Re Tipene

[2017] NZHC 2990

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2011-485-806 [2017] NZHC 2990

UNDER

the Marine and Coastal Area (Takutai

Moana) Act 2011

IN THE MATTER OF

an application by DENIS WIREMU TIPENE for an order recognising customary interests in the common marine and coastal area

On the papers
Judgment:	4 December 2017

JUDGMENT OF MALLON J

Table of contents

Introduction ....................................................................................................................................... [1] Further events.................................................................................................................................... [4] Submissions.......................................................................................................................................[11] The legislation .................................................................................................................................. [15] The Regulations ............................................................................................................................... [22] My assessment ................................................................................................................................. [25]

Result ................................................................................................................................................ [35]

Re Tipene [2017] NZHC 2990 [4 December 2017]

Introduction

[1]      Mr Tipene, on behalf of all Rakiura Māori with customary interests in the islands of Pohowaitai and Tamaitemioka (the applicant group), applied under the Marine  and  Coastal Area  (Takutai  Moana) Act  2011  for  an  order  recognising customary marine title (the customary marine title order) over a small marine and coastal area to the south west of Rakiura (Stewart Island).1     His application was successful.2  Who was to be the holder of the customary marine title order was left for further submissions and determination.

[2]      The judgment accepted Mr Tipene’s position that the owners of the houses on the two islands are the kaitiaki of the islands and that, in accordance with the tikanga of the islands, those present on the two islands make decisions on behalf of all those with customary interests in the islands, taking into account their views as appropriate. I also said:3

It would be consistent with the way decisions are made about other matters on these two islands for the beneficial owners who have houses on the two islands to make the decision about who holds the title. The holder should be defined in a way that encapsulates the concept that the person(s) who hold the title may from time to time change, just as the beneficial owners may change with succession.  These are matters upon which the parties are invited to make submissions.

[3]      This judgment concerns who is to be the holder of the customary marine title order.

Further events

[4]      Mr Tipene has provided an affidavit, dated 14 July 2017, about a hui which took place on 1 May 2017.   This hui was amongst the owners of Pohowaitai and Tamaitemioka who were on the islands at that time4  together with Jane Davis (the

pūkenga appointed by the Court) and her grandson, Renata Davis, who prepared

1      The area is a 200 m radius surrounding a rock in front of the landing area which provides the only access to Pohowaitai and Tamaitemioka islands.

2      Re Tipene [2016] NZHC 3199, [2017] NZAR 599.

3 At [178].

4      Pohowaitai: Nash Norton, Pat Hutana, Maru Tau, Marty Hawkins, Grenvil Pitama, Eugene Riwaka, Oliver Dawson, Jeanette Norton, Felicity Phillips, Ngawini Riwaka, Makarini Rupene, Richard Ward, Paul Kemp and Kylie Waewae; Tamaitemioka: Denis Tipene.

minutes of the meeting.5   This hui was to discuss the judgment and in particular who should hold the order.