidence of kaumātua, particularly where this was not contradicted. In a number of cases the High Court considered that the absence of certain of the elements above was not fatal to the determination of wāhi tapu.
[107] The Waitangi Tribunal, in its Te Roroa Report, also made the following observation as to the definition of wāhi tapu:41
For Māori, wahi tapu like taonga is an “umbrella term” that applies not only to urupā (burial grounds) but other places that are set apart both permanently and temporarily. These include places associated in some way with birth or death, with chiefly persons and with traditional canoe landing and building places. Temporary tapu are usually imposed and removed on hunting or fishing grounds or cultivations to conserve and protect the resource. They also include places associated with particular tupuna and events associated with them, set in order by whakapapa…
[108] In terms of the standard of evidence applied, in Winstone Aggregates Ltd v Franklin District Council, the Environment Court commented that, while as a general principle, identification of wāhi tapu is “a matter for tangata whenua”, claims of wāhi tapu must be objectively established, not merely asserted: there needs to be material of a probative value which satisfies the Court on the balance of probabilities and the Court needs to feel persuaded that the assertion is correct.42
[109] In the earlier case of Heta v Bay of Plenty Regional Council, the Environment Court similarly observed that:43
The concepts of tikanga Māori and the relationship of Māori and their cultural traditions with their ancestral lands is better discussed at a hui on a marae,
41 Waitangi Tribunal Te Roroa Report (Wai 38, 1992) at 227.
42 Winstone Aggregates Ltd v Franklin District Council EnvC Auckland A80/02, 17 April 2002 at [251].
43 Heta v Bay of Plenty Regional Council EnvC Auckland A93/2000, 1 August 2000 at [27].
without evidentiary and other legal constraints. It is in such a setting that the subtle nuances of such concepts can better be aired and determined.
[110] Ronald Young J in Takamore Trustees v Kapiti Coast District Council made some useful observations about the type of proof required in relation to the existence of wāhi tapu. That case concerned an appeal from the Environment Court against a decision by the Kāpiti Coast District Council to build a link road that would go through lands containing wāhi tapu, including urupā.44 Ronald Young J was critical of the Environment Court’s decision to reject and critique the evidence provided by kaumātua concerning the location and geographical definition of the wāhi tapu areas, stating:45
The Court expresses surprise at the "sparseness" of the evidence and says there is nothing in the evidence to suggest burials in the wetland immediately adjacent to the urupa. Finally the Environment Court express doubt about the presence of koiwi in the particular swamp area of relevance south-west and northwest of the urupa.
It is clear from the evidence quoted that the koumatua [sic] identified koiwi in the wetlands of Takamore area. The wetlands are about 360 metres in length and considerably less in width. The evidence it seems did not identify each individual wetland within this limited area and say there are koiwi buried there. The evidence was the swamp lands “have long been the resting place for our ancestors”. It is difficult to see, given we are concerned with an oral history which pre-dates European presence, more specificity is reasonably possible. The area within which the koiwi are said to be buried is geographically well defined. The evidence was cryptic, but this is hardly a reason for rejecting it. Each of the three witnesses gives relevant evidence. Mr Parai gives a rationale for swamp burials (preservation and safety from marauding tribes). There is no evidence identified which the Court accepts to contradict this.
The Court complains about a lack of “backup history” or “tradition”. Again, it is difficult to understand what this means. Those in the iwi entrusted with the oral history of the area have given their evidence. Unless they were exposed as incredible or unreliable witnesses, or there was other credible and reliable evidence which contradicted what they had to say, accepted by the Court, how could the Court reject their evidence. The Court complained it was bereft of “evidence” and had “assertion” only of the presence of koiwi. The evidence was given by koumatua [sic] based on the oral history of the tribe. What more could be done from their perspective. The fact no European was present with pen and paper to record such burials could hardly be grounds for rejecting the evidence. Nor could the kind of geographical precision apparently sought by the Court be reasonably expected. The claim of burials is within a defined area. To require a precise location of burial in such circumstances before satisfaction with the evidence is to potentially reduce
44 Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496.
45 At [66]-[69].
many claims of waahi tapu areas to unproven and reduce s 6(e), (7) and (8) matters accordingly. If the test applied to koiwi presence by the Court was also applied to the presence of taonga, the Court would have logically been required to find their presence not proved. The fact it did not seems difficult to understand.
Having therefore considered the conclusion and the “reasons” given, I cannot see that the Court has in fact given a rational reason for rejecting the clear evidence of the koumatua [sic] of the presence of koiwi in the swamps of Takamore and thus potentially in the area of the proposed road.
[111] In terms of exclusion, ss 26, 27 and 28 of the Act, which set out the public rights to access, navigation, and fishing, are subject to ss 78, 79 and 81 – which set out the protection, conditions and compliance requirements for wāhi tapu areas. For example, s 26(1) provides that every individual has the right to enter, stay in or on, leave, pass or repass in, or engage in recreational activities in, the common marine and coastal area. However, s 26(1) is subject to any authorised prohibitions or restrictions that are imposed under s 79, or by or under any other enactment.
[56] Turning to the more recent period, his brief of evidence David Alexander cites a report by Angela Ballara and Gary Scott written for the Mōhaka ki Ahuriri inquiry,
14Mr Canon Wi Te Tau Huata was a respected kaumatua and pastor of Ngāti Kahungunu and Ngāti Pāhauwera who passed away in the 1990s. His evidence, given to the Planning Tribunal in 1990, was read out in these proceedings by his daughter, Ms Ngatai Huata.
where they make the following observation about Ngāti Pāhauwera in the 18th to mid- 19th centuries:15
The area of land from the Waihua River, south of Wairoa, to Tangoio, and inland to the Upper Mohaka River, was dominated in the eighteenth century and later by the major tribe Ngāti Pāhauwera. They were hybrid people, with links to both Ngāti Kahungunu migrants from Turanganui and pre-Kahungunu occupants of the area. In the Land Court they were found to have links from Waihua to Moeangiangi…
While Ngāti Pāhauwera and its associated hapū dominated the larger area and beyond it, and its claims to territory, including intermarriage, were interspersed with those of other hapū, a number of other hapū had clear claims to various areas in the Mohaka-Waikare blocks.
[57] Alexander notes that in 1840, the hapū of the area were still recovering from major upheavals of the past two decades, including conflicts from the musket wars, raiding taua (war parties) and early European settlement, but by the 1840s, hapū were gradually returning to the area. Alexander stressed that while there may have been a partial loss in the occupation of the area, because none of the coastal peoples in Hawke’s Bay were displaced by conquest, “life picked up again in generally the same patterns of occupation, and therefore occupation rights, as previously”, with the main difference being that people lived in undefended kāinga rather than in defended pā along the coast at Waihua, Mōhaka, Waikare, Moeangiangi, Aropaoanui, Ngāmoerangi and Tangoio.
Maungaharuru-Tangitū Trust
[58] The Maungaharuru-Tangitū Trust is a post-settlement governance entity established in 2012 to represent a collection of hapū including Ngāti Kurumōkihi, Ngāti Marangatūhetaua (Ngāti Tū) , Ngāti Whakaari, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio and Ngāi Tahu.
[59] The marae for the Hapū is located at Tangoio, approximately 20km north of Napier. Ms Tania Hopmans, the Deputy Chief Executive of the Trust, explains in her affidavit the whakapapa behind the Trust and its coastal rohe:
15See Angela Ballara and Gary Scott Crown Purchases of Māori Land in Early Provincial Hawke’s Bay (January 1994, Wai 201, #I1).
The name Maungaharuru-Tangitū, used in the name of our post settlement governance entity (and the previous incorporated society), encapsulates who the Hapū are that we represent, our key traditions and the resources we have enjoyed for many, many generations from our customary lands and coast.
Maungaharuru is the maunga tapu (sacred mountain) which defines our western boundary. But the maunga is more than that: it is the source of essential sustenance for the Hapū and the waters flowing from the maunga feed the streams, rivers, aquifers, lakes, wetlands and sea and all those waterbodies come within the realm of Tangatora-i-te-Rupetu (the spiritual guardian of the moana and waterbodies, and all within them). Tangaroa’s realm is interconnected therefore from a mātauranga Māori perspective, and viewed as an indivisible whole…
Tangitū is the coast and sea adjacent to the lands of the Hapū; it is also the Hapū kaitiaki (guardian) which takes the shape of a whale, and it contains innumerable taonga (treasures) and resources which have fed and nurtured the Hapū over many generations.
…
From Maungaharuru to Tangitū lies our takiwā. Our most significant whakatauākī (tribal proverb) describes this relationship and the interdependence of the mountain and the sea:
Ka tuwhera a Maungaharuru, ka kati a Tangitū, Ka tuwhera a Tangitū, ka kati a Maungaharuru.
When the season of Maungaharuru opens, the season of Tangitū closes, when the season of Tangitū opens, the season of Maungaharuru closes.
[60] The whakapapa, history and customary interests of the hapū represented by MTT are set out in a detailed report prepared by Tony Walzl, as well as through kaumatua and tikanga evidence given in the form of affidavits from Bevan Taylor, Justin Puna and Tania Hopmans.
[61] In Ms Hopmans’ 3 April 2017 affidavit, she described the origins of the current MTT hapū as descending from three early groups of people:
(a)Ngāti Whatumoana: the descendants of the explorer chief Mahu Tapoanui. Mahu’s direct descendant Te Orotu established his people permanently at Ahuriri;
(b)Ngāti Awa: the descendants of the explorer Toi Kairakau (also known as Toi Te Huatahi). Toi established his southernmost pā (fortified village) at the head of the Tangoio valley; and
(c)Ngāi Tahu: the descendants of Te Keu-o-te-rangi originally inhabited the lands bordering the Waikari River.
[62] As set out above, MTT represents the interests of six separate hapū. I will now briefly set out the evidence detailing the origins of each hapū and their founding tūpuna.
[63] Starting with Ngāti Tū. According to Tania Hopmans, the “source ancestor” for Ngāti Tū was Tūkapua I. Tūkapua I was direct descendant of Toi Kairakau, a famous navigator and seafarer who established his southernmost pā at the head of the Tangoio valley, called Te Pā-o-Toi. Toi’s son Awanuiarangi (the eponymous ancestor of Ngāti Awa of Te Moana-a-Toi/the Bay of Plenty) had a great grandson, Te Koaupari, who travelled to the Ahuriri area from the Bay of Plenty while in turn, Tūkapua I was the great, great-grandson of Te Koaupari. Tony Walzl notes that while the timing of Te Koaupari’s arrival in the area has been debated, he is generally associated with the Otatara pā (located on the banks of the Tūtaekurī River) and may have been its original builder.
[64] However, as noted by Ms Hopmans, while Tūkapua I is the ‘source ancestor’ for Ngāti Tū, the ancestor from whom the hapū is named is in fact Marangatūhetaua, a famous fighting chief who was the great, great, great grandson of Tūkapua I. The hapū is named after him in recognition of his many deeds and respect that he earned.
[65] Another ancestor descending from Toi and associated with MTT is Tangoio, as noted by Mr Walzl:
One ancestor from Te Tini o Toi who is associated with the Maungaharuru- Tangitū landscape is the giant Tangoio. Kaumatua Fred Reti has presented a narrative relating to Tangoio.
One day the giant Tangoio was practising his skills as a warrior by spearing the waves of the sea, not far from the mouth of the Te Ngarue stream, on the Tangitū shoreline. So absorbed was he at the task in hand, that he failed to notice a Taua (war party) came up from behind him. Before he realised anything was amiss he was overpowered and mortally wounded. Looking up at the ancient pa Te Rei o Turei, Tangoio asked his enemies to change its name to Te Rei o Tangoio [sic] (forehead of Tangoio) so that his name would never be forgotten. And so it is that the pa and valley, to this day, bears his name.
[66] Tania Hopmans also deposed in her 2017 affidavit that two early but now extinct hapū in the area, Ngāi Te Aonui and Ngāti Rangitohumare, were absorbed into Ngāti Tū over time through intermarriage:
Ngāi Te Aonui
Rangitirohia II of Ngāti Tū married Hinekahu of (a different) Ngāi Te Aonui based in the Wairoa district. Their son was Mutu, and their descendants also became known as Ngāi Te Aonui and were based at Moeangiangi. The source of their mana whenua was through Rangitirohia II. Over time, Ngāi Te Aonui was absorbed by Ngati Tū through further intermarriage. Ngāi Te Aonui were also known to have occupied the pa Te Puku-o-to-Wheke at Arapawanui.
Ngāti Rangitohumare
Ngāti Rangitohumare takes its name from Rangitohumare, the first wife of Te Huki of Wairoa. Rangitohumare was born and raised at Oueroa pā in Heretaunga. They had numerous children, including Te Hauwaitanoa. Te Hauwaitanoa settled at Arapawanui and it is from Te Hauwaitanoa’s descendant, Toroa, that Ngāti Rangitohumare descend. A small hapū, Ngāti Rangitohumare was over time absorbed into Ngāti Tū through intermarriage. Ngāti Rangitohumare were known to have occupied the pa Te Puku-o-te-Wheke at Arapawanui.
[67] Secondly, Ngāi Tauira. This hapū descends from Ngāti Whatumoana, who are in turn the descendants of the early tūpuna who visited Ahuriri area, Mahu Tapoanui. Seven generations down from Mahu Tapoanui, Te Orotu (the namesake for Te Whanganui-ā-Ōrotu) established his people permanently in the Ahuriri area. While Te Orotu eventually abandoned the area, he left Ahuriri under the control of his son, Whatumoana, the eponymous ancestor of Ngāti Whatumoana from whom Ngāi Tauira descend.
[68] Tūnuiarangi, described by Tony Walzl as a “key ancestor” for MTT, with ancient connections to their takiwā, descended from and led the Ngāti Whatumoana hapū:
Tunuiarangi (also known as Tunui) is a key ancestor for Maungaharuru- Tangitū with ancient connections to their takiwā. Kaumātua Fred Reti described Tunuiarangi as “a tohunga of immeasurable power and sorcery”. Tauira is a descendant of Tunuiarangi. He is the eponymous ancestor for Ngai Tauira, one of the Hapū of Maungaharuru-Tangitū Tunuiarangi was a descendant of Tangaroa, the lord of the sea. The lineage of whakapapa descends through Tangaroa' s son Ruamano, the guardian whale that led and navigated the waka Takitimu on its great voyage across Te Moana-nui-a-Kiwa (the Pacific Ocean) to Aotearoa. The whakapapa descends further down through Tangaroa's children to Pania the sea maiden who was turned into a rock formation under the sea situated off the Port of Napier. Before being turned into a rock she bore a son, Moremore. Moremore, often seen in the form of a shark, had the ability to transform itself into other sea creatures. As well as Tangitū he is a kaitiaki for the coast of Te Matau-a-Mauī and Tangitū.
[69] Tauira, the eponymous ancestor of Ngāi Tauira, was the great-grandson of Tūnuiarangi. According to Tania Hopmans, Ngāi Tauira is an ancient hapū, preceding Ngāti Tū, but having been largely absorbed into it through intermarriage.
[70] Thirdly, Ngāi Tahu. According to Tony Walzl, Tahumatua II is the eponymous tupuna of Ngāi Tahu, and was acknowledged as having established a takiwā within the Waikare district. Within his takiwā, Tahu and his descendants moved about the land on both sides of the Waikari River, and that permanent occupation within that takiwā was said to have begun with Tahu’s son Tamakonohi and continued with his grandson Te Otaha and then their descendants.
[71] Tania Hopmans made the following observation about Ngāi Tahu in her 2017 affidavit:
Ngāi Tahu was a small hapū which had ahi-kā-roa along the Waikari and Waitaha Rivers and their tributaries. The eponymous ancestor of Ngāi Tahu is Tahumatua II. Tahu's descendant, Te Keu-o-te-Rangi, fathered four children: Toenga, Tukapuarangi, Te Whiunga and Hinekaraka. The descendants of these four children were known as Ngāi Tahu and those who maintained their occupation were the tangata whenua. Various branches of Ngāi Tahu were known by other names and represented smaller family groups, such as Ngāti Hikapii, Ngāti Hineiro, Ngāti Moe, Ngāti Peke, Ngāti Rangitakuao, Ngāti Tataku and Ngāi Te Maaha. There are kāinga and pā associated with Ngāi Tahu along the Waikari, Anaura and Waitaha Rivers and their tributaries. The kāinga and pā of Ngāi Tahu in the lower Waikari River area, and as far north as the Waitaha Stream, include Kumarawainui, Tutaekaraka, Hurihanga, Takapuwahia, Tokatea, Pukepiripiri, Puketaiata, Tauwhare and Kaiwaka. The kāinga and pā in the upper Waikari River and its tributaries include Te Nakunaku, Waipopopo, Tawhitikoko, Patokai and Tiekenui.
[72] Fourthly, Ngāti Kurumōkihi. This hapū, formerly known as Ngāi Tatara, were described by Tania Hopmans as a group who emerged from the interaction between Ngāti Tū and the Ngāti Kahungunu migrants, Taraia I and his generals, who had come into the takiwā. One of Taraia I’s most influential generals was Kahutapere II, who married Hineterangi of Ngāti Awa, and established himself in Te Whanganui-ā-Ōrotu, having five children including Tataramoa, the eponymous ancestor of Ngāi Tatara.
[73] Tataramoa lived around the same time as Marangatūhetaua of Ngāti Tū. Marangatūhetaua was said to have given Tataramoa the task of stopping raiding war parties. According to Ms Hopmans, Tataramoa and his people were particularly
associated with Moeangiangi on the coast and with the inland areas around Lake Tūtira.
[74] Later events at Lake Tūtira saw the hapū changes its name to Ngāti Kurumōkihi. Tony Walzl described these events in his report, discussing the raids by Tūhoe on the pā of Taurangakōau, a pā used by Ngāi Tatara on Lake Tūtira. During an attack, Ngāi Tatara warriors used mokihi, or rush-rafts in battle.
[75] Fifthly, Ngāi Te Ruruku. Their presence in the area dates back to the time of Marangatūhetaua and Tataramoana. According to Tania Hopmans, both these rangatira were “getting on in years” when friction broke out between their people and another hapū, named by Tony Walzl as Te Hika-o-te-Rautangata. Marangatūhetaua enlisted the help of Te Ruruku, a Ngāti Pāhauwera rangatira based in Wairoa, who helped Ngāti Tū and Ngāi Tatara to repel the invading hapū. In return, he was gifted land. Tania Hopmans describes the gift and Te Ruruku’s takiwā as set out above.
[76] Finally, Ngāti Whakaari. Tania Hopmans describes their whakapapa as follows:
Ngāti Whakaari is a section of Ngāti Tū that lived at Petane. Their founding chief is Whakaari. He is a descendant of the Ngāti Tū chief, Kohipipi through his son Te Kaupeka. The pa site Whakaari (also known as Flat Rock) is believed to have been named after the ancestor Whakaari.
[77]Walzl also makes the following observation:
The small hapū Ngāti Whakaari are named after an eponymous ancestor who was a descendant of Tangiahi through Kohipipi’s son Kaupeka. Whakaari was extant at the beginning of the nineteenth century. It is thought that he is associated with the headland that bears his name. He also is associated with the death of Te Ruruku being in the fishing waka with him.
Ngāi Tahu ō Mōhaka Waikare
[78] Ngāi Tahu ō Mōhaka Waikare (Ngāi Tahu) are a group that descend from the eponymous tupuna of Tahupōtiki (Tahumatua I) and Tahumatua II. Tahupōtiki is also the eponymous tūpuna of the Ngāi Tahu iwi (or in their own mita or dialect, Kāi Tahu) in Te Waipounamu/the South Island. Malcolm Kingi, who made the application to this
Court on behalf of Ngāi Tahu ō Mōhaka Waikare, explains the relationship between Tahupōtiki and his hapū as follows (emphasis added):
Tahupōtiki was the teina (younger brother) of Porourangi, and their parents were Nanaia and Niwaniwa. Nanaia’s father was Tarahakatu, the son of Pouheni, a high priest of the Horouta waka. Porourangi and Tahupōtiki are important tīpuna of Ngāi Tahu ō Mōhaka Waikare. Both Porourangi and Tahupōtiki have connections to Paikea, Huturangi, Te Whironui, Whatonga, Toitehuatahi and Maui.
…
From this evidence I understand that Tahupōtiki was asked by Ngāti Porou kaumatua to leave his home at Whangara (north of what is now Gisborne) because of his secret love for Hamo o te Rangi, who was the wife of his tuakana (elder brother), Porourangi. The korero is that Hamo o te Rangi also loved Tahupōtiki. Tahupōtiki was exiled from his lands and was made to leave immediately. Many of his friends joined him on his hikoi, and at first, he stayed at Maraetaha (south of what is now Gisborne and north of Mahia) before he began his journey to Te Waipounamu (now also called the South Island). Soon after, he was called back to Whangara for the tangi of his brother. There he claimed Hamo o te Rangi for his wife, and afterwards, they left Whangara together and travelled to Maraetaha, and then to Matiti where they stayed for a while.
There is korero that from there, Tahupōtiki and Hamo o te Rangi continued their hikoi south by sailing on the Takitimu waka down the east coast of Aotearoa New Zealand. They settled at Mōhaka for a time. Although Tahupōtiki continued his hikoi southward, some of his descendants stayed at Mōhaka and eventually became known as Ngāi Tahu ō Mōhaka Waikare. We understand that our tīpuna from Tahupōtiki include, Raka-te-huru-manu, Raka-waha-kura I, Rakaiwhakaata, Tuwhaitara, and Tahumatua II. Tahumatua II was named after Tahupōtiki as he was also known as Tahumatua I.
[79] Mary/Mere Brown, who filed a brief of evidence and also has whakapapa to Ngāi Tahu, has explained the rohe of Ngāi Tahu and its connection back to Tahupōtiki:
The rohe of Ngāi Tahu ō Mōhaka Waikare extends from the Mōhaka River, down to the Esk River outlet; then you follow the Esk River right along the Napier-Taupo Road, to the bridge which crosses the Mōhaka and then you follow the River eastwards, back to its mouth.
After Tahupōtiki left the Mohaka and hikoied to the South Island, the descendants of Tahupōtiki set the boundaries and maintained ahi kaa (keeping the fires burning) over the whenua, and the takutai moana. I have read the Te Kuta minute books, and the korero of Raiha, my great-great-grandmother’s sister is documented. In the Te Kuta investigation she is documented as saying that it was Tahumatua II who set the boundaries of our whenua.
…
I believe that since then, the whenua and the moana from Mohaka to Petane has belonged to Ngāi Tahu ō Mōhaka Waikare. There are names on whenua along the coastline, and further inland, which demonstrate our mana whenua, such as the stream, Tahumata near Lake Tutira.
[80] Ngāi Tahu assert their rights of mana whenua over the application area through their descent/whakapapa back to Tahumatua I and Tahumatua II. According to the affidavits of Malcolm Kingi and Mary Brown, it was Tahumatua II, one of Tahupōtiki’s descendants who did not follow him down to the South Island and kept ahi kaa in the area, that set the tribal rohe/boundaries for Ngāi Tahu.
[81] However, as noted by counsel in closing submissions, Ngāi Tahu consider their “original ancestor” to be Tahupōtiki/Tahumatua I. According to evidence given by Mr Kingi and Ms Brown, Tahupōtiki travelled with his wife, Hamo o Te Rangi, into the Mōhaka-Waikare region for a period of time before they left for the South Island. While in the area, they were said to have laid down a boundary, established a house at Pūtōrino, and initiated a Ngāi Tahu settlement. According to Mr Kingi, the lands that were obtained by Tahumatua II, passed down the generations from Tahupōtiki’s descendants, were in turn passed down to his son Tahutoria, to Tamakonohi, to Te Otaha, to Hinetonga, to Te Keu o Te Rangi, and to Toenga.
[82] Ngāti Pāhauwera’s position16 was that Tureia defeated Tahutoria and Ngāi Tahu in battle at the mouth of the Mōhaka River, and in turning extinguished their ahi kaa and mana whenua over the area. The Ngāi Tahu witnesses refuted this, and stated that Tureia was the son of Tamateahirau, who was the younger sister of Te Otaha (and therefore both were granddaughters of Tahutoria), and therefore the unlikelihood that Tureia would attack those who had direct whakapapa connections to, or the fact that the historical timing appeared to be off (in that it was unlikely Tureia would have fought his great-grandfather) undermined Ngāti Pāhauwera’s position on this issue. Mr Kingi also noted:
The idea that Tureia conquered Tahutoria is disputed by the evidence presented in the Te Kuta minute books that Tahutoria passed his mana down to Te Otaha, and Te Otaha to Hinetonga, and Hinetonga to Te Keu o te Rangi. Therefore, the whakapapa line, and the rights to the ancestral lands, and mana whenua from Tahutoria, through to Huka and down to my daughter, Maria, has not been stopped.
16 Discussed in detail at [406]-[414] of this decision.
[83] In oral evidence, Cordry Huata of Ngāti Pāhauwera conceded that Ngāi Tahu had not been entirely decimated by Ngāti Pāhauwera:
Q. If that is we've discussed the application of Tahutoria’s boundary means that that’s a Ngāi Tahu boundary, can that mean that Ngāi Tahu were not conquered?
A. Well I think it’s about a conception of what does “conquered” mean because I don’t believe people were conquered. They we’re – you know it’s just like I still carry Tahu in me. I still carry a whole lot of stuff in. To be conquered is to be what? Decimated, gone, disappeared? But that’s not how, that’s not how the conquest happens. I think, I think it’s something where someone becomes more prominent than others.
Q. So your reference to conquered here isn’t a reference to being decimated or exterminated?
A. No. They were still, they still remained there, they still intermarry. Because if you follow that Kautata line you’re gonna find it goes on to – that comes out at Tuhemata also and Tuhemata is Ruataumata’s brother and that has a Kahungunu line. They intermarry.
Q.I suppose another way of putting your position here is that there are still Ngāi Tahu people walking around today who descend from Tahu Pōtiki?
A. Oh yes.
[84] What appears to be apparent from the evidence is that even if Ngāi Tahu were attacked and defeated, or even if they still remained and were not decimated, intermarriage between Ngāi Tahu and Ngāti Pāhauwera occurred, resulting in shared interests, mana whenua and whakapapa in the Te Kuta block area and between the Waikari River and the Pōnui Stream.
[85] Finally, Ngāi Tahu consider themselves to be an iwi with own distinct hapū, including Ngāti Kautata, Ngāi Tātaku, Ngāti Taihere, Ngāti Rauwiri, Ngāti Mawete, Ngāi Te Maaha, Ngāi Hineiro, Ngāti Moe and Ngāti Rangitakuao. However, as discussed above, MTT and Ngāti Pāhauwera consider Ngāi Tahu to be a hapū related to their group/confederation. Tania Hopmans acknowledged that Ngāi Tahu had branches or “smaller family groups”, while Mr Alexander noted that:
…in the same manner as the Maungaharuru Tangitū hapū, the hapū of Ngāi Tahu Mōhaka-Waikare are recognised by the Ngāti Pāhauwera Treaty Claims Settlement Act 2012 as being hapū of the Ngati Pāhauwera collective or confederation.
[86] Ultimately, whether Ngāi Tahu are an iwi or a hapū does not affect whether they can make an application under the Act. This is because under s 9(1), an applicant group is defined as one or more iwi, hapū, or whānau groups that seek recognition under Part 4 of the Act over their PCR or CMT by recognition order or an agreement. Therefore, as either as a hapū or an iwi, Ngāi Tahu would fit this definition.
Ngāti Pārau
[87] Ngāti Pārau are a hapū based in Te Whanganui-ā-Ōrotu (also known as Ahuriri Estuary). According to the affidavit of Roderick Hadfield, Ngāti Pārau descend from the tūpuna of Pitaka Te Otupeka and Tāreha Te Moananui (a rangatira of Ngāti Kahungunu hapū, including those in the Ahuriri area). He deposed:
The interests in the lands and seas to our immediate north are our whanaunga, Ngāti Hinepare, Ngāti Mahu and Ngai Tawhao. This boundary is traditionally based on whakapapa and the continued exercise of rangatiratanga by Ngāti Pārau.
The interests in the lands and seas to our immediate south are our whanaunga, Ngāti Hawea. This boundary is marked by Te Umuroimata and an old pā near Park Island and out to Pania reef, this boundary is considered a wāhi tapu site for Ngāti Pārau.
[88] The primary marae of Ngāti Pārau is Waiohiki Marae, which is located in Waiohiki, south of Taradale. The marae connects ancestrally to the waka Tākitimu, the maunga Hikuranga and Ōtātara, and the awa Tūtaekurī.
[89] According to the affidavit of Kay Tareha-O’Reilly, Ngāti Pārau assert their mana whenua and customary rights over their application area through their whakapapa back to a number of tūpuna, down from the atua Tangaroa, to Pania and Moremore (the son of Pania), down to Hinetua and Tunuiarangi, down to Hikawera II. Tamaiti Cairns described Hikawera II as a tupuna who had tino rangatiratanga and mana from Tangoio to Hastings, and that:
It was the responsibility of Hikawera and his hapū to exercise manaakitanga over these lands and coastal areas, to protect the rangatira of the whenua and takutai on behalf of the whānau. Hikawera's tino rangatiratanga and mana has not been extinguished. It exists through his descendants of Ngāti Pārau who have continued to exercise mana and manaakitanga over these same areas.
[90] According to Martin Fisher, who prepared a historical report for the hapū, Ngāti Pārau are the descendants of Hikawera II through his two sons, Tuku a Te Rangi, and Te Kereru. Through the rights provided by Tuku a Te Rangi, his grandson Rangikamangungu continued to maintain his tupuna’s interests near the southern end of Te Whanganui-ā-Ōrotu and towards the coast.
[91] Mr Fisher further noted that Ngāti Pārau are also the descendants of Tuku a Te Rangi’s brother, Te Kereru, whose interests ranged into the southwestern corner of the former pre-quake Te Whanga and current edge of the Ngāti Pārau claimed area in the Ahuriri estuary at Te Umuroimata pā near Park Island.
[92] Rangikamangungu’s grandson was Tāreha Te Moananui, who according to William Colenso, was one of the five principal chiefs at Ahuriri in the late 1840s. Tāreha was also known as a rangatira of Ngāti Kahungunu and Ahuriri hapū who had significant involvement in the Mōhaka and Ahuriri purchases in the 19th century.
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