Te Hika o Pāpāuma Mandated Iwi Authority
[2024] NZHC 3745
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-404-481; CIV-2017-485-193; CIV-2017-485-220; CIV-2017-485-221; CIV-2017-485-224; CIV-2017-485-226;
CIV-2017-485-232
Group M, Stage 1(b) [2024] NZHC 3745
UNDER the Marine and Coastal Area (Takutai Moana) Act 2011 IN THE MATTER OF
an application for orders recognising Customary Marine Title and Protected Customary Rights
Continued…
Hearing: 19, 21 – 22 and 26 – 29 February 2024; 1 – 12 and 14 March
2024; 23 and 30 April 2024; and 1 – 3 May 2024
Site visits on 18 – 22 March 2024Appearances:
C Hirschfeld and H Clatworthy for Te Hika o Pāpāuma Mandated Iwi Authority
L Watson for Ngāti Kere hapū
S Northey and T Hautapu for Trustees of Pāpāuma MaraeJ Ferguson and H Herewini for Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua
R Siciliano, C Mataira, K Katipo and T Prendiville-Stowers for Rangitāne o Wairarapa and Rangitāne Tāmaki nui-ā-Rua
D Naden, M Sreen, H Fletcher, A Crawford and C-R Smith for the Pirere Whānau and for Ngā Uri o Ngāi Tūmapuhia-ā-Rangi hapū B Lyall and H Swedlund for Ngāi Tūmapūhia-ā-Rangi ki Mōtūwairaka Inc and Ngāi Tūmapūhia-ā-Rangi ki Ōkautete Inc
B Scott and R Wales for the Seafood Industry Representatives
J Prebble, D Kleinsman and F Hussain for the Attorney-General
Judgment:
10 December 2024
INTERIM JUDGMENT OF GWYN J
(CMT orders)
RE TE HIKA O PĀPĀUMA MANDATED IWI AUTHORITY (INTERIM JUDGMENT – CMT ORDERS) [2024] NZHC 3745 [10 December 2024]
BY George Ngatiamu Matthews, on behalf of Te Hika o Pāpāuma Mandated Iwi Authority (CIV-2017-404-481)
Ngāti Kere MACA Working Party, on behalf of Ngāti Kere Hapū (CIV-2017-485-193)
Trustees of Pāpāuma Marae (CIV-2017-485- 220)
Trustees of Ngāti Kahungunu Ki Wairarapa Tamaki-Nui-A-Rua Settlement Trust, on behalf of Ngāti Kahungunu ki Wairarapa Tamaki-nui-a-Rua (CIV-2017-485-221)
Trustees of Rangitāne Tū Mai Rā Trust, on behalf of Rangitāne o Wairarapa and Rangitāne Tamaki nui-ā-Rua (CIV-2017- 485-224)
Rebecca Harper, on behalf of Pirere Whānau (CIV-2017-485-226)
Ngāi Tūmapuhia-a-Rangi hapū Incorporated on behalf of Ngā Uri o Ngāi Tūmapuhia-ā- Rangi hapū (CIV-2017-485-232)
INTERESTED PARTIES Sue Taylor, on behalf of Ngāi Tūmapūhia-ā- Rangi ki Mōtūwairaka Incorporated
Sam Morris, on behalf of Ngāi Tūmapūhia- ā-Rangi ki Ōkautete Incorporated
Seafood Industry Representatives Attorney-General
Central Hawkes’ Bay District Council Manawatū-Whanganui District Council Greater Wellington Regional Council
Hawkes’ Bay Regional Council
TABLE OF CONTENTS
Whakatakinga | Introduction [1]
Ngā tono | The applications [3]
Ngā kaitono | The applicants [5]
Ngāi Tūmapūhia-a-Rangi hapū [7]
Te Hika o Pāpāuma [10]
Pāpāuma Marae Trustees [13]
Rangitāne [17]
Pirere whānau [22]
Ngāti Kere [24]
Ngāti Kahungunu [33]
Ngā rōpū whai pānga | Interested parties [37]
Hearing; site visits [42]
Relevant background materials [44]
Te ture | The law [50]
Anga whakatureture | Legislative framework [57]
Definitions [57]
Customary Marine Title (CMT) [63]
Court of Appeal decision in Re Edwards [66]
Holds the specified area in accordance with tikanga [74]
Exclusive use and occupation without substantial interruption [83] “Without substantial interruption” [91]
Exclusivity/Shared CMT [95]
Standard and burden of proof [98]
Decisions since Re Edwards [102]
Ngāi Tūmapūhia judgment [103]
Tokomaru judgment [106]
The pūkenga report [108]
What evidence is required to meet the statutory tests? [113]
“Holds the specified area in accordance with tikanga” [113]
Mana [120]
Marae/papakāinga [121]
Land ownership [122]
Kaitiakitanga [123]
Rāhui [125]
Tapu [126]
Customary usages (fishing and kaimoana gathering) [127]
Manaakitanga [128]
“Exclusive use and occupation without substantial interruption” [130]
CMT [136]
Representation [136]
Ngāi Tūmapūhia-a-Rangi hapū [146]
Holds the specified area in accordance with tikanga [152]
Exclusive use and occupation from 1840 to the present day [156]
Te Hika o Pāpāuma [161]
Holds the specified area in accordance with tikanga [175] Castlepoint purchase [176]
Mana whenua of Mataikona/Mataikona Reserve [192] Exclusive use and occupation from 1840 to the present day [276] Substantial interruption [289]
Pāpāuma Marae Trustees [295]
Holds the specified area in accordance with tikanga [324]
Exclusive use and occupation from 1840 to the present day [376]
Next steps [397]
Rangitāne [411]
Holds the specified area in accordance with tikanga [419]
Exclusive use and occupation from 1840 to the present day [425]
Conclusion [436]
Pirere whānau [437]
Holds the specified area in accordance with tikanga [454]
Exclusive use and occupation from 1840 to the present day [497]
Conclusion [516]
Ngāti Kere [518]
Holds the specified area in accordance with tikanga [522]
Exclusive use and occupation from 1840 to the present day [541]
Ngāti Kahungunu [567]
Does commercial fishing amount to substantial interruption? [571]
Seaward boundary of CMT [591]
Conclusion [648]
Wāhi tapu [653]
PCRs [655]
Orders [656]
Addendum [658]
APPENDIX I – Application area map
APPENDIX II – Overlapping High Court applications map
Whakatakinga | Introduction
[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act) recognises customary interests of Māori in the common marine and coastal area.1
[2] The marine and coastal area is the area between high-water springs and the 12 nautical mile limit of the territorial sea.2 The Takutai Moana Act creates three new types of legal interest. First, a right to participate in conservation processes; second, a customary marine title; and third, a protected customary right.3 These legal interests may be granted to iwi, hapū or whānau groups.4
Ngā tono | The applications
[3] In Stage 1(b) of this proceeding the Court was asked to determine whether the seven applicant groups are entitled to orders recognising customary marine title (CMT) and/or protected customary rights (PCRs) under the Takutai Moana Act in the hearing area.5 The hearing area relates to a part of the common marine and coastal area (CMCA) in the Wairarapa, from the southern bank of the Whareama River to Aramoana, and extending from the line of mean high-water springs (MHWS), out to the territorial sea limit (the hearing area). The hearing area is depicted in Figure 1 below.6
[4] Stage 1(b) is the second stage of the broader Wairarapa “Group M” proceedings. In Stage 1(a), the first stage, the Court heard applications for recognition orders in the area from Tūrakirae Head to the southern boundary of the Whareama River, between the line of MHWS (generally) and out to the territorial sea limit. The Court’s decision in that proceeding was issued to counsel and parties on 26 February 2024, and released to the public on 7 March 2024.7
1 Marine and Coastal Area (Takutai Moana) Act 2011 [Takutai Moana Act], s 7.
2 Section 9(1).
3 Part 3.
4 Section 9(1), definition of “applicant group”.
5 HC Wellington CIV-2017-485-259, 1 July 2022 (Minute of Churchman J); and see also HC Wellington CIV-2017-404-481, 9 November 2022 (Minute of Churchman J).
6 A landscape depiction of the area is at Appendix I. See also Appendix II which shows the overlapping applications.
7 Re Ngāi Tūmapūhia-a-Rangi Hapū Inc [2024] NZHC 309 [Ngāi Tūmapūhia].
Ngā kaitono | The applicants
[5]The applicants are:
(a)Ngāi Tūmapūhia-a-Rangi hapū Incorporated on behalf of Ngā Uri o Ngāi Tūmapūhia a Rangi hapū (CIV-2017-485-232).
(b)George Ngatiamu Matthews on behalf of Te Hika o Pāpāuma (CIV- 2017-404-481);
(c)Papauma Marae Trustees (CIV-2017-485-220);
(d)Trustees of Rangitāne Tū Mai Rā Trust on behalf of Rangitāne o Wairarapa and Rangitāne Tamaki nui-ā-Rua (CIV-2017-485-224);
(e)Pirere whānau (CIV-2017-485-226);
(f)Ngāti Kere (CIV-2017-485-193); and
(g)Trustees of Ngāti Kahungunu Ki Wairarapa Tamaki-Nui-Ā-Rua Settlement Trust on behalf of Ngāti Kahungunu ki Wairarapa Tamaki- nui-ā-Rua (CIV-2017-485-221);
[6]A brief summary of each of the applicant groups is set out below.
Ngāi Tūmapūhia-a-Rangi hapū
[7] Ngāi Tūmapūhia’s application area runs along the coastline from the northern bank of the Whareama River, south to the southern bank of the Pāhaoa River and 12 nautical miles out to sea from all points along the coastline. The hapū’s traditional rohe moana is also inclusive of the area that runs along the coastline from the southern bank of the Pāhaoa River to the southern bank of the Āwhea River and 12 nautical miles from all points along the stated coastline.
[8] Originally, the entirety of Ngāi Tūmapūhia’s application area was included in the Wairarapa Group M, Stage 1(a) hearing. However, during that hearing it was
decided to include the Whareama river mouth in this Wairarapa Group M, Stage 1(b) hearing.
[9] Before the change of hearing area was agreed to the parties to the Stage 1(a) hearing reached an agreement — the mana moana agreement8 — under which they acknowledged shared interests in six coastal rohe within the application area. One of those coastal rohe was the Whareama River mouth, where the parties agreed that Te Hika o Pāpāuma and Ngāi Tūmapūhia were the relevant hapū. The mana moana agreement is therefore relevant to my conclusion as to who should hold CMT in this rohe, as I will come to below.
Te Hika o Pāpāuma
[10] George Matthews, the named applicant for Te Hika o Pāpāuma, seeks recognition of CMT and PCRs in the CMCA between the mouth of the Whareama River (southern bank) and Poroporo, from the line of MHWS and out to the territorial sea limit.
[11] As noted above, the area from the southern bank of the Whareama River to its northern boundary, encompassing the Whareama River mouth, was originally included in the hearing area for Group M stage 1(a) (the southern Wairarapa coast), but the hearing area was amended to add it to this Stage 1(b) hearing.
[12] As above, the mana moana agreement is relevant to that part of Te Hika o Pāpāuma’s application.
Pāpāuma Marae Trustees
[13] The Trustees of the Pāpāuma Marae seek recognition of CMT and PCRs in the CMCA between the southern bank of the Mataikona River and the northern bank of the Aohanga River.9 The application area is the common marine and coastal area
8 At [119]–[122].
9 Aohanga is also referred to as Owāhanga in various sources. In his report prepared for the Pāpāuma Marae Trustees historian Bruce Stirling notes at 1: “By way of clarification, ‘Owahanga’ is an earlier and incorrect spelling of Aohanga. The long-standing spelling error for the locality, river, and hill ‘Owahanga’ was corrected to Aohanga in 2023 under the Ngāti Kahungunu ki Wairarapa-Tamaki-nui-a Rua Claims Settlement Act.” I have therefore adopted the Aohanga
contiguous to, adjoining and abutting the Mataikona 1, 2 and 3 Blocks, extending from the landward boundary from the line of MHWS and the seaward boundary being the outer limit of the territorial sea (12 nautical miles from shore).
[14] The applicant group comprises the Trustees of Pāpāuma Marae. The application is brought on behalf of the owners and beneficiaries of the Pāpāuma Marae, who are the direct descendants of the original owners of Mataikona 1, 2 and 3 Blocks.
[15] Pāpāuma Marae Trustees are established under the Proprietors of Owāhanga Station trading as Aohanga Incorporation 1972. The Directors of the Aohanga Incorporation automatically become the Trustees of the Pāpāuma Marae. The Trustees of Pāpāuma Marae are responsible for Pāpāuma Tipuna Whare and Te Aroha o Aohanga.
[16] The iwi of the Trustees of Pāpāuma Marae is Ngāti Kahungunu; their hapū is Te Hika a Pāpāuma. The Trustees of the Pāpāuma Marae cite Te Matau as their notable ancestor in respect of the application area. Te Matau descends from the union of Rakaihikuroa and Pāpāuma. Rakaihikuroa is the grandson of Kahungunu, the eponymous ancestor of the applicants’ iwi.
Rangitāne
[17] Rangitāne seeks recognition of CMT and PCRs in the CMCA between the southern bank of the Whareama River and Poroporo, from the line of MHWS and out to the territorial sea limit.
[18] Rangitāne seeks joint CMT at a hapū level through specific Rangitāne hapū present along the coastline. In particular, the Rangitāne application is to ensure that their hapū Ngāti Te Rangiwhaka-ewa, Ngāti Parakiore and Ngāti Hāmua are represented in the proceeding and appropriately recognised in any orders made. Those hapū have had a strong presence in this area from prior to 1840 through to today, in accordance with their tikanga.
spelling throughout this judgment, except where the historical context requires the use of Owāhanga.
[19] Rangitāne therefore seeks inclusion of these hapū in any CMT orders made by the Court.
[20] Rangitāne also acknowledges the continued, joint presence of Te Hika o Pāpāuma and Ngāti Kere in their respective areas. These reflect the shared whakapapa, connections and well-established arrangements these hapū have with Rangitāne over many years.
[21] While Rangitāne has filed an application relating to the whole of the area from the Whareama river mouth in the south to Poroporo in the north, it recognises the specific hapū applications before the Court along this area. Rangitāne seeks joint CMT at a hapū level, through specific Rangitāne hapū present along this coastline, based on shared exclusivity and joint use and occupation.
Pirere whānau
[22] Rebecca Harper, on behalf of the Pirere whānau, seeks recognition of CMT and PCRs in the CMCA between the southern bank of the Castlepoint Stream and the northern bank of the Ōkau Stream, from the landward boundary of the CMCA and out to the territorial sea limit.
[23] The Pirere whānau belongs to the Te Hika o Pāpāuma hapū, which has ancestral connections to the broader iwi groups of Ngāti Kahungunu ki Wairarapa and Rangitāne. The Pirere whānau have a long-held associated with the Whakataki area.
Ngāti Kere
[24] In its application of 29 March 2017 for orders under the Takutai Moana Act, Ngāti Kere sought recognition of CMT in the CMCA between the southern bank of Te Wainui Stream (Herbertville) and the northern bank of the Ouepoto Stream, from the line of MHWS and out to the territorial sea limit.
[25] Ngāti Kere’s application for PCRs was for the area from the southern bank of the Akitio River in the south, to the northern bank of the Ouepoto Stream in the north.
[26] On 29 April 2024, shortly after completion of the hearing, Ngāti Kere filed an amended application seeking to amend its CMT application area, to encompass the area from the northern bank of the Ouepoto Stream in the north, to the southern bank of the Akitio River in the south, thus matching the area for which is seeks PCRs.
[27] I granted that application to amend Ngāti Kere’s application area for CMT in a judgment of 5 June 2024.10
[28] Subsequently, the Attorney-General sought leave to appeal that interlocutory decision. In a judgment of 15 August 2024, I declined leave.11 The Attorney-General sought leave from the Court of Appeal. As at the date of this judgment, the Attorney- General’s application had not yet been determined.
[29] In light of that, in this judgment I will consider Ngāti Kere’s application for CMT in two parts: first, in relation to the area contained in its originating application of 29 March 2017; second, in respect of the additional area covered by the interlocutory judgment, which I refer to as the extension area. This is the area from the southern bank of the Ākitio River to the southern bank of Te Wainui Stream (Herbertville).
[30] This application is brought on behalf of the Ngāti Kere MACA Working Party (Ngāti Kere). The Working Party members affiliate to the hapū of Ngāti Kere and carry the mandate of the Ngāti Kere hapū to progress this application.
[31] Ngāti Kere hapū include the customary interests of the following inter-related descent groups:
(a)Ngāti Kere;
(b)Ngāti Manuhiri;
(c)Ngāti Pihere; and
10 Re Ngāti Kere (Application to amend CMT area) [2024] NZHC 1472.
11 Re Ngāti Kere (Application for leave to appeal decision re CMT application area) [2024] NZHC 2298.
(d)Ngāti Hinetewai.
[32] Ngāti Kere acknowledges the possibility of “shared exclusivity” and acknowledge all of their whanaunga of Ngāti Kahungunu ki Wairarapa, Rangitāne and Te Hika o Pāpāuma.
Ngāti Kahungunu
[33] Ngāti Kahungunu seeks recognition of CMT and PCRs in the CMCA between the southern bank of the Whareama River and Poroporo, from the line of MHWS and out to the territorial sea limit.
[34] The Ngāti Kahungunu application was filed as an overarching korowai application in order to ensure that the interests of all Ngāti Kahungunu hapū in the takutai moana of the Wairarapa and Tāmaki-nui-a-Rua could be recognised, in the event that the relevant Ngāti Kahungunu hapū did not file their own applications.
[35] Ngāti Kahungunu’s position is that any rights under the Takutai Moana Act should not be recognised or held at an overarching iwi level.
[36] In light of the applications subsequently filed by Ngāti Kahungunu related groups (Ngāti Kere, Te Hika o Pāpāuma, Trustees of Pāpāuma Marae, Ngāi Tūmapūhia a Rangi and the Pirere whānau), which cover the entire Stage 1(b) hearing area, the stated purpose of Ngāti Kahungunu’s participation was to support the other Ngāti Kahungunu-related applications. Also, if required, to seek recognition of the interests of relevant Ngāti Kahungunu hapū in any related groups in any areas of the takutai moana where the interests of any such hapū or group reasonably extend beyond the area of takutai moana demarcated in their filed application. And, finally, to ensure that any other Ngāti Kahungunu hapū or groups who are identified as having relevant interests alongside any of the applicants in a particular part of the takutai moana are recognised, either directly or indirectly, in any orders ultimately made by the Court.
Ngā rōpū whai pānga | Interested parties
[37] As the Court of Appeal noted,12 there are no defendants in a proceeding under the Takutai Moana Act, only applicants and interested parties.
[38] Those interested parties who filed notices of appearance13 in relation to the Stage 1(b) hearing were:
(a)Sue Taylor, on behalf of Ngāi Tūmapūhia-ā-Rangi ki Mōtūwairaka Incorporated and Jason Morris, on behalf of Ngāi Tūmapūhia-ā-Rangi ki Ōkautete Incorporated (Tūmapūhia interested parties). The Tūmapūhia interested parties called evidence.
(b)NZ Rock Lobster Industry Council Ltd, Pāua Industry Council Ltd, Fisheries Inshore New Zealand Ltd and the New Zealand Federation of Commercial Fishermen Inc (together, the Seafood Industry Representatives group or SIR) which called evidence.
(c)The Manawatū-Whanganui Regional Council, which filed legal submissions but did not file evidence and was granted leave to be excused from the hearing. The Council requested the right to maintain its watching brief and to participate in future stages of the hearing regarding the specific boundaries and form of CMT and PCR orders.
(d)The Greater Wellington Regional Council, which filed legal submissions but did not file evidence and was granted leave to be excused from the hearing. The Council requested the right to maintain its watching brief and to participate in future stages of the hearing regarding the specific boundaries and form of CMT and PCR orders.
(e)The Central Hawkes’ Bay District Council, which did not file evidence or submissions and was granted leave to be excused from the hearing.
12 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 [Re Edwards] at [236].
13 Takutai Moana Act, s 104.
The Council wishes to maintain a watching brief and to be involved in future stages of the hearing if CMT or PCRs are granted.
(f)The Hawkes’ Bay Regional Council, which did not file evidence or submissions and did not participate in the hearing. The Council wishes to maintain a watching brief and to be involved in future stages of the hearing if CMT or PCRs are granted.
[39] By minute of 11 December 2023,14 I confirmed that the local and regional councils acting as interested parties will have the opportunity to participate in any future discussions on the boundaries and descriptions of any CMT or PCR orders to be made, including wāhi tapu protection orders.
[40] The Attorney-General also appeared as an interested party, as in all previous proceedings under the Takutai Moana Act. As I acknowledged during this case, and in my judgment in Ngāi Tūmapūhia, the Attorney-General is not an “interested party” in the same sense as the “tangata whenua” interested parties15 and the SIR, each of which has a direct interest in the outcome of the applications. As Churchman J acknowledged in Re Rihari (on behalf of Ngāti Torehina ki Mataka Hapū/Iwi of Niu Tireni),16 the role of the Attorney-General is to appear in the “interests of the public” to ensure the Court has all relevant information before it and to assist in the interpretation and application of the Act through legal submissions.
[41] In this hearing, as in Ngāi Tūmapūhia, counsel for the Attorney-General made submissions on the approach to interpreting the legislation and applying the tests for CMT and PCRs and, at my request, provided an assessment of the evidence proffered by each of the applicants and whether it met the tests for CMT and/or PCRs.
14 Minute of Gwyn J (Participation of local and regional councils), 11 December 2023 at [2]–[3].
15 In this proceeding, Ngāi Tūmapūhia-ā-Rangi ki Motuwairaka Inc and Ngāi Tūmapūhia-ā-Rangi ki Okautete Inc.
16 Re Rihari (Ngāti Torehina Ki Mataka Hapū/Iwi of Niu Tireni) [2019] NZHC 2658 at [2(f)].
Hearing; site visits
[42] The hearing took place at the Wellington High Court. It began on 19 February 2024. After four weeks, the Court took an adjournment for the preparation of the pūkenga report and closing submissions. Site visits were organised by Te Hika a Pāpāuma Mandated Iwi Authority, the Pirere whānau, the Rangitāne Tū Mai Rā Trust, Ngāti Kahungunu ki Wairarapa Tamaki Nui ā-Rua Settlement Trust, the Pāpāuma Marae Trustees and Ngāti Kere hapū. The Judge, pūkenga, High Court security staff and counsel (for those parties who wished to attend) took part in the site visits over a week, starting 18 March 2024.
[43] The pūkenga submitted his report on 19 April 2024,17 and counsel questioned Dr Joseph on his report on 23 April 2024. Closing submissions were delivered over three days, from 1 to 3 May 2024.
Relevant background materials
[44] A number of reports have provided useful context to this hearing and were referred to in the parties’ submissions. For example, the Waitangi Tribunal’s report on its inquiry into the district called Wairarapa ki Tararua, which extends from the southern coast of the eastern side of the North Island up to southern Hawke’s Bay.18 In particular, the Tribunal’s report highlights the dramatic loss of Māori land in Wairarapa ki Tararua, beginning in June 1853.
[45] The Waitangi Tribunal has already undertaken in two reports a national, historical and contemporary survey of customary rights in the foreshore and seabed. Conclusions from those surveys provide a useful background against which the Court can consider customary interests specific to the Wairarapa Coast.
[46]In its 2004 report, the Waitangi Tribunal said:19
17 A revised report was submitted on 23 April 2024.
18 Waitangi Tribunal The Wairarapa ki Tararua Report Volume I: The People and the Land (Wai 863, 2010) [Wairarapa Report Volume I]; and Waitangi Tribunal The Wairarapa ki Tararua Report Volume II: The Struggle for Control (Wai 863, 2010) [Wairarapa Report Volume II].
19 Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at [2.1.8].
The foreshore and sea were and are taonga for many hapū and iwi. Those taonga were the source of physical and spiritual sustenance. Māori communities had rights of use, management and control that equated to the full and exclusive possession promised in the English version of the Treaty. This promise applied just as much to the foreshore and seabed as, in 1848, it was found to apply to all dry land. There is in our view no logical, factual, or historical distinction to be drawn. In addition to rights and authority over whenua, Māori had a relationship with their taonga which involved guardianship, protection, and mutual nurturing.
[47] This view was confirmed in the Tribunal’s 2023 report, which was published during the course of this hearing:20
We accept that some parts of te takutai moana – for example, fishing grounds or areas containing wāhi tapu – are more significant to Māori than others. However, the evidence given during this inquiry demonstrates that, for the claimants, the entire takutai moana in their rohe is a taonga. That some areas within it are more significant than others does not undermine the status of te takutai moana as a whole.
…
In contrast, we heard no evidence to suggest that some parts of te takutai moana are not considered a taonga. On the strength of the evidence we heard, we conclude that the marine and coastal area as a whole is a taonga that has significant importance to Māori.
[48] The Tribunal’s report outlines its concerns about some aspects of the Takutai Moana Act, including the statutory test for CMT. In the Stage 2 Report the Tribunal found that the statutory regime itself is not compliant with te Tiriti o Waitangi and Treaty of Waitangi principles.21 While the Tribunal’s report is not binding on the Court, it provides relevant context and, as a number of applicants submitted, highlighted the significance of the Court considering the history of the Takutai Moana Act and its purpose and preamble.22
[49] Of general relevance is He Poutama, the study paper released by Te Aka Matua o te Ture | the Law Commission, which reviews the role of tikanga concepts in state law.23 The paper provides an account of what tikanga is and addresses how tikanga and state law might best engage.
20 Waitangi Tribunal Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 2 Report
(Wai 2660, 2023) [Takutai Moana Report Stage 2] at 50.
21 At [6.5.4].
22 The Stage 2 report was issued on 4 October 2023, prior to the Court of Appeal decision in Re Edwards, above n 12, where the Court did undertake such a consideration.
23 Te Aka Matua o Te Ture | Law Commission He Poutama (NZLC SP24, 2023).
Te ture | The law
[50] The law that applied at the time of this hearing and at the date of issue of this interim judgment, is the Takutai Moana Act, as applied by the Court of Appeal in Re Edwards.
[51] On 25 July 2024 the Minister of Treaty Negotiations the Hon Paul Goldsmith issued a press release advising that Cabinet had decided to propose legislation to amend the Takutai Moana Act and overturn the Court of Appeal’s interpretation of s 58 in Re Edwards.24 The Minister said if the proposed amendments are enacted by Parliament they will be applied retroactively from 25 July 2024.
[52] Subsequently an amending Bill was introduced into the House of Representatives. As at the date of this judgment the amending Bill had not been enacted.
[53] The constitutional principle is clear. The courts must interpret and apply the law as it currently stands, even in the face of pending legislation.25
[54]In Willow Wren, the English High Court said:26
This court is not concerned with what Parliament may think it wise to do in relation to the rights of the parties, but the plaintiff is entitled to come to this court and say, ‘In the normal course of events my action will very soon be ripe for hearing. I desire that the court should hear it.’ If subsequently to that Parliament in its wisdom thinks it right by some enactment to affect the rights of the parties even to the extent of modifying or abrogating the effects of any judgment which the plaintiffs may be fortunate enough to obtain, no one doubts the right and power of Parliament to do so. It is plain, however, that it is not right for this court either now or at the hearing to take into account the possible effect of a Bill which is at present before Parliament and which, so far as this court is concerned, may never become law, or, if passed into law, may contain provisions which ultimately do not affect the rights of the parties before the court. In other words, it is a matter of speculation on which this court will not embark whether a Bill at present before Parliament will be passed into law in its present form.
24 Hon Paul Goldsmith “Test for Customary Marine Title being restored” (press release, 25 July 2024).
25 Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 All ER 567 (CH), [1956] 1 WLR 213 at 215–216. This decision was cited by the Supreme Court with approval in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [47].
26 Willow Wren Canal Carrying Co Ltd, above n 25, at 569.
[55] That principle was reiterated, in the criminal context, in R v Morgan, where Mander J noted:27
The courts are not permitted to pre-empt Parliament as to what the law will be, nor may they proceed in the expectation that the parliamentary process, which is pre-eminently political, will result in a particular legislative outcome.
[56] In this judgment I have applied the Takutai Moana Act as enacted and the Court of Appeal decision in Re Edwards.28
Anga whakatureture | Legislative framework
Definitions
[57] Central to the Takutai Moana Act (and replacing the term “foreshore and seabed”) are the terms “marine and coastal area” and “common marine and coastal area”.29 Rights recognised under the Act apply in the CMCA, which is a subset of the marine and coastal area.
[58]The “marine and coastal area” is defined as follows:
marine and coastal area—
(a)means the area that is bounded,—
(i)on the landward side, by the line of mean high-water springs; and
(ii)on the seaward side, by the outer limits of the territorial sea; and
(b)includes the beds of rivers that are part of the coastal marine area (within the meaning of the Natural and Built Environment Act 2023); and
(c)includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
(d)includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b)
27 R v Morgan [2021] NZHC 3352, [2022] NZAR 221 at [16]; and see Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) at 622–623.
28 See addendum.
29 Section 9.
[59] The “coastal marine area” within the meaning of the Resource Management Act 1991 (RMA) is defined at s 2 of the RMA:
coastal marine area means the foreshore, seabed, and coastal water, and the air space above the water—
(a)of which the seaward boundary is the outer limits of the territorial sea:
(b)of which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of—
(i)1 kilometre upstream from the mouth of the river; or
(ii)the point upstream that is calculated by multiplying the width of the river mouth by 5
[60]This definition means the CMA boundary may extend up a river for a distance.
[61] The “common marine and coastal area” is defined in the Takutai Moana Act as follows:
common marine and coastal area means the marine and coastal area other than—
(a)specified freehold land located in that area; and
(b)any area that is owned by the Crown and has the status of any of the following kinds:
(i)a conservation area within the meaning of section 2(1) of the Conservation Act 1987:
(ii)a national park within the meaning of section 2 of the National Parks Act 1980:
(iii)a reserve within the meaning of section 2(1) of the Reserves Act 1977; and
(c)the bed of Te Whaanga Lagoon in the Chatham Islands
[62] The Takutai Moana Act accords the CMCA a special status, such that neither the Crown nor any person is capable of owning it.30 This special status does not affect the exercise of customary rights as recognised under the Takutai Moana Act, or the lawful use of, or any lawful activity in, the CMCA.31
30 Section 11(1) and (2).
31 Section 11(5)(a) and (b).
Customary Marine Title (CMT)
[63] Section 58(1) of the Takutai Moana Act establishes a two-limb test for the recognition of CMT. It provides:
(1)Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
(a)holds the specified area in accordance with tikanga; and
(b)has, in relation to the specified area,—
(i)exclusively used and occupied it from 1840 to the present day without substantial interruption; or
(ii)received it, at any time after 1840, through a customary transfer in accordance with subsection (3).
[64]The rights that attach to CMT were summarised by Miller J in Re Edwards:32
CMT is the most extensive form of statutory right provided for under MACA. CMT is a (non-alienable) interest in land.33 It is a territorial right, not merely a usage right. A group which holds CMT over a specified area does not have the right to exclude people from that area: public rights of access, navigation and fishing are … expressly carved out and protected by ss 26–28. But the group has certain rights set out in ss 60 and 62 of MACA including permission rights under the Resource Management Act (RMA permission right),34 and certain conservation statutes;35 a right to protect wāhi tapu and wāhi tapu areas;36 prima facie ownership of newly found taonga tūturu;37 ownership of certain minerals;38 and the right to create a planning document for the area.39 The group may use, benefit from or develop a customary marine title area, but is not exempt from obtaining any relevant resource consent, permit, or approval that is required under another enactment for the use and development of that customary marine title area.40
[65] Matters that can be taken into account in determining whether CMT exists are set out in s 59:
59 Matters relevant to whether customary marine title exists
32 Re Edwards, above n 12, at [134] per Miller J and see also [391] per Cooper P and Goddard J.
33 Takutai Moana Act, s 60(1).
34 Sections 66–70.
35 Sections 71–75.
36 Sections 78–81.
37 Section 82.
38 Section 83.
39 Sections 85–93.
40 Section 60(2).
(1)Matters that may be taken into account in determining whether customary marine title exists in a specified area of the common marine and coastal area include—
(a)whether the applicant group or any of its members—
(i)own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:
(ii)exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and
(b)if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.
(2)To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(a)(ii).
(3)The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.
(4)For the purpose of subsection (1)(a)(i), land abutting all or part of the specified area means—
(a)land that directly abuts the specified area; or
(b)land that does not directly abut the specified area, but does directly abut any of the following:
(i)a marginal strip (as defined in section 2(1) of the Conservation Act 1987) that directly abuts the specified area:
(ii)an esplanade reserve (as defined in section 11 of the Natural and Built Environment Act 2023), but only to the extent that it directly abuts the specified area:
(iii)a reserve (as defined in section 2(1) of the Reserves Act 1977), but only to the extent that it directly abuts the specified area:
(iv)a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified area:
(v)a road that directly abuts the specified area:
(vi)a railway line that directly abuts the specified area.
Court of Appeal decision in Re Edwards
[66] The Court of Appeal’s decision in Re Edwards41 is the first substantive appellate decision under the Takutai Moana Act.
41 Re Edwards, above n 12, at [39]–[63] per Miller J and [384] per Cooper P and Goddard J.
[67] Both Miller J and the majority judgment of Cooper P and Goddard J traverse the legislative history and purpose of the Act in some detail.
[68] Justice Miller discusses Attorney-General v Ngati Apa,42 where the Court of Appeal determined that the Māori Land Court had jurisdiction to determine claims of customary ownership to areas of the foreshore and seabed. In part to overcome that decision, the Foreshore and Seabed Act 2004 was enacted. As the Preamble to the Takutai Moana Act records, the policy underpinning the Foreshore and Seabed Act was found (by the Waitangi Tribunal, the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Special Rapporteur) to have breached te Tiriti o Waitangi/the Treaty of Waitangi and to have a discriminatory effect on whānau, hapū and iwi.43
[69] The Preamble to the Takutai Moana Act describes the scheme of the Act as follows:
(4)This Act takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations:
…
[70] As the majority of the Court of Appeal noted,44 the purpose statement is central to the interpretation of s 58, which sets out the CMT test. It says:45
4 Purpose
(1)The purpose of this Act is to—
(a)establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
(b)recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
42 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).
43 Re Edwards, above n 12, at [52] per Miller J.
44 At [381] per Cooper P and Goddard J.
45 Takutai Moana Act, s 4.
(c)provide for the exercise of customary interests in the common marine and coastal area; and
(d)acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).
(2)To that end, this Act—
(a)repeals the Foreshore and Seabed Act 2004 and restores customary interests extinguished by that Act; and
(b)contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c)gives legal expression to customary interests; and
(d)recognises and protects the exercise of existing lawful rights and uses in the marine and coastal area; and
(e)recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area—
for its intrinsic worth; and
(ii)for the benefit, use, and enjoyment of the public of New Zealand.
[71] Consistent with that purpose, s 5 repeals the Foreshore and Seabed Act and s 6 provides for the restoration of customary rights that were extinguished by the Foreshore and Seabed Act. Those customary rights are “given legal expression” in accordance with the Takutai Moana Act.
[72] Section 7 confirms that the Takutai Moana Act is intended to take account of te Tiriti/the Treaty:
Treaty of Waitangi (te Tiriti o Waitangi)
In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing,—
(a)in subpart 1 of Part 3, for the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area; and
(b)in subpart 2 of Part 3, for customary rights to be recognised and protected; and
(c)in subpart 3 of Part 3, for customary marine title to be recognised and exercised.
[73] In summarising the importance of these provisions, the majority of the Court of Appeal said:46
The consistent theme of these provisions is that MACA is intended to restore customary interests in the common marine and coastal area that were extinguished by the 2004 Act. Those interests are to be “given legal expression” in accordance with MACA.47 Or, as it is put in the Preamble, translated into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations. Section 7 expressly makes the link with the Treaty of Waitangi: MACA recognises and promotes the exercise of customary interests of Māori in the common marine and coastal area “in order to take account of the Treaty of Waitangi”. It does so by providing, among other things, for PCRs to be recognised and protected and for CMT to be recognised and exercised.
Holds the specified area in accordance with tikanga
[74] The Court of Appeal confirmed that when assessing the first limb of the CMT test (s 58(1)(a)), the focus should be on “the group’s intention and ability to control access to an area, and the use of resources within it, as a matter of tikanga.”48 So, for example, a group may hold an area in accordance with tikanga, where tikanga requires the permission of that group to be sought before others access the area or use resources within it.49 “Holds in accordance with tikanga” reflects the Te Ture Whenua Maori Act 199350 definition; “[t]here is no connotation of ownership, but rather that it is retained or kept in accordance with tikanga Maori”.51
[75] The Takutai Moana Act makes extensive use of tikanga concepts and te reo Māori terms. The assessment is expressly not focused on the group’s practical ability to exclude others from entering certain areas,52 given that Māori were increasingly deprived of this ability since the British assumed sovereignty in 1840.53
46 Re Edwards, above n 1232, at [384] (emphasis in original).
47 Takutai Moana Act, s 6(1).
48 Re Edwards, above n 1232, at [403] (emphasis in original).
49 At [403].
50 Section 129(2)(a), the definition of Māori customary land.
51 Re Edwards, above n 12, at [397], citing da Silva v Aotea Māori Committee (1998) 25 Tai Tokerau MB 212 (25 TTK 212) at 217.
52 Re Edwards, above n 12, at [429].
53 At [426(d)] and [429].
[76] Rather, the touchstone for the first limb of the test is whether, from a tikanga perspective, the applicant group can be considered the group possessing the requisite mana to determine who may access and use the area, irrespective of whether they possess the practical means of doing so.54 One of the Act’s purposes is to “recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua”.55 In Miller J’s minority judgment, he conceptualises mana tuku iho as “the inherited right or authority to speak for a specific part of the common coastal and marine area.”56 An applicant does not have to demonstrate something in the nature of a proprietorial interest, consistent with other interests in land recognised by common law or statute.57 As Miller J put it: “Holding an area of the takutai moana in accordance with tikanga is something different to being a proprietor of that area”.58
[77] The first limb of the test for CMT under s 58(1)(a) requires that an applicant group “holds” the specified area in accordance with tikanga. The test is whether the group currently uses and occupies the area, in a manner consistent with the nature of that area and it requires the group to have control or authority over the area according to tikanga. The majority accepted that evidence of activities that show control or authority of the area,59 as opposed to simply carrying out a particular activity in that area,60 will be of particular importance in distinguishing a “holding” of the area from the use of the area to the other particular resource.61
[78] Accordingly, in order to determine whether the first limb of the CMT test has been met, it is necessary to define the relevant tikanga of the area in question that demonstrates control or authority over the ability to access and use the area.
[79] Justice Miller’s judgment identifies the elements of mana over land and its occupants which can be considered historic methods of controlling an area.62
54 At [429] and [434].
55 Section 4(1)(b).
56 Re Edwards, above n 12, at [133]; and see also Takutai Moana Act, s 9(1).
57 At [128]–[130].
58 At [130].
59 At [401].
60 At [401].
61 At [401]–[404] per Cooper P and Goddard J. To similar effect, see [140] per Miller J.
62 At [167], referring to Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 303–308, and [168] where the judgment identifies further, post- colonial elements of control.
Dr Joseph’s pūkenga report includes a similar list.63 The elements referred to by Miller J include:
(a)military action taken to displace existing occupants (take raupatu, take ringa kaha and take pakihiwi kaha);
(b)occupation;
(c)intermarriage with tangata whenua women;
(d)marking out in some way a rohe which the group is capable of defending;
(e)naming of places;
(f)establishment of urupā;
(g)establishment of tūahu (shrines);
(h)establishment of kāinga;
(i)placing of wāhi tapu;
(j)adoption of a group name;
(k)approval and acceptance of neighbouring iwi.
[80] Justice Miller’s judgment also refers to the relational values of tikanga.64 Where an applicant group can provide adequate evidence of the activity set out above, their “cultural exchanges or practices” will be imbued with sufficient whanaungatanga, mana, manaakitanga, utu, kaitiakitanga and tapu to satisfy the first
63 Dr Robert Joseph Pūkenga Report (17 October 2023).
64 Re Edwards, above n 12, at [127].
limb of the s 58 test. Justice Miller confirmed that the interconnectedness encompassed by whanaungatanga is traced through whakapapa links.65
[81] The focus on applying tikanga to control access does not require that the tikanga is always successfully implemented in the face of third party or non-Māori activities that override or are not undertaken consistently themselves with tikanga (such as commerical fishing) where there is no ability to lawfully restrict access.66
[82] The Court of Appeal accepted that, in the case under appeal, it was appropriate to ask the pūkenga which groups, if any, held a specified area in accordance with tikanga. That was plainly a question of tikanga within the scope of s 99 of the Act.67 Although, as Miller J noted, it is a question on which a Court cannot defer to the pūkenga, but must reach its own conclusion.68 Justice Miller also added that it would have been appropriate to ask the pūkenga whether any applicant group exclusively used and occupied a specified area, as that too is in part a question of tikanga.69
Exclusive use and occupation without substantial interruption
[83] The second limb of the s 58 test, unlike the first limb, does not refer to tikanga. But the Court of Appeal held that s 58 establishes a “single test” which must be interpreted as a whole.70 The concept of exclusive use and occupation, in s 58(1)(b), must be viewed through the lens of tikanga, not that of the common law alone.71
[84] The majority in Re Edwards concluded that it is “exceptionally difficult” to reconcile the text of s 58(1)(b) with the purposes of the Takutai Moana Act. The majority considered a literal reading of this limb of the test would mean that it was “likely there would be few areas of the foreshore or seabed where CMT could be made out”:72
65 At [127].
66 At [401]–[404], [424]–[426] and [434] per Cooper P and Goddard J.
67 At [266] per Miller J and [360] per Cooper P and Goddard J.
68 At [266] per Miller J.
69 At [266].
70 At [138].
71 At [138].
72 At [416] per Cooper P and Goddard J.
Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests. And it would do so by a side wind, by setting a threshold for recognition of CMT that could not be met as a result of matters that would not otherwise affect common law recognition of customary title.
[85] The majority considered this outcome would be inconsistent with the te Tiriti/the Treaty, as well as the purpose of the Takutai Moana Act set out in s 4 and the statement in s 7 that the Act recognises and promotes the exercise of customary rights to take account of te Tiriti/the Treaty.73 The second limb of the CMT test is therefore in effect comprised of three elements:
(a)Whether prior to the proclamation of British soveriengty in 1840 the applicant group had sufficient control over the area to exclude others if they wished to do so (1840 assessment);
(b)Whether post-1840, that use and occupation ceased because the group’s connection with the area and control over it was lost as a matter of tikanga (post-1840 assessment); and
(c)Whether post-1840, that use and occupation was substantially interrupted by lawful activities carried on in the area pursuant to statutory authority (substantial interruption).74
[86] The majority accepted that use of a particular resource in an area will not, without more, amount to exclusive use and occupation of that area.75 There must be a “strong presence” in the area, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the area in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.76
[87] The majority also observed that the second limb of the CMT test must be approached “having regard to the substantial disruption to the operation of tikanga that
73 At [416].
74 The burden of proof in relation to substantial interruption does not lie with the applicant group. See [101] below.
75 Re Edwards, above n 12, at [422].
76 At [422].
resulted from the Crown’s exercise of kāwanatanga, and having regard to the scheme and purpose of MACA.”77 It identified a number of factors relevant to that assessment.78
[88] The majority did not accept a submission made by the Landowners Coalition Inc and SIR that an applicant group needs to demonstrate both an intention and an ability to exclude others (including non-Māori) from the relevant area, from 1840 to the present day.79 The majority considered that such a requirement would be unjust and unprincipled, given the ability to exclude others was “taken away from Māori customary owners by the law as it was understood for most of the relevant period.”80
[89] Justice Miller is critical of the majority’s approach to the requirement in the second limb for exclusive use and occupation since 1840. The Judge characterises the majority’s approach as unjustifiably discounting the literal meaning of s 58 in an attempt to give effect to the purpose in s 4,81 and “amount[ing] to a presumption that rights in existence in 1840 have survived to the present day.”82
[90] Justice Miller concludes that “exclusivity of use and occupation requires both an externally-manifested intention to control the area as against other groups and the capacity to do so.”83 The legal inability of the applicant group to resist trespass through force or common law must be set aside when considering capacity to exclude.84
“Without substantial interruption”
[91] The majority considered that third party access and uses, even substantial ones, will not demonstrate that the area was not exclusively held.85 That was particularly so because of the “frequent and generous exercise of manaakitanga by whānau, hapū and
77 At [426].
78 At [426].
79 At [429].
80 At [429].
81 At [189] per Miller J.
82 At [196].
83 At [162] and [165]–[172].
84 At [180] and [170].
85 At [426]–[427].
iwi in favour of other Māori groups, and in favour of European settlers”.86 The majority concluded that third party accesses and uses, even if substantial, wol dnot amount to substantial interruption unless they were “authorised by legislation capable of overturning those rights”.87
[92] Justice Miller took a different approach, focusing on the need for exclusivity to be a clearly demonstrated quality at 1840. But Miller J also noted that the test must take into account the Crown removing traditional means to enforce it, such as through force, and not providing any legal replacement.88
[93]The critical requirement for Miller J is set out in the following passage:89
[171] Some means of establishing control of an area do survive as a set of cultural norms which are constantly reinforced through ritual engagement between tangata whenua and manuhiri. I have noted that the acceptance or acquiescence of neighbouring tribes was identified as a feature of customary title in the Canadian cases.90 It assumes importance under MACA because there is much evidence that groups recognise the rights of other groups to control their own areas. The record confirms that mana is constantly reinforced through ritual exchanges and the practice of manaakitanga over long periods of time. It follows that acceptance by other iwi, hapū or whānau groups of an applicant group’s right to speak for a specified part of the common coastal and marine area is powerful evidence of exclusivity. In the absence of consensus, the area may have remained whenua tautohetohe (contested ground) as at 1840 or subsequently.91
[94] The Court’s discussion of the phrase “without substantial interruption”, in s 58(1)(b)(i), of the Act is traversed below in relation to each of the applicants and, in particular, to the question whether commercial fishing amounted to substantial interruption in any part of the application area.
Exclusivity/Shared CMT
[95] The Court of Appeal was unanimous that it would be inconsistent with the scheme of the Act to have two or more overlapping CMTs in the same area. However,
86 At [426(b)].
87 At [428].
88 At [169]–[171] per Miller J.
89 At [171].
90 Attorney-General v Ngāti Apa, above n 42, at [41] referring to the Native Lands Act 1909, s 88 and Te Ture Whenua Maori Act, s 144. Under the latter Act such proceedings may be brought only by the Māori Trustee on behalf of the owners: s 144(2).
91 Delgamuukw v British Columbia [1997] 3 SCR 1010 at [158] per Lamer CJ, Cory and Major JJ.
all three members of the Court had no difficulty in a single grant of recognition in favour of two or more groups of a single CMT, in respect of a particular area, noting that such a grant is most likely where the groups make a joint application, or where they make separate applications, but each acknowledges the shared rights of use and occupation of the other groups.92
[96] The majority took a different view from Miller J in relation to a situation where there are two applicant groups, neither of which acknowledges the rights of the other. The majority did “not see any contradiction in a finding that two applicant groups hold a specified area in accordance with tikanga vis-à-vis all other groups and individuals, and between them exclusively use and occupy the area, while at the same time vigorously contesting their mutual rights as between themselves.”93 The majority said:94
A refusal to recognise CMT in those circumstances would effectively mean that areas that were unquestionably in Māori customary ownership in 1840 were taken out of Māori ownership, and customary rights and interests lost, because a currently unresolved tikanga difference between two or more hapū cannot be resolved in the High Court in the context of competing applications for CMT.
[97]In contrast, Miller J said:95
… a court may not be satisfied of exclusivity in the absence of evidence that other groups recognise an applicant group’s rights (or a satisfactory account of why such evidence is lacking). Consensus is even more important for shared exclusivity, which rests on evidence that the groups concerned shared control of an area to the exclusion of others.
Standard and burden of proof
[98] Section 106(2) of the Takutai Moana Act requires the applicant for CMT to prove that the specified area:
(a)is held in accordance with tikanga; and
92 At [439] per Cooper P and Goddard J.
93 At [440].
94 At [442].
95 At [172] per Miller J.
(b)has been used and occupied by the applicant group from 1840 to the present day.
[99] Section 106(2)(b) does not include the words “exclusively” and “without substantial interruption” contained in s 58(1)(b)(i).
[100]The Court must be satisfied that an applicant group:96
(a)holds the specified area in accordance with tikanga (s 58(1)(a)); and
(b)has exclusively used and occupied the specified area from 1840 to the present day, without substantial interruption (s 58(1)(b)(i)).
[101] However, as the Court of Appeal found, s 106 does not require an applicant group to prove either exclusivity from 1840 to the present day or (absence of) substantial interruption. If the applicant group proves the two aspects above, that will be sufficient for the Court to draw an inference that the s 58 test is met, unless some other party takes it on themselves to demonstrate that the customary interests of the applicant group were not sufficient to establish effective control over the relevant area as at 1840, or have ceased to have the necessary character or been substantially interrupted after 1840.97
Decisions since Re Edwards
[102] Since the Court of Appeal’s decision in Re Edwards there have been two High Court decisions under the Takutai Moana Act.
Ngāi Tūmapūhia judgment
[103] Re Ngai Tūmapūhia-a-Rangi Hapū Inc98 is the Stage 1(a) decision to this application.
96 Takutai Moana Act, s 106.
97 Re Edwards, above n 12, at [435]–[436] per Cooper P and Goddard J.
98 Ngai Tūmapūhia, above n 7.
[104] In that decision the applicants identified five areas of shared exclusivity recorded in a shared agreement known as the mana moana agreement. All hapū along the coastline of the application area acknowledged each other’s mana tuku iho in respect of different parts of the coastline in accordance with their shared tikanga, illustrating their shared whakapapa links to the application area. The mana moana agreement meant that when the applicants spoke of holding areas in accordance with tikanga, they did so on an agreed basis. On the basis of the mana moana agreement, I looked at the evidence collectively, holding that the statutory tests for CMT and PCRs could be satisfied on a collective basis.99
[105] The Court made CMT recognition orders on jointly held and exclusive bases.100
Tokomaru judgment
[106] Ngā Hapū O Tokomaru Ākau v Te Whānau a Ruataupere Ki Tokomaru,101 is a decision of Cull J concerning two, overlapping applications. The application area wasd the land and harbour in and around Tokomaru Bay, north of Tairāwhiti (Gisborne). Due to an issue about whether Ngā Hapū o Tokomarua Ākau represented Te Whānau a Ruataupare hapū, the hearing proceeded on the basis that two applicant groups could not agree on which group should hold title and, if granted, how it should be held. After the hearing, following a marae mediation, the applicants agreed that if CMT and/or PCR recognition orders were granted they would hold the orders jointly over the recognised area by a representative entity.
[107] Justice Cull concluded that there was insufficient evidence of the applicants’ exclusive use and occupation of fishing grounds and marine area out to the 12 nautical mile limit at or since 1840 to the present.102 She concluded that the two hapū had met the test for CMT within three to four nautical miles from the MHWS from the
99 See [152] and [153].
100 At [815].
101 Ngā Hapū O Tokomaru Ākau v Te Whānau A Ruataupere Ki Tokomaru [2024] NZHC 682 [Tokomaru].
102 At [377].
Tokomaru Bay foreshore103 but before granting the CMT orders the second stage of the hearing of the application would determine the precise inshore boundaries.
The pūkenga report
[108] Dr Robert Joseph was appointed by the Court as pūkenga for the Group M hearings on 8 November 2022.104 No party opposed the appointment. The Court also set down the questions for the pūkenga on that date.
[109] During the course of the Group M, Stage 1(b) hearing the questions for the pūkenga were slightly amended. The questions addressed in Dr Joseph’s report were as follows:
(a)What tikanga does the evidence establish or support applies in the area that is the subject of the applications before the Court?
(b)What aspects of tikanga should influence the assessment of whether or not the area in question, or any part of it, is held in accordance with tikanga?
(c)Which applicant group or groups hold the application area, or any part of it, in accordance with tikanga?
(d)Who, in fact, are the iwi, hapū or whānau groups that comprise each applicant group or groups?
(e)What is the appropriate tikanga for identifying representation of conflicting applicant groups?
(f)Having regard to the evidence, what tikanga is relevant to the protected customary rights claimed by the applicants?
103 At [378].
104 Minute of Churchman J (Re appointment of pūkenga), 8 November 2022.
[110] Dr Joseph delivered his final report on 23 April 2024105 and was available for questioning by the parties on 23 April 2024.
[111] During the course of questioning Dr Joseph agreed that it was appropriate to incorporate a section of his report from the stage 1(a) hearing into this report also. That section related to take, take ahi kā, and tōku whenua.
[112] Dr Joseph’s report provides an important source of expert advice for the Court, and is discussed below in the context of specific applications and issues.
What evidence is required to meet the statutory tests?
“Holds the specified area in accordance with tikanga”
[113] The first limb of the test for CMT under s 58(1)(a) requires that an applicant group “holds the specified area in accordance with tikanga”.
[114] The Court of Appeal clarified that was is required is a consideration of whether the group currently uses and occupies the area, in a manner consistent with the nature of that area, and requires the group to have control or authority over the area according to tikanga.
[115]Accordingly, the applicants’ evidence should demonstrate:
(a)the current use and occupation (consistent with the nature of the area);
(b)an intention and ability to control access to the area and use of its resources as a matter of tikanga, focusing on whakapapa, mana or rangatiratanga, manaakitanga and kaitiakitanga);106 and
(c)activities showing control or authority, such as the implementation of rāhui, observance of wāhi tapu, the tangible exercise of rangatiratanga,
105 The report was originally submitted to the Court on 19 April 2024, however the final version was submitted on 23 April 2024.
106 By reference to these concepts as developed in Pūkenga Report, above n 63; and Re Edwards, above n 12.
kaitiakitanga and manaakitanga, rather than simply carrying out a use or activity.
[116] These concepts are developed in Miller J’s list of 15 elements of mana over land.
[117] In Re Reeder, the Court set out a list of activities which offers a useful guide to demonstrating a group’s authority over the takutai moana according to tikanga:107
(a)exercising manaakitanga;
(b)acting as kaitiaki by protecting and looking after the takutai moana and future generations;
(c)the ability to place customary restrictions on access and the taking of resources;
(d)observing the tikanga associated with wāhi tapu as a way of restricting a specific act or use of an area;
(e)knowledge that particular fishing grounds or rocks belong to a particular group by descent;
(f)exercising mana and rangatiratanga, which encompasses a level of authority over a rohe;
(g)acknowledgement of a group’s customary authority in an area by other groups;
(h)restricting or regulating access to the common marine and coastal area across abutting land in the ownership of, or under the control of, the applicant group or members of it, where that occurs in accordance with tikanga.
[118] Dr Joseph’s pūkenga report also addressed this issue, setting out a list of tāhuhu he raratohu (fundamental signposts of tikanga) which are relevant to assessing whether an iwi, hapū or whānau holds an area in accordance with tikanga Māori. Dr Joseph’s list is:
(a)Whakapapa identifying a cosmological connection with the takutai moana;
(b)Exercised mana or rangatiratanga over the takutai moana;
107 Re Reeder [2021] NZHC 2726, [2022] 3 NZLR 304 at [52]–[53].
(c)Exercised kaitiakitanga;
(d)It has a mauri – life force;
(e)Performance of rituals central to the spiritual life of the hapū and whānau;
(f)Identified taniwha [guardians] residing in the takutai moana;
(g)Is celebrated or referred to in waiata [songs];
(h)Is celebrated or referred to in whakatauki [proverbs];
(i)The takutai moana was relied on as a source of food;
(j)A source of textiles or other materials;
(k)For travel or trade; and
(l)There is a continuing recognized claim to land or territory in which the takutai moana is situated, and kaitiakitanga has been maintained to some, if not all of the takutai moana area.
[119] Also relevant are features of the particular application area – its geographic landscape, remoteness and environmental factors.
Mana
[120] Mana encompasses authority, control, influence, prestige or power, that is spiritual in nature, and acquired through whakapapa and personal accomplishment.108 Dr Joseph refers to both authority and control in his description of mana: “[it] encompasses intrinsic spiritual authority as well as political influence, honour, status, control, and prestige of an individual and group”.109
108 Re Edwards, above n 12, at [127].
109 Pūkenga Report, above n 63, at [40(d)].
Marae/papakāinga
[121] Identification of marae or papakāinga demonstrates a strong association and continued occupation of the whenua.
Land ownership
[122] Ownership of land proximate to the takutai moana may indicate current use and occupation and control.110
Kaitiakitanga
[123] Kaitiakitanga is the obligation of stewardship and the protection of one’s own.111 Kaitiakitanga is a manifestation of mana, because without mana there is no authority for the exercise of stewardship.112
[124] The practice of kaitiakitanga encompasses conservation, guardianship, education and protection in relation to the takutai moana. Kaitiakitanga includes the fulfilment of obligations to conserve, nurture, and protect the takutai moana.113 Dr Joseph confirmed that kaitiakitanga can evidence the holding of an area in accordance with tikanga, as opposed to mere use of the area.
Rāhui
[125] The imposition of rāhui (bans on the taking of resources or the entering into zones within a territory)114 historically represented forms of stewardship, governance and management of lands and CMAs. As Dr Joseph observed during questioning on his report, a rāhui is a law and an important manifestation of whakapapa, mauri and kaitiakitanga. When a rāhui is set by hapū members, access to or the use of the marine and coastal area can be restricted.
110 And is specifically a matter that may be taken into account under the Takutai Moana Act, s 59(1)(a)(i).
111 Re Edwards, above n 12, at [127].
112 At [127].
113 Pūkenga Report, above n 63, at [72].
114 At [37].
Tapu
[126] Tapu is the respect for the spiritual character of all things and is a religious observance or spiritual practice for the purposes of protecting and reinforcing mana and sanctity.115 In his pūkenga report, Dr Joseph noted that tapu is:116
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.
Customary usages (fishing and kaimoana gathering)
[127] Dr Joseph’s tikanga indicia of the coastal area being held in accordance with tikanga include reliance on the takutai moana for sustenance.
Manaakitanga
[128] Manaakitanga is “the reciprocal process of showing and receiving care and hospitality.”117 As Miller J noted, manaakitanga confers mana on both groups;
Dr Margaret Wilkie identified manaakitanga as a dimension of mana.118
[129] The majority judgment in Re Edwards also confirmed that permitting others to access the area and utilise the resources within it is an expression of manaakitanga and doing so is a manifestation of control of the area.119 The majority also confirmed that permitting a group to use an area’s resources reflects mana or control in respect of that area and supports, rather than undermines, an application for CMT.120
“Exclusive use and occupation without substantial interruption”
[130] Under the second limb of the CMT test, the applicants must show first, as at 1840, use and occupation with sufficient control to exclude others if they wished. This translates into:
115 Re Edwards, above n 12, at [127].
116 Pūkenga Report, above n 63, at [53(c)].
117 Re Edwards, above n 1232, at [127].
118 At [130].
119 At [403].
120 At [424].
(a)a strong presence manifesting in acts of occupation. For example, through the imposition of rāhui, observance of wāhi tapu, tangible exercise of rangatiratanga, kaitiakitanga and manaakitanga. Demonstrating an area belonged to, was controlled by, or was under exclusive stewardship of the applicant group;
(b)in terms of “marine areas”, observation, control and regular use (for fishing/kaimoana gathering, transport, rongoā and other activities).
[131]As to continuity to the present day (that is, post-1840), what is required is:
(a)that connection or control is not lost as a matter of tikanga, in terms of ahi kā over time, or between groups, accounting for factors that substantially disrupted the operation of tikanga, and noting the exercise of manaakitanga and whanaungatanga can support rather than undermine a claim;
(b)use and occupation not being substantially interrupted by lawful activity carried on pursuant to statutory authority (for example, through permanent structures such as port facilities, provided it excludes the applicant group from accessing the area, but noting that some third- party access to fishing in an area is unlikely to constitute substantial interruption).
[132] The majority in Re Edwards found that rights should be recognised as they existed in the period before colonisation.121 The customary rights must have existed as at 1840 and the applicant group must be (or be the successor of) the group that exercised those rights at that time.122
[133] Pre-colonisation, all of Aotearoa New Zealand, including areas covered by water, the water column and associated resources, was held by Māori according to
121 At [105] per Miller J: the majority agreed at [360].
122 At [419] per Cooper P and Goddard J.
their tikanga and customs.123 This “ownership” extended beyond the dry land to also include the marine and coastal area.124
[134] It therefore follows that the entire marine and coastal area must have been held in accordance with tikanga as at 1840 and prior to this to the time of colonisation.
[135] To satisfy the second limb of the CMT test, the applicant group “must have had the intention and ability as a matter of tikanga to control access to the relevant area by other groups”, reflecting a holding of the area rather than resource or use rights only.125 There must have been a “strong presence” in the area, manifested by acts of occupation that demonstrated the area belonged to, or was controlled by, or was under the exclusive stewardship of the applicant group as at 1840.126
CMT
Representation
[136] Recognition of both CMTs127 and PCRs128 requires an applicant group to meet the relevant statutory test.
[137] “Applicant group” is defined in s 9 of the Takutai Moana Act as “1 or more iwi, hapū or whānau groups” that seek recognition of their PCRs or CMT by a recognition order or an agreement; and includes a legal entity or natural person appointed to represent that group in its application.129 A representative must have authority to bring the application on behalf of an applicant group.130
[138] An application must name the person who will be the holder of the order “as the representative of the applicant group”.131 However, there is some flexibility
123 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) at [37].
124 At [49]–[51].
125 Re Edwards, above n 12, at [421] per Cooper P and Goddard J.
126 At [422] per Cooper P and Goddard J.
127 Section 58.
128 Section 51.
129 Section 101(f).
130 Re Tipene [2016] NZHC 3199, [2017] NZAR 559 at [175].
131 Takutai Moana Act, s 101(f).
around drafting of the form of the order once the Court has made decisions on whether CMT and/or PCRs are granted.
[139] The question of representation arose in Ngāti Pāhauwera where an applicant group was challenged by other applicant groups who said they were representing the same hapū. The High Court observed that Takutai Moana Act does not prescribe any particular mandate process; nor does it require that an applicant in its application must detail the mandate it has.
[140] Nor does the Takutai Moana Act prescribe any particular process for defining the constituents of an applicant group or its representatives. A number of principles are apparent from the cases decided under the Act to date, including:
(a)There is no one way for an applicant to obtain authority to make an application for recognition orders on behalf of an applicant group.132
(b)The process under the Act by which an application is made and advertised is not in itself sufficient to demonstrate that the applicant group has a mandate.133 Mandate procedures adopted by the Crown in the Treaty settlement process do not apply.134
(c)The applicant must show they currently have the support of the applicant group who they purport to represent.135
[141] Where there is a controversy about whether a named applicant has the authority to seek an order on the group’s behalf, the court will need to be satisfied that the applicant does represent the applicant group.136
132 Re Tipene, above n 130, at [45]–[56], [175] and [176].
133 Re Clarkson [2021] NZHC 1968 at [227].
134 Re Edwards (Whakatōhea Stage Two) [2022] NZHC 2644 at [230].
135 Re Clarkson, above n 133, at [164]; and Re Edwards, above n 12, at [275]–[276] per Miller J and
[360] per Cooper P and Goddard J.
136 Re Edwards, above n 12, at [203(b)] per Miller J, with Cooper P and Goddard J agreeing at [360].
[142] There are a number of examples where the Court has encouraged parties to resolve representation issues out of court, utilising tikanga-based processes.137 If the differences are not resolved in that way, then the Court must ultimately decide the issue.
[143] As the High Court noted in Re Edwards, it is important to ensure that recognition orders are designed in a way that enables a CMT group to self-manage the future, without having to further resort to the courts to resolve disputes or governance issues.138
[144] In this hearing questions were raised as to whether two of the applicants, the Pirere whānau and the Pāpāuma Marae Trustees, satisfied the definition of applicant group and, in the case of the latter, had authority to bring the application. For the Pirere whānau the issue is who can hold the orders (if granted), not whether the named applicant represents the applicant group. For the Pāpāuma Marae Trustees the issues are, first, whether the applicants have authority to seek orders on behalf of the named group and, second, the extent to which the Trustees’ application overlaps with that of Te Hika o Pāpāuma.
[145] I discuss these questions in the context of considering their applications for CMT below.
Ngāi Tūmapūhia-a-Rangi hapū
[146] Ngāi Tūmapūhia seeks CMT in the CMCA from the southern bank of the Whareama River to its northern bank and out 12 nautical miles from all points along that coastline.
[147] Ngāi Tūmapūhia participated in the Stage 1(a) hearing, prior to the decision that the Whareama River mouth would be part of the Stage 1(b) hearing area.139
137 Te Runanga o Ngāti Whātua v Kingi [2023] NZHC 1384 at [120] and see [222] and [228] regarding the question of representation or mandates.
138 Re Edwards (Whakatōhea Stage Two), above n 134, at [229].
139 See [7]–[9] above.
[148] The evidence relating to Ngāi Tūmapūhia’s application was presented during the Stage 1(a) hearing. By agreement that evidence (including the notes of evidence) was incorporated into the evidence for this hearing.
[604] Although the Court of Appeal did not appear to apply tikanga, or “ancient custom and usage”, in in its brief discussion of assessing the appropriate level of use
268 Re Edwards, above n 12, at [422] per Cooper P and Goddard J.
269 At [429] and [434].
270 At [422].
271 At [423].
and occupation of to establish CMT in a marine area, the Court did apply tikanga elsewhere. Justice Miller’s judgment said:272
MACA employs tikanga in connection with both PCRs and CMT: … in s 58(1)(a) it provides that CMT exists in a specified area if the applicant group holds the area in accordance with tikanga. So a court must ascertain what tikanga applies to that part of the rohe moana which is the subject of an application for a recognition order.
[605]Justice Miller went on to say:273
MACA does not speak of mana whenua or mana moana. But it is expressly concerned with mana tuku iho over defined parts of the common coastal and marine area, and mana unmistakeably lies at the heart of this case for the iwi and hapu parties.
[606] Although Miller J concluded that the evidence in that case did not justify a CMT recognition out to the 12 nautical mile limit, he went on to say:274
This is not to suggest that CMT is confined to specific fishing grounds or other resources. It may extend to all the rohe moana exclusively occupied and used by an applicant group for purposes such as passage and navigation as well as resource-gathering. I have noted evidence that a group’s takutai moana includes areas adjacent to their land. There is also evidence that in Māori customary law, rights of control are also linked to resources, and most of the evidence about offshore use in this case concerns resources; in particular, fish. So the inquiry into CMT must recognise resource boundaries.
[607] The majority in Re Edwards did not differentiate between incidences of use and occupation on land and incidences of use and occupation at sea. But as Miller J noted, “The legislation envisages that case-by-case inquiries will establish the intensity of use and occupation required for exclusivity by reference to the particular circumstances of applicant groups and the particular characteristics of specified areas”.275 That must be so both in relation to the whenua and to the moana. The indicia of use and occupation will vary.
[608] The starting point is that, pre-colonisation, all of Aotearoa New Zealand was held by Māori according to their tikanga and customs.276 As Elias CJ said in Ngāti
272 At [124].
273 At [133].
274 At [320].
275 At [193].
276 Attorney-General v Ngāti Apa, at [51].
Apa, that “ownership” extended beyond the dry land to include the marine and coastal area also.
[609]Andrew Erueti and Joshua Pietras have observed:277
… while land rights may not have received formal recognition domestically (eg through some grant of title), provided there are rights grounded in customary ownership, use and occupation then international law will recognise the right.278 In the Report on the Crown’s Foreshore and Seabed Policy (Foreshore Report), the Waitangi Tribunal noted, “[i]t has been Crown policy from 1848 to the present day to recognise that Māori, according to their own customs and usages, had rights equating to ownership of the entire land surface of New Zealand”.279 The Tribunal could, therefore, see “no reason why Māori custom should stop where or when the tide comes in”.280 Māori did not draw a sharp distinction between rights in land and water adjacent to their communities. In fact, the Waitangi Tribunal has gathered extensive evidence documenting Māori interests in the off-shore area. The Ngāi Tahu and Muri Whenua Fishing Reports, for example, noted how as at 1840 hapū fishing grounds were often located well off-shore – at the very least within a 12-mile zone, and sometimes much further out.281 In the Foreshore Report, the Tribunal concluded Māori tribes exercised te tino rangatiratanga over the foreshore and sea in 1840.282 Furthermore, the rights held by Māori at 1840 were not frozen as at 1840. The Tribunal noted the need to recognise that Māori rights could evolve and develop – so, for example, the development of a deep-sea commercial fishing resource was available to Māori under the Treaty. And, according to the Tribunal, nothing could foreclose the right to development in relation to “Māori te tino rangatiratanga over the seabed (and its minerals)”.283
[610] Mr Ferguson, counsel for Ngāti Kahungunu, referred the Court to Trans- Tasman Resources Limited v Taranaki-Whanganui Conservation Board,284 a case where the appellant sought marine consents and marine discharge consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act), to undertake offshore seabed mining for iron sands. The proposed
277 “Extractive industry, human rights and indigenous rights in New Zealand’s Exclusive Economic Zone” (2013) 11 New Zealand Yearbook of International Law 37 at 66, cited in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [155], n 249 where Ellen France J appeared to approve that statement.
278 Sara Maka People v Suriname (Judgment – preliminary objections, merits, reparations, and costs)
Inter-American Court of Human Rights SER C No 172, 28 November 2007 at [129]–[134].
279 Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 18.
280 At 18.281 Waitangi Tribunal The Ngāi Tahu Sea Fisheries Report (Wai 27, 1992); Waitangi Tribunal Report of the Waitangi Tribunal on the Muri Whenua Fishing Claim (Wai 22, 1998).
282 Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 27.
283 At 28. See also, the Waitangi Tribunal Ahu Moana: the Aquaculture and Marine Farming Report
(Wai 953, 2002) at 54–77.
284 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 277.
mining area was adjacent to, but not within, the Coastal Marine Area (CMA), governed by the Resource Management Act 1991 and the New Zealand Coastal Policy Statement.
[611] Of relevance to this case, the Supreme Court there recognised that the relevant iwi at the coast around Taranaki held existing interests under customary law in the form of mana moana and kaitiakitanga responsibilities in the area subject to the resource consent application. The application was in New Zealand’s EEZ, adjacent to the takutai moana, and beyond the boundary of the territorial sea / 12 nautical miles.
[612] One aspect of the appeal concerned the effect of s 12 of the EEZ Act, which sets out the way in which the Crown’s responsibilities in terms of the principles of the Treaty of Waitangi are to be given effect, and the interrelated question of the of the requirement that the Decision-Making Committee of the Environmental Protection Authority must take into account any effect on existing interests of allowing the activity the subject of the application for a marine consent.
[613]In this context Williams J said:285
As to what is meant by “existing interests” and “other applicable law”, I would merely add that this question must not only be viewed through a Pākehā lens… As the Court of Appeal rightly pointed out, the interests of iwi with mana moana in the consent area are the longest-standing human-related interests in that place. As with all interests, they reflect the relevant values of the interest- holder. Those values - mana, whanaungatanga and kaitiakitanga - are relational. They are also principles of law that predate the arrival of the common law in 1840.
[614] Justice Williams cross-referenced parts of the judgment given by William Young and Ellen France JJ. In particular:286
In challenging the Court of Appeal’s approach, TTR [Trans-Tasman Resources Ltd] emphasises that existing interests in the EEZ Act reflect the interests a person has in any lawfully established activity rather than the relationship a person has with a particular resource. However, as the iwi parties submit, practice and principle in this respect are intertwined. Kaitiakitanga manifests itself in an activity. Nor do we find persuasive TTR’s submission that New Zealand’s limited ‘sovereign rights’ in the EEZ, where the proposed seabed mining will take place, means that case law on how the
285 At [297].
286 At [155].
principles of the Treaty are to be recognised by decision-makers under other environmental legislation has little relevance. The nature of New Zealand’s rights does not dictate the scope of existing interests in the EEZ Act.
[615] In similar vein, Ngāi Tūmapūhia and the Pirere whānau advocate for a broad approach to evaluating intensity of use and occupation in relation to the outer sea, in the same way that Judge Acheson did in Re Lake Ōmapere, a decision of the Native Land Court, where the Judge relied on “ancient custom and usage” for his evaluation of Māori ownership in a lake.
[616] Judge Acheson doubted whether Māori customary interests in features such as rivers and lakes was adequately rendered by concepts more familiar to English property law.287 As the Judge said:288
[Māori] … would see no more reason for separating the lake from its bed (as to the ownership thereof) than he would see from separating the rocks and the soil that comprise a mountain.
[617]In conclusion Judge Acheson observed that:
… the Ngapuhis used and occupied Lake Omapere for all purpose for which a lake could reasonably be used and occupied by them, and [that] the Native Land Court says that much less use and occupation would be ample, according to ancient custom and usage, to prove actual and effective ownership of the lake, bed and all.
[618] In Ōmapere the “signs of ownership” identified by the Court were use rights. In terms of occupation, nearby human habitation was identified, as opposed to occupation of the body of water itself.
[619] Judge Acheson held that the court could grant titles to the beds of lakes. Subsequently, in 1955, Lake Ōmapere was vested in trustees on behalf of all persons of the Ngāpuhi tribe” by an order of the Land Court.
[620] The cases cited above reinforce that tikanga (Māori “custom and usage”) forms a core part of the CMT test and point to the necessity of a tikanga approach when evaluating intensity of use and occupation in relation to the outer sea.
287 Paki v Attorney-General [2014] NZSC 118, [2015] 1 NZLR 67 at [70].
288 Lake Omapere (1929) 11 Bay of Islands MB 253 at 259.
[621] Witnesses in this hearing, from across the applicant groups, described themselves as being a part of the takutai moana and it forming an integral part of their identity, with no defined boundary on this connection to the sea.
[622] The witnesses gave kōrero about their elders fishing for deep-water fish. The applicants are people who have lived near, with and on the moana; they descend from deep-sea voyagers such as Kupe and are a “sea people”.
[623] That is consistent with the Supreme Court’s statements in Trans-Tasman Resources Ltd and the Waitangi Tribunal’s comments in its Wairarapa ki Tararua Report:289
(2) Mana extended offshore
Māori conceived their mana as extending to fishing rocks, submerged rock pinnacles, and fishing holes offshore. Such places were identified and named in the minutes of the Wairarapa and Te Maipi Native Land Court hearings in the 1880s and 1890s. Dr Leach gave as examples Te Ruaara, an offshore fishing rock where hāpuku congregate, and Te Hohonu, a fishing hole where kōura are caught off Te Hūmenga. Takirirangi Smith, using the records of the Te Maipi hearings in September 1888, described a number of rua kōura and rua hāpuku (crayfish and groper holes) owned by those giving evidence. These were located not within the land area claimed but offshore.
[624] The applicants also gave evidence of asserting their mana through the practice of tikanga values — such as identification and naming of places and the placing of rahui. Hana Riddell, Langdale Rolls and Dr Smith all gave evidence of the imposition of rāhui.
[625] Mr Alexander, the witness who provided an historical report for the Pirere whānau, observed that rāhui in the case of drowning would extend to “anywhere where there was a concern that the bodies might have been swept to by the currents and tides.” In cross-examination, Mr Alexander referred to a rāhui that was placed in 1905 after two Māori women who were fishing at Castlepoint were swept off the rocks and drowned. The rāhui was placed over the “surrounding seas”. When asked about the particular area that the rāhui covered, Mr Alexander suggested that “it would be anywhere where there was a concern that the bodies might have been swept to by the
289 Wairarapa Report Volume III, above n 266, at 955 (citations omitted).
currents and tides”. Mr Alexander’s evidence was that “[l]ocal residents, both European and Māori, respected the rāhui…”.
[626] There is no evidence of a limit on the seaward extent of the prohibition or ban that applies in the event of rāhui.
[627] Ngāi Tūmapūhia also provided evidence of their presence further out to sea. For example, Hana Riddell gave evidence of her father’s voyages to the Hikurangi Trench, which lies 65/125 kilometres southeast of the Wairarapa Coast. Her father, together with other hapū members, would fish there for important hapū occasions such as weddings. Ms Riddell also spoke of hapū members taking fishing trips to the Pinnacles. Leaving from Uriti or Whareama, those trips could take up to two to three days.
[628] Ngāi Tūmapūhia also provided evidence of whānau catching many types of fish, including orange roughy, species which can generally only be found in deeper waters.
[629] Dr Takirirangi Smith gave evidence of traditional methods of deep-sea fishing known to Ngāi Tūmapūhia which are prevalent in a wider discourse of whakapapa korero narratives discussed by Nepia Pōhūhū and others.
[630] For the Pirere whānau, James Davidson gave written evidence of fishing for hāpuku up to 12 nautical miles offshore. While there was some confusion about exactly how far out he went, Mr Davidson confirmed that he went out “very deep” and “out a long way” for hapuku. Mr Davidson also gave evidence about going out about seven kilometres from the shore to the reefs, to get crayfish.
[631] There is also other evidence of fishing in and around the Pāpāuma Coast beyond the 12 nautical mile limit, with reference to the Hikurangi Trench and the Uriti Bank, the naming of the seabed, the archaeological recovery of hapuka bones and the current catching of fish — hapuka, groper, blue cod — at the Uriti Bank, beyond the 12 nautical mile limit.
[632] The importance of the Hikurangi Trench was discussed by Demetrius Pōtangaroa, in his evidence for the Pāpāuma Marae Trustees, noting that his people had exercised their customary rights all the way out to the Trench seeking kaimoana.
[633] In other evidence, Cheryl-Anne Brought-Kūrei told of her uncles and koroua going deep-sea fishing in boats from Cape Turnagain to Cape Palliser, right along the coastline.
[634] Paul Peeti, for Te Hika o Pāpāuma, noted that to catch fish species such as groper/hapuka, “you probably have to go five kilometres off some of those, on some of those reefs”, which equates to approximately 2.69 nautical miles offshore.
[635] Mr Broughton, also a witness for Te Hika o Pāpāuma, did not have direct evidence of his own involvement offshore, but considered his father in law would have gone out to approximately 25 to 30 kilometres (13.5-16.1 nautical miles) offshore when he used to deepwater fish within their application area.
[636] Demetrius Pōtangaroa, for the Pāpāuma Marae Trustees gave evidence that he fished out to the Hikurangi Trench.
[637] In counsel’s submission, the evidence shows conclusively that the Pāpāuma Marae Trustees whānau have historically fished up to and beyond the 12 nautical mile territorial sea limit.
[638] A number of applicant groups also gave evidence about the exercise of kaitiakitanga in the outer sea, including in their role as tangata kaitiaki/tiaki under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (Kaimoana Regulations), which specifically outlines their authority to issue customary fishing permits extending out to 12 nautical miles.
[639] Ngāi Tūmapūhia members, including Gary Griggs, are responsible for permitting customary take. They are designated tangata kaitiaki under the Fisheries (Notification of Ngāi Tumapuhia-ā-Rangi Māori Marae Committee Tāngata Kaitiaki) Notice 2015, which extends out to 12 nautical miles. The 2015 Notice was issued
pursuant to reg 11 of the Kaimoana Regulations; the regulations are promulgated under s 186 of the Fisheries Act 1996. That is, their control of customary take is statutorily authorised. Counsel submits this is further evidence of a “strong presence” out to the 12 nautical mile territorial sea limit from Whareama River.
[640] In the case of Ngāi Tūmapūhia, as kaitiaki, Ngāi Tūmapūhia members Phillip Paku and Hana Riddell both referred to holding commercial fishers to account regarding their catch amounts, including reporting overfishing to Te Tai Whenua. Counsel submits that those acts of inspection indicate a “strong presence” throughout the application area. Nor is this a new role. Hana Riddell was taught to do so by her uncles and inherited the role of a voluntary inspector as a young adult.
[641] Pikihuia Wilton was appointed tangata kaitiaki in 2003, for the area from Mataikona to Whareama and out perpendicular to the 12 nautical mile limit (the kaitiaki jurisdictional area). Ms Wilton was appointed pursuant to reg 11 of the Kaimoana Regulations, which gave her the power to authorise the taking of fisheries resources for customary food gathering. Rebecca Harper referred to Ms Wilton in her evidence, saying Ms Wilton “signed permits and then her son Tommy took over”. Counsel notes that although Ms Wilton’s statutory authorisation was on behalf of Te Hika o Pāpāuma, it is evident that she had close ties to the Pirere whānau. It is through their Pirere whānau membership that they are Te Hika o Pāpāuma hapū members and so integral to their permit authorisation is their being members of the Pirere whānau.
[642] Counsel submits that the granting of permits by Pirere whānau members for customary take gave the whānau a “strong presence” in the entire application area, since the kaitiaki’s jurisdictional area wholly encompasses the application area out to 12 nautical miles. Today, Tommy Davidson will seek customary kaimoana gathering permits from Dane Rimene, Rose Broughton or Mike Kawana.
[643] As with Ngāi Tūmapūhia and the Pirere whānau, Te Hika o Pāpāuma also refers to the Fishing Gazette Notice which provides for the named Tangata Kaitiaki, to manage customary food gathering within the rohe moana by the issue of permits. As counsel submits, the Fisheries Notice is grounded on mana, occupation, usage,
tikanga-based practice, and tino rangatiratanga. The law follows tikanga, by confirming representation for customary food gathering.
[644] The Fisheries Gazette Notice, which was first issued in 2003, has been updated periodically since then and remains current. Te Hika o Pāpāuma has for over 20 years operated tikanga over their coastline under legally sanctioned authority.
[645] Ngāti Kere gave evidence of fishing far offshore and of exercising kaitiaki responsibilities under the Kaimoana Regulations.
[646] Ngāti Kahungunu also referred to Māori active involvement in the fisheries quota management regime through the 1992 Fisheries Settlement. As a consequence of the Fisheries Settlement and as a development of their customary interest in fisheries, iwi are allocated quota for both inshore and deepwater stocks, reflecting their rights and interests out to sea. Deepwater stocks are allocated based on both coastline interests and relative iwi population. Although these quota allocations are fished and/or leased out at the iwi level, the basis on which they were allocated the quotas along the Wairarapa coastline was because of the customary interests of hapū on the coastline. These hapū are now represented by the applicant groups in Stage 1(b).
[647] In conclusion, counsel for Ngāti Kahungunu submitted it is not necessary for applicant groups to give specific examples of fishing out to 12 nautical miles across the whole of the Stage 1(b) hearing area. All applicants say that the evidence is sufficient for the Court to draw inferences that the applicant groups have held, used and occupied the takutai moana out to 12 nautical miles in accordance with tikanga. The practice of tikanga values can itself found legal recognition.290
Conclusion
[648] In Ngāi Tūmapūhia,291 I observed that a “strong presence” inevitably looks different in the marine area than on land. It is necessary to look at different ways of measuring and assessing that presence. Intensity of use will inevitably — by the very nature of the outer sea — be different, likely less. Applying tikanga to the evaluation,
290 Relying on Ngāi Tūmapūhia, above n 7, at [611].
291 At [610]–[612].
the identification and naming of significant landmarks, the imposition of rāhui, and the exercise of kaitiakitanga, might all constitute a manifestation of mana and control. A rāhui is proclaimed by those with sufficient mana to do so: the placing or declaration of a rāhui is a right reserved to the group controlling the area concerned;292 evidence of the exercise of kaitiakitanga and the imposition of rāhui, by way of example, are evidence of a continued presence and stewardship over those marine areas.
[649] In cross-examination, the pūkenga agreed that the incidences of use and occupation required to demonstrate stewardship over waterways are different from those that demonstrate ownership of whenua and the applicable tikanga is such that “much less use and occupation would be ample” for a water body such as the marine area.
[650] As is plain from the discussion above, I agree with the applicants that it might be possible to grant CMT out to 12 nautical miles for the whole of the application area, allowing for less intensive use and occupation than would be required in other parts of the common marine and coastal area. That point could be reached on the basis of the combined effect of evidence about fishing, exercising the role of kaitiaki, using the sea as a place of passage, and exercises of mana in various forms. Holding in accordance with tikanga out to that distance can be readily inferred as at 1840 and for some time after.
[651] But even allowing that the extent and indicia of use will be less in the outer sea area, ultimately I have concluded that the evidence, even taken as a whole and allowing for inference, is patchy and not sufficiently consistent to demonstrate that the applicants do presently hold the outer sea area — have a “strong presence” — out to 12 nautical miles in the manner required by the Takutai Moana Act.
[652] While the evidence varied from applicant to applicant, there were consistent elements (detailed above and discussed separately in relation to each applicant) which enable me to conclude that that the sea area is held according to tikanga out to a distance of five kilometres from the low water mark along the coastline of the application area.
292 Re Edwards, above n 12, at [165] per Miller J.
Wāhi tapu
[653] An applicant group to which a CMT order applies may seek to include recognition of a wāhi tapu or a wāhi tapu area in a CMT order.293 A wāhi tapu protection right may be recognised if the evidence establishes the criteria set out at s 78 (2) of the Takutai Moana Act.
[654] Hearing of the applicants’ wāhi tapu evidence, and related submissions, are separately timetabled to follow release of this judgment.
PCRs
[655]The parties’ applications for PCRs will be considered in the final judgment.
Orders
[656] While there was no equivalent of the Ngai Tūmapūhia mana moana agreement between the applicants in this Stage 1(b) hearing, nevertheless, the evidence was of interconnected relationships through whakapapa and whanaungatanga. There is a shared tikanga in relation to the use and occupation of the takutai moana along the Northern Wairarapa coast, as there was in the South Wairarapa coast. In many parts of the application area, there is an explicit acknowledgement by the applicants of the rights of other within the relevant parts of the application area. Where there is that acknowledgement it is appropriate, as in the earlier case, to consider the sum of the evidence put forward by the applicants in that application area, or in a particular rohe within the application area.
[657] For the reasons set out above, I have concluded that CMT orders should be made recognising the rights established in the following areas. The applicants will need to confer and agree as to how the CMT orders are formulated to incorporate the rights acknowledged below by way of joint CMTs and, in each case, who is the appropriate order holder. Subject to that further clarification, the CMT rights recognised are:
293 Takutai Moana Act, s 78(1)(a).
(a)Ngāi Tūmapūhia, in the area from the southern bank of the Whareama River to the northern bank of the Whareama River, from the mean high- water springs out to a line parallel to mean high-water springs five kilometres out to sea.
(b)Te Hika o Pāpāuma in the area from the southern bank of the Whareama River to Wainui/Herbertville, from the mean high-water springs out to a line parallel to mean high-water springs five kilometres out to sea.
(c)Pāpāuma Mare Trustees in the area from the Mataikona River in the south to the Owāhanga/Aohanga River in the north, from the mean high-water springs out to a line parallel to mean high-water springs five kilometres out to sea.
(d)Rangitāne in the areas specified at [411] above, from the mean high- water springs out to a line parallel to mean high-water springs five kilometres out to sea, and in right of the Rangitāne hapū specified at [411] above.
(e)The Pirere whānau from the southern bank of the Castlepoint Stream to the northern bank of the Ōkau Stream, from the mean high-water springs out to a line parallel to mean high-water springs five kilometres out to sea.
(f)Ngāti Kere from Wainui to Ouepoto, from the mean high-water springs out to a line parallel to mean high-water springs five kilometres out to sea.
Addendum
[658] After I had very substantially completed this judgment the Supreme Court issued its judgment on an appeal from the Court of Appeal’s decision in Re Edwards (Supreme Court decision).294
294 Combined Marine and Coastal Area (Takutai Moana) Act 2011 proceedings [2024] NZSC 164.
[659] In those circumstances I have issued this judgment as an Interim Judgment. It was provided to the parties before public release and, as a result, has been corrected to deal with some minor errors, pursuant to r 11.10 of the High Court Rules 2016. The parties will now make submissions to the Court on whether and how the Supreme Court decision affects the law as it is relevant to this case. A final judgment will then be issued. The factual findings contained in this interim judgment will be incorporated in the final judgment and the date of that final judgment will be the determinative appeal date for all purposes..
Gwyn J
Solicitors:
McCaw Lewis, Hamilton Kāhui Legal, Wellington Tamaki Legal, Auckland Te Mata Law, Auckland Leo Watson, Napier Hockly Legal, Auckland Crown Law, Wellington
Chapman Tripp, Christchurch Buddle Findlay, Wellington
APPENDIX I – Application area map
Figure 1: Application area map
APPENDIX II – Overlapping High Court applications map
Figure II: Overlapping High Court applications map
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