Ruapuke Island Group
[2025] NZHC 2400
•22 August 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2017-485-295
CIV-2017-485-296 [2025] NZHC 2400
IN THE MATTER OF the Marine and Coastal Area (Takutai Moana) Act 2011 AND
IN THE MATTER OF
an application by MELVIN HUTCHINSON HERBERT CAIN, JASMINE KAY WHAITIRI STEWART, CHRISTIAN WAYNE FIFE and COLIN WAYNE TOPI
on behalf of the landowners of the Ruapuke Island Group, for an order recognising Customary Marine Title
Applicants
TE RŪNANGA O NGĀI TAHU,
ATTORNEY GENERAL and BASIL WALKER
Interested Parties
Hearing: 24 March – 2 April 2025 Appearances:
J L Inns and K L E Coote (24 – 27 March) and M R M Coote (1 April) for Applicants
R J B Fowler KC for Te Rūnanga o Ngāi Tahu G L Melvin for Attorney-General
Basil Walker Self Represented
Judgment:
22 August 2025
JUDGMENT OF CHURCHMAN J
The Marine and Coastal Area (Takutai Moana) Act 2011 - Ruapuke Island Group [2025] NZHC 2400 22 August 2025
Table of Contents
Paragraph
Introduction [1]
Statutory test for customary marine title[6]
The applicants[26]
The applicants’ case [40]
Whakapapa[41]
Conclusion on whakapapa and take tipuna[77]
Integrated or holistic relationship[78]
Non-commercial fishing activities[105]
Tikanga[110]
Ownership of abutting land and control of access points to the
takutai moana[120]
Exclusive use and occupation from 1840 to the present day without
substantial interruption[128]
Conclusion on exclusive use and occupation[153]
Outcome[155]
E poua Tūhawaiki e
Ko koe rā te hua o Poupoutūnoa tū mai rā hei tohu o te tātai hono
Hei pou here takata, pou here tikaka (Oh poua Tūhawaiki
You are the product of Poupoutūnoa
Stand forth as the symbol of joined lineages
As a tying post of the people, and the customs).1
Introduction
[1] The applicants are a whānau group who represent the landowners of Ruapuke Island and surrounding smaller islands. They have applied under s 98 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) for a Customary Marine Title Order.
1 This is the start of a mōteatea composed by Dr Hana O’Regan for the Tūhawaiki Memorial Commemoration, Ruapuke Island, 1996.
[2] The application relates to the common marine and coastal area (the specified area) (as defined in s 9 of MACA) surrounding the Ruapuke Island Group. The Ruapuke Island Group lies in Foveaux Strait (Te Ara a Kiwa), with Ruapuke Island as its centre.
[3] Ruapuke Island is approximately 1660 ha in size. It lies some 22 km south east of Bluff and 30 km north east of Oban. There are a number of smaller islands, islets and rocks in the specified area, which include:
(a)Papatea (Green Island);
(b)Te Papa o te Moroiti (Lee Island);
(c)Seal Rocks;
(d)Breaksea Islands;
(e)South Islets;
(f)Hazelburgh Group;
(g)Motuaro/Bird Island;
(h)Fife Island;
(i)Half Passage Rock;
(j)Topi Island/Te Ihu Kararo;
(k)White Island;
(l)Pukepara; and
(m)Goose Island.
[4] The application area is roughly rectangular in nature with a triangular extension in the middle of the southern boundary. It is depicted with the boundary coordinates in the diagram below.2
Ruapuke Island Group Hearing Area
Map of the wider geographic area around Ruapuke Island
2 46º 42’ 30.0” S & 168º 22’ 36.0” E, 46º 42’ 30,0” S & 168º 40’ 30.0” E, 46º 50’ 0.0” S & 168º 40’
30.0” E, 46º 50’ 0,0” S & 168º 36’ 19.48” E, 46º 53’ 3.54” S & 168º 29’ 24.47” E, 46º 50’ 0.0”S
& 168º 29’ 16.27” E, 46º 50’ 0.0” S & 168º 22’ 36.0”E.
[5] Unlike many applications under MACA, this application does not extend 12 nautical miles from the coast of each of the islands. It is much more limited in geographic scope. The reasons that the particular boundaries were chosen for the specified area are set out in the affidavit of Ailsa Cain dated 25 November 2024:
The modest seaward boundary outlined in our application has been purposefully used and already recognised in other regulatory processes, particularly those relating to customary fisheries management. The boundary allows whānau to effectively manage the waters and underwater features that surround the islands and reflects the extent of the local “gardens” used to support those residing on the Islands. It provides spatial consistency with the layers of regulatory tools, current and future, that Island whānau can utilise in the care and protection of the area.
These points were debated by whānau when deciding on the boundary for customary marine title and choosing not to use the model of 12 nautical miles off each of the islands which would cover a significantly larger space and cross into shipping lanes. The area identified by whānau for customary marine title… is the minimum extent of the [Ruapuke Island Group] domain …
Statutory test for customary marine title
[6] All applicants seeking customary marine title (CMT) must satisfy the statutory test set out in s 58(1) of MACA. This reads:
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).
[7] If CMT has been extinguished as a matter of law, s 58(4) provides that CMT no longer exists.
[8] The matters that may be taken into account by the Court in determining whether CMT exists are set out in s 59(1)(a) of MACA. This includes whether the applicant group or any of its members:
(a)own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:
(b)exercise non-commercial customary fishing rights in the specified area, and have done so since 1840 to the present day; and
[9]There is a proviso in s 59(3) of MACA which states:
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.
[10] Section 106(2) of MACA specifies the burden of proof on applicants seeking CMT. Such applicants must prove, on the balance of probabilities, that the area in question:
(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.
[11] The Supreme Court in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka described the practical application of the burden of proof in the following way:3
… Applicant groups must prove they hold the specified area in accordance with tikanga (which, as we will point out shortly, itself requires proof of some control and continuity) and have “used and occupied” the area “from 1840 to the present day”. It is then left to contradictors to adduce evidence of non-exclusivity or substantial interruption. Thus, for the purposes of s 98(2)(b), it is presumed, absent proof to the contrary, that the applicant’s use and occupation has been exclusive and not substantially interrupted. That is clear from the fact that substantial interruption and exclusivity are omitted from the s 58 elements an applicant group must prove to the Court’s satisfaction in s 106 (footnotes omitted).
[12] Section 98 of MACA provides that the Court may only make an order for CMT if it is satisfied that the applicant has met the requirements of s 58.
3 Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka [SC decision] [2024] NZSC 164 at [120].
[13] The Supreme Court decision of Edwards provides helpful guidance as to the application of s 58 of MACA.4 The Supreme Court held that the overarching theme of MACA is the reconciliation of competing rights and interests.5 The Court noted that this statutory purpose means that the Court should strive to give effect to both customary rights and private property rights and activities rather than allowing one to prevail over the other.6
[14] The Supreme Court in Edwards identified the four important components of s 58 as being:7
(a)“holds…in accordance with tikanga”;
(b)“exclusively used and occupied”;
(c)“from 1840 to the present day without substantial interruption”; and
(d)“extinguished as a matter of law”.
[15] The Supreme Court also commented on the concept of an area being held in accordance with tikanga. For an applicant to “hold” an area, the relationship with the claimed area “…must amount to an integrated or holistic relationship with a seascape”,8 as opposed to “…a collection of unconnected activities or uses”.9
[16] The Supreme Court said that another way of expressing this was that “mana over the relevant area is claimed and exercised”.10 The Court noted that mana “carries with it notions of control”, but that “maintaining… a spiritual relationship with place, and carrying out activities in that place, are themselves expressions of mana”.11
4 At [73]–[77].
5 At [104]–[126], [133] and [211].
6 At [113].
7 At [133].
8 At [219].
9 At [140].
10 At [141].
11 At [141].
[17] The Supreme Court also noted that the tikanga relationship with the specified area must be a continuing one.12
[18] As to when the specified area will have been “exclusively used and occupied”, the Supreme Court concluded that actual physical occupation of the seascape is not required.13 It noted that “occupation” refers to “control rather than residence”.14 The Court said that, what was required was “extensive use of the space (in light of its nature and resources) coupled with an intention and some capacity to assert control over it to the extent permitted by law”.15
[19] The Supreme Court also gave an example of the type of activities that may well meet the exclusive use and occupation test:16
…So, where whānau, hapū or iwi have maintained a strong cultural connection with an area, harvested and protected its resources, and asserted mana in a practical way in relation to it, that may be sufficient on the mix of facts in a particular case. That may be so notwithstanding third-party use of the area.
[20] The Supreme Court also endorsed observations that had been made by the High Court in the Edwards case to the effect that “exclusive” cannot mean, in a literal sense, to the exclusion of all others.17
[21] The Supreme Court also set out a list of some relevant factors that may support a finding of exclusive use and occupation.18 The most relevant of those factors to the present application include:
(a)ownership of abutting land and, in particular, control over access points to the takutai moana;
(b)the exercise of non-commercial customary fishing rights;
12 At [142].
13 At [222].
14 At [222].
15 At [222].
16 At [161].
17 At [222]; Re Edwards (No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [142] and [397].
18 SC Decision, above n 3, at [162]–[163].
(c)the presence of fishing grounds that “belong to” a group and which may be used exclusively and kept confidential by that group;
(d)evidence of members of the applicant group educating and correcting the way third parties carry out activities in the area;
(e)the applicant group’s involvement in resource management and other regulatory processes concerning the takutai moana;
(f)organising or being involved in forums, events or collective activities that reflect practical kaitiakitanga of the claimed area — for example, environmental cleanups or public discussions in relation to the health of an aspect of the seascape;
(g)appointing kaitiaki and exercising powers under customary fishing regulations in relation to the area; and
(h)establishing formal relations and maintain ongoing consultations with public authorities having regulatory power over the area.
[22] The definition of “continuously used and occupied” may encompass the fact that some or all of a specified area is used periodically rather than continuously. In Re Tipene, where two small islands were used by tangata whenua for the seasonal gathering of mutton birds, Mallon J held:19
… Remoteness, the environment and changes in technology are all relevant when considering notions of occupation, use and continuity. These may explain periods of no or occasional use while nevertheless maintaining a connection to the land.
[23] As to the concept of occupation of the specified area from 1840 to the present day without substantial interruption, the Supreme Court distinguished between the concepts of “interruption” and “interference”. The Court observed that activities that
19 Re Tipene [2016] NZHC 3199, [2017] NZAR 559 at [149].
interrupt but only temporarily or intermittently will not constitute substantial interruption.20
[24] The Supreme Court also gave a practical example of what might amount to substantial interruption, namely: “the applicant group has, for a sufficiently substantial period, been crowded out of the claimed space by competing structures or activities”.21
[25] The Supreme Court differed from the Court of Appeal in Edwards in regard to the definition of substantial interruption. The Supreme Court noted that for an activity to amount to substantial interruption, it must be lawful but does not have to be expressly authorised by statute.22
The applicants
[26]Initially, there were two separate applications in relation to the Ruapuke Island:
(a)an application by Colin Topi on behalf of Te Whānau o Topi (CIV-2017- 485-295); and
(b)an application by Melvin Cain, Jasmine Whaitiri Stewart and Christian Fife on behalf of the landowners of the Ruapuke Island Group (CIV-2017-485-296).
[27] An application dated 5 December 2024 amalgamated the two applications into one. The sole objector to the applicant group’s application for CMT, Basil Walker (a self-represented litigant who opposed the application), saw something sinister in the formal amalgamation of the two applications claiming that:
…The applicants have changed their application to avoid overlapping applications and this was after the cut off date and thereby a nullity and I suspect in an attempt to out manouevere [sic] the “shared exclusivity” issue.
20 SC Decision, above n 3, at [198].
21 At [198].
22 At [199]; and contrast Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 at [433].
[28] The amendment of an application in the High Court, whether the proceeding is under MACA or any other legislation, does not automatically result in the nullity or illegality of the amended application.
[29] The principles applicable to the amendment of proceedings subject to time bars is well settled. The Court of Appeal in Transpower New Zealand Limited v Todd Energy Limited said:23
A plaintiff will not be permitted, after the period of limitations has run, to set up a new case “varying so substantially” from the previous pleadings that it would involve investigation of factual or legal matters, or both, “different from what have already been raised and of which no fair warning has been given … ”
[30] The standard approach to the variation of applications subject to time limits (as MACA applications are) has consistently been applied by the Courts since the earliest of the hearings under MACA.
[31] In Re Tipene, Mallon J approached the matter by asking whether the amendment resulted in an altogether different application comparable to a new cause of action.24 In that case, the applicant had sought to broaden the applicant group and to refine and reduce the application area. Mallon J held that this amendment was permitted because the amendment had not changed the essence of the application.25 Mallon J also noted that the evidence in relation to the amended application remained broadly the same which supported her conclusion that the essence of the application had not changed.26
[32] Amendments of applications, including the amalgamation of two or more applications, have been common among MACA cases. The Courts have followed the approach taken by Mallon J, as described above.27 However, a proposed amendment will not be permitted where it enlarges the area of the claim, fundamentally changes the nature of the claim, or raises new issues of fact or law.28
23 Transpower New Zealand Ltd v Todd Energy Ltd [2007] NZCA 302 at [61(d)].
24 Re Tipene [2015] NZHC 169 at [13].
25 At [16].
26 At [16].
27 See SC Decision, above n 3.
28 See Re Ngāti Pāhauwera [2020] NZHC 1139.
[33] In the present case, the amalgamation of the two whānau group claims does not extend the specified area, result in an altogether different application, or raise new issues of fact or law. I also note that the amalgamation does not prejudice any party. It is clearly lawful.
[34] There is only one other overlapping High Court MACA application. This is the much more extensive application by Ngāi Tahu (CIV-2017-485-280) which covers most of the coast of the South Island, Stewart Island and the sub-antarctic islands. There is one Crown direct engagement application by the Pohio Whānau MAC-01-13-006 which applies to a limited area of the takutai moana around Papatea (Green Island). The Pohio Whānau are Ruapuke Landowners and would therefore, be covered by the present application. They did not seek to appear in this hearing as an interested party or to oppose this application.
[35] Ngāi Tahu are the iwi of which the applicant group are whānau. Ngāi Tahu appeared at the hearing and fully supported the applicant’s application.
[36] Mr Walker seemed to misunderstand Ngāi Tahu’s position. For example, in his submissions he states the following:
I oppose and do not accept Ng[ā]i Tahu becoming a join[t] applica[nt] which is not acceptable or lawful without public consultation, and is contrary to Parliament determination and unjust exploitation of non defined Higher Court judgements [sic].
[37] Ngāi Tahu was not ever a joint applicant in these proceedings. They fully supported the Ruapuke whānau application. They do not seek a grant of CMT in their favour in respect of the specified area.
[38] There were two other parties who took an active part in the hearing, these were the Attorney-General, who called extensive historical and mapping evidence, and Mr Walker.
[39] The Court granted leave for other interested parties to file submissions should they wish to do so. These parties were the Southland Regional Council, Fishing
Industry Representatives and the Landowners Coalition Inc. No submissions were filed by any of these parties following the conclusion of the hearing.
The applicants’ case
[40] The applicant group contends that they hold the specified area in accordance with tikanga. The applicant group claims they have, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption. They also contend that their customary title has not, since 1840, been extinguished as a matter of law.
Whakapapa
[41] Section 9 of MACA defines an applicant group as “[one] or more iwi, hapū or whānau groups.” The evidence in support of the application is that the applicants are a whānau group. The application was brought in the names of a number of individuals who were representative of the Topi, Whaitiri (also spelt Waitiri), Fife and Kihau whānau on behalf of the landowners of the Ruapuke Island Group.
[42] As noted in the evidence of Dr Hana O’Regan dated 20 December 2024, who gave evidence as an expert witness for Ngāi Tahu,29 the basis of tikanga is whakapapa. In order for an applicant group to have held a specified area in accordance with tikanga, they therefore have to have a whakapapa that relates them to that area.
[43] An applicant group must establish a link by way of whakapapa with a group or individual who had acquired tangata whenua status in respect of relevant takutai moana.
[44] Dr O’Regan describes the five primary forms of customary land tenure that are part of the applicant group’s tikanga as being:
29 The southern dialect of Te reo Māori has a number of differences to Te reo spoken in other parts of Aotearoa/New Zealand. One of the most prominent differences is the use of the letters “k” or “g” instead of “ng”. In this decision, I use both the southern dialect and standard te reo pronunciation interchangeably depending on the context.
(a)Take taunaha/Whenua kite hou — discovery, which includes claiming land through naming;
(b)Take tīpuna — ancestral right;
(c)Take raupatu — conquest;
(d)Take tuku — gifting and transfer; and
(e)Ahi-kā-roa — keeping the fires burning.
[45] The Supreme Court in Edwards held that the most important of these sources was take tipuna which reflected the centrality of kinship to tikanga.30
[46] In relation to the relevant Kāi Tahu tikanga, Dr O’Regan said, in her evidence that:
Of all these principles, Te Ahikā was seen as the paramount one and required a three-generational approach to occupation and use. Lands and resources could be left unused for seasons, years or even decades without being seen as abandonment or loss, but would need to be used, cultivated or occupied within three generations to be maintained. In my view, when it comes to looking at continued use and occupation under MACA, it is important to understand the Kāi Tahu tikaka behind Te Ahikā, which required “three generations of occupation for that land to be deemed theirs. The converse is also true — land is lost if it is not used and occupied within three generations.” (footnotes omitted).
[47] Dr O’Regan concluded: “The Ruapuke Islands were and still are held through an intricate system of customary tenure and tikaka.”
[48] The applicants gave evidence of their whakapapa back to figures who were alive as at 1840 and who were acknowledged as being tangata whenua in respect of the Ruapuke Island Group. These include: Tūhawaiki (sometimes referred to by Europeans as “Bloody Jack”), Mereana (also spelt Meriana) Taimana and Teone Topi (sometimes spelt Tōpi) Patuki.
30 SC Decision, above n 3, at [39] and [220].
[49] Ruapuke, Rakiura and Murihiku had historically been settled by the iwi Waitaha, Kāti Māmoe and Kāi Tahu. Dr Michael Stevens, a professional historian, explains that history in his evidence dated 25 November 2024 in support of the application. He puts the rangatiratanga of the applicant group over Ruapuke as originating approximately 300 years ago, after the death of Kāti Māmoe chief Te Rakitauneke.
[50] The death of chief Te Rakitauneke caused his Kāi Tahu son-in-law, Waitai, to relocate from Ōtākou (located at the Otago heads) to a village overlooking the Mokamoka Estuary. A party of Kāti Māmoe forces, led by Tūtemākohu — a mokopuna of Te Rakitauneke — attacked Waitai. A small number of Kāi Tahu people escaped the ensuing battle and made their way back to relatives at Kaikōura. They encouraged their whānau to migrate south, initially to Kaiapoi, during the period 1730 to 1740 and subsequently, as far south as Ruapuke, by about 1820. Dr Stevens describes the descendants of these people as including the Topi and Whaitiri whānau.
[51] Dr Stevens also notes that the Kāi Tahu and Kāti Māmoe hapū were closely related and that the prior hostilities between them were resolved by strategic marriages between leading families of each side. He confirms that this gave the descendants rights to places such as Ruapuke based on conquest (take raupatu) as well as long standing occupation (ahi kā).
[52] Ms Cain deposed further information as to the history between the leading whānau in her affidavit:
I am from the Kihau Whānau and am a descendant of Kohuwai and Honekai. The marriage of my tūpuna help[ed] establish the tribal armistice between Ngāi Tahu and K[ā]ti Māmoe in the 18th century. The armistice was cemented in two marriages. The first was between Raki-ihia of Ngāti Māmoe and Hinehākiri, the cousin of Ngāi Tahu leading chief, Te-hau-tapunui-o-Tū. The second union was between Honekai, the son of Te-hau-tapunui-o-Tū and Kohuwai, the daughter of Raki-ihia. These marriages were arranged at Kaiapoi and confirmed at Taumata in Otago.
Honekai and Kohuwai’s son, Te Whakataupuka, and grandson, Tūhawaiki, helped establish Ruapuke Island as a stronghold of the iwi.
[53] In the affidavit of Colina Kareroa dated 30 March 2017, she gave her whakapapa to Teone Topi Patuki as being through her mother Thelma Fife (Topi),
grandfather Maurice Topi who was the eldest great grandchild of Teone Topi Patuki. She is a cousin of the named applicant Colin Topi.
[54] Bronwyn Topi and Peter Topi gave a joint affidavit dated 22 November 2025. They traced their whakapapa back to Teone Topi Patuki saying:
Our main tupuna is Teone Topi Patuki. In his day, he was the paramount chief of Ruapuke and the wider coastal area of Foveaux Strait and Southland. He had a son named Maurice Patuki Topi who married Hana Parata. They had a son who was called Maurice as well. He married Olive Hansen who was better known as Mum Topi. They had a number of children, including our father, Alfred Topi.
[55] Jasmine Whaitiri Stewart, Elizabeth Wright, Laina Niha and Teresa Trow provided a joint affidavit dated 26 November 2024. All of these deponents are currently landowners on Ruapuke Island.
[56] Ms Whaitiri Stewart traced her whakapapa back to Mereana Taimana. Her evidence was:
My name is Jasmine Kay Whaitiri Stewart, Bluff has always been my home and my whole life revolves around Ruapuke, Tītī Islands, Rakiura and the sea. My father was Paul Whaitiri, his father was William Poko (Boko) Whaitiri, Boko’s father was Ihaia Taoka Whaitiri II and Ihaia’s parents were Ihaia I and Mereana Taimana.
[57] Ms Niha also traces her ancestry back to Ihaia Whaitiri I and Mereana Taimana. Her evidence was:
My name is Laina Gertrude Niha and I have lived in Bluff most of my life. Through whakapapa and generations of whānau, Te Ara A Kiwa me te motu o Ruapuke me ngā motu Tītī (Foveaux Strait, the Island of Ruapuke and the Tīt[ī] Islands) have been an integral part of my existence, which I treasure. Elizabeth [Wright] is my sister. Our father was James Waitiri, and his father was Charles George Pratt Waitiri, a son of Ihaia Taoka Waitiri II and Elizabeth Ballantyne.
[58] Ms Trow’s evidence was that the Whaitiri whānau had been on Ruapuke since at least the 1820s. Ms Trow traced her whakapapa back to Mereana Taimana and Ihaia Waitiri I, deposing:
My name is Teresa Anne Trow. My husband and I both frequent Ruapuke, our house is built on the site where my uncle Mick’s house was, and we go to the Tītī Island every year. My late brother Trevor also spent a lot of time on
Ruapuke. My father was John Rakitauheke Whaitiri, his father was Te Haeata Whaitiri, his father was Te Mārama Whaitiri and his parents were Mereana Taimana and Ihaia Whaitiri I.
[59] Ms Trow goes on to explain the importance of the family members’ whakapapa to Mereana Taimana, namely:
Mereana Taimana is where our land come from. Her parents were Te Pae and Dorcas Ropoko (also recorded as Raupoko, Raopoko, Raipako and Roka). Te Pae’s name is on Tuhawaiki’s Declaration. It’s the last name on there, spelt Te Pay.
Dorcas Ropoko is written about as being on Papatea (Green Island) in the history before the Treaty. Land came through her whakapapa line. Her name was prominent in the Native Land Court’s records for Green Island and Ruapuke.
Ihaia Taoka Whaitiri II’s father was Ihaia Whaitiri I, and his mother and father were Hinehaka and Te Wera. Hinehaka was descended from Ruahikihiki Taoka. Te Wera was Ngāti Mamoe.
[60]The joint affidavit of Ms Whaitiri Stewart and others noted that:
Hinehaka went to live on Ruapuke with her children in 1828 after Te Wera died of leprosy at Mason Bay on Rakiura (Stewart Island). They were all living at Ruapuke before the last battle with Te Puoho at Tuturau Pā (near Mataura). They got word at Ruapuke of Te Pūoho stopping at Tuturau for the night. Tuhawaiki rallied all his men, some of whom, like Ihaia I, were only young teenagers. They went over through the night, then snuck around the pā and Topi Patuki shot Te Pūoho.
Mereana Taimana and Ihaia Whaitiri I lived on Ruapuke their whole lives. They raised 14 children there. The family is recorded in the registers of the missionary, Wohlers.
[61] A joint affidavit of Colin Topi and Ricky Fife dated 28 November 2024 traced their whakapapa back to Teone Topi Patuki. They acknowledged Teone Topi Patuki as the paramount chief of Ruapuke and the wider coastal area of Foveaux Strait and Southland.
[62]The applicant’s evidence as to their whakapapa was confirmed by Dr Stevens:
Kāi Tahu hapū and whānau had primary residences on Ruapuke Island prior to the New Zealand archipelago’s formal incorporation into the British Empire from 6 February 1840. Historical records in the 1820s and 1830s show that these hapū and whānau asserted ownership of, and demonstrated control over, the Ruapuke Island Group and its resources. Those resources were both terrestrial and maritime and, in terms of tikanga, are inseparable. Thus,
“onshore rangatiratanga” at Ruapuke is evidence of “offshore rangatiratanga”, and vice-versa. Unlike other Kāi Tahu centres of occupation, the colonial state has not radically displaced this rangatiratanga. Accordingly, whānau described in the 1820s as having bases on Ruapuke, and asserting and demonstrating ownership over its lands, coasts, and seas, did so in the 1920s. A century later again, in the present day, the same whānau still retain their Ruapuke residences and rangatiratanga. Simply put, the Ruapuke Island whānau have an unbroken line of ahi kā, and to a uniquely high standard.
[63] Dr Stevens explains that the cessation of hostilities between Kāi Tahu and Kāti Māmoe hapū was facilitated by Te Rokopai, in about the year 1790 which involved:
…The arranged marriages of highborn people that cemented this agreement are thus: Rakiihia of Kāti Māmoe married Hinehākiri, a cousin of the leading Kāi Tahu rakitira, Te Hau Tapunui o Tū. The latter’s son, Honekai, married Kohuwai, a daughter of Rakiihia. By 1810, Honekai had migrated south from Kaiapoi to southern Murihiku. Then, in the 1820s, he and his people shifted out to Ruapuke Island. His son Te Whakataupuka, who was also Ruapuke-based succeeded him as the leading southern rakatira. Following his death in 1834, he was succeeded in turn by his nephew, Tūhawaiki, whose home was Ruapuke. The latter’s descendants are the Kīhau/Russell/Cain whānau, who continue to hold and exercise rangatiratanga over Ruapuke.
[64] The Attorney-General called a professional historian, Richard Jennings, to give evidence. Mr Jennings’ evidence was consistent with the applicant’s evidence as to the whakapapa links of the applicant group to Ruapuke and evidence that they had maintained ahi kā since prior to 1840.
[65] Mr Jennings noted that the earliest known written description of Ruapuke Island by a non-Māori was in March 1806. Following this, Pākehā sealing crews became increasingly present in Foveaux Strait. From these crews, Māori acquired crops suited to the southern climate and this fostered a new trading economy.
[66] Mr Jennings highlighted an early example of trading between tangata whenua and Europeans, namely, the visit of the vessel Snapper. The vessel visited Ruapuke twice in early 1823, taking on flax and potatoes which it shipped back to Australia.
[67] Mr Jennings also notes that, in the late 1820s, the population of Ruapuke increased due to pressure from Ngāti Toa incursions into Te Wai Pounamu. He stated that, in the late 1820s, Simon Chapple estimated a population of between 240 to 600 individuals.
[68] Mr Jennings describes how Tūhawaiki became the paramount rangatira on Ruapuke Island following the death of his uncle Te Whakataupuka, around 1835. He notes that Tūhawaiki had Ngāi Tahu and Ngāti Māmoe ancestry and that, although his influence extended as far north as Banks Peninsula, his home was on Ruapuke.
[69] Dr O’Regan confirmed that Kāti Māmoe and Waitaha had been joined by Ngāi Tahu in Te Waipoumanu by the late 18th century. Through warfare and a series of political marriages, these hapū integrated to become Kāi Tahu Whānui.
[70] The only person involved in the hearing who challenged the whakapapa connection of the applicants with the Ruapuke Island Group was Mr Walker. He did not specifically challenge the evidence given by the applicants of their whakapapa. Nor did he challenge the conclusions reached by the expert witnesses on who had mana and rangatiratanga in the specified area as at 1840. His claim was more fundamental than that.
[71] Mr Walker advanced an extreme and unrealistic proposition that Māori were not the indigenous people of New Zealand. His written brief of evidence dated 18 December 2024 contained the following unsubstantiated claims:
I oppose the claim of M[ā]aori indigeneity because it is only hearsay evidence and the official documentation is [sic] unfortunately subjected to greed and conjecture with not enough factual information before the 1800’s.
However DNA and archaeological exploration has been undertaken albeit it under a cloak of secrecy and rudimentary research indicates there was a significant degree of accuracy that New Zealand was settled well before Maori [sic].
In 1983 – 1988 the Waipoua Forest was approved for archaeological survey with findings, [sic] carbon testing embargoed until 2063. Leaked information shows a true aged date of a food midden at Motoharu of 950 plus or minus 50 years and proof people were living in the Waipoua Forest area before maori [sic] arrived from Hawaiki.
These people were generally known as Patupaiarehe or Turehu with blonde/red hair and light complexion and DNA heritage links to Spanish, Portuguese and Phoenicians.
[72] Mr Walker has no qualifications or expertise in archaeology, history or ethnography that would qualify him to make such claims. His personal views as to who settled in New Zealand first are irrelevant to any issue this Court must decide.
[73] Marine and Coastal Area proceeds on the express basis that Māori are the indigenous people of Aotearoa/New Zealand and have customary rights in the takutai moana.
[74]Paragraph (4) of the preamble of MACA states:
This Act takes account of the intrinsic, inherited rights of iwi, hapū and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations:
…
[75] Parliament also expressly relied on the provisions of the Treaty of Waitangi. Section 3 (2)(c) of the preliminary provisions of MACA lists, as a guide to the overall scheme and effect of MACA, that a purpose of the Act is:
…in order to take account of the Treaty of Waitangi, the Act recognises, and promotes the exercise of, the customary interests of iwi, hapū, and whānau in the common marine and coastal area of New Zealand …
[76] It is not open to the Court to disregard the clear wording used by Parliament merely because Mr Walker disagrees with it.
Conclusion on whakapapa and take tipuna
[77] On the basis of the evidence set out above, it is clear that the applicants have unbroken whakapapa links to the specified area that go back well before 1840. They, therefore, satisfy the first and most important step in demonstrating that they hold the specified area in accordance with tikanga.
Integrated or holistic relationship
[78] As noted above at [15], the claimant group must have a relationship with the claimed area that amounts to an integrated or holistic relationship with the seascape as opposed to a collection of unconnected activities or uses.
[79] The Supreme Court in Edwards indicated that a relevant factor is whether the applicant group can demonstrate that “…mana over the relevant area is claimed and
exercised”. The Court also noted that mana “…carries with it notions of control”.31 In addition, “maintaining … a spiritual relationship with place, and carrying out activities in that place, are themselves expressions of mana.”32 The Supreme Court also noted that the tikanga relationship with the claim area must be a continuing one.33 This is consistent with the principle of ahi kā.
[80] There was extensive evidence of the applicant group asserting control of the takutai moana around the Ruapuke Island and having an integrated holistic relationship with the seascape.
[81] The starting point for analysing the existence of mana and the exercise of control in the specified area is the circumstances that existed in 1840. Following the first signing of a copy of the Treaty of Waitangi in the Bay of Islands on 6 February 1840, various copies were taken around the country for signature by local rangatira. Dr Stevens records that Major Bunbury on the ship HMS Herald was engaged in collecting signatures in Te Wai Pounamu.
[82] Major Bunbury sought out Tūhawaiki and invited him to sign the Treaty aboard the Herald, which was anchored off Ruapuke. In doing this, Major Bunbury clearly recognised Tūhawaiki’s mana and authority over Ruapuke. Dr Stevens notes that Tūhawaiki arrived on board the Herald wearing “a full-dress staff uniform of a British aide-de-camp, with gold lace trousers, cocked hat, and plume”. Tūhawaiki was accompanied by a similarly dressed sergeant.
[83]Dr Stevens also notes that on the day following the signing:
…consistent with the Māori ethic of reciprocity, Tūhawaiki hosted Bunbury and some of the ship’s crew ashore at his European-style home for a meal. When they returned to the Herald, he sent a dinghy load of potatoes as a koha.
[84]Dr Stevens’ conclusion was:
…These were not acts of subordination or those of a vassal people. On the contrary, they were reflections and projections [of] manawhenua over the
31 SC Decision, above n 3, at [141].
32 At [141].
33 At [142] and [220].
Ruapuke Island Group – notably including the surrounding waters, given that it was on the water, rather than land, that Tūhawaiki signed Te Tiriti.
[85] After that initial demonstration of mana and control, there were repeated reassertions of it, in various forms, over the ensuing years. In 1873, the Ruapuke Annexation Bill came before the House of Representatives. It sought to annex all of the Ruapuke Island Group and Hautere (Solander Island) to the province of Otago.
[86] Dr Stevens records Legislative Councillor Wī Tako Ngatata informing the House of Representatives that Ruapuke was an island “in the hands of the natives” and that “[t]he hand of the European had not been there.” Dr Stevens also records Ngatata as explaining that “whānau living at Ruapuke did so according to their own tikanga and laws, which regulated resource use.” As a result of the opposition, Dr Stevens concludes that “…the Bill was defeated, and Ruapuke whānau continued to exercise their rangatiratanga and tikanga over the Ruapuke Island Group uninterrupted by the state.”
[87]In 1892, Ruapuke rangatira, John Topi, published two advertisements in the
Southland Times stating:
Masters and owners of cutters engaged in Oystering and Fishing in the vicinity of Ruapuke are hereby warned not to land on that Island to procure either wood or water.
[88] The advertisements advised that he would supply any cutter short of supplies at Henrietta Bay but that he would “prosecute any persons found helping themselves from other parts of the Island.” Dr Stevens concluded that this was “a clear and public assertion of Rangatiratanga over Ruapuke.” Dr Stevens also noted that in 1913, John Topi placed a letter in the Bluff Press protesting at people stealing his sheep from Ruapuke.
[89] In 1922, John Topi sent a telegram to Robert Noble Jones. Jones was Chief Judge of the then Native Land Court and recently appointed Under-Secretary of the Native Department. In the telegram, John Topi asked Jones for official confirmation on behalf of his people “… exactly and rightly that the titi [sic] islands
… [some of which are part of the Ruapuke Island Group] belong to them.” This letter referred to the land, mutton birds and fur seals belonging to the Ruapuke inhabitants.
[90] In 1965, Ruapuke whānau placed a notice in a local newspaper heading “TRESPASS NOTICE — TITI ISLANDS”. Notably, it was signed by the heads of the Whaitiri, Te Au, Rita, Topi, Kihau and Parata whānau. The notice made clear that all trespassers on any of the Tītī Islands within the Ruapuke Group would be prosecuted, explaining that:
only persons who are owners of Ruapuke Island are entitled to go on to the above-mentioned islands, any other person wishing to go…must first obtain, in writing, permission from the majority of the owners.
[91] Dr Stevens describes this advertisement as amounting to “Ruapuke Whānau … clearly asserting their rangatiratanga over the Ruapuke Island Group and taking issue with those challenging their property rights and doing so as a collective of related whānau”.
[92] The applicants’ evidence was that members of the public were well aware that the Ruapuke Whānau were actively enforcing their entitlement to control access to the Ruapuke Island Group.
[93] Dr Stevens refers to a 1974 article in the Southland Times where an Invercargill journalist, Fred Miller, explained that Ruapuke whānau were to hold a large hāngī on the island on New Year’s Day which he described as:
a gala day for those privileged to attend — and we Pakehas are deeply conscious that it is a privilege, for Ruapuke is a Māori heritage and only the Māori owners go there as of right.
[94]The joint affidavit of Bronwyn Topi and Peter Topi stated:
The Ruapuke owners can invite whoever they like to go over there, but it’s not for people to just decide to go ashore and have a picnic or do whatever they want to do. Even now, friends and family will ring up and ask if they can use a particular mooring when they are planning on going over.
[95] The evidence of Melvin Cain dated 23 November 2024 was that the Ruapuke whānau at times took physical steps to assert their authority over outsiders who were
using the area’s resources. He noted that on two occasions at Papatea (also known as Green Island), firearms were discharged in the air to encourage pāua divers to leave the vicinity.
[96] The evidence of Peter Topi was that his father Alfred Topi, and Jimmy Whaitiri asserted rangatiratanga over the area by working with John Caulson, a Southland- based fisheries inspector with the then Ministry of Agriculture and Fisheries. Due to uninvited divers taking unsustainable amounts of pāua, locals had attempted to ram the uninvited divers’ boats with their own larger vessels. The men formalised a ban to close off commercial pāua fishing around Ruapuke Island.
[97] The applicants’ evidence was that more recently, Ruapuke whānau have used available statutory processes to try to conserve and sustain fishery resources. For example, the Ruapuke whānau have controlled uninvited strangers use of fisheries resource in the specified area. The Topi and Whaitiri whānau, together with Te Rūnaka o Awarua, applied for a mātaitai reserve under the Fisheries (Southland Customary Fishing) Regulations 1999.
[98] In relation to the application for a mātaitai reserve, the Attorney-General relied on the evidence of Allen Frazer, the manager of Inshore Fisheries South at Fisheries New Zealand within the Ministry for Primary Industries. Mr Frazer produced a map demonstrating that the proposed mātaitai reserve closely overlaps the specified area.
[99] In his evidence, Mr Frazer confirmed that, since 2001, members of the Ruapuke whānau have been appointed tangata tiaki/kaitiaki for the area around the Ruapuke Island Group under the Fisheries (South Island Customary Fishing) Regulations 1999.
[100] The joint affidavit of Bronwyn Topi and Peter Topi also confirmed that the Ruapuke whānau took efforts outside of available statutory processes to control the taking of pāua and oysters in accordance with tikanga so as not to over exploit the resources. They said:
We try not to overdo the same area for pāua, but to get a feed from one area one day and from a different area the next time. We try to leave certain areas
for the big pāua. We might only take one or two from those areas. We all know what is right. When we were younger, we would go further out and leave the ones that were closer in and easier to get.
[101] The Ruapuke whānau have been active in challenging legislative proposals that threaten their interests in the specified area. The affidavit of Ms Cain attached documentation from 2003 prepared by Gertrude Warnes. Gertrude Warnes was a member of the Ruapuke whānau who organised opposition to the then proposed Foreshore and Seabed Bill. The affidavit also attached documentation supporting an application that had been made by whānau to the Māori Land Court in 1998 in respect of the takutai moana around Papatea (Green) Island.
[102] The joint affidavit of Ms Whaitiri Stewart and others, confirms that a whānau group had formed what was described as a “Ruapuke management group” in 2005. The group addressed issues relating to Ruapuke and surrounding islands, most recently in relation to the proposed mātaitai.
[103] The same affidavit referred to a letter from Elizabeth Wright (of the Whaitiri whānau) who opposed an application by Southern Aqua Adventures in 2005. The application related to a marine mammal viewing permit and a “swimming with the sharks” activity. Submissions, along with Ms Wright’s, to the Department of Conservation resulted in these activities being stopped.
[104] This evidence clearly establishes that the applicant group has, since 1840, claimed and asserted mana over the specified area including controlling what takes place in the specified area. As well as exercising control, the evidence in relation to the opposition to legislative changes and the use of statutory mechanisms such as the creation of the mātaitai demonstrates practical kaitiakitanga over the specified area.
Non-commercial fishing activities
[105] I turn now to consider the issue of the exercise by the applicant group of non-commercial fishing activities in the specified area. Section 59(1)(a)(ii) of MACA provides that this is an issue which the Court may take into account in considering whether CMT exists in a specified area.
[106] All of the witnesses called by the applicant group talked about the exercise of customary fishing rights. The witnesses highlighted the harvesting, in the specified area, of seafood such as fish, pāua, crayfish and oysters. A typical example was given in the joint affidavit of Bronwyn Topi and Peter Topi. They referred to eeling the lagoon, floundering in Lagoon Bay, and set-netting for blue cod and occasionally trumpeter or greenbone at the mouth of Lagoon Bay. They also talked about putting the pāua and fish in bags made of bull kelp and cooking them in the traditional way on the fire.
[107] Many of the affidavits referred to the way in which kaitiakitanga was exercised to ensure that the kaimoana resources were preserved and not overused. Ms Whaitiri Stewart and others, in their joint affidavit, referred to locally caught kaimoana being used for hāngī and the custom of sharing the catch among the island residents. They said:
We eat pipi and mussels. We catch eels in the lagoon. We also eat ducks. When we take kaimoana we only take what we can eat. That’s our tikanga. We’d only take four pāua at a time, and not every day.
[108] The joint affidavit of Colin Topi and Ricky Fife referred to the various fishing boats operated by family members over the years. These boats fished for crayfish and blue cod around Ruapuke and surrounding islands. They also referred to the importance to them of preserving their mahinga kai resource and referred to the mātaitai application as being one way of ensuring this.
[109] On the basis of all the applicant’s evidence, I am satisfied that the applicant group does, and has continuously since 1840, exercised extensive non-commercial fishing activities in the specified area. They have also done this in accordance with their own tikanga.
Tikanga
[110] A successful applicant group must establish that the specified area has been held in accordance with tikanga. The applicant group gave evidence about what could be described as an integrated or holistic relationship with the takutai moana rather than
just a collection of unconnected activities or uses. The relevant strands of tikanga included:
(a)whakapapa;
(b)ahi-kā-roa;
(c)kaitiakitanga,
(d)manaakitanga; and
(e)the use of rāhui.
[111] Dr Stevens’ evidence was that historical records dated back to the 1820s and 1830s showed that the Ruapuke whānau “asserted ownership of, and demonstrated control over, the Ruapuke Island Group and its resources. Those resources were both terrestrial and maritime and, in terms of tikanga, are inseparable.”
[112] Ms Cain gave, as an example of relevant tikanga, the practice followed when welcoming manuhiri arriving by the sea:
…the kaikaranga goes up on to the rocks and the other things happen, but it starts from the water. And it continues through that water space to finish on the beach … [I]’s uniquely a Ruapuke Island Group thing I think that we start from the water and we move to land.
[113] Another aspect of tikanga addressed by Ms Cain was the applicant group’s collective knowledge (mātauranga) in relation to the sea. She said:
Mātauranga regarding Tangaroa is highly valued by whānau as are whānau associations and relationships with him. This pride resides in our intergenerational knowledge of the species, ecosystems, winds, tides, and their seasonal characteristics, and the duty of care, kaitiakitanga, we have to those elements. Our prosperity and well-being were associated with Tangaroa – ka eke panuku, eke Tangaroa.
[114] Many of the witnesses referred to the term “mahinga kai”. Ms Cain described it as a “foundational concept in terms of relevant tikanga” and said:
[It] basically, in my mind, explains how Ngāi Tahu systems operate and everything that connects them and how they talk to each other, including the value judgments our culture puts on things. So mahinga kai is a way of living and a way of being and it looks towards working within the elements and understanding your duty in respect to them. So mahinga kai isn’t an extractive process, it’s how you live within a system and how you look after that system and it looks after you. It’s quite often referred to as food gathering, which does limit it because it’s actually how you exist and conduct your life within that space. So it’s knowing, pre-preparing, making sure you’ve got cases of stuff, and … making sure that things have time to rest, because your responsibility as kaitiaki to look after that and it is a major stain on your whānau name not to have looked after mahinga kai. It goes down for centuries if you don’t. So that’s why I say it’s such a big part of your valuing and it’s how you live your life and I think that’s a really important point, especially for the Ruapuke Island Group whānau, because so many of them live in a seasonable way of being to this day, including holding professions or having jobs that allow them to undertake seasonal harvesting and move with the seasons.
[115] Dr O’Regan also referred to some of the tikanga practices observed by Ruapuke whānau. She noted that the use of “fishing marks” to locate fishing grounds was recorded back as far as 1840. These represented a significant form of tikanga recorded by Ngāi Tahu elders to identify their mahinga kai areas within the takutai moana. Her evidence about the importance of mahinga kai was similar to that of Ms Cain and to that of Colin Topi and Ricky Fife.
[116] Mr Walker suggested to the Court that the fact that the applicant group had its own “fishing marks” was no different to fishermen today using GPS to identify the best places to fish. That submission misses the point of the applicants’ evidence. The witnesses described their knowledge of the specified area as traditional knowledge, accumulated over many generations of continuous use and occupation and applied in accordance with the applicable tikanga and kaitiakitanga.
[117] I noted at [21] above that a relevant factor in establishing exclusive use and occupation is the presence of fishing grounds that “belong to” a group. Those fishing grounds may also be used exclusively and kept confidential by that group. That factor is clearly present in this case.
[118] The periodic imposition of rāhui is also of relevance to tikanga. Although the evidence relating to rāhui was not extensive, it established that, when required, rāhui
were imposed. An example is in the joint affidavit of Ms Whaitiri Stewart and others who said:
We were told that a rāhui was placed around the point where David Bragg’s ashes were scattered a few Christmas [sic] ago. There may also have been rāhui when pilot whales washed up on the island in the 1960s.
[119] Based on this evidence, I conclude that the applicant group has had an integrated and holistic relationship with the specified area continuously since 1840.
Ownership of abutting land and control of access points to the takutai moana
[120] Ruapuke and the smaller islands and rocks within the specified area have a number of unique features. These relate to land ownership and control of access points to the takutai moana. They were never sold to the Crown. They were specifically excluded from the Murihiku purchase,34 and contrary to the claim of Mr Walker that the Ruapuke Island group was included in the Rakiura purchase, I accept the evidence of Mr Jennings for the Attorney-General who said in his affidavit dated 21 March 2025:
…As I mentioned in my report (at para 54) the “Ruapuke Group” was explicitly excluded from the Murihiku deed of purchase and was not mentioned at all in the Rakiura deed of purchase. I have located no evidence that the islands of the Ruapuke Group were included in any other Crown Purchase or in any private acquisition.
For these reasons, it is likely that these particular islets remain Māori customary land and are not Crown land.
[121] I also accept the evidence of Colin Topi and Ricky Fife on this point. Attached to the affidavit of Colin Topi and Ricky Fife was an extract from Hansard relating to the Parliamentary debate about the Sea Fisheries Bill in 1908. It includes a transcript of the speech of Tame Parata. Tame Parata was the member for the Southern Māori District from 1885 to 1911. He was also born on Ruapuke and one of the landowners there. The relevant parts of his speech say:
34 On 17 August 1853, the Crown purchased the Murihiku block for £2,000. It consisted of some 6,900,000 acres. The northern boundary of the purchase was a line from Piopiotahi (Milford Sound) to Tokata Point (Nugget Point) which had been the southern boundary of the earlier Kemp’s purchase. The southern boundary followed the south coast from Milford Sound around to Nugget Point.
I wish to say a few words on this Bill, as it will no doubt affect the Maoris in different parts of the colony. It will immediately affect the Maoris in Stewart Island, Ruapuke, Bluff and Colac Bay. In those parts of the colony there were certain reservations made in the deed of sale of Murihiku which provided that the Natives should retain the right to their fishing grounds at sea and inland. This was one of the conditions the old rangatira Maoris insisted upon when that deed was executed. I want to protect the fishing rights of the Maori people. Ruapuke was never included in that deed of sale, and there were so many miles out sea around the island of Ruapuke, and including the smaller adjacent islands, reserved to the Maoris out of that sale.
[122] Mr Walker took issue with this aspect of Mr Jennings’ evidence. He relied on what he said was the doctrine of estoppel. His submission on Mr Jennings’ revised evidence was:
The evidence [of Mr Jennings] was affirmed on the 27th January 2025 and relied on by witnesses and applicants however this was subsequently repudiated and an alteration tabled at the hearing in March 2025 by late presentation. The legal doctrine of Estoppel should extinguish the alteration of affirmed evidence.
[123] Effectively, Mr Walker is arguing that a witness for the Attorney-General who discovered he had made an error in his brief of evidence was unable to ever correct it. That proposition is clearly wrong and has nothing to do with the doctrine of estoppel.
[124] Ruapuke Island is now, other than for some small reserves, either Māori customary land or freehold land owned by Māori who descend from the original Māori owners.35
[125] In 1887, the Native Land Court created five cemetery reserves. These were at Parangiaio (also referred to as the Ruapuke reserve), Ruapuke (4 acres), Tairohua (2 acres), Te Awatuiau (1 acre 2 roods), Ta Kirikiri (2 roods) and Waitokariro (3 acres). Trustees were appointed for each of the cemetery reserves according to the ownership of the Māori land block from which each cemetery reserve was formed.
[126] Māori Land Court records confirm that on 27 June 1890, Teone Topi Patuki and 11 other Māori land owners donated a half-acre site for a school reserve. When
35 The evidence of the applicants was that the custom of the freehold landowners was that the freehold land is never transferred to anyone other than the descendants of the original owners. The ownership of all of the land abutting the specified area by members of the applicant group is highly unusual, if not unique, among all of the MACA applicants.
the land was no longer needed for school purposes, the site was revested in the descendants of the original owners.
[127] A map produced by the Attorney-General showed the Parangiaio/Ruapuke cemetery reserve as having a notation that it was a “Herenga ā Nuku/Walking Access Commission Reserve.” It is not clear when or how its status as a cemetery reserve was changed. Given that the boundary of the reserve is surrounded by either privately owned land or the sea, it seems unlikely to be able to be used for walking.
Exclusive use and occupation from 1840 to the present day without substantial interruption
[128] There will be substantial factual and conceptual overlap between evidence which demonstrates that a specified area is held in accordance with tikanga and evidence which establishes exclusive use and occupation.36
[129] “Occupation” does not mean actual physical occupation of the seascape but refers to “control” rather than “residence”.37
[130] Public rights of access, navigation and fishing do not negate “exclusive use and occupation”.38
[131] The test intended for extensive use of the specified area (in light of its nature and resources) and an intention and some capacity to assert control over it, to the extent permitted by the law.39
[132] In closing submissions, counsel for the Attorney-General specifically accepted that:
… there is evidence that the applicant group satisfies the test for CMT for the entire application area. In other words, the evidence supports a finding that the applicant group holds the specified area in accordance with tikanga, and has exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.
36 SC Decision, above n 3, at [157] and [190].
37 At [161].
38 At [110].
39 At [161].
[133]The Attorney-General also expressly noted:
There is no other applicant group, or customary interest group, that takes a contrary position.
[134] The only participant in the hearing who challenged that statement was Mr Walker.
[135] Much of Mr Walker’s submission involved criticism of the provisions of the Act itself rather than direct engagement with whether the statutory tests have been met. Some of the submissions also indicate that Mr Walker was confused about the provisions of the Act or the nature of the application.
[136] An example of Mr Walker’s challenge to concepts upon which the Act is based is his reference to tikanga. In his opening submissions, he said:
Tikanga is a quasi religious, ambiguous, undetermined, spiritual folklore that has no legal definition therefore no place in law or a Court hearing or judgment.
For tikanga, a custom, to be recognised as having the force of law; it must be publicly promulgated, clear, acceptable, and generally applicable to all persons, officials and judiciary.
Tikanga does not satisfy these requirements and therefore I expect that it will be removed from judgments and judicial activism to enhance legal certainty.
[137] Section 9 of MACA defines tikanga as meaning “Māori customary values and practices”. Contrary to Mr Walker’s submission, MACA clearly defines what tikanga means.
[138]The Supreme Court in the case of Ellis v R said:40
The Court is unanimous that tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant. It also forms part of New Zealand law as a result of being incorporated into statutes and regulations. It may be a relevant consideration in the exercise of discretions and it is incorporated in the policies and processes of public bodies (footnotes omitted).
40 Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19].
[139] The majority in the Supreme Court also specifically rejected that tikanga was too uncertain to have the force of law. The Court said:41
The requirement for custom to exist as a general custom and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. The tests for certainty and consistency, being contrary to the very nature of tikanga, are therefore clearly inappropriate (footnotes omitted).
[140]Mr Walker also submitted:
…M[ā]ori do not hold an exclusive right to spiritual beliefs and thoughts related to the ocean and spirituality has no part to this hearing other than irrelevant mention.
It is disingenuous to suggest that Māori spirituality is greater as many people have family on the ocean.
[141] Given the specific incorporation of the concept of tikanga into the Act, these comments are misconceived.
[142] Mr Walker submitted that the applicant group had not been able to establish exclusive use and occupation of the application area from 1840 to the present day. His submission was:
The claim of uninterrupted occupation of Ruapuke Island and by the associated claim of adjacent Ruapuke [I]slands is absurdly irrational because some are uninhabitable, some are seasonal mutton bird gathering sheds with limited occupation agreement and there is NO time line provided covering the claimed 185 years [of] continuous occupation by name or gender.
[143] Mr Walker also advanced another argument. He argued that the applicant group’s exclusive use and occupation of the takutai moana had been extinguished because non-Māori people had lived on Ruapuke Island at times in the 19th and early 20th centuries. Mr Walker refers to Rev Johann Wohlers and Ernest Nichol, who briefly operated a flax processing mill on Ruapuke Island, in support of his argument.
[144] There are two fundamental flaws in this argument. The first is that it is the use and occupation of the takutai moana, not the adjacent land, that is the critical
41 At [114].
consideration. The second is that Rev Johann Wohlers and Ernest Nichol never owned land on Ruapuke, and were there at the invitation of the tangata whenua.42
[145]Mr Walker’s submissions descended into the bizarre with his claim that:
The introduction of significant english macracarpa [sic] trees beside house sites and the rampant spread of noxious scottish gorse state unequivacably [sic] that the claim of occupation without interruption is false and misleading.
[146] As noted above at [21], ownership of land abutting the takutai moana, including the ability to control access from the land to the sea, is a relevant factor in assessing whether an applicant group has exclusively used and occupied the specified area from 1840 to the present day.
[147] There was no evidence of any landing places on Ruapuke or any of the other islands in the Ruapuke group from which the takutai moana could be accessed that were not owned and controlled by members of the applicant group. There was also evidence that whenever unauthorised strangers attempted to come ashore, they were challenged and sent on their way.
[148] As mentioned, the primary focus is on the takutai moana itself rather than the adjacent land. The fact that some small islets or rocks within the specified area might not be habitable does not affect the applicant group’s use of the takutai moana. These uses include fishing, oystering, gathering pāua, collecting the seaweed carrageenan or making passage through the area.
[149] Mr Walker submitted that some of the members of the applicant group only visited Ruapuke and surrounding islands at certain times of the year for specific purposes, such as tītī gathering. He claimed that this was incompatible with continuous use and occupation. This submission ignores the finding of Mallon J in
42 The evidence of Melvin Cain was that Tūhawaiki invited Rev. Wohlers to come to Ruapuke and that, initially, Rev. Wohlers stayed in his house. The evidence of Dr Stevens was that Rev. Wohlers was against acquiring any land on Ruapuke. He referred to the translated memoires of Rev. Wohlers when he had said “[a]t no price would the natives part with any land on this island.” Dr Stevens’ evidence also covered the presence of Ernest Nichol’s short-lived flax milling venture on Ruapuke. Nichol never owned any land on Ruapuke but leased it from the Māori owners and paid them a royalty to cut the flax.
Re Tipene referred to at [22] above and the Supreme Court in Edwards referred to at
[131] above.
[150] Mr Walker had also cross-examined a number of the members of the applicant group who gave evidence asking them whether they had visited each of the various islands and islets within the Ruapuke Group. He seemed to be advancing the proposition that in order to have continuously used and occupied specified area, all members of the applicant group must have visited or used all of the land formations within the specified area. That is not what is required by the Act. The jurisdiction of the Court relates to the takutai moana which stops at mean high-water springs.43
[151] The concept of use and occupation has been discussed above at [18]–[25]. It is not necessary that every single member of an applicant group have their primary residence on land within or even adjacent to the specified area. Neither is it necessary for a successful applicant to establish that every member of the applicant group has used or occupied the takutai moana in exactly the same way.
[152] As noted above at [11], it is for a party seeking to contradict an applicant’s claim to adduce evidence of non-exclusivity or substantial interruption. Mr Walker did not seem to understand that. He certainly did not adduce such evidence.
Conclusion on exclusive use and occupation
[153] In the present case, as acknowledged by counsel for the Attorney-General, there is evidence that the applicant group holds the specified area in accordance with tikanga. The evidence establishes that the applicant group has exclusively used and occupied the specified area from 1840 to the present day without substantial interruption. Counsel for the Attorney-General also acknowledges that the applicant group satisfied the test for CMT over the entire application area. CMT has not been extinguished.
[154] In terms of the test in Edwards sets out at [25] above, the applicant group has not been “crowded out of the claimed space by competing structures or activities” for
43 MACA, s 9.
a substantial period. Indeed, there are no “competing structures” at all in the specified area. Neither were there any activities that “crowded out” the applicant group.
Outcome
[155] Having met the tests set out in s 58 of MACA, the applicant is entitled to a grant of customary marine title in respect of all of its application area. I invite the applicants to submit a draft order for consideration by the Court in accordance with s 109 of MACA.
Churchman J
Solicitors:
Oceanlaw New Zealand, Nelson for Applicants J Riddell, Christchurch for Ngāi Tāhū
Crown Law Te Tari Ture o Te Karauna, Wellington
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