Re Taueki (Ngāti Tamarangi)
[2025] NZHC 1488
•9 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2017-485-160; CIV-2017-485-214 CIV-2017-485-229; CIV-2017-485-273 CIV-2017-485-511; CIV-2017-485-261
CIV-2017-485-248
Group N, STAGE 1(a) [2025] NZHC 1488
UNDER the Marine and Coastal Area (Takukai Moana Act) 2011 IN THE MATTER
of applications for orders recognising Customary Marine Title and Protected Customary Rights
BY
Continued…
Hearing: 13 May 2024 – 27 June 2024
29 October 2024 – 8 November 2024
Final submissions: 7 February 2025Appearances:
A K Irwin and O T H Neas for Ngāti Tamarangi hapū of Muaūpoko iwi
No appearance for Margaret Morgan-Allen for David Morgan Whānau
N R Coates, P Walker and T I M Hautapu for Ngāti Raukawa ki te TongaB R Lyall, M R G van Alphen Fyfe and H L B Swedlund for Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Ngā Ahi Kā o Te Hapū o Te Mateawa
Continued….
Judgment:
Reissued:
13 June 20259 June 2025
JUDGMENT OF GRICE J
(Applications for Customary Marine Title)
RE TAUEKI (NGĀTI TAMARANGI) & ORS [2025] NZHC 1488 [9 June 2025]
Appearances: C Shenton (self-represented) for Te Rūnanga o Ngā Wairiki Ngāti Ap
T H Bennion, E A Whiley and Kudrat for Muaūpoko Tribal Authority Incorporated
A M Cameron, T N Ahu and A J Samuels for Te Āti Awa ki Whakarongotai Charitable TrustE K Rongo and Z JMPNR Tait for Te Rūnanga o Toa Rangatira Incorporated
D A Ward, D O Kleinsman and A H Ou for Attorney General
F R Wedde and C E Bulow for Manawatū-Whanganui Regional Council, Wellington Regional Council and Kāpiti Coast District Council
L L Black for Te Patutokotoko
C F Finlayson KC and D E Parfitt for Rangitāne o Manawatū Settlement Trust
B A Scott, T D Smith and R J J Wales for Seafood Industry Representatives
C M Hockly for Horowhenua 11 (Part) Reservation Trust
BY William James Taueki on behalf of Ngāti Tamarangi hapū of Muaūpoko iwi (CIV- 2017-485-160) BY Margaret Morgan-Allen for David Morgan Whānau (CIV-2017-485-214) BY Rachael Ann Selby on behalf of Ngāti Raukawa ki te Tonga
(CIV-2017-485-229)BY Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Ngā Ahi Kā o Te Hapū o Te Mateawa (CIV-2017-485-273) BY Chris Shenton on behalf of Te Rūnanga o Ngā Wairiki Ngāti Apa
(CIV-2017-485-511)
BY Muaūpoko represented by Muaūpoko Tribal Authority Incorporated
(CIV-2017-485-261)
BY Trustees of Te Ātiawa ki Whakarongotai Charitable Trust on behalf of Te Āti Awa ki Whakarongotai (CIV-2017-485-248)
INTERESTED
PARTIES
Te Rūnanga o Toa Rangatira Incorporated
on behalf of the iwi of Ngāti Toa Rangatira (Crown engagement) MAC-01-12-021
Attorney-General Manawatū-Whanganui Regional Council, Wellington Regional Council and Kāpiti Coast District Council Te Patutokotoko represented by Christopher Henare Tahana, Edward (Fred) Clark, Hayden Tūroa, and Novena McGuckin (CIV-2017-485-254)
(Intervener)
Rangitāne o Manawatū Settlement Trust (applied) Seafood Industry Representatives Horowhenua 11 (Part) Reservation Trust
Table of Contents
WHAKATAKINGA | INTRODUCTION [1]
The applicants and interested parties [6]
The application area — features of the Kapiti Coast takutai moana [12] TE TURE | THE LAW
Legislative framework
Overview[20]
Definitions and purpose [22]
Customary marine title (CMT) [28]
Protected customary rights (PCRs) [33]
Tikanga [38]
Preliminary comments of the pūkenga [45]
Questions for the pūkenga [51]
Concluding remarks [111]
Issues arising from the pūkenga report and evidence [114] Interpretation: Supreme Court test for CMT in Re Edwards [119] Holds in accordance with tikanga [120]
Exclusive use and occupation [122]
Continuity from 1840 to the present day without substantial interruption [127]
Extinguishment [133]
Shared or joint exclusive CMT [134]
Yet to be determined by the Supreme Court [140]
Parties’ submissions on the Supreme Court decision [141]
APPROACH IN THIS JUDGMENT
Foundational take and the Supreme Court’s CMT test [147]
The claimants’ evidence [153]
Structure of judgment [158]
THIRD-PARTY USE AND OCCUPATION OF THE TAKUTAI MOANA
Historical evidence [163]
Early third-party use of the application area [165]
The coastal highway [168]
Pākehā settlement and trade [174]
The telegraph debate [177]
Late 19th century to present day [181]
Evidence of local authorities [187]
Assessment of substantial interruption by third parties [199]
Public use of the takutai moana [202]
Early expressions of Māori control from 1840 [205]
Kaitiakitanga [219]
Recreational use [223]
Recognition of control [226]
Structures and infrastructure [227]
Conclusion on third-party substantial interruption [237]
Extinguishment [239]
NGĀTI TOA RANGATIRA
Whakapapa [245]
Foundational take at 1840 [254]
Take raupatu [269]
TE ĀTIAWA KI WHAKARONGOTAI [300]
Whakapapa [301]
Foundational take at 1840 [306]
Evidence of tikanga indicia
Historical evidence [325]
The Barrett whānau and Kapiti Island [337]
Treaty settlement [345]
Present-day activities [348]
ASSESSMENT OF TE ĀTIAWA’S CMT CLAIM [353]
The positions of Te Ātiawa and Ngāti Toa [354]
The pūkenga’s assessment [360]
The tuku whenua [365]
Shared whakapapa [374]
Te Ātiawa’s CMT claim on the mainland [382]
Foundational take at 1840 [383]
Holds in accordance with tikanga [385]
Exclusive use and occupation [390]
Continuity “from 1840 to the present day without substantial interruption” [400]
Conclusion [403]
Shared boundary area — Ngāti Toa [404]
Te Ātiawa’s CMT claim on Kapiti Island [416]
Shared CMT with Ngāti Raukawa [432]
Ngāti Toa and Te Ātiawa: Next steps [434]
NGĀTI RAUKAWA [438]
Whakapapa [442]
Foundational take at 1840 [449]
Waikato homelands [450]
The battle of Waiorua and its aftermath [455]
Te Whatanui and Taueki [464]
Battle at Haowhenua [480]
Battle of Te Kūititanga [481]
Native Land Court decisions [483]
Take raupatu and take tuku [491]
Evidence of tikanga indicia [496]
Physical occupation markers [497]
Naming of places [504]
Kaitiakitanga [507]
Taniwha [524]
Extensive use [525]
Rāhui [540]
Manaakitanga and whanaungatanga [544]
Kawa and performance of rituals [546]
Recognition by others [556]
The Treaty of Waitangi/Te Tiriti o Waitangi [565]
Demographic information as evidence of continued occupation [566]
MR TIMA [571]
Whakapapa [573]
Foundational take at 1840 [583]
Evidence of tikanga indicia [593]
MR TAUEKI [614]
Whakapapa [617]
Foundational take at 1840 [621]
1830 arrangement: Te Whatanui and Taueki [631]
Evidence of tikanga indicia
Treaty signatories [642]
Historical evidence of use of resources [644]
Present-day activities [648]
HOROWHENUA 11 PART (LAKE RESERVATION TRUST) [653]
MUAŪPOKO TRIBAL AUTHORITY [676]
Whakapapa [678]
Foundational take at 1840 [685]
Historical narratives [686]
Background to Himatangi hearings [694]
Evidence in the Himatangi hearing [700]
Peace-making [707]
The 1869 Himatangi hearing [716]
Evidence of tikanga indicia [720]
Physical occupation markers [721]
Naming of places [723]
Kaitiakitanga [725]
Rāhui [735]
Kawa and the performance of rituals [737]
Abutting land [738]
Taniwha [739]
Tikanga [742]
Extensive use [746]
Layers of interest [751]
Manaakitanga and whanaungatanga [755]
NGĀTI APA [760]
Whakapapa [762]
Foundational take [764]
Evidence of tikanga indicia [774]
RANGITĀNE O MANAWATŪ SETTLEMENT TRUST [788]
Summary of Rangitāne’s position [790]
Expert evidence [793]
Whakapapa [800]
Evidence of tikanga indicia [807]
ASSESSMENT OF NGĀTI RAUKAWA’S CMT CLAIM [814]
Foundational take at 1840 [816]
Mr Taueki’s challenges to the foundational take [824]
The rohe between Manawatū and the Rangitīkei River [833]
Holds in accordance with tikanga [853]
Exclusive use and occupation [870]
Continuity from 1840 to the present day without substantial interruption [876]
Rangitāne [877]
Interests of the ART Confederation iwi [884]
Tikanga not affected by judgment [893]
Conclusion on claim [896]
ASSESSMENT OF MR TIMA’S CMT CLAIM [897]
Foundational take at 1840 [899]
Holds in accordance with tikanga [900]
Exclusive use and occupation [902]
Continuity from 1840 to the present day without substantial interruption [908] Conclusion on claim [910]
ASSESSMENT OF NGĀTI APA’S CMT CLAIM
Foundational take at 1840 [911]
Holds in accordance with tikanga [920]
Exclusive use and occupation [922]
Continuity from 1840 to the present day without substantial interruption [924] Conclusion on claim [925]
ASSESSMENT OF MR TAUEKI’S CMT CLAIM [928]
Foundational take at 1840 [929]
Holds in accordance with tikanga [931]
Exclusive use and occupation [933]
Continuity from 1840 to the present without significant interruption [934]
ASSESSMENT OF MUAŪPOKO’S CMT CLAIM [937]
Foundational take at 1840 [940]
Boundaries [978]
Holds in accordance with tikanga [983]
Exclusive use and occupation [990]
Continuity from 1840 to the present day without substantial interruption [1000]
Shared exclusivity with Muaūpoko [1002]
Muaūpoko and Mr Taueki [1004]
Muaūpoko and Ngāti Raukawa [1006]
Te Ātiawa and Ngāti Toa and the Muaūpoko claim area [1020]
Tikanga not affected by CMT findings [1021]
Ngāti Raukawa and Muaūpoko: Next steps [1023]
SEAWARD EXTENT OF CMT [1025]
The law [1026]
Seaward extent at tikanga [1040]
Seafood Industry and Attorney-General on 12 nautical mile extent
Seafood Industry [1044]
Attorney-General [1048]
Relevant pūkenga findings [1051]
General comments in relation to the hearing area [1055]
Seaward extent findings
Substantial interruption by third parties [1063]
Evidence of the applicant groups [1070]
Ngāti Apa [1074]
Muaūpoko [1082]
Mr Taueki [1105]
Ngāti Raukawa [1112]
Mr Tima [1133]
Te Ātiawa and Ngāti Toa [1144]
Conclusions on overlapping claims seaward [1170]
TE WHAKATAU | THE DECISION [1171]
ATTACHMENT 1 — AGREED CHRONOLOGY
ATTACHMENT 2 — ATTORNEY-GENERAL’S MAP OF OVERLAPPING CLAIMS
ATTACHMENT 3 — MAP OF KAPITI AND THE MAINLAND FROM ANGELA BALLARA’S TAUA:
ATTACHMENT THREE — MAP OF TE RĀWHITI (LOWER NORTH ISLAND, WEST COAST) FROM CALMAN’S TE RAUPARAHA:
ATTACHMENT 4 — MAP OF OLD HOROWHENUA FROM THE ARMSTRONG REPORT:
ATTACHMENT 5 — MAP OF OLD HOROWHENUA SHOWING TRIBAL BOUNDARIES AND HAPŪ AREAS FROM ADKIN’S HOROWHENUA: ATTACHMENT 6 — PŪKENGA REPORT
WHAKATAKINGA | INTRODUCTION
[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Takutai Moana Act) provides for the recognition of three types of legal interest in the marine and coastal area, which is the area between high-water springs and the 12 nautical mile limit of the territorial sea.1 The first of these interests is a right to participate in conservation processes; the second is customary marine title (CMT); and the third is a protected customary right (PCR).2 These legal interests may be granted to iwi, hapū or whānau groups.3
[2] This decision deals with applications by various iwi, hapū and whānau groups seeking orders recognising CMT in their various rohe in the common marine and coastal area (CMCA), also referred to as the takutai moana. The area that is the subject of this hearing runs from the northern bank of the Rangitīkei River to Whareroa (north of Paekākāriki), often referred to as the Kapiti Coast,4 as well as the offshore Kapiti Island and its islets.5 A separate judgment will deal with the PCR applications which were heard at the CMT hearing.
[3] A primary contest among the parties is, as Mr Bennion for Muaūpoko put it, between the iwi descendants of the Kurahaupō waka, being Muaūpoko and their allies (Ngāti Apa and Rangitāne) and those represented today by Ngāti Toa, Te Ātiawa, and Ngāti Raukawa who came from the north in the 1820s and 1830s. The Kurahaupō allies had occupied the Kapiti area for many hundreds of years prior to the 1820s. The groups from the north arrived in the hearing area in a series of migrations or heke and so are referred to as the Hekenga iwi. Te Ātiawa, Ngāti Raukawa, and Ngāti Toa are
1Marine and Coastal Area (Takutai Moana) Act 2011 [Takutai Moana Act], s 9(1) definition of “marine and coastal area”. The Takutai Moana Act is also referred to as “MACA” in various other sources cited throughout this judgment.
2 Part 3.
3 Section 9(1) definition of “applicant group”.
4Macrons: There remains some controversy over whether Kapiti should retain its name without the macron or adopt the macron. Generally, the macron is not used when referring to Kapiti in this judgment, however it is retained when used in quotations. The same issue arises in relation to a number of other words which I do not highlight. All quotations in this judgment are reproduced in their original form, including the omission or otherwise of macrons.
5 The application area is shown on the map at Attachment 1.
separate iwi but are closely related by whakapapa and collaborate to their mutual advantage on various issues under the umbrella of the ART Confederation.
[4] Te Rauparaha precipitated the move south of tribes from the Waikato and Taranaki following his expedition as part of a raiding taua or āmiowhenua (a war party expedition around the North Island), which visited the Kapiti area in 1818-1820. He had formed an intention to lead his Ngāti Toa iwi from their homeland in the Waikato (Kawhia) to escape the constant warfare between tribes in that area. The events of the 1820s and the 1830s following the arrival of the Hekenga iwi, and the subsequent effects on the various iwi and hapū involved, have been some of the most contested in historical and tribal narratives, as well as in the Native Land Court.
[5] This judgment considers those historical contested events and the groups’ circumstances, in particular their relationships with the takutai moana and how those relationships have been expressed through to the present time, in the context of the application of the statutory test for CMT as recently reformulated by the Supreme Court. The final determination recognises that five applicant groups are entitled to either shared exclusive, or exclusive CMT at various specific locations across the hearing area.
The applicants and interested parties
[6] The southern boundary of the hearing area aligns with the southern boundary of the application area of Trustees of Te Ātiawa ki Whakarongotai Charitable Trust on behalf of Te Ātiawa ki Whakarongotai. The northern boundary of the hearing area aligns with the northern boundary of the claim by Rachael Ann Selby on behalf of Ngāti Raukawa ki te Tonga. The applications before the Court are as follows:
(a)William James Taueki on behalf of Ngāti Tamarangi hapū of Muaūpoko iwi (CIV-2017-485-160) seeking recognition of CMT in the CMCA, between defined points adjacent to the Waitārere Forest and out to defined points about one kilometre offshore (Mr Taueki and Ngāti Tamarangi).
(b)Rachael Ann Selby on behalf of Ngāti Raukawa ki te Tonga (CIV-2017-485-229) seeking recognition of CMT and PCRs in the CMCA between the Rangitīkei River and Kukutauaki from the mean high-water springs and out to the territorial sea limit (Ngāti Raukawa).
(c)Trustees of Te Ātiawa ki Whakarongotai Charitable Trust on behalf of Te Ātiawa ki Whakarongotai (CIV-2017-485-248) seeking recognition of CMT and PCRs in the CMCA between Kukutauaki and Whareroa, from the mean high-water springs to the territorial sea limit (Te Ātiawa).
(d)Muaūpoko Tribal Authority Incorporated on behalf of Muaūpoko (CIV-2017-485-261) seeking recognition of CMT from the Manawatū River to the Kukutauaki block and seeking recognition of PCRs from the Rangitīkei River to Whareroa (MTA and Muaūpoko).6
(e)Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Ngā Ahi Kā o Te Hapū o Te Mateawa (CIV-2017-485-273) seeking recognition of CMT and PCRs in the CMCA between the Ōhau River and the Waikawa River (Mr Tima, Te Whānau Tima and Te Mateawa).
(f)Chris Shenton on behalf of Te Rūnanga o Ngā Wairiki Ngāti Apa (CIV-2017-485-511) seeking recognition of CMT and PCRs in the CMCA between Motu Karaka and Omarupapako, from the line of mean high-water springs to the outer limits of the territorial sea (Mr Shenton and Ngāti Apa).
[7] David Morgan Whānau did not appear at the hearing.7 As their application relates only to PCRs, I deal with that claim in the PCR judgment and do not address it further in this judgment.
6I declined Muaūpoko’s application to extend their CMT application to include the whole of the hearing area on 13 March 2024: Re Muaūpoko Tribal Authority [2024] NZHC 536. Leave to appeal was declined: Re Muaūpoko Tribal Authority [2024] NZHC 967.
7Margaret Morgan-Allen on behalf of David Morgan Whānau (CIV-2017-485-214) seek recognition of PCRs in the CMCA between the Hōkio Stream and the Ōhau River, from the line of the mean high-water springs and out to the territorial sea limit.
[8]There are also 15 interested parties in these proceedings:
(a)The Attorney-General;
(b)Te Rūnanga o Toa Rangatira Incorporated on behalf of the iwi of Ngāti Toa Rangatira (Ngāti Toa);8
(c)Christopher Henare Tahana, Edward (Fred) Clark, Hayden Tūroa, and Novena McGuckin on behalf of Te Patutokotoko (CIV-2017-485-254);9
(d)Rangitāne o Manawatū Settlement Trust (Rangitāne);10
(e)Edward Penetito and Donald Koroheke Tait of Ngāti Kauwhata;11
(f)Manawatū-Whanganui Regional Council;
(g)Wellington Regional Council;
(h)Kāpiti Coast District Council;
(i)Landowners Coalition Incorporated;
(j)Seafood Industry Representatives;
(k)Simon Austin;
(l)Carol Hardie;12
8Re Taueki (Ngāti Tamarangi) HC Wellington CIV-2017-485-273, 14 September 2022 (Minute of Grice J) at [10].
9A memorandum of counsel dated 14 February 2024 confirmed that Te Patutokotoko would not file evidence in these proceedings and would remain an interested party. They appeared at the hearing.
10Re Taueki (Ngāti Tamarangi) HC Wellington CIV-2017-485-160, 6 March 2024 (Minute of Grice J).
11 A memorandum of counsel dated 13 February 2024 indicated that Mr Penetito and Mr Tait wished to continue pursuing recognition of their customary interests through the Crown engagement pathway only, however they maintained a watching brief in these proceedings.
12 Mr Austin and Ms Hardie both filed notices of appearance in 2017, but have taken no further steps in this proceeding since then.
(m)Waitārere Beach Progressive and Ratepayers Association Incorporated;
(n)New Zealand Transport Agency Waka Kotahi; and
(o)Horowhenua 11 Part (Lake) Reservation Trust.
[9] Ten groups have made applications to the Crown to pursue an alternative process under the Takutai Moana Act in relation to the hearing area. They seek recognition of CMT and PCRs, not by way of application to the High Court, but through direct negotiation with the Crown. This is referred to as the Crown engagement pathway. The groups who have made applications under the Crown engagement pathway are:
(a)The Waiorua Bay Ahu Whenua Trust on behalf of the owners of Waiorua Bay Kapiti and some of the owners of Motungarara (MAC-01-11-001);
(b)George Davis for Ngā Hapū o Himatangi (MAC-01-11-004);
(c)Huia Marae Committee and Matau Marae Committee for Ngāti Huia (MAC-01-11-006);
(d)Kikopiri Marae Reservation Trustees on behalf of Ngāti Huia ki Kikopiri (MAC-01-11-007);
(e)Donald Tait on behalf of Ngāti Kauwhata (MAC-01-11-008);
(f)Kereru Marae on behalf of Ngā Hapū o Kereru Ngāti Takihiku, Ngāti Hinemata, Ngāti Ngārongo (MAC-01-11-009);
(g)Rangitāne o Manawatū Settlement Trust on behalf of Rangitāne o Manawatū (MAC-01-11-013);
(h)Te Iwi o Ngāti Tukorehe Trust on behalf of Te Iwi o Ngāti Tukorehe me onā hapū, whānau hoki (MAC-01-11-016);
(i)Ropata Williams Miratana for Te Kotahitanga o Te Iwi o Ngāti Wehi Wehi (MAC-01-11-017); and
(j)Te Rūnanga o Toa Rangatira on behalf of Ngāti Toa Rangatira (MAC-01-12-021).
[10] Two of those Crown engagement applicants, Rangitāne and Ngāti Toa, also took an active part in the hearing as interested parties.
[11] The Attorney-General appears as an interested party, noting that she acts in the interests of all the public (including Māori). Dr Ward, counsel for the Attorney-General, notes that her role is to assist the Court in interpreting and applying the Takutai Moana Act, assuming an “independent aloofness”, as she is not the advocate for any sectional interest. The Attorney-General’s submissions must be “accurate, objective and restrained, and founded firmly on a tenable exposition of the applicable legal principles”.
The application area — features of the Kapiti Coast takutai moana
[12] Numerous witnesses pointed out that, for their tūpuna, there was no line between land and sea. From the Kapiti Coast, they looked seaward to Kapiti Island and beyond to the top of the South Island. The moana which took their waka to those places was regarded as a continuation of the land — it was a highway. Everything was viewed as interconnected, a perspective informed by the lack of demarcation in the natural world. Many witnesses referred to the fact that their water flowed from the mountains, lakes, and over and under the land, through the streams and rivers (and underground) into the sea.
[13] The Kapiti area was covered in native forest in the early 19th century, providing abundant resources for its occupants. The dense forest cover made it quicker and easier for groups to travel along the coast than inland. The coastal strip, including the foreshore, was therefore the main arterial route for travellers passing through the area. By the early 20th century, much of the interior had been cleared of its bush cover and many swamps had been drained, transforming the environment.
[14] Archaeological records indicate that the earliest inhabitants of the region overwhelmingly favoured coastal residences, with more fleeting occupation of the heavily forested interior in pursuit of moa, birds, rats, and other food sources. The coast was a primary source of orientation. Over time, settlements began to emerge in the interior along the banks of the major river systems, however the coastal and lower river areas remained prominent sites of settlement. It is possible that the depletion and eventual extinction of moa would have made excursions inland less attractive. Even when the interior was settled, numbers at the coastal fishing mouths could increase substantially during the fishing season. While the soils were variable in fertility and subject to wind erosion, the coastal microclimate of the lower west North Island was milder and less susceptible to frosts than the interior, making it suitable for the cultivation of various crops. Later, deforestation of much of the interior had a significant impact on the previously relatively stable river systems, with increased runoff and erosion producing wide shingle beds. Each of the major river systems also have estuaries or lagoons where they meet the sea, which have been affected by these dramatic changes. The estuaries have become places where pollutants from upstream accumulate, resulting in significant degradation of these sites consequent upon the development of farming further inland.
[15] The coastal area features part of New Zealand's largest dune field formation. The formation stretches from Pātea to Paekākāriki — a distance of over 200 kilometres. The dunes, typically reaching 15 metres in height, with some as large as 30 metres, are formed through a combination of riverine deposits and tidal currents, and extend inland at their widest point by 18 kilometres. Without stabilisation through vegetation, they would continue to advance inland at rates of up to 100 metres per month. Multiple small lakes and swamps formed behind the dunes. They were cut off from the sea and teeming with fish, birds, and other resources that were a rich source of sustenance for local Māori. Alongside the many rivers and streams within the district, these waterways became renowned for their fisheries, including tuna (eels), kōkopu and kōaro (native trout), kākahi (freshwater mussels), inanga (whitebait), and other species, some of which migrated seasonally between fresh and seawater. The district became especially known for its abundant tuna fishery. Although these were subject to annual migrations (long-finned eels migrated to the marine environment in summer and the short-finned species in winter), a year-round
supply could be secured in various ways, including the construction and manipulation of artificial water channels in which tuna might be caught.
[16] Between the dunes running along the coastline and the sea, there is a wide beach formed mostly of fine grain sands, except for pebbles and “other course detritus” which are found at the mouths of rivers and larger streams. Prior to colonisation, the sand dunes were kept stable by native grasses and shrubs, particularly spinifex and pīngao. The introduction of sheep and cattle in the mid-19th century rapidly led to the destruction of these dune-binding plants. This began a process of sand-drift inland and dune expansion, which was a particular problem north of the Manawatū River. In an effort to stabilise the dunes, various plants have been used, including natives such as spinifex, and exotics such as marram grass. The non forested areas of coastline, particularly where there has been urban development, are more prone to coastal instability and erosion. In some areas, the foredune system has been entirely destroyed.
[17] The seabed is characterised by its regular and shallow incline, which very gradually slopes from the coastline down to the Cook Strait trough. It is only around 50 metres deep at around the 12-kilometre mark.
[18] The takutai moana in the relevant area looks very different today than it did in 1840. Places which were on the 1840 coastline are now further inland due to significant accretion.13 For instance, the Hydrabad ship was run aground on the Horowhenua coast in 1878 while carrying a cargo of railway equipment and locomotives. The wreck remained just offshore of Waitārere Beach near Levin for many years. It is now almost completely buried beneath the advancing sand dunes high on the beach. The wreck was used as a landmark for reference by some of the witnesses when describing events and places along the coast. There are also other places of importance, including pā sites in dunes on the coast, which are today located further inland or no longer exist.14 The Kukutauaki Stream, which was once an
13 Accretion does not give rise to substantial interruption under the Takutai Moana Act. However, significant reclamation works may give rise to substantial interruption. See Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka [2024] NZSC 164 [Re Edwards (SC)] at [176].
14For example, the dune pā site of Te Rangihaeata which he established when he took up residence in Horowhenua in the 1860s.
important boundary marker, is now an almost indiscernible stream surrounded by urban holiday homes at Peka Peka beach.
[19] The waterways have also changed considerably over the last two centuries. Most of the rivers have changed course and the river mouths are constantly shifting. Many of the lakes, wetlands and swamps which were a feature of this coast and were rich in mahinga kai have silted up due to runoff further inland. At 1840, those same rivers were used to navigate to and from the sea by waka for many kilometres inland, transporting produce and other goods to trade. The lakes, streams, and rivers, particularly in the Horowhenua area, are also polluted, largely due to inland works causing soil to flow toward the sea, as well as the extensive use of fertilisers. Lakes that remain — such as Lake Horowhenua (or Punahau), which is located in Muaūpoko Park at the eastern side of Levin near the coast and is one of the coastal dune lakes which were typical of the region — have shrunk in size and become shallow. The present state of Lake Horowhenua is such that no recreational activities can be permitted on the lake. I address this in more detail later in the judgment.15
15 See particularly the section on Horowhenua 11 (Part) Reservation Trust.
TE TURE | THE LAW
Legislative framework
Overview
[20] In its December 2024 decision in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka (Re Edwards), the Supreme Court noted that the Takutai Moana Act provides a bespoke New Zealand solution designed to reconcile the customary rights of Māori with the rights and interests of the wider community.16 The Act aims to establish a durable scheme that ensures the protection of legitimate interests of all New Zealanders in the takutai moana, while also recognising the mana tuku iho17 exercised by iwi, hapū, and whānau as tangata whenua.18 This requires the reconciliation of three sets of rights and interests: first, the customary rights of Māori; second, public rights of access, navigation, and fishing; and third, vested property rights and activities authorised by law. The provisions of the Takutai Moana Act, and judicial interpretation of those provisions, are designed to achieve a fair and balanced outcome that honours te Tiriti o Waitangi/the Treaty of Waitangi and addresses related historical and contemporary issues.
[21] The Supreme Court refer to the mechanisms that the Takutai Moana Act provides to ensure different interests can coexist harmoniously.19 The first mechanism is by way of general rules to minimise conflicts applicable to the entire takutai moana. The second is by providing fact-specific rules through the tests for customary rights recognition under ss 51 and 58 of the Act, which are designed to address specific tensions that arise in individual cases. The Supreme Court also recognised that the courts play a key role in the reconciliation process by interpreting and applying the provisions of the Act.20 In light of that, the decision outlines how courts should approach the test for CMT, considering both common law concepts and tikanga Māori. I return to the Supreme Court formulation of the CMT test below.
16 Re Edwards (SC), above n 13, at [1]. The appeal to the Supreme Court was from the Court of Appeal judgment in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 [Re Edwards (CA)].
17 Mana tuku iho is defined in the Takutai Moana Act, s 9 as “inherited right or authority derived in accordance with tikanga”.
18 Section 4.
19 Re Edwards (SC), above n 13, at [104].20 At [116].
Definitions and purpose
[22] The “marine and coastal area” and “common marine and coastal area” are central terms referred to throughout the Takutai Moana Act, which replace the term “foreshore and seabed” used in its predecessor, the Foreshore and Seabed Act 2004.
The “marine and coastal area” is defined as follows:21
marine and coastal area—
(a)means the area that is bounded,—
(i)on the landward side, by the line of mean high-water springs; and
(ii)on the seaward side, by the outer limits of the territorial sea; and
(b)includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and
(c)includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
(d)includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b)
[23]The CMCA is a subset of the marine and coastal area:22
common marine and coastal area means the marine and coastal area other than—
(a)specified freehold land located in that area; and
(b)any area that is owned by the Crown and has the status of any of the following kinds:
(i)a conservation area within the meaning of section 2(1) of the Conservation Act 1987:
(ii)a national park within the meaning of section 2 of the National Parks Act 1980:
(iii)a reserve within the meaning of section 2(1) of the Reserves Act 1977; and
(c)the bed of Te Whaanga Lagoon in the Chatham Islands
21 Section 9 definition of “marine and coastal area”.
22 Section 9 definition of “common marine and coastal area”.
[24]The purposes of the Takutai Moana Act are set out in s 4(1):
4 Purpose
(1)The purpose of this Act is to—
(a)establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
(b)recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
(c)provide for the exercise of customary interests in the common marine and coastal area; and
(d)acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).
[25] Section 4(2) then specifies the means by which these purposes are to be given effect to:
(2)To that end, this Act—
(a)repeals the Foreshore and Seabed Act 2004 and restores customary interests extinguished by that Act; and
(b)contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c)gives legal expression to customary interests; and
(d)recognises and protects the exercise of existing lawful rights and uses in the marine and coastal area; and
(e)recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area—
(i)for its intrinsic worth; and
(ii)for the benefit, use, and enjoyment of the public of New Zealand.
[26] Section 5 confirms that the Foreshore and Seabed Act is repealed. Section 6 restores and gives legal expression to any customary interests that were extinguished by the Foreshore and Seabed Act:
6 Customary interests restored
(1)Any customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 are restored and given legal expression in accordance with this Act.
(2)Any application under this Act for the recognition of customary interests must be considered and determined as if the Foreshore and Seabed Act 2004 had not been enacted.
[27] In order to take account of te Tiriti o Waitangi/the Treaty of Waitangi and promote the exercise of customary Māori interests, s 7 provides:
…
(a)… for the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area; and
(b)… for customary rights to be recognised and protected; and
(c)… for customary marine title to be recognised and exercised.
Customary marine title (CMT)
[28] CMT is the most extensive form of right which may be recognised under the Takutai Moana Act, as it provides for a (non-alienable) interest in land.23 The rights conferred by a recognition order are set out under ss 60 and 62 of the Takutai Moana Act. These include permission rights under the Resource Management Act 1991 (the RMA),24 conservation permission rights,25 the right to protect wāhi tapu and wāhi tapu areas,26 rights in relation to marine mammal watching permits,27 rights in relation to New Zealand coastal policy statements,28 prima facie ownership of newly found taonga tūturu,29 ownership of certain minerals,30 and the right to create a planning document.31 However, a group is not
23 Section 60(1).
24 Sections 66–70.
25 Sections 71–75.
26 Sections 78–81.
27 Section 76.
28 Section 77.
29 Section 82.
30 Sections 83 and 84. See also Crown Minerals Act 1991, s 10 definition of “minerals”.
31 Sections 85–93.
exempt from obtaining any relevant resource consent, permit, or approval that may be required by another enactment when exercising their CMT rights.32 CMT also does not give a group the right to exclude others from the area, as ss 26–28 expressly preserve public rights of access, navigation rights, and fishing rights.
[29] Applications for CMT are governed by 58 of the Takutai Moana Act, which provides:
58Customary marine title
(1)Customary marine title exists in a specified area of the common marine and coastal area if the applicant group –
(a)holds the specified area in accordance with tikanga; and
(b)has, in relation to the specified area, –
(i)exclusively used and occupied it from 1840 to the present day without substantial interruption; or
(ii)received it, at any time after 1840, through a customary transfer in accordance with subsection (3).
(2)For the purpose of subsection (1)(b), there is no substantial interruption to the exclusive use and occupation of a specified area of the common marine and coastal area if, in relation to that area, a resource consent for an activity to be carried out wholly or partly in that area is granted at any time between–
(a)the commencement of this Act, and
(b)the effective date.
(3)For the purposes of subsection (1)(b)(ii), a transfer is a customary transfer if—
(a)a customary interest in a specified area of the common marine and coastal area was transferred—
(i)between or among members of the applicant group; or
(ii)to the applicant group or some of its members from a group or some members of a group who were not part of the applicant group; and
(b)the transfer was in accordance with tikanga; and
(c)the group or members of the group making the transfer—
32 Section 60(2).
(i)held the specified area in accordance with tikanga; and
(ii)had exclusively used and occupied the specified area from 1840 to the time of the transfer without substantial interruption; and
(d)the group or some members of the group to whom the transfer was made have—
(i)held the specified area in accordance with tikanga; and
(ii)exclusively used and occupied the specified area from the time of the transfer to the present day without substantial interruption.
(4)Without limiting subsection (2), customary marine title does not exist if that title is extinguished as a matter of law.
[30] Section 59 sets out certain matters which must be taken into account when determining whether CMT exists:
59Matters relevant to whether customary marine title exists
(1)Matters that may be taken into account in determining whether customary marine title exists in a specified area of the common marine and coastal area include—
(a)whether the applicant group or any of its members—
(i)own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:
(ii)exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and
(b)if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.
(2)To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(a)(ii).
(3)The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.
(4)For the purpose of subsection (1)(a)(i), land abutting all or part of the specified area means—
(a)land that directly abuts the specified area; or
(b) land that does not directly abut the specified area, but does
directly abut any of the following:
(i) a marginal strip (as defined in section 2(1) of the Conservation Act 1987) that directly abuts the specified area:
(ii) an esplanade reserve (as defined in section 11 of the Natural and Built Environment Act 2023), but only to the extent that it directly abuts the specified area:
(iii) a reserve (as defined in section 2(1) of the Reserves Act 1977), but only to the extent that it directly abuts the specified area:
(iv) a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified area:
(v) a road that directly abuts the specified area:
(vi) a railway line that directly abuts the specified area.
[31]
Section
106 outlines the burden of proof in regard to applications for PCRs and
CMT: 106
Burden of proof
(1)
In the case of an application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right—
(a) has been exercised in the specified area; and
(b) continues to be exercised by that group in the same area in accordance with tikanga.
(2)
In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—
(a) is held in accordance with tikanga; and
(b) has been used and occupied by the applicant group, either—
(i) from 1840 to the present day; or
(ii) from the time of a customary transfer to the present day.
(3)
In the case of every application for a recognition order, it is presumed, in the absence of proof to the contrary, that a customary interest has
not been extinguished.
[32] The Supreme Court clarified that this means applicants for CMT under s 58 must prove that they hold the specified area in accordance with tikanga and have used and occupied the relevant area from 1840 to the present day.33 It is then presumed that the applicant’s use and occupation has been exclusive and not substantially interrupted, unless a contradictor can adduce evidence to prove the contrary.34
Protected customary rights (PCRs)
[33] As noted above, PCRs claimed by the applicants will be the subject of a separate judgment. PCRs can recognise customary rights exercised by a group which may coexist in the same area in which CMT is held by another group.
[34] A PCR is an activity, use, or practice, as established in accordance with the Takutai Moana Act provisions, recognised by a PCR order or an agreement.35
[35]The meaning of a PCR is set out in more detail in s 51(1), which provides:
51 Meaning of protected customary rights
(1)A protected customary right is a right that—
(a)has been exercised since 1840; and
(b)continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way, or evolves over time; and
(c)is not extinguished as a matter of law.
[36] Section 51(2) specifically excludes certain activities from being recognised as a PCR:
(2)A protected customary right does not include an activity—
(a)that is regulated under the Fisheries Act 1996; or
(b)that is a commercial aquaculture activity (within the meaning of section 4 of the Māori Commercial Aquaculture Claims Settlement Act 2004); or
33 Re Edwards (SC), above n 13, at [120].
34 At [120].
35 Section 9 definition of “protected customary right”.
(c)that involves the exercise of—
(i)any commercial Māori fishing right or interest, being a right or interest declared by section 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 to be settled; or
(ii)any non-commercial Māori fishing right or interest, being a right or interest subject to the declarations in section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; or
(d)that relates to—
(i)wildlife within the meaning of the Wildlife Act 1953, or any animals specified in Schedule 6 of that Act:
(ii)marine mammals within the meaning of the Marine Mammals Protection Act 1978; or
(e)that is based on a spiritual or cultural association, unless that association is manifested by the relevant group in a physical activity or use related to a natural or physical resource (within the meaning of section 2(1) of the Resource Management Act 1991).
(3)An applicant group does not need to have an interest in land in or abutting the specified part of the common marine and coastal area in order to establish protected customary rights.
[37] A group that has a PCR in relation to a particular area is entitled to exercise those rights without a resource consent, despite any prohibition, restriction, or imposition that would otherwise apply under the RMA.36 If applications for resource consents are made in relation to an area where a PCR is held, a consent authority must not grant a resource consent if that activity is likely to have adverse effects that are more than minor on the exercise of the PCR.37
Tikanga
[38] The Supreme Court in Re Edwards restated the test for CMT. It identified four elements of the test under s 58, albeit acknowledging that these are conceptually and evidentially overlapping. They are to be considered under the following headings:38
36 Section 52(1).
37 Section 55.
38 Re Edwards (SC), above n 13, at [133].
(a)holds in accordance with tikanga;
(b)exclusive use and occupation;
(c)continuity from 1840 to the present day without substantial interruption; and
(d)extinguishment.
[39] The Supreme Court emphasised that in addition to the tikanga inquiry required by the first element of the test, the second element applies a common law lens to the evidence of use and occupation according to tikanga. The court must weave together tikanga and the common law to determine whether the customary rights are “such as to require a recognition by way of a CMT”.39 Tikanga Māori and Māori customary rights are therefore central to the consideration of the claims.
[40] In addition to the significant amount of tikanga evidence given by witnesses, including tikanga experts called by the parties, the Court heard evidence from two pūkenga, who were appointed as tikanga experts. Dr Robert Joseph and Ms Moe Milne were nominated by the parties and appointed by the Court under s 99 of the Takutai Moana Act. A pūkenga’s role is to assist the Court in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the proceeding.40 The pūkenga in this case also heard the evidence and submissions and travelled to view significant historical sites identified by the applicants in the hearing area.41
[41] Dr Joseph and Ms Milne filed two reports.42 The first related to their expertise, experience and proposed methodology.43 Their expertise and experience was not
39 At [157].
40 Evidence Act 2006, s 25(1).
41 No view took place of Kapiti Island due to funding constraints.
42The quotes which appear from the evidence and the material produced to the court omit footnotes unless expressly stated otherwise.
43The first pūkenga report, dated 18 May 2024, dealt with the requirements under r 9.43 of the High Court Rules 2016 which the pūkenga were required to comply with as expert witnesses.
disputed. Their second report responded to the questions suggested by the parties.44 That report contains a comprehensive, independent review of tikanga Māori generally, the specific tikanga applying to the application area at various times, and the different forms of take at play (as the basis for the foundational claims brought by the applicants). The pūkenga were cross-examined on this report.
[42] The pūkenga evidence is highly influential, however it is not determinative.45 Any part of the report not accepted by all parties must be treated as information furnished to the court and be given appropriate weight.46 In cases where expert evidence given is conflicting, the court must determine the conflict based on the evidence before it.47
[43]The following 10 questions were put to the pūkenga:
1.What tikanga does the evidence establish applies in the areas that are the subject of the applications before the Court?
2.What evidence indicates the maintenance of a group’s holding of part of the Marine and Coastal Area, as a matter of tikanga?
3.What evidence indicates that a group no longer holds part of the Marine and Coastal Area as a matter of tikanga?
4.How do the concepts of ahi kā, raupatu, ringa kaha, tatau pounamu, tuku and related concepts apply in this hearing area between 1820 and 1840?
5.If those concepts apply, how do they apply after 1840?
6.At 1840, what applicant group or groups used and occupied the application area, or any part of it, on a sole or shared basis, in accordance with tikanga?
7.At 1840, how did groups control access to areas as a matter of tikanga?
8.Since 1840, what applicant group or groups have used and occupied the application area, or any part of it, on a sole or shared basis, in accordance with tikanga?
44Ms Moe Milne and Dr Robert Joseph Pūkenga Report (25 October 2024) [pūkenga report]. This report is attached in full at Attachment 7 to this judgment.
45Re Edwards Whakatōhea (No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 [Re Edwards (HC)] at [325].
46 High Court Rules, r 9.38(4).
47 Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [39].
9.Having regard to the evidence, what tikanga applies today to the relationships between the iwi in this area?
10.Having regard to the evidence, what tikanga is relevant to the protected customary rights claimed by the applicants?
[44] An overview of the pūkenga report follows. I later return to the evidence of the pūkenga in relation to particular issues raised by the parties.
Preliminary comments of the pūkenga
[45] In describing the historical context for the present applications, the pūkenga refer to the observations of 19th century scholar John White, who said:48
I may state without fear of contradiction that there is not one inch of land in the New Zealand Islands which is not claimed by the Maoris; and I may also state that there is not a hill, or valley, stream, river, or forest, which has not a name, the index of some point of Maori history.
[46] The pūkenga note that the Treaty of Waitangi/te Tiriti o Waitangi and its principles “will be a relevant interpretative aid where ambiguity or a lack of clarity in MACA exists”.49 Furthermore, tikanga Māori plays an important role in fulfilling the statutory purposes of the Takutai Moana Act.50 They warn against attempting to explain tikanga concepts from a Pākehā perspective, without an appreciation of how those concepts function within te ao Māori.51 As Dr Carwyn Jones, who gave evidence for Ngāti Raukawa, noted “fundamentally, tikanga can only be understood through a te ao Māori lens, because it reflects the Māori worldview”.52 In describing what this entails, the pūkenga note that:53
Māori tribal worldviews generally acknowledged the natural order of living things and the kaitiakitanga (stewardship) rights, responsibilities and relationships to one another and to the environment. The overarching principle of utu (balance) underpinned all aspects of life. Māori worldviews are ones of holism and physical and metaphysical (spiritual) realities where the past, the present and the future are forever interacting. The maintenance of the worldviews of life — including within a Marine and Coastal Area
48 Pūkenga report, above n 44, at [17], citing Raymond Firth Economics of the New Zealand Maori,
(2nd ed, Government Printer, Wellington, 1972) at 383.
49 At [42].
50 At [43].
51 At [46], citing Ngāti Hokopu ki Hokowhitu v Whakātane District Council (2002) 9 ELRNZ 111.
52 At [54].
53 At [55].
(Takutai Moana) Act 2011 context — are dependent upon the maintenance of
the culture and its many traditions, values, practices and rituals.
[47] In recent years, the Supreme Court has expressly acknowledged tikanga Māori as “the first law of Aotearoa New Zealand”.54 The pūkenga broadly define tikanga as “a set of abstract cultural values and ways of organising social life that are distinctively Māori”, or “values, principles or norms that determine appropriate conduct, the Māori way of doing things, and ways of doing and thinking held by Māori to be just, right and correct”.55 While the principles and values within tikanga Māori have some flexibility, they also provide sufficient consistency and universality across iwi, hapū, and whānau to support a degree of consensus.56
[48] A fundamental feature of tikanga Māori is the relationships Māori have to land, water, other lifeforms, and each other.57 In this tikanga Māori legal system, a legal responsibility to care for people and the environment is recognised.58 The pūkenga observe that:59
For all Māori iwi, hapū and whānau — the maunga (mountains), whenua (land), rohe moana (ocean), awa (rivers), manga (streams), moana (lakes), and puna (springs) — are integral, defining components of their personal and tribal identity, security and prosperity. The fundamental concept of whakapapa considers Te Ao Turoa — the environment — a whānaunga or relation.
[49] The pūkenga also cite the comments of Elias CJ in Attorney-General v Ngāti Apa, who observed that an English common law approach to the marine and coastal area is not appropriate in New Zealand, given the unique local circumstances of this country.60 The Takutai Moana Act was therefore introduced in attempt to provide a specific statutory framework to address rights in New Zealand’s marine and coastal area based on “Māori customary values and practices”.61
54 At [57] and [58], citing Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5 at [187]; and
Ellis v R [2022] NZSC 114.
55 At [61].
56 At [67].
57 At [89].
58 At [90] and [91].
59 At [89].
60 At [101] and [102], citing Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).
61 At [103], citing Takutai Moana Act, s 9.
[50] In relation to the Kapiti Coast application area, the pūkenga refer to the comments of Chief Judge Francis Fenton of the Native Land Court in 1870. He observed how readily Māori could prove acts of ownership in relation to the foreshore, and “how impossible it is to contradict them if they only agree amongst themselves”.62 However, finding agreement between the parties is one of the major challenges in this proceeding.63
Questions for the pūkenga
Question 1: What tikanga does the evidence establish applies in the areas that are the subject of the applications before the Court?
[51] The pūkenga gave a non-exhaustive list of specific tikanga Māori values, principles and fundamental signposts, which apply in the Kapiti Coast application area:64
(a)Whakapapa — genealogy and the intergenerational and interconnectivity of all humans and the natural world including all of the Kāpiti Coast claimant groups to each other and the respective takutai moana claimant area;
(b)Wairuatanga — spirituality including placating the departmental Gods’ respective realms such as Tangaroa over the takutai moana realm;
(c)Whānaungatanga — maintaining kin relationships with humans and the natural world, including through protocols of respect, and the rights, responsibilities and obligations that follow from the individual’s place in the collective group;
(d)Mana — encompasses intrinsic spiritual authority as well as political influence, honour, status, control, and prestige of an individual and group with the takutai moana area;
(e)Tapu — restriction laws; the recognition of an inherent sanctity or a sanctity established for a purpose — to maintain a standard for example; a code for social conduct based upon keeping safe and avoiding risk, as well as protecting the sanctity of revered persons, places, activities and objects including rāhui and wāhi tapu over the takutai moana area;
(f)Noa — free from tapu or any other restriction such as rāhui and wāhi tapu; liberating a person or situation from tapu restrictions, usually through karakia and water;
62 At [104], citing Chief Judge Fenton, Kauaeranga Judgment, (1870) reprinted in VUWLR (Vol. 14,
1984) 227 at 244.
63 At [105].
64 At [111]. See also the list of general tikanga principles at [76].
(g)Utu — maintaining reciprocal relationships and balance with persons and nature including the takutai moana area;
(h)Mauri — recognition of the life-force of persons and objects in the takutai moana claimant area;
(i)Hau — respect for the vital essence of a person, place or object;
(j)Ohaoha — distribution and sharing of prosperity;
(k)Rangatiratanga — effective leadership; appreciation of the attributes of leadership including effective leadership in the takutai moana claimant area;
(l)Manaakitanga — enhancing the mana of others especially through sharing, caring, generosity and hospitality to the fullest extent that honour requires highlighting, inter alia, unfettered access to kai moana from the takutai moana claimant area;
(m)Aroha — charity, generosity; [and]
(n)Kaitiakitanga — stewardship and protection, often used in relation to natural resources including the takutai moana.
[52] The pūkenga note that Williams J, speaking extrajudicially, has described whanaungatanga as “the glue that held, and still holds, the system together; the idea that makes the whole system make sense — including legal sense”.65 This links to a crucial point, which is that the tikanga Māori values described above do not stand alone, but must be read together.
[53] In addition to the above list, the following other tikanga concepts were identified as relevant:66
(a)Tika and Pono — being right or correct, true and genuine;
(b)Rangatira ki te rangatira — leaders speaking directly to each other, effective diplomacy;
(c)Te mana o te kupu — the power of one’s word which is binding;
(d)Kawenata — covenant agreements that are binding on the mana of the group; and
(e)Tatau pounamu — binding peace agreements to settle conflict and protracted disputes.
65At [78], citing Joseph Williams “Lex Aotearoa: A Heroic Attempt at Mapping the Māori Dimension in Modern New Zealand Law” (2013) 21 Wai L Rev 1 at 3.
66 At [112].
Question 2: What evidence indicates the maintenance of a group’s holding of part of the marine and coastal area, as a matter of tikanga?
[54] The pūkenga set out several salient characteristics of tikanga drawn from Palmer J’s decision in Ngāti Whātua Ōrākei Trust v Attorney-General, noting that tikanga will vary to some extent across iwi and hapū because of their different circumstances and historical narratives:67
9. Nelson Examiner and New Zealand Chronicle, (5 May 1869) at 3.
10. ‘On Māori Customs being Codified’ in New Zealand Times, (30 August 1905) at 6.
11. Smith, T, Tukuwhenua and Maori Land Tenure in Wairarapa, (A Report to the Waitangi Tribunal commissioned by the Wai 429 Claims Committee, October 2001).
12. Te Manuhiri Tūarangi: The Māori Intelligencier (No 10, August 1861) at 10.
13. Te Matorohanga, M, ‘Te Manaaki o te Tangata,’ in Te Toa Takitini, (No. 6, 1 September 1923) at 1.
14. Te Paki o Matariki (17 May 1881).
15. Te Toa Takitini, (No. 57, 1 May 1926) at 400.
16. Te Waaka Tamaira, Te Puke ki Hikurangi, (Vol. 6, No. 10, 29 April 1905) at 5.
17. Te Wananga, (Vol. 5, No. 44, 2 November 1878) at 550.
18. Te Whatahoro Jury and others, Te Wananga (Vol. 4, No. 278, 14 July 1877) at 26
Internet Sites
1. Jackson, M, ‘Tipuna title as a Tikanga Construct re the Foreshore and Seabed,’ (March 2010) Online at: (Accessed December 2019).
2. Meredith, P, ‘Take Whenua – Māori Land tenure – Discovery, Ancestral Right and Conquest,’ Te Ara – The Encyclopedia of New Zealand, online at: (Accessed 5 October 2024).
3. Royal, C, ‘Kaitiakitanga – Guardianship and Conservation - Understanding Kaitiakitanga,’ (22 September 2012) Te Ara – The Encyclopedia of New Zealand online at (Accessed January 2020).
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