Taueki (Ngāti Tamarangi)
[2025] NZHC 2554
•4 September 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 2554
UNDER the Marine and Coastal Area (Takutai Moana Act) 2011 IN THE MATTER OF
of applications for orders recognising Customary Marine Title and Protected Customary Rights
BY
William James Taueki on behalf of behalf of Ngāti Tamarangi hapū of Muaūpoko iwi (CIV-2017-485-160)
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:
4 September 2025
JUDGMENT OF GRICE J
(Applications for protected customary rights)
RE TAUEKI (NGĀTI TAMARANGI) & ORS [2025] NZHC 2554 [4 September 2025]
Appearances C Shenton (self-represented) for Te Rūnanga o Ngā Wairiki Ngāti Apa
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 Trust
E 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 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
Introduction [1]
Background [8]
Legal framework [13]
Tikanga [37]
Approach to the present applications for PCRs
Submissions of the Attorney-General [55]
Submissions of the local authorities [59]
Mapping process for final PCR orders [64]
Other preliminary comments [67]
Ngāti Raukawa ki te Tonga
Leave to amend PCR application [69]
Whitebaiting [72]
Activities related to spiritual practices [83]
Planting and cultivating all plant species [93]
Extracting non-nationalised minerals [103]
Collecting kōhatu/hāngī stones [104]
Collecting driftwood and other natural resources [106]
Collecting resources for rongoā purposes and wai ora activities [110]
Using, managing, preserving and developing tauranga waka [112]
Te Ātiawa ki Whakarongotai
Leave to amend PCR application [117]
Planting and cultivating plant species [122]
Gathering kōhatu [127]
Gathering driftwood [129]
Whitebaiting [135]
Utilising, managing and preserving tauranga waka [142] Mr Tima on behalf of Te Whānau Tima and Te Mateawa [148] Rāhui [149]
Whakatō kai [150]
Whakatere waka [154]
Gathering firewood [155]
Gathering stones and shells [158]
Whitebaiting [160]
Other resource gathering [162]
Kaitiaki taiao/taniwha [166]
Tunu kai and tahu ahi [169]
General comment [170]
Muaūpoko [171]
Submissions of the ART Confederation on Muaūpoko PCR applications [174]
General comments on Muaūpoko’s application [178]
Whitebaiting [181]
Planting, gathering and harvesting aquatic plants [187]
Navigation, passage and the landing of waka [194]
Undertaking rituals such as karakia and karanga [205]
Kaitiakitanga [212]
Collecting and removing sand, stones, shingle, and detritus (including driftwood, shells and feathers) [220]
Ngāti Apa
Non-commercial seeding and harvesting of shellfish [236]
Activities related to spiritual practices [238]
Planting and cultivating spinifex and pīngao [239]
Collecting whale remains [241]
David Morgan Whānau [242]
Conclusion [253]
PCR orders [255]
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, and whānau groups.3
[2] The hearing area 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 covering Kapiti Island and its islets. This judgment deals with PCR applications in the common marine and coastal area (CMCA), or the takutai moana. These were heard at the same time as a number of applications for CMT, which are the subject of a separate judgment dated 9 June 2025.5
[3] The CMT judgment provides the context and detailed background to this decision and should be read in conjunction with it.6 I do not propose to repeat the
1 Marine 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 At Part 3.
3 Section 9(1) definition of “applicant group”.
4 Macrons: as noted in the CMT judgment, 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 specifically highlight. All quotations in this judgment are reproduced in their original form, including the omission or otherwise of macrons.
5 Re Taueki (Ngāti Tamarangi) [2025] NZHC 1488 [CMT judgment].
6 The conventions adopted in the CMT judgment also apply here. For instance, footnotes are omitted from all quotations unless otherwise stated.
factual background here, except as is necessary to determine the issues now before the Court.
[4] Not all applicants for CMT also sought PCRs. Mr Taueki successfully applied for CMT, but made no application for PCRs. The applicants for PCRs are:
(a)Rachael Ann Selby on behalf of Ngāti Raukawa ki te Tonga
(CIV-2017-485-229) (Ngāti Raukawa).
(b)Trustees of Te Ātiawa ki Whakarongotai Charitable Trust on behalf of Te Ātiawa ki Whakarongotai (CIV-2017-485-248) (Te Ātiawa).
(c)Muaūpoko Tribal Authority Incorporated on behalf of Muaūpoko
(CIV-2017-485-261) (Muaūpoko).
(d)Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Ngā Ahi Kā o Te Hapū o Te Mateawa (CIV-2017-485-273) (Mr Tima).
(e)Chris Shenton on behalf of Te Rūnanga o Ngā Wairiki Ngāti Apa
(CIV-2017-485-511) (Ngāti Apa).
(f)Ms Morgan-Allen on behalf of David Morgan Whānau
(CIV-2017-485-214) (David Morgan Whānau).
[5] Attachment 1 sets out the list of applications for CMT and PCRs that were the subject of the hearing.7 Attachment 2 sets out those who appeared as interested parties, as well as other Māori groups seeking recognition of CMT and PCRs in the hearing area outside the court application process, through direct negotiations with the Crown.
[6] The Attorney-General appears as an interested party, noting that she acts in the interests of all the public (including Māori). Dr Ward notes that the Attorney-General’s role is to assist the Court in interpreting and applying the Takutai Moana Act, assuming
7 Attachment 1 is reproduced from the CMT judgment, above n 5, at [6]–[10].
an “independent aloofness” and not advocating 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”.
[7] Representatives of the Seafood Industry appeared as an interested party to give evidence in relation to the seaward extent of the applicants’ claims.8 The following local authorities in the area also appeared as interested parties: the Kāpiti Coast District Council; the Greater Wellington Regional Council (GWRC); and the Manawatū-Whanganui Regional Council (Horizons).9 They seek to ensure that any CMT and/or PCR areas are clearly and accurately surveyed, and only include areas that fall within the definition of the takutai moana, as well as that the scope of any wāhi tapu protection rights, once determined, is clear.
Background
[8] By way of historical overview, the iwi descendants of the Kurahaupō waka — for present purposes, Muaūpoko and their allies, Ngāti Apa and Rangitāne — had occupied the Kapiti area for many hundreds of years prior to the 1820s, and are still there today.10
[9] Māori groups today represented by Te Ātiawa, Ngāti Raukawa, and Ngāti Toa came from Waikato and Taranaki in the 1820s and 1830s to settle in the hearing area. The groups from the north arrived in the Kapiti region in a series of migrations, or heke, and are therefore collectively referred to as the Hekenga iwi. Te Ātiawa, Ngāti Raukawa, and Ngāti Toa are separate iwi, but are closely related by whakapapa and collaborate to their mutual advantage on various issues under the umbrella of the ART Confederation.
[10] The disruption to the existing order through the arrival of Ngāti Toa and Te Ātiawa in the significant heke of the early 1820s resulted in battles between the new arrivals and the incumbents, as well as peace-making efforts. The 1824 battle of
8 CMT judgment, above n 5, at [1044]–[1047].
9 The areas of responsibility of the various local authorities are outlined in the CMT judgment, above n 5, at [187]–[198].
10 The detailed historical and tribal narratives are set out in detail in the CMT judgment, above n 5.
Waiorua (on Kapiti Island) is generally regarded as a significant victory for Ngāti Toa and Te Ātiawa. Ngāti Raukawa arrived in subsequent heke at the behest of Ngāti Toa. By the early 1830s, the Hekenga iwi had settled across the hearing area, where they remain to the present day.
[11] In the CMT judgment, determinations were made in favour of five applicants who were entitled variously to shared exclusive and exclusive CMT in relation to specified locations in the hearing area. Those findings were as follows:
[1171] …I have concluded that the applicants have met the test for CMT in the following areas:
(a)Exclusive CMT for Te Ātiawa over the takutai moana from Whareroa to Kukutauaki, subject to shared exclusive CMT:
(i) with Ngāti Toa at the Whareroa boundary (if they are granted CMT for that area through the Crown negotiation pathway); and
(ii) with Ngāti Raukawa at the Kukutauaki boundary.
(b)Exclusive CMT for Ngāti Raukawa over the takutai moana from Kukutauaki to the Rangitīkei River, subject to shared exclusive CMT:
(i) with Te Ātiawa at the Kukutauaki boundary;
(ii) with Mr Tima from the Ōhau River to the Waikawa River;
(iii) with Muaūpoko over the takutai moana from the Hōkio Stream to Ngā Manu (at the north-western corner of the Waitārere Forest); and
(iv) with Mr Taueki over the takutai moana from Te Uamairangi to Ngā Manu (at the north-western corner of the Waitārere Forest).
(c)Shared exclusive CMT for Muaūpoko over the takutai moana:
(i) with Ngāti Raukawa from the Hōkio Stream to Ngā Manu (at the north-western corner of the Waitārere Forest); and
(ii) with Mr Taueki from Te Uamairangi to Ngā Manu (at the north-western corner of the Waitārere Forest).
(d)Shared exclusive CMT for Mr Taueki over the takutai moana from Te Uamairangi to Ngā Manu (at the north-western corner of the Waitārere Forest) with Muaūpoko and Ngāti Raukawa.
(e)Shared exclusive CMT for Mr Tima over the takutai moana from the Ōhau River to the Waikawa River with Ngāti Raukawa.
[1172] The seaward extent of the various CMT areas to be held as exclusive and shared exclusive CMT as indicated above, is as follows:
(a)For Muaūpoko, one nautical mile out to sea from the mean high-water springs from the Hōkio Stream to Ngā Manu (at the north-western corner of the Waitārere Forest).
(b)For Mr Taueki, one kilometre out to sea from the mean high-water springs running from Te Uamairangi to Ngā Manu (at the north-western corner of the Waitārere Forest).
(c)For Ngāti Raukawa, one nautical mile from the mean high-water springs running from Kukutauaki to the northern bank of the Rangtīkei River.
(d)For Mr Tima, one nautical mile from the mean high-water springs running from the Ōhau River to the Waikawa River.
(e)For Te Ātiawa:
(i) from the Waikanae River to Wharemauku on the mainland across the Te Rau o Te Rangi Channel to Kapiti Island; and
(ii) one nautical mile from the mean high-water springs on the claimed mainland coast not abutting the channel.
[12] Before considering the detailed PCR claims, I set out the statutory framework, legal principles established to date, and tikanga relevant to applications for PCRs.
Legal framework
[13] PCRs are rights granted under the Takutai Moana Act. A PCR recognises a customary “activity, use or practice” which has been exercised by an iwi, hapū or whānau since 1840, continues to be exercised in accordance with tikanga, and is not extinguished as a matter of law.11 The effect is to protect the underlying right, enabling the group to continue to exercise it without restriction.12
[14]The definition of a PCR is set out in s 51(1), as follows:
51 Meaning of protected customary rights
11 Takutai Moana Act, ss 51 and 9 definition of “protected customary right”.
12 Section 52.
(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.
[15] 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 Maori Commercial Aquaculture Claims Settlement Act 2004); or
(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.
[16] A group that has a PCR is entitled to exercise the protected right described in the location specified without a resource consent, despite any prohibition, restriction, or imposition that would otherwise apply under the Resource Management Act 1991 (the RMA) and without paying certain charges under the RMA.13 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, unless the group holding the right gives its written approval.14
[17] A PCR does not confer any right to control the relevant area.15 Nor does it confer an exclusive right to any relevant resource. The Minister of Conservation has the authority to impose controls over a PCR should its exercise have an adverse effect on the environment.16
[18] In addition, the court may specify terms, conditions, or limitations on the scale, extent and frequency of the activity in a PCR recognition order.17
[19] There is no prohibition on the recognition of PCRs within an area in which CMT is held by another group.18 Furthermore, there may be multiple overlapping awards of PCRs.19 In addition, an applicant group need not have existed in its present form in 1840 — the customary rights of the original group as at 1840 may have continued to be exercised by its successor, or, for instance, a whānau with whakapapa connections to the original group. In that regard, the Court of Appeal has noted:20
The legislation contemplates that PCRs may be recognised for groups which did not exist in 1840, so long as someone to whom the applicant has a relevant connection has continuously exercised the relevant customary right in the particular area since then and has done so in accordance with tikanga. That
13 Sections 52(1) and (2).
14 Section 55(2).
15 Takutai Moana Act, s 54.
16 Section 56.
17 Section 54(2)(a)
18 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 [Re Edwards (CA)] at [333] per Miller J and [445] per Cooper P and Goddard J.
19 At [341] per Miller J. There was no challenge in the Court of Appeal to awards of PCRs made on that basis.
20 At [341]. This was upheld in relation to the relevant applicant group by the Supreme Court in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka [2025] NZSC 104 [Re Edwards (SC No 2)] at [250].
policy decision may be taken to reflect post-1840 changes in Māori society which are well illustrated in these appeals.
[20] In its first of two judgments, the Supreme Court in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka (Re Edwards) reformulated the test for CMT.21 This is discussed in the CMT judgment.22 The Supreme Court’s second judgment was delivered on 15 August 2025.23 This did not materially affect the law on PCRs. The Supreme Court in its second judgment largely confirmed the approach that had been taken by the High Court and the Court of Appeal in relation to PCRs.24
[21] Section 106 of the Takutai Moana Act sets out the burden of proof in relation to applications for CMT and PCRs.25 While the Supreme Court did not specifically address the burden of proof in s 106 in relation to PCRs, its reasoning in relation to the test for CMT relied on the express wording of s 106(2) and its legislative history.26 For CMT, applicant groups have the burden of proving the elements outlined in s 106(2) only. The burden is then on contradictors to adduce evidence of non- exclusivity or substantial interruption.27 Applying this reasoning to ss 106(1) and 51(1) in relation to PCRs, the Attorney-General submits that the applicant groups have the burden of proving that a 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.
[22] The Attorney-General submits that, subject to the evidence produced, establishing the two elements above may be sufficient for the Court to infer that the
21 Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka [2024] NZSC 164,
[2024] 1 NZLR 857 [Re Edwards (SC No 1)].
22 CMT judgment, above n 5.
23 Re Edwards (SC No 2), above n 20.24 I sought submissions from the parties in relation to the first Supreme Court judgment. However, further submissions were not sought in relation to the second Supreme Court judgment, as it did not materially affect the position articulated by the Court of Appeal on PCRs.
25 Sections 106(1), 106(2).
26 Re Edwards (SC No 1), above n 21, at [119]–[120]. See also the Court of Appeal’s discussion of the burden of proof as it relates to CMT in Re Edwards (CA), above n 18, at [223]–[231] per Miller J and [435]–[437] per Cooper P and Goddard J.
27 See also Takutai Moana Act, s 106(3), which provides an express presumption that, absent proof to the contrary, a customary interest has not been extinguished.
s 51 test is met. That is, unless some other party demonstrates that the right has not been exercised “since 1840”.
[23] In Re Edwards, the Court of Appeal upheld findings recognising PCRs even based on inferences that had been drawn from “relatively little evidence about exactly where activities took place, what tikanga was involved or whether the activities were continuous”.28 Miller J went on to say, in relation to the findings of the trial Judge:
[337] …[the trial Judge] was prepared to draw inferences from the available evidence. He found there was evidence for the collection of driftwood, stones and shells, for whitebaiting and the growing and harvesting of certain aquatic plants. Ms Feint did not seek to persuade us that these findings were wrong. She did argue that there was no evidence these activities had been continuous since 1840. I am not persuaded that the Judge was wrong about that. The evidence sufficiently established that the practices were historic and there was no reason to doubt that they had been carried on in the relevant area (which he was prepared to accept was the entire rohe) since 1840.
[24] The Court of Appeal was prepared to make inferences that there was evidence of some historic activities which might not have been undertaken in the same way as they had previously, but nevertheless continued in some form. For instance, Miller J noted that where there was “some historic evidence of navigation, passage and the landing of waka but no evidence about how those activities might continue”, the evidence of present-day fishing by boat would be sufficient to infer that the activities had been continuous.29 The Judge was prepared to infer on that basis that the activities continued “much as they have always done”.30
[25] In the absence of a challenge, the Court of Appeal did not interfere with the High Court’s determination that general evidence of a group exercising tikanga when venturing into the takutai moana was sufficient to support their PCR applications, despite there being “little evidence of particular tikanga associated with” the relevant activities.31 The tikanga in that context included saying karakia, the exercise of manaakitanga, and not taking more of a resource than was needed.32
28 Re Edwards (CA), above n 18, at [337].
29 At [347].
30 At [347].
31 At [338]–[339] and [342].
32 At [337].
[26] The Court of Appeal also determined that, contrary to the lower court’s finding, the beds of navigable rivers are part of the takutai moana.33 Therefore, evidence of whitebaiting supported a PCR in that case. In its second judgment, the Supreme Court confirmed that customary rights in the beds of navigable rivers were not extinguished by s 261(2) of the Coal Mines Act 1979,34 and thus form part of the takutai moana.35
[27] The Court of Appeal, “consistent with the generally liberal approach the Judge took to PCRs”, allowed the appeal to recognise PCRs for: “whitebait; aquatic plants; navigation, passage and the landing of waka; rituals such as karakia and karanga; the exercise of kaitiakitanga; and the gathering of sand, stones, shingle and detritus”.36 It noted that it was “not surprising” that the High Court had overlooked some of the evidence which had been latterly brought to the attention of the Court of Appeal regarding those activities, given “the mass of material before the Judge” and the fact that some of the relevant evidence had been offered by witnesses other than the applicant for the relevant PCRs.37
[28] Section 51(2)(e) provides that cultural or spiritual association with place is not sufficient to support a PCR, unless that association is manifested by the relevant group in a physical activity or use related to a natural or physical resource. This requires some degree of specificity. For that reason, kaitiakitanga, without some physical manifestation, cannot be the subject of a PCR. Examples of kaitiaki activities which are capable of recognition include replanting grasses, such as pīngao.38 Furthermore, the High Court in Re Edwards noted that the passing down of traditional knowledge could only be protected by a PCR where that was manifested in a physical activity or use relating to a natural or physical resource.39 Churchman J said:
If members of the applicant group travel to the takutai moana and use the foreshore or the sea as part of the process of transferring mātauranga Māori to younger generations, the Court needs to be satisfied that this activity continues to be exercised “in a particular part of the common marine and coastal area”.
33 At [344].
34 Or its predecessor, the Coal-mines Act Amendment Act 1903, s 14(1).
35 Re Edwards (SC No 2), above n 20, at [93].
36 Re Edwards (CA), above n 18, at [350].
37 At [350].
38 Re Edwards Whakatōhea (No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 [Re Edwards (HC)] at
[564]–[565].
39 At [557].
[29] The exercise of kaitiakitanga over non-customary fisheries is also excluded from recognition as a PCR for two reasons. First, because it is an activity “regulated under the Fisheries Act 1996”,40 and second, because it involves the exercise of a non-commercial Māori fishing right or interest which is subject to the declarations in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (the Settlement Act).41
[30]Examples of PCRs granted by the High Court in Re Edwards and
Re Ngāti Pāhauwera include:
(a)gathering firewood, driftwood, wood for artwork, pumice, mud, rocks, sand, stones (including hāngi stones), shells, and gravel;42
(b)collecting karengo;43gathering flora and fauna that is not otherwise excluded from being the subject of a PCR;44
(c)collection and use of rongoā materials (including seawater) and wai tapu;45 performing baptisms;46
(d)non-commercial fishing for whitebait (inanga);47
(e)landing vessels and making passage;48
(f)launching of boats and waka;49
(g)using the takutai moana for transport and navigation purposes;50
40 Ngā Hapū o Tokomaru Ākau v Te Whānau a Ruataupare ki Tokomaru [2024] NZHC 682 at [498]; and Takutai Moana Act, s 51(2)(a).
41 Section 51(2)(c).
42 Re Edwards (HC), above n 38, at [669(a)(i), (b)(ii), (b)(iii), (b)(iv), (d)(ii), (d)(iii) and (d)(iv)]; and
Re Ngāti Pāhauwera [2021] NZHC 3599 at [599(a)(i), (a)(ii) and (b)(iii)].
43 Re Ngāti Pāhauwera, above n 42, at [599(b)(v)].
44 Re Edwards (HC), above n 38, at [669(e)(iii)].
45 At [669(c)(ii) and (f)(i)]; and Re Ngāti Pāhauwera, above n 42, at [599(a)(iii) and (b)(i)].
46 Re Edwards (HC), above n 38, at [669(f)(ii)].
47 At [669(a)(ii), (b)(i), (c)(i) and (e)(i)]; and Re Ngāti Pāhauwera, above n 42, at [599(a)(iv) and (b)(iv)].
48 Re Edwards (HC), above n 38, at [669(b)(v)].
49 At [669(c)(vii)].
50 At [669(c)(iii)].
(h)managing, using and protecting tauranga waka;51
(i)travelling to certain locations for wānanga to pass down mātauranga to future generations;52
(j)traditional practices such as wānanga, hui, tangihanga, and burying of whenua;53
(k)planting of pohutukawa, harakeke, pīngao, spinifex and toitoi within the claimed takutai moana area as an exercise of kaitiakitanga;54
(l)carrying out kaitiakitanga practices relating to managing and supporting the health of the marine environment;55 and
(m)kaitiaki activities such as the creation of maps for sites in the takutai moana using customary methods.56
[31]Other matters relevant to the assessment of PCRs include:
(a)A PCR cannot be granted to protect wāhi tapu.57 Wāhi tapu protection rights flow from CMT.58
(b)Pursuant to s 51(2)(a), an applicant cannot obtain a PCR for the catching of “fish, aquatic life or seaweed”,59 or in relation to wildlife or marine mammals.60
51 Re Ngāti Pāhauwera, above n 42, at [599(a)(v), (b)(ii)].
52 Re Edwards (HC), above n 38, at [669(c)(iv)].
53 At [669(c)(v) and (f)(v)].
54 At [669(c)(vi)].
55 Re Ngāti Pāhauwera, above n 42, at [599(c)(i)].
56 Re Edwards (HC), above n 38, at [669(f)(iv)].
57 Re Ngāi Tumapuhia-a-Rangi Hapū Inc [2024] NZHC 309 at [686(d)], citing Re Edwards (HC), above n 38, at [387]–[390].
58 Re Edwards (HC), above n 38, at [574].
59 Re Ngāi Tūmapūhia-a-Rangi, above n 57, at [765]–[771]. Even if a type of seaweed is subject to an exemption under the Fisheries Act 1996, it is still considered “regulated by the Fisheries Act”, and therefore excluded from being the subject of a PCR.
60 Takutai Moana Act, s 51(2)(d).
(c)Whitebaiting may be the subject of a PCR, as it is subject to an exception under s 89(2)(d) of the Fisheries Act and does not fall within s 10 of the Settlement Act.61
(d)Driftwood and sand may be the subject of a PCR.62 However, consideration must be given to whether a PCR for the protection and preservation of such resources may interfere with public rights of access and/or navigation specified under ss 26 and 27 of the Takutai Moana Act.63 This is unlikely to be the case below the high-water mark.
(e)A PCR cannot be granted for the exercise of rāhui.64 A rāhui interferes with public rights of access under s 26 and is better provided for through wāhi tapu protections.65
[32] PCRs for managing and using tauranga waka may be granted.66 However, the PCR must be within the takutai moana and not limit public rights of access and navigation. Specific evidence is required.67 There is also a recognition that tikanga will evolve over time. For instance, the launching of waka is in modern times replaced by the launching of boats.68 Gwyn J, in Re Ngāi Tūmapūhia-a-Rangi Hapū Inc, noted that there must be continuity between an activity, use or practice in 1840, and the activity, use or practice today, in order to grant a PCR.69 However, the length of time that would render an activity, use or practice discontinued such as to prevent it being recognised as a PCR will depend on the activity and the circumstances.70 It must be
61 At [509].
62 At [514].
63 At [517].
64 Re Edwards (HC), above n 38, at [387]–[390] and [617]. The High Court noted that this does not prevent rāhui from being imposed and adhered to as a matter of tikanga. On appeal, the Court of Appeal confirmed that rāhui must be dealt with pursuant to CMT: Re Edwards (CA), above n 18, at [348].
65 Re Ngāi Tūmapūhia-a-Rangi, above n 57, at [716].
66 Re Ngāti Pāhauwera, above n 42, at [685]; and Tokomaru, above n 40, at [520].
67 Tokomaru, above n 40, at [528].
68 Re Edwards (HC), above n 38, at [571].
69 As noted above, although the applicant group may not itself have been continuous, it is necessary that someone was exercising the rights who has a relevant connection to that group.
70 Re Ngāi Tūmapūhia-a-Rangi, above n 57, at [682].
taken into account that some activities are intermittent by nature, for instance the collection of resources for rongoā.71 The Judge further noted that:
[683] One significant event could prevent the activity, use or practice from being exercised continuously in a particular area. Or it may be that there is no evidence that a certain activity, use or practice continues, as in Re Edwards.72 In contrast, numerous small interruptions, even when combined, may not prevent an activity from being continuous because the interruptions are temporary, or because they were a result of, or consistent with, the tikanga of the applicant group.
[33] Finally, in a number of cases applications have been made to amend the nature and location of the PCR’s sought.73 These applications are advanced by applicants under the following provision:74
107 Court’s flexibility in dealing with application
(1)The Court may, if it considers that an application for recognition of a protected customary right is more appropriately decided as an application for recognition of customary marine title, treat it as the latter.
(2)The Court may, if it considers that an application for recognition of customary marine title is more appropriately decided as an application for recognition of a protected customary right, treat it as the latter.
…
[34] As CMT and PCRs are not mutually exclusive, it follows that a holder of CMT is also entitled to hold a PCR in the same area. Therefore, I do not interpret s 107 as meaning that a PCR may only be granted as an alternative to a grant of CMT.
[35]CMT is the more extensive form of statutory right. As Miller J noted in
Re Edwards, “CMT is a (non-alienable) interest in land. It is a territorial right, not
71 At [684].
72 Re Edwards (HC), above n 38, at [506]–[507].
73 This section was also relied upon by Muaūpoko in an application seeking that its PCR applications which sought that various PCRs throughout the whole application area be treated as CMT application. That application was dismissed: Re Muaūpoko Tribal Authority [2024] NZHC 536 [MTA refusal of amendment judgment].
74 Applications for CMT and PCRs must be filed not later than six years from the Takutai Moana Act’s commencement, 1 April 2011. This acts as a statutory bar to the exercise of the High Court’s procedural and substantive jurisdiction to consider a new application under the Act: see MTA refusal of amendment judgment, above n 74, at [20] citing Re Edwards (CA), above n 18, at [214-[220].
merely a usage right.”75 PCRs are of a more usuary nature. Under tikanga, “rights are exercised by individuals (and groups) who claim back through the same descent lines.
This includes whānau rights”.76
[36] In the second Re Edwards judgment, the Supreme Court reiterated the balancing approach required in relation to the Takutai Moana Act, which it had set out in its first judgment. It said:77
[6] MACA governs the recognition and legal expression of customary rights in the common marine and coastal area. Under MACA, the common marine and coastal area cannot be owned. However, the Act protects specified private property rights and activities, as well as public access, navigation and fishing rights. Importantly, MACA also allows iwi, hapū and whānau groups to apply (to the High Court or through Crown negotiations) for recognition of their extant customary rights in the claim area. The two types of recognition order are for CMT and protected customary rights (PCRs). The former is territorial in nature whereas the latter focuses on discrete activities and uses in an area. Section 58 sets out the test for CMT recognition and s 51 provides the test for PCRs.
Tikanga
[37] The relevant protected right must have been exercised in a particular area in accordance with tikanga, and continue to be so exercised, whether in the same manner or similarly, or in a way that has evolved over time.78
[38] The Court heard evidence from two pūkenga, Dr Robert Joseph and Ms Moe Milne. They were nominated by the parties and appointed as tikanga experts by the Court under s 99 of the Takutai Moana Act. The 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.79 The pūkenga in this case heard the parties’ evidence and submissions, and were cross-examined on their report. They also travelled to view significant historical sites identified by the applicants in the hearing area.80
75 See Re Edwards (CA), above n 18, at [134]. This was confirmed in Re Edwards (SC No 2), above n 20, at [305].
76 Re Edwards (SC No 2), above n 20, at [256].
77 Re Edwards (SC No 2), above n 20.
78 Takutai Moana Act, s 51(1).
79 Evidence Act 2006, s 25(1).
80 They were unable to view Kapiti Island due to funding constraints.
[39] Much of the tikanga evidence given by the experts was directed at the issue of CMT. One of the 10 questions posed to the pūkenga addresses PCRs.
[40] As I noted in the CMT judgment, Dr Joseph and Ms Milne filed two reports. Their second report responded to the questions agreed to by the parties.81 That report contains a comprehensive, independent review of tikanga Māori generally, and the specific tikanga applying to the application area at various times.
[41] The evidence of the pūkenga is highly influential, but not determinative.82 Any part of the report not accepted by all parties must be treated as information furnished to the Court and be given appropriate weight.83 In cases where expert evidence given is conflicting, the Court must determine the conflict based on the evidence before it.84
[42] A summary of the pūkenga report is set out in the CMT judgment.85 Question 10 focusses on PCRs, and is framed as follows: “Having regard to the evidence, what tikanga is relevant to the protected customary rights claimed by the applicants?”
[43] In answering question 10, the pūkenga draw from tikanga indicia referred to in their answers to earlier questions 2 and 3 in relation to CMT.86 Also of note are the tikanga concepts that the pūkenga identify in question 1 as applying to the hearing area based on the evidence, which were set out in the CMT judgment as follows:87
[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:
(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;
81 Ms Moe Milne and Dr Robert Joseph Pūkenga Report (25 October 2024) [pūkenga report]. This report is attached in full at Attachment 6 of the CMT judgment.
82 Re Edwards (HC), above n 38, at [325].
83 High Court Rules 2016, r 9.38(4).
84 Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [39].
85 CMT judgment, above n 5, at [45]–[113].
86 Pūkenga report, above n 81, at [721]–[722].
87 CMT judgment, above n 5.
(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;
(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.
[44] Question 2 relates to the evidence which indicates the maintenance of a group’s holding of part of the marine and coastal area, as a matter of tikanga. In assessing the relationship of a group with the takutai moana, the pūkenga refer to the application of a “taonga test”.88 This concerns the intensity of the Māori association with the area, including ancestral connections and ongoing cultural and spiritual relationships, as
88 Pūkenga report, above n 81, at [143]–[149].
well as control and authority exercised over resources and obligations to conserve, nurture and protect the relevant taonga (such as a waterway).89 Relevant criteria in determining whether a group has the reciprocal “stewardship” responsibilities over a taonga in the takutai moana include:90
(a)whakapapa identifying a cosmological connection with the takutai moana;
(b)exercise of mana or rangatiratanga over the takutai moana;
(c)exercise of kaitiakitanga;
(d)presence of a mauri (life force);
(e)performance of kawa or rituals central to the spiritual life of the hapū and whānau;
(f)identification of taniwha residing in the takutai moana;
(g)celebration or references in waiata;
(h)celebration or references in whakatauki;
(i)reliance on the takutai moana as a source of food;
(j)source of textiles or other materials;
(k)use for travel or trade; and
(l)a continuing recognised claim to land or territory in which the takutai moana is situated, and maintaining kaitiakitanga over some, if not all of the takutai moana area.
[45]Other tikanga concepts which the pūkenga recognise as relevant to PCRs are:91
(a)Tika and Pono — being right or correct, true and genuine;
(b)Rangatira ki te rangatira — leaders speaking directly to each other to address pressing matters;
(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.
89 See CMT judgment, above n 5, at [57].
90 At [59].
91 Pūkenga report, above n 81, at [150] and [722].
[46] Question 3 relates to evidence which indicates that a group no longer holds a part of the takutai moana as a matter of tikanga. In summary, the pūkenga say that the area will generally cease to be held in accordance with tikanga if the group no longer meets the taonga test, or no longer uphold their kawa protocols.92
[47] The pūkenga also note the importance of the maintenance of kawa as an indicia of a tikanga relationship. Examples of kawa were set out in the CMT judgment.93 They include rituals such as karakia and practices that ensure resources are respected.
[48] There is an important distinction to be drawn between rights that have died away (ahi mātaotao) and those that have been merely impaired (ahi teretere) and may later be resurrected.94
[49] While questions 1 and 2 are focussed on territorial rights of the nature recognised by CMT, similar considerations apply to customary rights which may be recognised by PCRs. The importance of ancestral connections and the ability to resurrect a group’s rights based on those connections is equally applicable to the tikanga in relation to PCRs. The customary rights and activities protected by PCRs are part of the complex of resource rights described in the pūkenga report:95
[554] Major difficulties arise today when people — Māori and Pākehā — try to translate this customary tikanga network of rights and responsibilities, as well as connections — mana whenua and mana moana — into an environment of ‘straight line’ boundaries as the Waitangi Tribunal acknowledged in the 2004 Turanga Tangata Report:
Resource rights were complex, convoluted, and overlapping. They almost never phased cleanly from hapū to hapū as one panned across the customary landscape. Instead, most resource complexes had primary, secondary, and tertiary rights holders from different hapū communities, all with individual or whānau interests held in accordance with tikanga, and therefore by consent of their respective communities. All rights vested and were sustained by the currency of whakapapa.
92 CMT judgment, above n 5, at [62].
93 At [60]–[61].
94 At [383], [946]–[947] and [983].
95 Pūkenga report, above n 81.
[50] The pūkenga report also refers to the comments of Sir Edward Durie on the complexity of the boundaries and networks:96
Resource boundaries were conceived of lineally, and radially with rights or authority radiating from a central heart to uncertain fringes.
The authority of a hapū in an area was not necessarily exclusive. Hapū claimed the resources of territories exclusively or conjointly with others. Many resources were shared by several hapū. Not all hapū areas were contiguous but were intersected by the use rights of others.
[51] The pūkenga further note that the nature of the rights are often debated and subject to negotiation:
[596] Whenua tautohetohe or kainga tautohe lands although contested and debated were shared interests in the whenua and rohe moana involving one or more groups which situation resonates with some of the claimant groups in the current Kāpiti Coast High Court MACA hearings. …
[597] What much of the historical accounts indicate is that resource interests under tikanga Māori were not certain but were amorphous, they were not individualised but were shared, collective, debated and negotiated as will be illustrated further in a number of other historical accounts.
[52] As I found in the CMT judgment, Muaūpoko had emerged from their heartland and were exercising activities beyond that area by 1839. There is no evidence they were prevented from doing so by Ngāti Raukawa, Te Ātiawa, or Ngāti Toa, who now object to Muaūpoko’s claimed PCRs beyond their area of CMT. While Muaūpoko were unable to meet the test for CMT in parts of their application area, they have continued to exercise various types of customary rights since 1840. The customary activities which meet the statutory tests have been exercised without interference since that time, and the fact that Te Ātiawa and Ngāti Raukawa now say they do not acknowledge those rights at tikanga is not borne out by the evidence that Muaūpoko have continued to carry out the relevant activities to the present day.
[53] The pūkenga’s conclusion was that in relation to the tikanga aspect of the test for CMT and PCRs, all of the applicant groups had “shown that their tikanga customary laws and institutions are flourishing, vibrant and that they are still relevant”.97 This suggests that the customary activities and uses which continue to be
96 At [557], citing E T Durie “Custom Law” (draft paper for the Law Commission, January 1994).
97 At [731].
carried out to the present day are exercised according to tikanga. The ongoing expression of whakapapa connections to the takutai moana, and the operation of tikanga and kawa protocols have been established by the successful PCR applicant groups.
[54] From the pūkenga’s conclusion, I infer the continuous operation of tikanga in relation to the activities and exercise of the discrete customary rights giving rise to PCRs, where the relevant activities have otherwise been continuously exercised by a PCR claimant. For example, there was substantial evidence of the saying of karakia before gathering resources or fishing, the exercise of manaakitanga and whanaungatanga through the sharing of resources, and the adherence to other kawa surrounding the activities for which PCRs are sought.
Approach to the present applications for PCRs
Submissions of the Attorney-General
[55] The Attorney-General notes that some PCRs sought by the applicants are excluded from eligibility under the Takutai Moana Act, while the nature and scope of others sought are unclear.
[56] She submits that “[t]he Court should not make a PCR order if the evidence has not established the particular physical activity, use or practice for which recognition has been sought”. Furthermore, the Court needs to ensure that the activity or use occurs within the takutai moana (not on dry land), and that there is sufficient evidence to prove that the activity continues to be exercised, in order to find that s 51 is met.
[57] The Attorney-General suggests that a high degree of specificity is required regarding the location where the activity occurs, consistent with the effect of a PCR.98 Not only may a PCR affect future resource consents in the area, but it is important that local councils are able to accurately identify potential impacts of other activities on the PCR.99 The Attorney-General also notes that the Minister of Conservation has the
98 Re Ngāi Tūmapūhia-a-Rangi, above n 57, at [681].
99 Takutai Moana Act, s 55.
authority to impose controls over a PCR, should its exercise have an adverse impact on the environment.100
[58] The Attorney-General notes the Takutai Moana Act is silent on how long a break in continuity would be in order to render a PCR discontinued, thereby preventing recognition. However, she suggests that a degree of regularity in the exercise of the activity is required. She notes that in Re Edwards a PCR sought in respect of growing pīngao and harakeke used for raranga and as rongoā was not granted because “[t]here was no direct evidence that the practice of growing harakeke continued”.101 Although some efforts had been made to re-establish its presence, it could not be inferred that the activities continued to be exercised presently. The Attorney-General adds that “numerous small interruptions” may not be fatal to the continuity requirement, if the applicant can nevertheless show the activity was consistently and continuously carried out in the context of the specified area, in accordance with tikanga.102
Submissions of the local authorities
[59] Section 52 of the Takutai Moana Act sets out the scope and effect of a PCR order. Section 109 provides that after the Court grants recognition of a PCR, the applicant must submit a draft order including a description of the right and a map to identify the area:103
109 Form of recognition order
(1)An applicant group in whose favour the Court grants recognition of a protected customary right … must submit a draft order for approval by the Registrar of the Court.
(2)Every recognition order must specify—
(a)the particular area of the common marine and coastal area to which the order applies; and
(b)the group to which the order applies; and
(c)the name of the holder of the order; and
(d)contact details for the group and for the holder.
100 Section 56.
101 Re Edwards (HC), above n 38, at [507].
102 See, for instance, at [640]–[642].
103 Emphasis added.
(3)A protected customary rights order must also include —
(a)a description of the right, including any limitations on the scale, extent, or frequency of the exercise of the right; and
(b)a diagram or map that is sufficient to identify the area.
[60] As noted above, the GWRC, Horizons, and Kāpiti Coast District Council, being local authorities with statutory responsibility for the takutai moana in the hearing area, participated in the hearing. I refer to them collectively as “the councils”. They point out that they are neutral and do not take a position on the merits of whether the applicants have satisfied the legal test for PCRs under s 51(1) of the Takutai Moana Act.
[61] In their submissions, the councils emphasise their relevant mandatory functions in relation to PCRs. For instance, the regional councils (being GWRC and Horizons) must:
(a)ensure that any plan or proposed plan does not include a rule that treats an activity as a permitted activity if that activity will, or is likely to have, a more than minor adverse effect on a PCR.104
(b)not grant resource consent for any activity that will, or is likely to, have more than minor adverse effects on the exercise of such rights, unless the relevant group has provided its written approval or an exception applies.105
[62] The councils are interested in ensuring the final form of any PCR orders granted are clearly framed and workable. They emphasise that any PCR order must describe the location and the nature of the relevant PCR activity so that the councils can uphold and protect the PCRs through their designated statutory functions. The draft order and map to be submitted by a successful applicant for a PCR is usually considered at the next stage following the PCR determinations. Any PCR areas must be accurately surveyed and only include areas that fall within the definition of the
104 Resource Management Act 1991 [RMA], s 85A.
105 Takutai Moana Act, s 55(2).
CMCA. The relevant PCR must be identified with adequate precision so that a council can fulfil its obligations of determining whether a proposed activity would have a more than minor adverse effect on that PCR.
[63]For the next stage, the councils submits that the Court could:
…direct any successful applicants to provide further particulars on relevant matters (for example, on location and/or the nature/scope of the activity). This would provide the opportunity for the Councils to discuss directly with the relevant applicants the framing of the PCR orders to ensure that they are readily able to be implemented.
Mapping process for final PCR orders
[64] Some of the PCR applications are not supported by sufficient detail to enable an order to be made which properly identifies the particular area to which the application relates.106 There are also some applications where there is insufficient evidence to support the making of the order at all, even on a generous approach.
[65] The conclusions in this judgment are, in effect, interim determinations. A detailed mapping and checking process will need to be undertaken, in consultation with the relevant local authority, in determining the final PCR orders. This process will involve the applicant filing a marked-up map showing the specific location(s) to the application relates, and precisely describing the particular activity insofar as it is undertaken below the mean high-water springs.107 In some cases, where it is presently unclear exactly where the activity is conducted, or where there are concerns about whether the activity is able to be carried out (for instance due to river changes or other causes), only with more information will a final determination be possible. That is not to say exact precision is required on location in relation to all PCRs — the patchwork of interwoven customary rights may not be susceptible to precise delineation.108 In most cases the marking of the locations should be uncontroversial. That said, there
106 As required under s 101.
107 Under the Takutai Moana Act, PCRs are not recognised above that mark: see s 9 definition of “marine and coastal area”.
108 Re Edwards (SC No 2), above n 20, at [200]–[201]. While the Supreme Court’s comments were made in relation to CMT claims, the description can also be applied to customary rights more generally, including those capable of recognition through PCR orders.
may be some instances where the issue is contested and further discussions or evidence is necessary to identify the precise location for a determination.
[66] This process will ensure that all PCRs are properly particularised in terms of the requirements of the legislation, and the local authorities are able to carry out their relevant regulatory responsibilities. This is necessary for practical reasons, and reflects the policy behind the legislation, being the need to balance public access and related rights against the recognition and legal expression of customary rights in the takutai moana.109
Other preliminary comments
[67] Generally, as I held in the CMT judgment, there has been “no substantial interruption” by third parties affecting the hearing area from 1840 to the present day on the mainland coast.110 That applies equally to the activities that are the subject of PCRs.
[68] PCRs only protect customary non-commercial activities and uses. I now deal with the applications for PCRs, considering each applicant in turn.
Ngāti Raukawa ki te Tonga
Leave to amend application
[69] Ngāti Raukawa seek various PCRs in the area between the Rangitīkei River in the north and Kukutauaki in the south. This is within the area in which they have been granted CMT, in part on an exclusive basis and in part on a shared exclusive basis.
[70] Ngāti Raukawa filed an amended application on 24 October 2024, removing some of the PCRs originally sought which the Attorney-General had identified were unavailable at law. For instance, PCRs relating to fishing of all species, seeding and harvesting of all shellfish, and rāhui were removed. No objection has been made to the amended application, and the activities and uses now claimed are within the
109 At [6].
110 CMT judgment, above n 5, at [199]–[238].
description of those claimed in the 2017 application in any event. Leave to amend the application, if necessary, is granted.
[71]The PCRs sought by Ngāti Raukawa are as follows:
(a)fishing whitebait, specifically at river mouths;
(b)activities related to spiritual practices (e.g. karakia ceremonies, karanga, wānanga);
(c)planting and cultivating all plant species;
(d)extracting non-nationalised minerals;
(e)catching whitebait at the river mouths;
(f)collecting hāngī stones;
(g)collecting driftwood and other natural resources; and
(h)using, managing, preserving and/or developing tauranga waka (sea-craft launching/mooring places).
Whitebaiting
[72] The whitebaiting application is referred to in the closing submissions for Ngāti Raukawa as relating to “the catching and harvesting of whitebait”. It covers the following streams and rivers where whitebait harvesting occurs: Mangaone Stream; Ōtaki River; Waitohu Stream; Waikawa River; Waiwiri Stream; Hōkio Stream; Manawatū River; Kaikokopu Stream; Rangitīkei River; Mangapouri Stream; Ōhau River; Blind Creek (Ōhau tributary); Te Hakari (Ōhau tributary); and Kuku Stream (Ōhau tributary).
[73] Ngāti Raukawa produced evidence of the iwi whitebaiting historically. Dr Vincent O’Malley, the expert historian called for Ngāti Raukawa, refers to the transformation of the iwi, which had immigrated from inland Waikato in the 1820s-1830s, to become a coastal tribe that relied on resources from the takutai moana to feed its population. Ms Rachael Selby produced “He Iti Nā Mōtai”, a record of oral histories that referred to historical uses of resources in a tabulated schedule. This referenced fishing, for instance by Te Whatanui at Hōkio Beach.
[74] O’Malley refers to Ngāti Raukawa fishing for inanga in the Rangitīkei River. He also refers to a 1927 petition brought on behalf of Ngāti Raukawa, which described Lake Whakapuni as the “life water from [their] ancestors” and a place where they obtained whitebait.111 Regulations were introduced in September 1932 which banned whitebaiting on a drain across the foreshore of the Manawatū River. In 1957, there was talk of blocking Pākehā access across the Hōkio Stream.
[75] Evidence was also given of whitebaiting being practiced to the present day, and being grounded in tikanga, whanaungatanga, kaitiakitanga and manaakitanga.112 In more recent decades, whitebait numbers have fallen in the Manawatū and Ōtaki rivers. Figures for average whitebait takes from the 1940s–1980s in the Ōtaki area were produced by Mr Pātaka Moore. Mr Moore outlined a number of locations where whitebait was caught, as well as the takes and sizes of the whitebait, specifically in the Ōhau and Waiwiri area. He said inanga was caught at a number of significant sites, including Kaikokopū Stream, Himatangi, Koputara Stream mouth, Waiwiri Stream, Hōkio Stream, and Wairarawa Stream mouth. He also referred to whitebaiting between the 1940s and 1980s at Waitohu Stream, Mangapouri Stream, Ōtaki River, Waikawa Stream, Lake Horowhenua, Pauatahanui/Paremata Mudflats, Ōhau River, Blind Creek, Te Hakari, Kuku Stream, Waiwiri Stream and Lake Papaitonga.
[76] Mr Andrew Karatea gave evidence of whitebaiting using a “tipi” system taught to him by his uncle, which he continued to use until 10–15 years ago. He said that since 1955, whānau had fished from the mouth of the Rangitīkei River to Hōkio Beach, and sometimes near the Turakina River. Mr Karatea said around 20 whānau had kāinga along the Rangitīkei River. The swamps had been breeding grounds for whitebait until they were drained by farmers. He also commonly went to Waitārere Beach as a child.
111 The petition sought removal of Crown restrictions on the stream flowing from Whakapuni Lake (near the mouth of the Manawatū River) which prohibited whitebait fishing. However, other Māori supported the restrictions in order to increase whitebait populations. Those bringing the petition also noted that the lake had been specifically reserved from sale to the Crown so that their people could fish from it.
112 For instance, permission must be sought before harvesting whitebait from those who have used the area for generations, and fishing must only take place when the time is right according to the maramataka (Māori lunar calendar).
[77] Mr Dennis Emery says that in the past his people would go whitebaiting off the Rangitīkei River (from the Tangimoana side). However, they “noticed over the years it got harder and harder”. A devastating flood in 2004 meant they were unable put their “Blue Marae back up out there”, and they had to go to stores to buy the same kai.
[78] Mr Wayne Kiriona says that when he was young, he and his father had whitebait nets set up between Whirokino, Koputaroa and Waitārere. Ms Selby also refers to catching whitebait from the Hōkio Stream when available. In addition, Mr Caleb Royal describes Ngāti Raukawa fishing “right up and down [their] rivers, including in and around the river mouths”, and lists whitebait as one of the species caught. He also notes that this is governed by tikanga, in that you can only fish if you are from the area or obtain permission from tangata whenua. He refers to key awa of Ngāti Raukawa for catching fish.113 Mr Royal says whitebaiting continues to be “part and parcel” of who his whānau are. He remembers whitebaiting all along the Waitohi Stream when he was a child, including at the mouth of the river.
[79] Mr Te Kenehi Teira refers to white-baiting from Ōtaki, the mouth of the Waiwiri Stream, Ōhau, the Manawatū River, and Tapuiwaru swamp. He says his kuia whitebaited “at all times” on the Manawatū River. Mr Tewera Hēnare refers to using waka to whitebait along the Ngāti Raukawa coastline, particularly in the river mouths.
[80] The Attorney-General agrees that non-commercial whitebaiting is an activity capable of recognition by a PCR. 114 However, she submits that the evidence appears to indicate whitebaiting has been impacted in certain areas, such as on the Tangimoana side of the Rangitīkei River and in swamps that have now been drained by farmers, and that locations of whitebaiting at river mouths are generally non-specific. Furthermore, she notes that some locations referred to are outside the takutai moana, such as Whirokino, Koputaroa, and the “Cut” (in relation to the Manawatū River).
113 These include the Mangaone Stream, Ōtaki River, Waitohu Stream, Ōhau River, Waiwiri Stream,
Hōkio Stream, Manawatū River, Kaikokopu Stream and Rangitīkei River.
114 It is within the scope of s 51 of the Takutai Moana Act and does not fall within the s 51(2) exceptions. Non-commercial whitebait fishing is not regulated by the Fisheries Act, nor is it subject to declarations under s 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. PCRs for whitebait-related activities were granted in: Re Edwards (HC), above n 38, at [669]; and Re Ngāti Pāhauwera, above n 42, at [599].
[81] However, I am able to infer from the substantial evidence adduced that Ngāti Raukawa have been whitebaiting in the rivers across their rohe on the sites claimed where whitebait runs from 1840 to the present day. This practice is carried out in accordance with tikanga practices, as the evidence indicates. There is no evidence that this activity has been interfered with up to the present time, apart from the specific issues relating to drainage and lack of whitebait referred to above. While whitebait may now be harder to find in some locations, it appears the activity has nevertheless continued up to the present time across Ngāti Raukawa’s rohe. Of course, a PCR may not be granted in areas outside the takutai moana.
[82] Accordingly, I consider that, subject to the mapping and checking process set out above at [65], the PCR sought by Ngāti Raukawa for whitebaiting is supported by the evidence and the inferences I have drawn. The next stage of the process will include identifying specific locations and confirming that the activity occurs within the takutai moana.
Activities related to spiritual practices
[83] Karakia is a regular part of the way that Ngāti Raukawa engage with the takutai moana. Evidence was given of karakia being recited before and after gathering kai (including fishing). A number of witnesses offered evidence in support of this practice continuing as a customary activity. For instance, Mr Justin Tamihana said they would karakia and mihi before fishing, and would put back the first fish they caught, in accordance with tikanga. Mr Moore also emphasised these tikanga practices. In addition, Karakia are said in a variety of other circumstances, including when people are going through difficult times and in cases of death.
[84] Other examples of spiritual practices include seasonal karakia during the migration of the kuaka bird at the Manawatū River mouth, and to welcome the birds back from their migratory journeys. The evidence also refers to karanga and hautapu ceremonies during Matariki at Ōtaki and Foxton Beaches.
[85] The witnesses also gave examples of wānanga being held for various purposes, including re-establishing dune systems and sailing. Consultations were held on
protecting the health of the Paetawa and Kōwhai streams and environmental monitoring. Mr Moore refers to wānanga taking place at Tangimoana Beach.
[86] Mr Moore describes hautapu and other whakahaere (ceremonies) carried out on the beach, in a way that has been done for generations. These often involve lighting a fire and saying karakia. He refers in particular to hautapu ceremonies undertaken for Matariki in 2023, held at Ngātokowaru marae.
[87] Mr Moore also refers to various sites as wai ora (a source of wellness). However the nature of the associated activity is not clear, nor are the exact locations specified, many of which appear to be outside the takutai moana.
[88] References were also made to rāhui in evidence and closing submissions. However, as noted above, recognition of rāhui is no longer sought in the amended application for PCRs, given that such recognition is unavailable at law.
[89] Karakia and other spiritual and cultural rituals must be manifest in a physical activity or use related to a natural or physical resource.115 This might, for instance, be by “…members of the applicant group going down to the takutai moana to perform a karakia or going to the takutai moana for the purpose of wānanga, tangihanga or sharing mātauranga Māori”.116
[90] The Attorney-General notes that often the nature and scope of the spiritual activity for which Ngāti Raukawa seeks recognition is unclear. Further, in relation to whakahaere, it is unclear if it occurs in the application area.117 The councils also add that a PCR must be particularised by reference to place and the specific physical activities or uses associated with those spiritual practices.
[91] In many instances, the way in which the activities under this head are said to physically manifest are not sufficiently specific to form the basis for a PCR.
115 Takutai Moana Act, s 51(2)(e). See also, RMA, s 2(1) definition of “natural and physical resources” which includes land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures.
116 Re Edwards (HC), above n 26, at [381].
117 For example, Mr Moore refers to Mangapōuri as a location for carrying out whakahaere.
Furthermore, there is not sufficient clarity over the exact locations where these activities occur.
[92] That said, the evidence supports the physical manifestation associated with wānanga at Tangimoana beach, ceremonies involving lighting of fires, as well as hautapu ceremonies at Ōtaki and Foxton Beaches and ceremonies for the migration and return of the kuaka bird at the Manawatū River mouth. PCRs are granted for those activities subject to the mapping and checking process to ensure they are described with adequate precision, including the locations and frequency of the activities.
Planting and cultivating all plant species
[93] In relation to plant species, Ngāti Raukawa’s submissions focus particularly on pīngao, an indigenous taonga. Pīngao grows naturally on sand dunes and is a good stabiliser. Ngāti Raukawa have made efforts to restore it along the coastline, for instance at Waitārere Beach.
[94]O’Malley records that:
Besides harakeke, various other plants often used for weaving — including pingao, toetoe, and kiekie — were historically abundant in the area. Large volumes of these were used for the elaborate tukutuku panels adorning Raukawa wharenui at Ōtaki when it was constructed in the 1930s.
[95] O’Malley also refers to harakeke being used to make a sweet drink, and as rongoā, a skin treatment, a disinfectant, and a laxative. More widely known is the use of scraped flax leaves for weaving. He notes that in the 1850s rope-makers purchased fibre along Manawatū River. Later, a number of flax mills were established, with the last of these closing down in 1974.
[96] Mr Teira referred to a kōrero describing how pīngao came out of the sea and formed lines of growth along the sand dunes, acting as a sign for where to find toheroa and tohemanga. He also gave evidence of cultivating pīngao at Foxton Beach; people gathering pīngao at Foxton Beach; and pīngao being located at Waiwiri River mouth and at Hōkio (up to Pukepuke). He noted that growth has been knocked back as a result of four-wheel drives and dune buggies.
[97] Mr Moore refers to hapū collecting pīngao growing on sand dunes, and notes that a kuia recalled her mother collecting it from Himatangi Beach. In addition, he and Mr Royal attempted to grow pīngao at Ōtaki Beach and in dunes, with the aim of re-establishing it for weavers and dune restoration. He also refers to pīngao growing at the south of the Wairarawa Stream.
[98] In addition, Mr Tamihana refers to planting spinifex and pīngao on the dunes to replace “marram” plant (an introduced species), and provided photographs of this replanting at Waitārere Beach in October and December 2022. Mr Tūroa Karatea describes gathering plants for home healing. He Iti Nā Mōtai also refers to historical uses of resources in a tabulated schedule, such as pīngao grass for weaving. An example was given in that report of the use of pīngao from the beach and kiekie from Omarupapako (Round Bush) to create tukutuku panels at Motuiti.
[99] The councils and the Attorney-General note that it appears spinifex and pīngao planting and cultivation takes place above the mean high-water springs, and therefore outside the takutai moana. In addition, the Attorney-General submits it is unclear if spinifex planting continues today.
[100] No PCR can be granted above mean high-water springs, therefore the dune areas are excluded. Nor can I grant a PCR generally over “all plant species”.
[101] However, I am satisfied on the evidence that there are customary rights which have been exercised within the takutai moana and may be protected by PCRs as follows:
(a)pīngao planting and gathering in Waitārere Beach, Foxton Beach, Waiwiri River mouth, Hōkio (up to Pukepuke), Himatangi Beach,
Otāki Beach, and Wairarawa Stream south; and
(b)harakeke planting at Ōtaki Beach and the Manawatū River.
[102] These are subject to determining the precise locations and ensuring the areas are within the takutai moana, following the mapping and checking process set out at [65].
Extracting non-nationalised minerals
[103] Ngāti Raukawa did not adduce specific evidence or particularise the minerals or locations for which PCRs were sought, except in relation to kōhatu (which I deal with below).
Collecting kōhatu/hāngī stones
[104] Kōhatu (stones) were found in midden sites and continue to be collected and used for hāngī today. In particular, Mr Tamihana refers to smaller stones that wash up on Waitārere Beach being used.
[105] I grant Ngāti Raukawa a PCR for collecting kōhatu at Waitārere Beach in the application area. The size of the stones are limited to hāngī stones and smaller stones. Consideration needs to be given to the description of the size of the stones in determining the conditions of the order. The location and description will also be subject to the mapping and checking process set out at [65] above.
Collecting driftwood and other natural resources
[106] O’Malley gave historical evidence of Ngāti Raukawa gathering driftwood to use as firewood and for the construction of temporary camp sites along the beach during fishing expeditions. While not explicitly referred to, as it is clearly so commonplace, I can infer that this is likely to have occurred across a number of locations. This includes, for example, at Hōkio Beach near the residence of Te Whatanui and his people. Driftwood continues to be used today to prepare the fire for hāngī, for instance, at Ngatokowaru marae. This is important in enabling practices of manaakitanga on marae.
[107] Driftwood was also commonly used for carving. For instance, Mr Tamihana gave evidence that when Matau marae was rebuilt in 1985, “[a]ll of the totara wood used for the carvings were picked up off the local coast and beach”, having washed up
there from the Manawatū River. This still happens from time to time today. In addition, Mr Kiriona referred to gathering totara for carvings to rebuild their marae in 1985.
[108] Because of the nature of this activity, PCRs for gathering driftwood have been granted in other decisions without particularised location.118 Similarly, in this case identification of a precise location is unnecessary, as it is able to be inferred that this is an activity which has continuously occurred across the rohe.
[109] Therefore, I grant Ngāti Raukawa a PCR for collecting driftwood in the takutai moana from the Rangitīkei River in the north to Kukutauaki in the south, subject to the council mapping and checking process described at [65] above.
Collecting resources for rongoā purposes and wai ora activities
[110] Mr Moore refers in his evidence to collection of puna rongoā (rongoā source) and puna raranga (weaving material), as well as wai ora (wellness) sites. Mr Karatea says he was taught to seasonally gather rongoā (plants and leaves) for home healing.
[111] I am satisfied that a PCR should be granted for the collection of rongoā materials and wai ora activities at the locations referred to in the evidence, being Hōkio Beach and the Rangitīkei River (including the river mouth), subject to the council mapping and checking process being completed as above at [65]. As noted above in relation to plants, there must be some specificity regarding the type of plant collected and its general location, which must be within the takutai moana.
Using, managing, preserving and developing tauranga waka
[112] Waka were historically used as a mode of transport, and mātauranga around this activity has been passed down through generations. Mr Hēnare gave evidence that his ancestors used waka taua (war canoe), waka tangata (people’s canoe), and waka rā (ceremonial craft for karakia) as vehicles to traverse the ocean. Waka would be used to gather kai for whānau and for trading at Ōtaki River and Te Awahou. Mr Teira also gave evidence of his tūpuna using waka for travelling (through rivers
118 See, for instance, Re Ngāi Tūmapūhia-a-Rangi, above n 57, at [814(b)(ii)].
and along the coast) and for trading of goods. There were numerous landing sites, including at Foxton Heads, Ahuarahi, Whakapuni, and Matakarapa/Kapahaka (at Foxton itself). He said there could be up to 40 waka lined up outside the trading stall at Te Awahou on a daily basis.
[113] While there is historical evidence of use of waka, evidence of present day tauranga waka is scant. That said, some evidence of use of seagoing craft was given, particularly for fishing but also as a means of teaching rangatahi kawa and tikanga generally. Mr Emery explained how he and Mr Karatea would take groups of rangatahi out in a canoe around Tangimoana Beach and the mouth of the Rangitīkei River, teaching them the tikanga and kawa of fishing, as well as their whakapapa connections and the history of the beach. Mr Hēnare noted that waka are now used to teach people how to sail and for gathering kai. He said “the moana was and is our waka highway”.
[204] In addition, the Attorney-General points out that ss 26 and 27 of the Takutai Moana Act protect public rights of access and navigation, therefore it is not clear that a PCR order is required to protect a general right of navigation and passage in the application area. It does appear to be the case that PCRs for navigation add little if anything to those general rights. Nevertheless, they are based on customary rights and there is no reason why they should not be recognised by a PCR.
Undertaking rituals such as karakia and karanga
[205] Evidence was given of karakia and waiata being recited and sung in various places. For instance, Mr Packer describes saying karakia while fishing off the coast of Levin. Mr Moses refers to saying karakia when going to and from the beach (for fishing, collecting, and diving). Mr Wilson also refers to saying karakia when looking out to sea. In addition, he describes going to the ocean “to whakanoa”, particularly at Wharekohu on the southern side of Kapiti Island. Mr Timothy Tukapua notes that “when gathering kaimoana we would do karakia and give the first one back, that was what we were taught and I still do that today”.
[206] Mr Moses and Ms Montgomery-Nuetze also refer to waiata about tūpuna, in particular one composed when Wakanui drowned in Te Moana o Raukawakawa. Muaūpoko developed tikanga following such events to try to prevent drowning.
135 Analogy may be drawn with the fact that the Supreme Court has confirmed that CMT may be granted jointly to groups even where one does not recognise the rights of the other: Re Edwards (SC No 2), above n 20, at [141]–[143].
Ms Montgomery-Nuetze also refers to “He oriori mō Tūteremoana”, a waiata that is well-known by iwi along the coast.
[207] Professor Procter refers to Muaūpoko naming places and sites of significance from Manawatū to Pukerua Bay.
[208] Mr Wilson also refers to rāhui being placed on the coast, and specifically at Waitārere and the mouth of the Manawatū “when bodies have turned up”. In addition, he notes that a rāhui was placed when a whanaunga fisherman passed away on the Ōhau River.
[209] As stated above, any spiritual association must be accompanied an activity and location to enable it to be protected as a PCR.136 However, as the Attorney-General notes, there is little evidence of where karakia occurs or its specific relationship to a natural or physical resource.
[210] Although these karakia, rituals, and waiata relate to fishing or preventing drowning at sea, those activities per se will not attract a PCR. Karanga, karakia, waiata and rituals, are spiritual or cultural associations which fall within s 51(2)(e) of the Takutai Moana Act. As noted above, a qualifying manifestation might be, for instance, members of the relevant group going to the takutai moana to perform karakia as part of a group activity.137
[211] Muaūpoko have not pointed to a physical activity or use related to these spiritual activities, as required under s 51(2)(e), nor provided specific location details of where these activities take place to enable their recognition by PCR. Therefore, no PCRs are able to be granted under this head.
Kaitiakitanga
[212]Mr Moses generally comments in relation to the meaning of kaitiaki that:
The maintenance and exercise of rights as kaitiaki may come in various forms, and the practices which have also evolved over time. Iwi and hapū with
136 Takutai Moana Act, s 51(2)(e).
137 Re Edwards (HC), above n 38, at [381].
overlapping interests may not recognise or acknowledge each other’s interests in an area, but this does not mean they do not exist.
…
Recognition, acknowledgement, and respect go both ways. You cannot trust someone to adhere to tikanga if they do not recognise your mana and role as kaitiaki. It is difficult to have a tikanga based discussion with people who only see themselves as being “tika”.
[213] Muaūpoko make a number of references to acts of kaitiakitanga and ongoing efforts in that regard, for instance:
(a)Mr Murray refers to burying a whale that washed up on Hōkio Beach, and treating it as a taonga. Ms Montgomery-Nuetze noted that the baleen from the whale was recovered, and wānanga were presently taking place regarding appropriate use of the material.
(b)Ms Williams notes that in 2016, the Lake Horowhenua trustees put a fish pass in at the Hōkio Stream (around both sides of a weir installed by the Crown), and have engaged in various efforts to clean up the lake.
(c)Ms Williams has been a “kaitiaki” under the permit system since 2017. This allows kaitiakitanga to be exercised by managing permits for customary fishing used for tangi from Rangitīkei to Turakirae. The area includes Kapiti and Mana islands.
(d)Mr Wilson refers to reseeding tohemanga and removing sea spurge to prevent damage to the dunes along the coastline.
[214] The Attorney-General notes the requirement for manifestation of a spiritual or cultural association in a physical activity under s 51(2)(e). She also refers to the recognition of kaitiakitanga under s 47 of the Takutai Moana Act through protection of a general right to participate in conservation processes in the takutai moana. She notes the exclusion under s 51(2)(a) for activities regulated under the Fisheries Act. The Attorney-General further notes that the applicant has not specified which activities fall within “exercising kaitiakitanga”, nor given examples of physical activities as a manifestation of kaitiakitanga.
[215] Kaitiakitanga falls within s 51(2)(e) of the Takutai Moana Act, and therefore must have some physical manifestation. Qualifying manifestations of kaitiakitanga include the planting of pīngao within an area138. Otherwise, kaitiakitanga in general, which was described by the Supreme Court as the corollary of mana,139 is a spiritual or cultural association.
[216] In relation to the specific PCRs listed under the kaitiakitanga heading the following issues arise:
(a)Burying whales is excluded from recognition as a PCR.
(b)Evidence of granting customary fishing permits relate to the catching of fish for which a PCR cannot be granted.
(c)The reseeding of tohemanga on the dunes. Tohemanga are shellfish so are excluded from being recognised through a PCR. In any event, the dunes are outside the takutai moana area.
(d)Rāhui cannot be recognised through a PCR.140
[217] Ngāti Raukawa also express particular concern about the general PCR claimed for kaitiakitanga, in light of the pūkenga’s comments that it is “a concept that is an incident of mana”.141 They say that while Muaūpoko have historical connections, they do not have mana whenua in respect of a vast majority of the application area. It would be “deeply insulting” to grant Muaūpoko a “kaitiakitanga” PCR across the rohe moana of Ngāti Raukawa, in areas which have been the primary responsibility of other hapū that have been living at those places for 200 years.
[218] The CMT determination recognised that Muaūpoko is entitled to exercise kaitiakitanga on a shared basis with the other CMT holders in that area. However, kaitiakitanga, without evidence of a specified activity and location, cannot be the
138 Re Edwards (HC), above n 38, at [380].
139 Re Edwards (SC No 1), above n 21, at [141].
140 Re Edwards (CA), above n 18, at [348].
141 Pūkenga report, above n 81, at [191].
subject of a PCR. As a corollary of mana, kaitiakitanga generally suggests a holistic relationship with the takutai moana which is more consistent with recognition through CMT, rather than as a “collection of unconnected activities or uses”.142
[219] In those circumstances, a PCR for kaitiakitanga generally across the application area cannot be granted.
Collecting and removing sand, stones, shingle, and detritus (including driftwood, shells and feathers)
[220] Ms Montgomery-Nuetze, relevantly to this application, is an artist, designer, and weaver. She gave evidence as a ringatoi practitioner, or cultural practitioner. She described going to Kapiti Island to obtain stones for ritual purposes related to the whare tīpuna for which she was involved in doing the mahi toi (whakairo, tukutuku, and kōwhaiwhai).143 She gave evidence, as did others, about visiting the caves on the island in which Muaūpoko ancestors are buried. She referred to collecting kōhatu, onewa, and pakohe stone from “the bay” at Kapiti Island for the whare tīpuna.
[221] The burial caves at Wharekōhu have been identified in the evidence as wāhi tapu. While the recognition of a wāhi tapu site cannot be the subject of a PCR, nor is this sought, Ms Montgomery-Nuetze’s group’s visit and the collection of stones on Kapiti Island gives rise to a manifestation of a customary right based on the Muaūpoko ancestral links to the island. This is an identifiable activity. However, it is not clear that the stones were collected within the takutai moana, given Ms Montgomery-Nuetze’s reference to “the bay”.
[222] Ms Williams and Mr Wilson refer to collecting pumice (for rubbing heels and as floats). Mr Moses also refers to using pumice as a pōito (float for nets) and as a kārewa (float for fishing line), noting that it could be collected from Waikanae, Paraparaumu, and possibly up to Ōtaki. In his experience, pumice had been found from Ōtaki to Pukerua Bay (which lies south of the hearing area). Mr Packer also refers to pumice used as buoys and floats when fishing from Tangimoana to the Ōtaki River mouth. I am satisfied this collection is a commonplace activity which I
142 Re Edwards (SC No 1), above n 21, at [140].
143 Carving, woven panels, and painted patterns.
am able to infer dates back to 1840, and the evidence suggests it continues until the present day. Therefore, I grant Muaūpoko a PCR for the collection of pumice from Waikanae, Paraparaumu, and from Ōtaki to Whareroa (the southern extent of the hearing area), subject to it completing the council mapping and checking process set out at [65].
[223] Mr Moses describes mixing sand with soil, gravel, and charcoal to create good soil for growing vegetables. Professor Procter refers to sand as a useful resource, particularly for building projects, and notes that “sand is everywhere in the Horowhenua”. He also refers to collecting gravel from Ōtaki to use as a building material, and collecting coal washed up on the beach between Hōkio and Ōhau.
[224] The Attorney-General notes that while there is no specific evidence as to the location of these activities, it can be inferred that the activities occur in various vicinities. Muaūpoko are entitled to a PCR for the collection of sand (from the Horowhenua takutai moana), gravel (from Ōtaki) and washed-up coal (over the beach between Hōkio and Ōhau), subject the completion of the mapping and checking process to identify the precise locations of these activities on the takutai moana, as set out at [65]. While there is no specific evidence of the sand, gravel and washed-up coal collection being carried out as at 1840, it is a commonplace activity and unlikely to have been the subject of much commentary. There is no doubt on the evidence before me that it occurred. In view of that, and the evidence of intergenerational use of the materials, I am prepared to infer that it was collected in the specified areas of the takutai moana.
[225] Evidence was also given concerning the gathering of driftwood. Ms Williams refers to taking driftwood to use for the fireplace, fires on the beach, and fishhooks. Mr Wilson refers to the use of driftwood for heating, but said it was not good for cooking. Mr Moses says driftwood is “everywhere”, and it is about “having the eye to pick what kind of wood to use for what”, which comes from experience. Ms Montgomery-Nuetze refers to using driftwood which I take to relate to Tangimoana, Waikanae, Ōtaki and Hōkio for breaking up garden beds.
[226] Professor Procter refers to using driftwood from the Manawatū and Ōhau rivers for building, fortifications, firewood, and carving waka and pou. Mr Marakopa Wiremu-Matakātea says he gets driftwood off the beach, mainly for fires, now primarily pine. Mr Packer describes making a traditional dredge and kite using materials from the takutai moana. He refers to using driftwood for the dredge, flax for the netting, flax kites for anchors (filled with sand and rocks), and pumice for the buoys.
[227] In view of the evidence of the wide areas over which driftwood is collected, I grant Muaūpoko a PCR for collecting driftwood from the Manawatū River, Tangimoana, Waikanae, Ōtaki, Hōkio, Ōhau River, and Ōtaki River. That is subject to completion of the council mapping and checking process set out at [65], including confirmation that the relevant areas are within the takutai moana.
[228] Ms Williams refers to the use of pipi shells (as a knife) and toheroa shells (to scrape flax), which she collected from the Manawatū River and down to Waiwiri. Mr Moses refers to use of shells as a tool to cut and strip flax to make muka, as well as for clothing, aho, and nets. Ms Montgomery-Nuetze says she uses shells (like pipi and tuatua) from Tangimoana, Waikanae, Ōtaki, Hōkio for gathering, harvesting, and holding pigments, as well as for making jewellery.
[229] A PCR is granted for shell collecting from the Manawatū River down to Waiwiri, as well as at Tangimoana, Waikanae, Ōtaki, and Hōkio, subject to the completion of the checking and mapping process set out at [65] above.
[230] Ms Montgomery-Nuetze is skilled in the use of natural materials to create intergenerational taonga. She gathers natural materials according to tikanga, and notes the importance of understanding the whakapapa and mauri of the materials in her practice.
[231] Ms Montgomery-Nuetze refers to working with natural materials such as stone, bone, pounamu, fish/tuna skin, natural fibres, clay/earth pigments, shells, and feathers gathered from the takutai moana. She notes that toi Māori is “intrinsically entwined with tikanga, aronga and whakapapa”. She explains that this practice has been
interrupted through legislation controlling how materials are to be harvested and collected. Ms Montgomery-Nuetze emphasises that Muaūpoko know their whakapapa to their rohe, including “[w]here and when it is tika to gather resources and where and when it is not”. She looks largely within her own rohe, gathering materials from Tangimoana, Waikanae, Ōtaki, and Hōkio.
[232] Ms Montgomery-Nuetze also refers to old baleen floaters from the Kapiti region. She describes collecting kōhatu, onewa, and pakohe stone deposits from the bay near Wharekōhu at Kapiti Island. She uses kōhatu for toi Māori, hāngī stones, and māra (gardening), and collects them from Waikanae, Ōtaki, Tangimoana, and Hōkio. She gathers and processes earth pigments from Horowhenua to use as paint, and gave an example of a green pigment used to paint a huia.
[233] No PCRs may be granted in relation to collecting seaweed, materials from fish/tuna skin,144 and baleen from whales.145 Similarly, detritus related to wildlife such as feathers, skin/leather, natural fibres and bones are excluded under s 51(2)(d) of the Act.146 Additionally, no PCR is available for the collection of pounamu, which was mentioned but is not found within the application area.
[234] However, PCRs are granted for the collection of detritus and kōhatu, excluding bones, skin/leather, and feathers, natural animal fibres, in the takutai moana in Waikanae, Ōtaki, Tangimoana and Hōkio. A PCR is also granted for collection of clay/earth pigments in the takutai moana adjacent to the Horowhenua. In addition, PCRs are granted for collecting kōhatu, onewa and pakohe stone deposits from Wharekohu (near the Muaūpoko urupā) on Kapiti Island.
[235] The PCRs indicated in this section are all subject to the completion of the council checking and mapping process set out at [65] above, including the determination of any outstanding issues by the Court.
144 Excluded under Takutai Moana Act, ss 51(2)(a) and (c).
145 Marine Mammals Protection Act 1978, s 2, definition of “marine mammal” includes “a whale” and “any part of any marine mammal” therefore it includes “baleen”.
146 Wildlife Act 1953, s 2 definition of “wildlife”: “means any animal that is living in a wild state; and includes any such animal or egg or offspring of any such animal held or hatched or born in captivity…”
Ngāti Apa
Non-commercial seeding and harvesting of shellfish
[236] Mr Shenton refers to whitebaiting and fishing. Mr Francis Huwyler refers to his consistent support of Ngāti Apa’s non-commercial fishing rights and shellfish gathering along the coast. Mr Huwyler refers to a current project seeking to re-seed toheroa on the coastline.
[237] The Attorney-General points out that Ngāti Apa has not identified any specific evidence of undertaking these activities. In addition, PCRs are not available in relation to non-commercial fishing and shellfish generally.147 Therefore no PCRs are available under this head.
Activities related to spiritual practices
[238] Mr Shenton confirmed that Ngāti Apa has not imposed a rāhui within the hearing area south of the Rangitīkei River. In any event, PCRs are not available in respect of rāhui generally.148
Planting and cultivating spinifex and pīngao
[239] Mr Shenton gave evidence of his planting and cultivating spinifex and pīngao occurring along the coastline from Turakina to Rangitīkei, including in the Santoft Forest sand dunes (which is outside the application area). He confirmed that the planting did not go right down to the bank of the Rangitīkei River, nor to the south of the Rangitīkei.
[240] The evidence is that the planting of spinifex and pīngao occurs outside the application area and therefore I am unable to grant a PCR for these activities.
147 Takutai Moana Act, s 51(2)(a), (c)(i) and (c)(ii).
148 Section 51(2)(e).
Collecting whale remains
[241] A whale is a marine mammal. No PCR can be granted where the activity relates to a marine mammal, under the s 51(2)(d)(ii) exclusion.
David Morgan Whānau
[242] Margaret Morgan-Allen applied for orders recognising the PCRs of the David Morgan Whānau (the Whānau) on 31 March 2017. As the Whānau did not apply for CMT, their application was not discussed in the previous judgment.
[243]The applicant group is described as follows:
The David Morgan Whanau whakapapa to Te Paea, Rangiuira, Matiria, and David Morgan. Rangiuira was born on the land attached to that coastal area, Margaret Morgan-Allen was appointed to make this application for and on behalf of the David Morgan Whanau on 20th August 2016.
[244] The application area is described as the common marine and coastal area that is bounded:149
(a)on the landward side by the line of mean high-water springs;
(b)on the seaward side by the outer limits of the territorial sea;
(c)on the North ward side by a line that extends from the coast abutting
Hokio Stream to the outer limits of the territorial sea; and
(d)on the South ward side by a line that extends from the coast abutting Ohau River to the outer limits of the territorial sea.
[245]The PCRs sought to be recognised are listed in the application as follows:
(a)non-commercial fishing — utilising nets, hinaki and hand-lines to catch kuaka (snipe), kanae (mullet), kahawai, araara (trevally), patiki (flounder), mackeral, terakihi, tamure (snapper), whitebait, eels, mango (gummy sharks), sand sharks and other fish;
149 A further memorandum was filed on 18 April 2018 by Mr McGhie, counsel for the applicant at that stage, annexing a topographical map with “application boundaries marked”. However, the topographical map boundaries marked do not align with the description of the boundaries in the original application. In particular, the map draws a line showing the seaward boundary at about 500 m offshore and indicates that the lateral boundaries are the south bank of the Ōhau River to the north bank of the Hōkio Stream. The Attorney-General used the description in the original application for the purposes of the consolidated application map showing the overlapping High Court applications.
(b)non-commercial harvesting of shellfish (including pipi, cockles, karahu, toheroa, tuatua, tuangi);
(c)activities related to spiritual practices (such as rahui);
(d)planting and cultivating plant species in CMCA wet margins (such as flax, tikouka, pingao);
(e)gathering edible and aquatic plants;
(f)collecting driftwood and other natural resources for non-commercial purposes;
(g)temporary camp-sites for ceremonial activities in the CMCA; [and]
(h)waka launching.
[246]The grounds in support are set out as follows:
(a)David Morgan Whanau being a coastal group has relied heavily on eel, flat fish, pipi, toheroa, tuatua, crabs, whitebait and wetland food stocks foraged by whānau in the estuaries and coastal margins; and
(b)Whanau fishermen sought the deep water fish terakihi leather jacket and john dory that were not available around the inner shoreline; and
(c)David Morgan Whanau also undertakes the following activities in the common marine and coastal area: such as rongoā collecting, bird snaring, transport, transfer of knowledge of hapu marine culture, trade, communication, seasonal kaimoana exchange, access to gardens on land, bird snaring, tangihana, social interaction, manaakitanga and ope mara; [and]
(d)David Morgan Whanau has undertaken these activities listed above since 1827 and continues to undertake these activities in the application area, albeit in some instances using modern equipment, and in accordance with tikanga.
[247] The application indicated that the Whānau would provide more information once funding for research and legal representation was secured. The address for service set out in the application has been used in these proceedings. Unfortunately, the applicant has taken no steps since filing the application and the affidavit.150
[248] Nevertheless, I consider the material I do have, but note that it has not been tested in the hearing. Dennis Raymond Morgan gave an affidavit in support of the
150 The last step taken in this matter was the filing of a memorandum of counsel by Mr Beaumont, dated 24 May 2023. That stated that the Whānau was engaging in hearing planning, pūkenga nominations and preparing evidence which indicated they would be participating in Stage 1(a) of the hearing. Nothing further has been heard.
application dated 1 April 2017. He is the brother of Margaret Morgan-Allen and confirmed the application. Mr Morgan said he lived in Levin when he was young and his father took all the whānau to the beach between Hōkio and Waiwiri Stream to gather pipi, toheroa, and patiki (flounder) by netting in the waves. He said his father often spoke of his brothers who had gone to war, and Mr Morgan understood that his father’s whānau had visited the beach area since they were young. Mr Morgan said despite initially moving to Ōtaki, he returned to the beach to fish by surf casting or sending out a long line with a kontiki to catch mango, other types of shark, tamure, kahawai, araara, and other fish.
[249] Mr Morgan said he later moved away but often visited the area to see family and the older people who lived there. When he returned to visit his brother, he made a habit of going out to the beach to fish. He said they also fished in the deepwater using a small 16-foot boat where they caught more shark, terakihi, leather jacket and John Dory but otherwise caught similar fish in shallower waters. He also caught whitebait in the Hōkio Stream (where his uncle lived), and eels from the Ōhau River, streams and channels which flowed into it.
[250] The pūkenga report refers to Mr Morgan, highlighting the tikanga regarding fishing, noting for instance that his whānau always threw back the first fish as it was understood to be an offering to the gods. The pūkenga also refer to Mr Morgan saying that his whānau had always had a close connection with the coast in the area of the application. They thought they had rights to that area because of the history and connection to tūpuna who had lived in the area. They considered they had mana whenua in that region, and exercised customary rights such as gathering food (including between Hōkio and the Waiwiri Stream) and launching waka.151
[251] The applicants have not participated in the hearing. While the material filed in relation to the application supports the Whānau using the beach and Mr Morgan’s connection through whānau to the application area, the applicant has not provided the Court with evidence supporting the claims to satisfy the statutory tests.
151 Pūkenga report, above n 81, at [96] and [266].
[252] Accordingly, the application under s 98 of the Takutai Moana Act by Ms Morgan-Allen on behalf of David Morgan Whānau is declined.
Conclusion
[253] The evidence supports the grant of PCRs in relation to the applications and activities listed below. However, before PCRs are granted the locations and details in some cases need to be identified with further specificity. Due to imprecision in many of the locations of the activities, resource gathering, further mapping and checking must take place before final orders are made. In some cases, there may be an issue as to whether the activity is in fact in the takutai moana. If not, a PCR cannot issue.
[254] In addition, in relation to kōhatu (stones), some indication of dimensions is required in relation to the PCRs which will recognise their collection. Therefore, draft conditions in consultation with the relevant local authority should be prepared for inclusion in the final orders. I will leave the parties to consult on a timetable for these matters to be further considered.
PCR orders
[255] The following PCRs are supported by the evidence subject to the comments above:
[256]Ngāti Raukawa:
(a)Gathering, harvesting and removing whitebait at river mouths across the application area, particularly: Mangaone Stream; Ōtaki River; Waitohu Stream; Waikawa River; Waiwiri Stream; Hōkio Stream; Manawatū River; Kaikokopu Stream; Rangitīkei River; Mangapouri Stream; Ōhau River; Blind Creek (Ōhau tributary); Te Hakari (Ōhau tributary); and Kuku Stream (Ōhau tributary) (being the locations sought in Raukawa’s closing submissions).
(b)Planting and gathering pīngao at Waitārere Beach; Foxton Beach; Waiwiri River mouth; Hōkio (up to Pukepuke); Himatangi Beach; Otāki Beach; and Wairarawa Stream south.
(c)Planting and cultivating harakeke at Ōtaki Beach and the Manawatū River.
(d)Collecting hāngī stones at Waitārere Beach.
(e)Collecting driftwood within the application area.
(f)Collecting rongoā materials and carrying out wai ora activities at Hōkio Beach and the Rangitīkei River (including the river mouth).
(g)Using, managing, preserving and developing tauranga waka at: Foxton Beach; Te Papa Ngāio Pā (south bank of the Manawatū River mouth); Puru Rarauhe (Manawatū River mouth); Kuititanga Pā (Waikanae River mouth); Te Wī (Ōhau beach); Rangitīkei River mouth; Himatangi; Ōhau River mouth; and Waikawa Stream mouth.
[257]Te Ātiawa:
(a)Planting and cultivating harakeke at the Ngārara Stream (Kawakahia) and the Waikanae River (excluding the Waikanae Scientific Reserve).
(b)Gathering kōhatu used as mauri stones from Paraparaumu Beach.
(c)Collecting driftwood in the takutai moana from Whareroa to Kukutauaki.
(d)Gathering, harvesting and removing whitebait at Whareroa Stream, Waikanae River mouth, and the mouth of the Waimeha Stream.
(e)Utilising, managing and preserving tauranga waka in Whareroa coastal marine area (including Whareroa Pā), Waikanae River mouth
(excluding the Waikanae estuary and Waimeha River mouth), and Paraparaumu coastal marine area (including Te Uruhi).
[258]Mr Tima:
(a)Planting grasses within the application area.
(b)Gathering firewood on Kuku Beach.
(c)Gathering stones and shells on Kuku Beach.
(d)Gathering, harvesting and removing whitebait from Kuku Beach and the Ōhau River.
[259]Muaūpoko:
(a)Gathering, harvesting and removing whitebait in the Hōkio Stream, Ōhau River, and Manawatū River.
(b)Planting, collecting, and using pīngao from Hōkio Beach to Waitārere Beach.
(c)Use of tauranga waka in the areas around the Hōkio, Waitārere, Wairarawa and Waiwiri streams, as well as the Ōhau River, Raumati, and Paraparaumu.
(d)Customary navigation within their application area, extending from the tauranga waka sites listed above.
(e)Collecting pumice from Waikanae, Paraparaumu, and from Ōtaki to Whareroa (the southern extent of the hearing area).
(f)Collecting sand (from Horowhenua), gravel (from Ōtaki) and washed-up coal (over the beach between Hōkio to Ōhau).
(g)Collecting driftwood from the Manawatū River, Tangimoana, Waikanae, Ōtaki, Hōkio, Ōhau River, and the Ōtaki River.
(h)Collecting kōhatu and detritus excluding bones, skin/leather and feathers, natural animal fibres, from Waikanae, Ōtaki, Tangimoana and Hōkio.
(i)Collecting clay/earth pigments in the takutai moana adjacent to the Horowhenua.
(j)Collecting kōhatu, onewa and pakohe stone deposits from Wharekohu
(near the Muaūpoko urupā) on Kapiti Island.
Grice J
Solicitors
Kāhui Legal, Wellington Bennion Law, Wellington Whāia Legal, Wellington
Oranganui Legal Limited, Paraparaumu Crown Law, Wellington
Buddle Findlay, Wellington Black Law, Nelson
Innes Dean Lawyers, Palmerston North Chapman Tripp, Wellington
Hockly Legal, Auckland
Attachment 1–Applications
Excerpt from the CMT judgment setting out the applications for CMT and
PCRs, interested parties and parties in Crown engagement negotiations
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:
(k)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).
(l)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).
(m)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).
(n)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).
(o)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).
(p)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. 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.
[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);
(c)Christopher Henare Tahana, Edward (Fred) Clark, Hayden Tūroa, and Novena McGuckin on behalf of Te Patutokotoko (CIV-2017-485-254);
(d)Rangitāne o Manawatū Settlement Trust (Rangitāne);
(e)Edward Penetito and Donald Koroheke Tait of Ngāti Kauwhata;
(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;
(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:
(p)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);
(q)George Davis for Ngā Hapū o Himatangi (MAC-01-11-004);
(r)Huia Marae Committee and Matau Marae Committee for Ngāti Huia (MAC-01-11-006);
(s)Kikopiri Marae Reservation Trustees on behalf of Ngāti Huia ki Kikopiri (MAC-01-11-007);
(t)Donald Tait on behalf of Ngāti Kauwhata (MAC-01-11-008);
(u)Kereru Marae on behalf of Ngā Hapū o Kereru Ngāti Takihiku, Ngāti Hinemata, Ngāti Ngārongo (MAC-01-11- 009);
(v)Rangitāne o Manawatū Settlement Trust on behalf of Rangitāne o Manawatū (MAC-01-11-013);
(w)Te Iwi o Ngāti Tukorehe Trust on behalf of Te Iwi o Ngāti Tukorehe me onā hapū, whānau hoki (MAC-01-11- 016);
(x)Ropata Williams Miratana for Te Kotahitanga o Te Iwi o Ngāti Wehi Wehi (MAC-01-11-017); and
(y)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.
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