WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) NGĀTI MURIWAI KUTARERE MARAE TE UPOKOREHE TREATY CLAIMS TRUST ON BEHALF OF TE UPOKOREHE IWI ATTORNEY-GENERAL NGĀTI IRA O WAIOWEKA, NGĀTI PATUMOANA, NGĀTI RUATĀKENGA AND NGĀI...
[2024] NZSC 164
•2 December 2024
IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI O AOTEAROA
SC 121/2023 SC 123/2023 SC 124/2023 SC 125/2023 SC 126/2023 SC 128/2023 SC 129/2023
[2024] NZSC 164
BETWEEN WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) NGĀTI MURIWAI KUTARERE MARAE TE UPOKOREHE TREATY CLAIMS TRUST ON BEHALF OF TE UPOKOREHE IWI ATTORNEY-GENERAL NGĀTI IRA O WAIOWEKA, NGĀTI PATUMOANA, NGĀTI RUATĀKENGA AND NGĀI TAMAHAUA (TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA) NGĀTI RUATĀKENGA Appellants AND NGĀTI IRA O WAIOWEKA, NGĀTI PATUMOANA, NGĀTI RUATĀKENGA AND NGĀI TAMAHAUA (TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA) TE TĀWHARAU O TE WHAKATŌHEA (FORMERLY WHAKATŌHEA MĀORI TRUST BOARD) NGĀI TAI AND RIRIWHENUA TE UPOKOREHE TREATY CLAIMS TRUST ON BEHALF OF TE
WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) v NGĀTI IRA O WAIOWEKA, NGĀTI
PATUMOANA, NGĀTI RUATĀKENGA AND NGĀI TAMAHAUA (TE KĀHUI TAKUTAI MOANA O NGĀ
WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA) [2024] NZSC 164 [2 December 2024]
UPOKOREHE IWI
TE RŪNANGA O NGĀTI AWA
WHAKATŌHEA KOTAHITANGA WAKA
(EDWARDS)
NGĀTI RUATĀKENGA
LANDOWNERS COALITION
INCORPORATED
NGĀTI MURIWAI
KUTARERE MARAE
Respondents
AND ATTORNEY-GENERAL TE WHĀNAU-Ā-APANUI SEAFOOD INDUSTRY REPRESENTATIVES CROWN REGIONAL HOLDINGS LIMITED ŌPŌTIKI DISTRICT COUNCIL BAY OF PLENTY REGIONAL COUNCIL LANDOWNERS COALITION INCORPORATED WHAKATĀNE DISTRICT COUNCIL TE RŪNANGA O NGĀTI AWA Interested Parties
| Hearing: | 4–7 November 2024 |
| 12–15 November 2024 | |
| Court: | Glazebrook, Ellen France, Williams, Kós and French JJ |
| Counsel: | R J B Fowler KC, A J Sinclair and B M Cunningham for |
| Whakatōhea Kotahitanga Waka (Edwards) | |
| M J Sharp for Ngāti Muriwai and Kutarere Marae | |
| J S Cooper KC, B R Lyall and H L B Swedlund for Te Upokorehe | |
| Treaty Claims Trust on behalf of Te Upokorehe Iwi | |
| A J Williams, R L Roff and Y Moinfar-Yong for Attorney-General | |
| A T I Sykes and S W H Fletcher for Ngāti Ira o Waioweka | |
| M S Smith and T H Bennion for Ngāti Patumoana | |
| K S Feint KC and N A T Udy for Ngāti Ruatākenga | |
| C M T Panoho-Navaja for Ngāi Tamahaua | |
| J M Pou for Te Tāwharau o Te Whakatōhea (formerly | |
| Whakatōhea Māori Trust Board) | |
| B R Arapere, A E Gordon and E K Rongo for Ngāi Tai and | |
| Ririwhenua | |
| D M Salmon KC, H K Irwin-Easthope and R K Douglas for Te | |
| Rūnanga o Ngāti Awa | |
| M K Mahuika and N R Coates for Te Whānau-ā-Apanui | |
| T D Smith and R J J Wales for Seafood Industry Representatives | |
| M H Hill and J L Hollis for Crown Regional Holdings Limited | |
| and Ōpōtiki District Council | |
| A M Green and E S Greensmith-West for Whakatāne District | |
| Council | |
| J E Hodder KC, B E Morten and S O H Coad for Landowners | |
| Coalition Inc | |
| M K Mahuika, T N Hauraki and H L P Ammunson for Ngā Hapū | |
| o Ngāti Porou as Intervener | |
| Judgment: | 2 December 2024 |
JUDGMENT OF THE COURT
A The appeal (by the Attorney-General in relation to s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011) is allowed. B Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
Table of Contents
Para No
| Introduction | [1] |
| History of rights and interests in the marine and coastal area | [7] |
| Ngāti Apa and Ninety-Mile Beach | [7] |
| Canada and Australia | [11] |
Canada [14] Australia [22]
| Māori customary rights to land and the Native Land Court | [33] |
| The Native Land Court’s approach to marine title specifically | [51] |
| Conclusions on the different New Zealand approach | [55] |
| From Ngāti Apa to the FSA | [58] |
| From the FSA to MACA | [67] |
| MACA’s legislative history | [73] |
| The present appeals | [85] |
| Statutory framework | [101] |
| Purpose provisions | [102] |
| Baseline premises | [106] |
| General reconciliation rules | [110] |
| Fact-specific reconciliation rules: s 58 and supporting provisions | [116] |
| The parties’ submissions | [127] |
| Our approach | [133] |
| “[H]olds … in accordance with tikanga” | [136] |
| The Courts below | [136] |
| The parties’ submissions | [138] |
| Our analysis | [139] |
| “[E]xclusively used and occupied” | [144] |
| The Courts below | [145] |
| The parties’ submissions | [151] |
| Our analysis | [153] |
Shared exclusivity [168] Whanaungatanga and manaakitanga [173]
| Continuity: “from 1840 to the present day without substantial | [175] |
| interruption” | |
| The Courts below | [176] |
| The parties’ submissions | [185] |
| Our analysis | [188] |
Continuity [189] Substantial interruption [193]
| Extinguishment | [205] |
| Conclusion on Court of Appeal decision | [208] |
| A brief summary of the correct approach to s 58 | [211] |
| “[H]olds … in accordance with tikanga” | [219] |
| “[E]xclusively used and occupied” | [221] |
| Continuity: “from 1840 to the present day without substantial | |
| interruption” | [224] |
| Disposition | [227] |
| Appendix: Table summarising reconciliation in the statutory | |
| scheme | [229] |
| Introduction |
[1] This is the first of two judgments relating to claims to customary rights in the
harbours, river mouths, beaches, and seascape of the eastern Bay of Plenty.[1] It arises
[1] Re Edwards Whakatōhea [2021] NZHC 1025, [2022] 2 NZLR 772 (Churchman J) [HC judgment];
from seven separate appeals, the first to come to this Court under the Marine and
Coastal Area (Takutai Moana) Act 2011 (MACA)—the most recent iteration of bespoke legislation governing the subject. These appeals raise complex and
interrelated issues primarily, but not only, about the balance MACA strikes between
prior tikanga-based marine and coastal rights of whānau, hapū and iwi on the one hand,
and the rights, interests and expectations—whether private or public—of the wider
community on the other.
[2] Nineteen parties appeared and presented argument in support of, or in
opposition to the appeals.[2] They represented iwi, hapū, whānau and marae, private
[2] Bay of Plenty Regional Council | Toi Moana is an interested party to the appeals but has maintained
landowners, fishing and port infrastructure interests, local government and the Crown.
Despite that array of perspectives, it was common ground that in 1840, Māori held
pre-existing customary rights in what MACA refers to as the common marine and
coastal area, and that these rights were protected by the Treaty of Waitangi. It was
also common ground that at least some of those rights were still held by their
descendants in 2004 immediately before the enactment of the Foreshore and Seabed
Act 2004 (FSA) which extinguished them and replaced them with a limited system of
statutory recognition. Seven years later, MACA formally revived the rights and
comprehensively reformed the statutory recognition system.
[3] The other side of the narrative is that in the years since the Treaty of Waitangi,
a whole complex of other rights and interests in the beaches and marine spaces of
Aotearoa evolved as the new political economy grew. These included, but went
beyond, rights of access and navigation recognised in the common law and tikanga.
And an expectation gradually developed that these areas should be available for all to
enjoy or (provided the necessary authorities are obtained) to exploit for economic
benefit.
[4] It can be no surprise that tensions persist between rights and expectations under
the prior Māori customary legal order and those under the (relatively) new state legal
order. Nor is it surprising that writing modern laws for their reconciliation, and
applying them to particular cases, has proved difficult and controversial. This has also
been the experience in cognate jurisdictions such as Canada and Australia.
[5] In this judgment, we address the meaning of s 58 of MACA which contains the
test that must be met to obtain an award of customary marine title (CMT). This was
the key area of contention between the parties to these appeals. Our focus here will
be on the issues of general import regarding CMTs, and whether the majority decision
of the Court of Appeal was correct in its analysis and interpretation of s 58. More
discrete or fact-specific issues arising under s 58, such as the disputed status in tikanga
of specific applicant groups or marine areas, will be dealt with in a second judgment.
Issues relating to the lesser form of right in MACA (protected customary rights (PCRs)
under s 51), the application of s 58 to navigable rivers, the mandate of applicant
groups, procedural questions and the application of MACA to the present case will
also be addressed in our second judgment.
[6] We will begin by summarising as briefly as is consistent with the needs of the
case, the history of customary rights and interests in the marine and coastal area up
until the enactment of the FSA in 2004. We then situate the present appeals within
that history. From there we set out the MACA framework in detail, and then discuss
the four core elements of the s 58 test for CMT.[3]
[3] See below at [133]. We do not need to address the meaning of s 58(1)(b)(ii) of the Marine and
History of rights and interests in the marine and coastal area
Ngāti Apa and Ninety-Mile Beach
[7] In 1997, Ngāti Apa and seven other iwi of the Marlborough Sounds applied to
the Māori Land Court for a status order under s 131 of Te Ture Whenua Māori Act
1993 (the TWMA) declaring the foreshore and seabed in the Sounds to be Māori
customary land belonging to them.[4] In Attorney-General v Ngāti Apa, a full court of
[4] Marlborough Sounds (1997) 22A Nelson MB 1 (22A NE 1).
the Court of Appeal comprising Elias CJ, Gault P and Keith, Anderson and Tipping JJ,
found that the Māori Land Court had jurisdiction to entertain the application.[5]
[5] Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).
In coming to that conclusion, the Court of Appeal reversed its own long-standing
authority in Re the Ninety-Mile Beach.[6] In that case in 1963, the Court had held that
[6] Re the Ninety-Mile Beach [1963] NZLR 461 (CA).
where prior Māori Land Court terrestrial awards ended at the mean high-water mark, any rights below mean high-water were necessarily extinguished.[7] Further, even
[7] At 473–474 per North J. Gresson J concluded that the Māori Land Court previously had the
where the Māori Land Court had not previously investigated title to the adjoining land,
s 147 of the Harbours Act 1878 for practical purposes precluded any grant of such
land except by “special Act of Parliament”.[8]
[8] At 474 per North J and 479–480 per Gresson J.
[8] After analysing the cases on customary rights recognition in New Zealand law
during the colonial period, Elias CJ in Ngāti Apa rejected the reasoning in
Ninety-Mile Beach as wrong, even in 1963.[9] She concluded that the transfer of
[9] Ngāti Apa, above n 5, at [77]–[89].
sovereignty gave the Crown radical title to the land but did not affect prior customary
rights.[10] Instead, the common law preserved those rights until they were lawfully
[10] Elias CJ noted that radical title was a “technical and notional concept” and also described it as the
extinguished.[11] Keith and Anderson JJ emphasised that the Crown bore the onus of
[11] Ngāti Apa, above n 5, at [13].
proving extinguishment: “the necessary purpose must be clear and plain”.[12] Similarly,
[12] At [148].
Tipping J noted Māori customary rights existed unless “lawfully abrogated” and
“Parliament’s purpose would need to be demonstrated by express words or at least by
necessary implication”.[13]
[13] At [185].
[9] In addition to citing in support (then recent) leading New Zealand decisions,[14]
[14] At [29] per Elias CJ citing Te Rūnanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR
the judgments in Ngāti Apa also referred to leading contemporary aboriginal title
decisions of the Australian High Court and the Canadian Supreme Court. These, it
was said, demonstrated the common law’s continuing recognition of customary rights,
and suggested New Zealand courts too should not lightly interpret statutory language
as excluding such recognition.[15] The Court found that relevant legislation: the
[15] Ngāti Apa, above n 5, at [31] and [87] per Elias CJ, [148] per Keith J and Anderson JJ citing,
Harbours Acts 1878 and 1950, the Territorial Seas Acts of 1965 and 1977,[16] the Foreshore and Seabed Endowment Revesting Act 1991 and the Resource Management
[16] Territorial Sea and Fishing Zone Act 1965; and Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977.
Act 1991 (RMA), did not express an intention to extinguish customary interests or
otherwise exclude their recognition.
[10] It should however be borne in mind that the appeal in Ngāti Apa was against a
decision of the High Court on a question of jurisdiction, in the context of an appeal
from the Māori Land Court to the Māori Appellate Court. The core issue before the
High Court had been whether the Māori Land Court lacked jurisdiction because all
customary rights in the foreshore and seabed had been extinguished by operation of
law. No evidence in support of the claim to customary rights had, by that stage, been
heard. The Court of Appeal did not therefore purport to articulate a test or tests to
establish customary interests of any kind in the marine area and it refused to answer
questions posed in relation to the extinguishing effect of nine relevant local Acts.
They could not, the Court held, be answered in the absence of facts.[17] And although
[17] Ngāti Apa, above n 5, at [90] per Elias CJ.
it suggested that customary interests might range from mere usufructuary rights[18]
[18] A usufructuary right is a right to enjoy and use another’s property without damaging it. See the
through to entitlement to exclusive possession, the Court’s view was evidence would
be required to establish the content, if any, of such interests.
Canada and Australia
[11] As noted above, Ngāti Apa referred to, and in part relied on, the relatively
extensive contemporary Australian and Canadian jurisprudence on what is variously
called aboriginal rights, aboriginal title or native title. Because British colonisation of
Australia and the Canadian province of British Columbia proceeded without
resolving—by treaty or other means—what rights under the pre-existing order would
survive into the new, the case law there developed late. It was not until the end of the
20th century that these questions came to be resolved authoritatively by the courts
there.
[12] Certain aspects of the tests they propound were picked up in MACA provisions. Importantly for present purposes, the s 58 test for CMT adopts language employed in the leading Australian and Canadian authorities. These authorities are,
for example, the source of the s 58 requirement that applicant groups demonstrate
exclusive use and occupation in the claim area; and they are also the source of the
disqualifying concept of “substantial interruption”. They therefore provide important
background in terms of construction of the statutory test.
[13] That said, caution is required. It is important to keep in mind that the legal and
factual contexts of the Canadian and Australian cases are different—and in some
respects, very different—to those applicable in this country. As we come to when we
summarise the jurisprudence of the Native Land Court, New Zealand enacted bespoke
legislation for the recognition of customary title a 130-odd years before the Australians
and Canadians addressed the issue through case law.[19] The relative homogeneity of
[19] Native Lands Acts 1862 and 1865.
applicable tikanga principles and the comprehensive nature of the official record of
Māori coastal rights and Māori right holders in lands adjacent to the coast are also
distinctive to this country.
Canada
[14] Although existing aboriginal rights are given constitutional protection in s 35
of the Canadian Constitution Act 1982, the content of aboriginal rights law in that
country is entirely governed by the common law. The Canadian approach holds that
aboriginal rights exist on a spectrum from exclusive, territorial aboriginal title at one
end, to non-exclusive, non-territorial rights of use at the other.[20] Aboriginal title is sui
[20] Delgamuukw, above n 15, at [138] per Lamer CJ, Cory and Major JJ. This spectrum is also
generis, collective and inalienable.[21] It consists in:[22]
[21] At [112]–[115] per Lamer CJ, Cory and Major JJ.
[22] At [117] per Lamer CJ, Cory and Major JJ.
(a) the “right to exclusive use and occupation of the land held pursuant to that title” (the positive proposition); but
(b) the “protected uses must not be irreconcilable with the nature of the group’s attachment to that land” (the negative proposition).
[15] The remedy in a successful aboriginal title claim is the recognition of exclusive
rights to the area in which the claim has been made out.
[16] The claimants must establish that occupation of the area claimed was
sufficient, continuous and exclusive.[23] But these three requirements are lenses through
[23] At [143] per Lamer CJ, Cory and Major JJ; and Tsilhqot’in Nation v British Columbia 2014 SCC
which to assess a group’s claim, rather than “ends in themselves”.[24] Whether
[24] Tsilhqot’in, above n 23, at [32].
occupation is sufficient must be considered as at the time of the Crown asserting
sovereignty, and from both a common law and aboriginal perspective.[25] When
[25] Delgamuukw, above n 15, at [144] and [147] per Lamer CJ, Cory and Major JJ; Tsilhqot’in, above
considering the aboriginal perspective, the focus is on the claimant group’s laws,
practices, customs and traditions. Conversely, the common law perspective requires
consideration of possession and control of the lands. This inquiry is context-specific
and culturally-sensitive, taking into account the characteristics of the claimant group
and the particular lands in question.
[17] The Supreme Court of Canada in Tsilhqot’in Nation v British Columbia held
that the claimant group must demonstrate “that it has historically acted in a way that
would communicate to third parties that it held the land for its own purposes”.[26] This
[26] Tsilhqot’in, above n 23, at [38].
requires:[27]
[27] At [38].
… evidence of a strong presence on or over the land claimed, manifesting
itself in acts of occupation that could reasonably be interpreted as
demonstrating that the land in question belonged to, was controlled by, or was
under the exclusive stewardship of the claimant group.
[18] The Court explained the second requirement of continuity in these terms:[28]
[28] At [46].
Continuity simply means that for evidence of present occupation to establish
an inference of pre-sovereignty occupation, the present occupation must be
rooted in pre-sovereignty times. This is a question for the trier of fact in each
case.
[19] In Delgamuukw v British Columbia the Supreme Court of Canada noted that colonial rejection of aboriginal title may have led to disruption of use and occupation of an area for a time. But a strict interpretation of continuity could undermine the
purpose of the aboriginal rights protection in s 35(1) of the Constitution Act with the
effect of perpetuating historical injustice. Consistent with the approach of the
High Court of Australia decision in Mabo v Queensland (No 2), the majority
considered that “substantial maintenance of the connection” between the applicant and
land would meet the requirement.[29]
[29] Delgamuukw, above n 15, at [153] per Lamer CJ, Cory and Major JJ citing Mabo (No 2), above
[20] The third and final requirement is that the claimants must demonstrate that at
the time of the assertion of British sovereignty, their occupation was exclusive,
meaning they must have manifested “the intention and capacity to control the land”.[30]
As with the first inquiry, exclusivity requires consideration of aboriginal and common
law perspectives. Examples that may found a claim for exclusivity include evidence
of excluding others from the land or others requiring permission to enter.
[30] Tsilhqot’in, above n 23, at [48]; see also Delgamuukw, above n 15, at [156] per Lamer CJ, Cory
[21] Not all Canadian authorities relate to terrestrial aboriginal rights claims. In
Saugeen First Nation v Canada (Attorney General), the Court of Appeal of Ontario
concluded the applicant group had failed to establish aboriginal title regarding
submerged lands in a section of a lake and bay (although it allowed the group to remit
an alternative claim with further evidence to the trial Judge regarding a smaller area).[31]
Although it is understood that claims have been made to marine spaces in and around
the British Columbian coast, there has, as yet, been no adjudication of claims in
relation to marine spaces.[32]
[31] Saugeen First Nation v Canada (Attorney General) 2023 ONCA 565, [2023] OJ 3905. But as to
[32] In 2024, the Supreme Court of British Columbia recognised aboriginal title over an area of
[22] Australia has rehoused common law aboriginal title into legislation which
applies to all land in Australia including the marine and coastal area.[33] Section 223 of
the Native Title Act 1993 (Cth) sets out the key elements to establish native title.
While not intended to fully codify the prior common law, the foundation of the section
was the opinion of Brennan J in Mabo (No 2).[34]
[33] Paul McHugh “From Common Law to Codification – The Foreshore and Seabed Act 2004” in
[34] Australian Law Reform Commission Connection to Country: Review of the Native Title Act 1993
[23] In Mabo (No 2) the High Court of Australia concluded that the acquisition of
sovereignty and radical title by the Crown had not extinguished native title. Brennan J
said that native title as a burden on the Crown’s radical title was a convenient
description of “the interests and rights of indigenous inhabitants in land, … possessed
under the traditional laws acknowledged by and the traditional customs observed” by
those inhabitants.[35] The nature and incidents of native title had to be ascertained “as a
matter of fact” by reference to the relevant laws and customs.[36]
[35] Mabo (No 2), above n 15, at 57.
[36] At 58.
[24] As will be seen from the later approach of the High Court of Australia in
Members of the Yorta Yorta Aboriginal Community v Victoria,[37] Brennan J used the
[37] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR
concept of substantial interruption in addressing loss of cultural connection with an
area, rather than interference with use and occupation.[38] Of the concept of substantial
interruption, Brennan J noted that where a group:[39]
… has continued to acknowledge the laws and (so far as practicable) to
observe the customs based on the traditions of that … group, whereby their
traditional connexion with the land has been substantially maintained, the
traditional community title of that … group can be said to remain in existence.
The situation was different when “the tide of history [had] washed away any real
acknowledgment of traditional law and any real observance of traditional customs”.[40]
In that situation, the foundation of native title had disappeared.
[38] See CA judgment, above n 1, at [117] per Miller J; and Shaunnagh Dorsett “An Australian
[39] Mabo (No 2), above n 15, at 59–60.
[40] At 60.
[25] These various themes are apparent in s 223(1) of the Native Title Act which
| states: | ||
|
the communal, group or individual rights and interests of Aboriginal
peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by
the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters;
and
(c) the rights and interests are recognised by the common law of Australia.
[26] The section does not make a distinction between territorial rights and rights to
carry out particular activities. Instead, the general doctrine of native title includes both
and, as is apparent from the excerpt above at [23] from the judgment of Brennan J, the
content of native title is determined by looking at the particular customs and traditions
of the applicant group in each case.[41] In practice, the courts have preferred to
recognise rights to engage in particular activities rather than territorial rights.[42]
[41] Dorsett, above n 38, at 63; and see Mabo (No 2), above n 15, at 58 per Brennan J.
[42] Dorsett, above n 38, at 63; and see also Nin Tomas “Māori Land Law: The Coastal Marine (Takutai
[27] It is useful to refer to two of the decisions of the High Court of Australia
subsequent to Mabo (No 2) and the introduction of the Native Title Act.[43] The first of
these cases is Commonwealth of Australia v Yarmirr.[44] The decision is relevant for
the finding that native title was capable of being recognised in relation to the sea and
seabed below the low-water mark. However, the Court considered that a fundamental difficulty for the claimants’ assertion of exclusive offshore rights in that case was that
there were common law public rights to navigate, to fish, and the international right
of innocent passage which could not coexist with the claimed rights.[45] As we come
to, MACA addresses this problem.[46]
[43] The High Court also discussed the concept of exclusive use, while focusing on the relationship
[44] Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1.
[45] At [98] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Kirby J dissented and would have
[46] Below at [109].
[28] The second decision, Yorta Yorta, illustrates the way in which the various
concepts, namely, traditional laws and customs, substantial interruption and that of
continuity have been developed in Australia.[47]
[47] Yorta Yorta, above n 37.
[29] In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ said that all of the
elements of the definition of native title had to be given effect.[48] Taking first the word
“traditional”, in the context of the Native Title Act, that word conveyed a number of
matters, including “an understanding of the age of the traditions”.[49] That is, the origins
of the content of the law or custom were to be found in “the normative rules” of the
indigenous societies existing before the assertion of sovereignty by the British
Crown.[50] Further, the reference to rights or interests in land or waters being
“possessed” under traditional laws acknowledged and traditional customs observed:[51]
[48] At [33].
[49] At [46].
[50] At [46].
[51] At [47] (emphasis in original). By contrast see the discussion of the subject in Ellis v R
… requires that the normative system under which the rights and interests are
possessed (the traditional laws and customs) is a system that has had a
continuous existence and vitality since sovereignty. If that normative system
has not existed throughout that period, the rights and interests which owe their
existence to that system will have ceased to exist. Any later attempt to revive
adherence to the tenets of that former system cannot and will not reconstitute
the traditional laws and customs out of which rights and interests must spring
if they are to fall within the definition of native title.
[30] Much of the judgment in Yorta Yorta was devoted to considering the effect of
changes to or adaptation of traditional laws and customs or some interruption of the
enjoyment or exercise of native title rights or interests in the period between the Crown
asserting sovereignty and the present. The Judges did not see such a change or interruption as necessarily fatal to a native title claim. But, and this flows from the
meaning given to “traditional”, both change and interruption in the exercise of rights
may in an individual case take on particular significance. The Court said:[52]
[52] Yorta Yorta, above n 37, at [83] per Gleeson CJ, Gummow and Hayne JJ.
The key question is whether the law and custom can still be seen to be
traditional law and traditional custom. Is the change or adaptation of such a
kind that it can no longer be said that the rights or interests asserted are
possessed under the traditional laws acknowledged and the traditional customs
observed by the relevant peoples when that expression is understood in the
sense earlier identified?
[31] As to the concepts of substantial interruption and continuity, the Court said that
“acknowledgment and observance of those laws and customs must have continued
substantially uninterrupted since sovereignty”.[53] If that was not the case, the laws and
customs could not properly be described as the “traditional” laws and customs of the
peoples concerned.
[53] At [87] Gleeson CJ, Gummow and Hayne JJ. Professor Kent McNeil says Yorta Yorta establishes
[32] The Court said that the qualification “substantially” uninterrupted was not
unimportant. That was because:[54]
[54] Yorta Yorta, above n 37, at [89] Gleeson CJ, Gummow and Hayne JJ.
It is a qualification that must be made in order to recognise that proof of
continuous acknowledgment and observance, over the many years that have
elapsed since sovereignty, of traditions that are oral traditions is very difficult.
It is a qualification that must be made to recognise that European settlement
has had the most profound effects on Aboriginal societies and it is, therefore,
inevitable that the structures and practices of those societies, and their
members, will have undergone great change since European settlement.
Nonetheless, because what must be identified is possession of rights and
interests under traditional laws and customs, it is necessary to demonstrate
that the normative system out of which the claimed rights and interests arise
is the normative system of the society which came under a new sovereign
order when the British Crown asserted sovereignty, not a normative system
rooted in some other, different, society.
Māori customary rights to land and the Native Land Court
[33] As a starting point, it is difficult to improve upon the following summary by
Associate Professor Andrew Erueti as to the nature of tikanga-based land rights held
by whānau and hapū prior to the Treaty:[55]
[55] Andrew Erueti “Māori Customary Law and Land Tenure: An Analysis” in Richard Boast and
According to Māori land custom, no one individual or kinship group owned
land in the sense that they held virtually all rights in land to the exclusion of
other levels of kinship or adjacent groups. Rather, different levels of the hapū
social order exercised different kinds of rights in the same area of land. The
right to traverse a stretch of land could extend to the hapū as a whole, but the
right to cultivate particular garden plots within the same area could be
exercised by smaller entities: individuals, chiefs, ope [outside groups] of kin,
nuclear families (mum, dad, and the kids), and whānau (the extended family).
These rights were transferred by a number of customary means. Major
transfers could occur through war or threat of war. However, the rights to
specific resources, such as the right to fishing-stands, trees attractive to birds,
or small garden plots, were commonly transferred from, by, and to individuals,
through gifting and inheritance. Specific rights were transferred in this way
to other hapū members and also to members of adjacent groups without
necessarily conferring with the hapū as a whole or its ruling chief or chiefs.
As a result, “the rights of individuals of different hapū came to intersect on
the ground”, resulting in a crazy patchwork of use-rights.[56] These rights were
ordered and prioritised according to well-recognised principles but with a
marked emphasis on context so that the solution chosen best suited the
demands of the moment.
It was common for an area of land occupied by hapū to be subject to a number
of competing claims of right made by groups that had occupied the land in the
past. These could be recently defeated peoples forced off the land by the
present occupants, or groups that had migrated to new lands. They may no
longer occupy the land but in their eyes they retained “mana” (authority,
control) in the land, and could advance a variety of “take” (bases) to support
their claim.
These competing claims of right coupled with the intricate system of
intersecting rights held by the members of different kinship groups makes it
difficult to say who “owned” the land, or waters of lakes, lagoons, rivers, and
the open seas.
A major hapū occupying a particular territory undisturbed by war and
migration for several generations could hold something akin to ownership in
the common law sense described above, inviting in migrating hapū, and
permitting defeated hapū to remain on the land. However, it was much more
common for several different groups to hold interests in the same area of land.
Also, time altered all relationships and degrees of right. Māori descent groups in the eighteenth century were in a constant state of mutation, waxing and
waning according to the vicissitudes of customary life. If a group asserting
authority over a locality waned over time through political misfortune a new
group could replace it. It therefore makes more sense to speak of different
groups and individuals owning rights in the land, rather than owning the land
itself.
[34] These rights—or more accurately, rights complexes—were protected by
Article 2 of both the English and Māori versions of the Treaty. So, just how much of
that pre-existing Māori order could or should survive the arrival of a new post-Treaty,
settler-dominated order has also been a preoccupation of the law in New Zealand.[57]
But, as we have noted, that preoccupation surfaced much earlier here than it did in
Australia and British Columbia; and the response in New Zealand was primarily
legislative rather than judicial. These are important differences.
[57] As we have said, it was common ground between the parties that in 1840, Māori held customary
[35] Specifically, the New Zealand Settlements Act 1863 (in relation to the hapū
whose lands would be confiscated following the New Zealand Wars) and the Native
Lands Act 1865 (in relation to the hapū whose remaining lands were not affected by
the Wars),[58] set the rules as to what lands held in tikanga would be retained under the
new order, by whom and in what legal form. Designed to speed transition from the
old order to the new, the effect of each was, in its own way, unjust—the New Zealand
Settlements Act because it effected the confiscations, and the Native Lands Act 1865
because it was premised on wholesale alienation through the individualisation of land interests.[59] Their effect on iwi and hapū has been the subject of multiple Treaty
settlements.[60]
[58] It is important to note that the Preamble of the Natives Lands Act 1862 expressly referred to the
[59] As to the effect of raupatu (land confiscation) see, for example, Waitangi Tribunal The Taranaki
[60] For example, see Ngāti Whātua Ōrākei Claims Settlement Act 2012; and Whakatōhea Claims
[36] But that history should not obscure this important point: the starting premise
of both Acts was that every part of Aotearoa was held by hapū under the prior legal
order— that is, according to tikanga. And the hapū retained their prior entitlements
unless and until lawfully extinguished by or under legislation, or by prior purchase
effected or ratified by the Crown.[61] The difference between that approach and the
approach taken much later by courts in Australia and Canada is very significant indeed.
[61] Article 2 of the Treaty of Waitangi relevantly states: “… but the Chiefs of the United Tribes and
[37] Of necessity, the 1863 and 1865 Acts gave courts a key role. The former
established the Compensation Court (to award limited reserves to hapū whose lands
were otherwise confiscated) and the latter, the Native Land Court (to inquire into
customary title claims and, where they were made out, to award titles “cognisable” at
English law).[62] In terms of volume, the Native Land Court was the dominant forum.
Using tikanga Māori as its touchstone, the Court investigated customary entitlements
to the bulk of the land in the North Island and developed a considerable body of
jurisprudence on the subject.[63] The correctness (and consistency) of that jurisprudence has been the subject of much scholarly criticism and comment by the
Waitangi Tribunal in recent times, but, it must be accepted, this reconsideration has
been possible because of the scale and relative comprehensiveness of the record of
that Court’s work.
[62] Native Lands Act 1862, s 2. See also Richard Boast “The Evolution of Māori Land Law
[63] Historical cases on customary title include (but are not limited to): R v Symonds, above n 61;
[38] It is certainly clear that to ensure a ready supply of land to meet settler demand,
the Court over-simplified tikanga’s complexities and cut corners to expedite the
process of title investigation.[64] For example the Court consistently over-valued rights
derived by conquest at the expense of pre-existing ancestral rights because that helped
to simplify the evaluative task.[65] That said, there is agreement that the Court’s
explication of the four essential sources of tikanga rights in land was sound. They
are:[66]
[64] See generally Boast The Native Land Court 1862–1887, above n 63; and Boast The Native Land
[65] See Erueti, above n 55, at 55; and Waitangi Tribunal Rēkohu: A Report on Moriori and Ngāti
[66] See generally Smith, above n 63, at 87–88 and 98–106; and Erueti, above n 55, at 54.
(a) take taunaha—right by discovery and claim; (b) take tūpuna—ancestral right; (c) take raupatu—right by conquest; and (d) take tuku—right by transfer. [39] Reflecting a Polynesian legal order in which kinship is the organising principle,
the most important source of right was take tūpuna. Where the land holding hapū was
“displaced” by conflict, the leadership of the conquering hapū would inevitably
intermarry with that of the pre-existing right holder to obtain the necessary whakapapa
for take tūpuna.[67] This would be relied upon in addition to the mana derived from the
conquest itself. Over time, the conqueror’s presence and the melding of whakapapa would lead to the later hapū claiming take tūpuna in its own right, but the older lines,
with their additional potency would continue to be remembered and relied on. In a
different context, the continuing strength of take tūpuna may also be seen in the fact
that a right held by tuku would revert to the prior right holder by take tūpuna if, for
any reason, the tuku was abandoned.[68]
[67] Erueti, above n 55, at 54.
[68] See discussion of tuku in Waitangi Tribunal Muriwhenua Land Report, above n 61, at [3.3.5].
[40] These four take were, however, insufficient on their own to sustain rights in
land. Each of them had to be accompanied by continuous occupation or ahi kā.
Literally translated, this was a requirement to keep one’s fires burning on the land.
Just how many fires were required, and to what intensity, depended on context,
reflecting the varied nature of the resource complexes whose use tikanga regulated.
Some areas such as cultivations, riparian and inshore fisheries were intensively used
and closely held. In other areas such as inland forests and offshore fisheries, only
occasional use during the birding and gathering seasons might satisfy ahi kā
requirements. Spiritual or cultural sites such as wāhi tapu, and particularly urupā,
were also important markers of the intensity of the wider right. Physically protecting
them and maintaining them in tribal memory was a priority.
[41] Mana, too, played a key role as an expression of right. In all these resource
complexes, the mana of the right-holder was expressed by controlling access to
particular places and resources through the institution of rāhui. These may have been
imposed to protect the physical sustainability of a limited resource, or to protect its
spiritual health from, for example, the effects of an injury or death connected in some
way to it.
[42] In addition to the intensity of use and expressions of control required to
maintain ahi kā, tikanga also spoke to ahi kā’s temporal requirements. Ahi kā could
become ahi teretere (merely flickering) through neglect, and liable to be lost without
active steps being taken to re-enliven it. A significant discontinuity of use would lead
to the rights becoming ahi mātaotao—a right whose fires have become cold.
[43] The Native Land Court generally took the approach that an absence of three generations would lead to loss of the right, but this is almost certainly another example of that Court’s preference for oversimplification to better achieve its mission of
making land available.[69] The preferable view is that the degree of discontinuity
[69] Smith, above n 63, at 94.
sufficient to end a take in land was contextual. That context included the relationship
between the prior right-holder whose continuing right was subject to doubt and any
more recent counter-claimant, the nature and use of the area in question, and the nature
of the right or rights claimed over it.
[44] The fact that it is possible today, to summarise in broad terms, the essential
elements of tikanga in relation to whenua with relative confidence, is a distinctive
feature of the New Zealand experience. This is due in part to the maintenance to the
present day of tribal memory, practice and tikanga in relation to place, and in part to
the Native Land Court’s work at the end of the 19th and early 20th centuries.
[45] As to the latter, it must be understood that contests over title in the Native Land
Court were generally not between Māori and Pākehā, or Māori and the Crown, unless,
as occasionally happened, there was a suggestion that the customary title had already
been extinguished by prior sale or confiscation.[70] Rather, disputes in the Court were
[70] See, for example, Tāmaki v Baker [1901] AC 561 (PC).
almost invariably between hapū. In hard fought cases the Court’s Minute Books might
record evidence and argumentation mostly in te reo Māori and running to many weeks
of hearing time.[71] The Court recorded which hapū claimed rights and where; and
[71] Professor David Williams notes that the expense of attending lengthy court hearings that were far
which claim or claims should be preferred.
[46] Together, the quality of modern tribal memory and of the historical record
make the work of contemporary judicial inquiry somewhat easier in this country than
elsewhere.
[47] Finally, it should be noted that s 129 of the TWMA reformed the statutory test
for Māori customary title. Its predecessor, s 161(2) of the Māori Affairs Act 1953,
provided that:
Every title to and interest in customary land shall be determined according to
the ancient customs and usages of the Maori people, as far as the same can be
ascertained.
[48] Meanwhile s 2(1) provided the following definition:
“Customary land” means land which, being vested in the Crown, is held by
Maoris or the descendants of Maoris under the customs and usages of the
Maori people…[49] These provisions can be traced back to the Native Lands Act 1865.[72]
[72] Section 2 of the Native Lands Act 1865 defined “[n]ative land” as “lands in the Colony which are
Section 129 of the TWMA takes a shorter route. It simply provides “land that is held
by Māori in accordance with tikanga Māori shall have the status of Māori customary
land”.[73] It is to be doubted that this change in wording was intended to effect any
[73] Te Ture Whenua Māori Act, s 129(2)(a).
substantive change. Rather it appears simply to modernise the language of the old
test, but it did lead the modern Māori Land Court to suggest that the new language
highlighted the importance of determining ownership through a tikanga lens rather
than making determinations through a court or Pākehā perspective.[74]
[74] See da Silva v Aotea Māori Committee (1998) 25 Taitokerau MB 212 (25 AT 212) at 215.
[50] We make these points because as we come to, the s 129 definition was adopted
as the model for the first part of the s 58 test for CMT. That formulation was thus a
known quantity.
The Native Land Court’s approach to marine title specifically
[51] As befits a nation of islands whose original peoples are Polynesian, terra firma
was not the only focus of the Native Land Court. Claims to customary ownership of
the foreshore and seabed were made within five years of the Court’s establishment.
And they continued to be made until well into the 20th century, long before the
application by Ngāti Apa and the Tauihu tribes of the Marlborough Sounds.
[52] The Court of Appeal in Ngāti Apa referred to Kauwaeranga, the 1870
judgment of Chief Judge Fenton of the Native Land Court, in relation to a claim to
customary title to the Thames foreshore.[75] Because it was the first adjudication in this
[75] Alex Frame “Kauwaeranga judgment” (1984) 14 VUWLR 227 [Kauwaeranga reprint] at 229 and
country of a claim to customary rights in the marine area, it is appropriate to spend a
little time considering its terms. Much of the Kauwaeranga judgment is a “lengthy
and erudite”[76] discussion of the background to British colonisation of New Zealand,
[76] So described by the Court of Appeal in Re the Ninety-Mile Beach, above n 6, at 471 per North J.
relevant imperial and local legislation, and the development of the English common
law in relation to fisheries and foreshore rights. But of particular relevance in the
present appeals is Chief Judge Fenton’s discussion of the evidence adduced in support
of the application. He said:[77]
[77] Kauwaeranga reprint, above n 75, at 240. Two years later, the Governor issued a proclamation
In the case now before the Court, consistent and exclusive use of the locus in
quo has been clearly shown from time immemorial. As far as the evidence
goes, no persons except the claimants and their ancestors have, at any time,
appropriated to their use this land, nor has the exclusive right of the claimants
to enjoy it, as they always have enjoyed it, ever been disputed by anyone up
to the present contention. That the use to which the Maoris appropriated this
land was to them of the highest value no one acquainted with their customs
and manner of living can doubt. It is very apparent that a place which afforded
at all times, and with little labour and preparation, a large and constant supply
of almost the only animal food which they could obtain, was of the greatest
possible value to them; indeed of very much greater value and importance to
their existence than any equal portion of land on terra firma. It is easy to
understand then why the word “fisheries” should appear so prominently in the
[Treaty of Waitangi] instrument by which they admitted a foreign authority to
acquire rights of sovereignty over their country.
[53] Ordinarily, evidence of this quality would have produced an award that could
be converted into “[n]ative freehold title”, the new form of Māori title said to be
cognisable at English law. But, in a manner that prefigured concerns that came to the
fore 135 years later, the Chief Judge expressed uneasiness at the effect on wider settler interests of awarding to the applicant a fully exclusive foreshore title.[78] The Court
[78] One of the reasons for such uneasiness was the implications regarding ownership of gold: See
awarded the customary owners a fishing easement instead.
[54] Although, the 1957 first instance decision of Chief Judge Morrison in the
Ninety-Mile Beach case was, as noted, set aside by the Court of Appeal in 1963, that
Judge’s factual findings in relation to customary title to that much larger seascape are
consistent with those of Chief Judge Fenton, 87 years earlier, in Kauwaeranga. The
later Chief Judge summarised his conclusions on the nature of the claimants’ use and
occupation of the Ninety-Mile Beach circa 1840 succinctly:[79]
[79] Te Whaaro Oneroa a Tohe (90 Mile Beach) (1957) 85 Northern MB 126 (85 NMB 126) 15
The evidence established the following:
(a) That the Northern portion was within the territory occupied by Te Aupouri and the Southern portion was within the territory occupied
by Te Rarawa.
(b) That the members of these tribes had their kaingas and their burial grounds scattered inland from the beach at intervals along the whole
distance.
(c) That the two tribes occupied their respective portions of the land to the exclusion of other tribes.
(d) That the land itself was a major source of food supply for these tribes in that from it the Maoris obtained shellfish, namely toheroa, pipi,
tuatua, and tipa from the beach itself, and kutai from the rocks below
high water mark at the part known as the Maunganui Bluff.
(e) That the Maoris caught fish in the sea off the beach, and for this purpose went out in canoes. The fish caught were mullet, schnapper,
flounder, kahawai, parore, herrings, rock cod, yellow-tail, kingfish
and shark.
(f) That for various reasons from time to time “rahuis” were imposed upon various parts of the beach and the sea itself.
(g) That the beach was generally used by the members of these tribes. It is clear beyond doubt that the land was exclusively occupied by the two
tribes under their customs and usages …
Conclusions on the different New Zealand approach
[55] As we noted at the outset, New Zealand’s experience of early legislative
engagement with customary title is in marked contrast to the Australian and Canadian
experience. It seems clear that the Native Land Court applied what it considered were
orthodox and well-tested principles of tikanga to the marine title claims that came
before it. And relying on apparently detailed evidence, the Court readily accepted that
marine areas, including but not only the inter-tidal zone, contained key sources of food
and materials and so were subject to tikanga rights.
[56] It may be inferred therefore that what was true in 1840 for the Hauāuru hapū
of the Thames foreshore and for Te Aupōuri and Te Rarawa of the Ninety-Mile Beach,
was also true for the rest of the country. In other words, it may be taken, at least as a
starting proposition, that through acts of reverence, exploitation, control and memory
in accordance with tikanga, relevant places were named and located, the ancestors
belonging to those places were identified, the whakapapa which conveyed their rights
through the generations was remembered, and the rights themselves were exercised,
by the generation of Māori then living when the Treaty of Waitangi was signed in
1840.
[57] Finally, it is clear that by inserting the TWMA definition of customary land
into the s 58 test in MACA, the legislature opted for a familiar formulation which did
not just invoke the TWMA experience, but also prior formulations of the test and
jurisprudence under them. There are, nonetheless, relevant differences between the
schemes of MACA and the TWMA. First, unlike the TWMA, MACA contains a
carefully constructed gradient of options for recognition—from participation rights, to
PCRs, to CMTs. And second, the TWMA definition is only part of the s 58 test.
From Ngāti Apa to the FSA
[58] We circle back now to pick up the narrative of events following the delivery of
Ngāti Apa in 2003. That decision sparked concern that the foreshore and seabed might
become “enclosed” by Māori applications for marine titles under the TWMA.
Parliament’s response was to enact the FSA. It is helpful to sketch out the approach taken to the controversy in that Act because it contains some structural similarities to
MACA as well as important differences.
[59] The object of the FSA was to:[80]
[80] Foreshore and Seabed Act 2004 [FSA], s 3.
… preserve the public foreshore and seabed in perpetuity as the common
heritage of all New Zealanders in a way that enables the protection by the
Crown of the public foreshore and seabed on behalf of all the people of
New Zealand, including the protection of the association of whānau, hapū, and
iwi with areas of the public foreshore and seabed.
[60] Section 4 set out the FSA’s purposes:
The Act gives effect to the object stated in section 3 by—
(a) vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown; and
(b) providing for the recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the
public foreshore and seabed; and
(c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those
rights are not able to be fully expressed as a result of this Act, enabling a
successful applicant group—
(i) to participate in the administration of a foreshore and seabed
reserve; or
(ii) to enter into formal discussions on redress; and
(d) providing for general rights of public access and recreation in, on, over, and across the public foreshore and seabed and general rights of
navigation within the foreshore and seabed.
[61] The FSA vested all public foreshore and seabed in the Crown “as its absolute
property”.[81] However, s 13(3) stated that: “Subsection (1) does not affect customary
[81] Section 13(1).
rights that are able to be recognised and protected under Part 3 or Part 4.” Section 13
purported to both extinguish all customary rights and allow for their (albeit limited)
recognition through statute-based negotiated or court-awarded territorial customary
rights (TCRs) and customary rights orders (CROs).
[62] A TCR was a territorial right, focusing on the nature and quality of the
relationship of the applicant group to the specified area, rather than the activities they
carried out there. It was the predecessor to MACA’s CMT, though its practical effect
was less substantive. The High Court could:[82]
[82] Section 33.
… make a finding that the group (or any members of that group) would, but
for the vesting of the full legal and beneficial ownership of the public
foreshore and seabed in the Crown by section 13(1), have held territorial
customary rights to a particular area of the public foreshore and seabed at
common law.
[63] The key elements of the test to establish a TCR were in s 32. The test was
“complex”.[83] Professor Richard Boast KC helpfully summarises it as follows:[84]
[83] Taihākurei Edward Durie, Richard Boast and Hana O’Regan Pākia ki uta pākia ki tai: Report of
[84] Richard Boast Foreshore and Seabed (LexisNexis, Wellington, 2005) at [16.10] (emphasis in
An applicant must show that the title is one that could be recognised at
common law … and which is founded on exclusive use and occupation in fact
and an entitlement to such use and occupation in customary law. The
exclusive use and occupation must be without substantial interruption since
1840 and the group seeking the TCR must have continuous title to contiguous
land. Mere spiritual and cultural association is of itself insufficient. The
wording of the provision does not appear to exclude all kinds of overlapping
interests, provided that such interests are exclusive and continuous.
[64] Broadly the group had to establish in relation to the area:[85]
[85] FSA, s 32; see also McHugh, above n 33, at 12–19.
(a) the title could be recognised at common law; (b) exclusive use and occupation as a matter of fact; (c) entitlement to exclusive use and occupation; (d) that the use and occupation has been “without substantial interruption” since 1840; and
(e) possession of continuous title to contiguous land. [65] A finding that the applicant group met the test would not, however, result in an
award of title. Instead it gave the applicant group the right to negotiate with the Crown
for recognition or to apply to the High Court for an order establishing a foreshore and
seabed reserve under s 43.[86] The Crown’s proposals for redress were non-justiciable
[86] See FSA, ss 36(1) and 38(1). A reserve would be subject to public rights of access and navigation:
and further recourse to the Court was limited.[87] But if negotiations failed, the applicant
[87] Section 38(3).
group could return to the High Court and, by means of the complex procedures in
ss 40– 45, seek orders establishing a foreshore and seabed reserve.[88]
[88] Section 37(4).
[66] The FSA was criticised as hastily enacted, and a step backward for recognition
of Māori rights.[89] It appears no CROs or TCRs were ever awarded.[90]
[89] For example, see Committee on the Elimination of Racial Discrimination Decision 1 (66) on
[90] Ministerial Review Panel Report, above n 83, at [6.3.3]; and Boast, “The Evolution of the Marine
From the FSA to MACA
[67] In November 2008, following a general election, a new minority government
was formed, led by the National Party, with confidence and supply support from the
Māori, ACT and United Future parties. As part of their Relationship and Confidence
and Supply Agreement, the Government agreed to review the FSA.[91] In 2009, the
[91] “Relationship and Confidence and Supply Agreement between the National Party and the Māori
Government announced it would establish a ministerial review panel to review the
FSA. The Panel, comprising former High Court Judge and chair of the
Waitangi Tribunal, the Hon Sir Edward Durie, leading legal academic, Professor Boast
and Hana O’Regan (a specialist in Ngāi Tahu tikanga), concluded the FSA should be
repealed and replaced.[92] The Government then published a consultation document containing proposals for the FSA’s repeal and replacement.[93] The resulting Marine
[92] Ministerial Review Panel Report, above n 83, at 13.
[93] Ministry of Justice, above n 90.
and Coastal Area (Takutai Moana) Bill closely followed these proposals.[94]
[94] See CA judgment, above n 1, at [60] per Miller J.
[68] MACA was passed without amendment as recommended by the Māori Affairs
Select Committee.[95] It received royal assent on 31 March 2011 and came into force
[95] Marine and Coastal Area (Takutai Moana) Bill 2010 (201-1) (select committee report) [Select
the following day. At this point it is necessary only to sketch out MACA’s key
elements in a general way. We will come back to a detailed discussion of specific
provisions later in this judgment.
[69] MACA repealed the FSA[96] and restored any customary interests in the
[96] MACA, s 5.
“common marine and coastal area” that the FSA had extinguished.[97] The phrase
[97] Section 6.
“foreshore and seabed” is replaced by the more spatially oriented “marine and coastal
area”. This area is defined as the area bounded by the line of the mean high-water
springs and the outer limits of the territorial sea.[98] A central feature of the way in
[98] Section 9 definition of “marine and coastal area”. The “common marine and coastal area” refers
which MACA goes about defusing the ongoing controversy is that it declares no one
owns the common marine and coastal area, not even the Crown,[99] while, at the same
[99] Section 11(2).
time, expressly preserving public rights of access, navigation and fishing,[100] and
[100] Sections 26–28.
protecting the right of Māori to seek to exercise customary rights through recognition
orders.
[70] As foreshadowed, there are two types of recognition order: customary marine
title (CMT) and protected customary right (PCR) orders. The former is territorial in
nature whereas the latter focuses on discrete activities and uses in an area. For
completeness, we note that MACA also recognises rights to participate in statutory
processes affecting customary marine areas but these are not relevant to the appeals.[101]
[71] In contrast to the FSA, under MACA, applicant groups can apply to the
High Court or enter direct negotiations with the Crown to obtain PCRs and CMTs.[102]
But like the FSA, there is a strict time bar—applications had to have been made within
six years, that is, by or before 3 April 2017.[103] To be clear, recognition orders (that is,
[103] Section 100(2). We note that the time bar in the FSA only related to CROs: see FSA, ss 48(2) and
PCRs and CMTs) are not the source of customary rights. Those rights predate both
the FSA and MACA. Rather, MACA restores them completely, and then provides for
their limited statutory recognition where the criteria are met. Apart from MACA’s
restorative effect, those rights remain in existence quite independently of its
provisions.
[72] A successful CMT application leads to a formal recognition order with
automatic rights.[104] Broadly, these include rights to: allow or prevent certain activities;
[104] MACA, ss 60, 62 and 94(1)(b). See also (15 September 2010) 666 NZPD 14002.
be notified and consulted regarding various decisions; protect wāhi tapu; own certain
minerals; own newly discovered taonga tūturu (protected objects); and create a
planning document having particular and bespoke effect under the RMA’s planning
processes.[105] As can be seen, while CMT rights are clearly substantive in nature, the
[105] MACA, s 62(1).
label “customary marine title” is not intended to imply that the applicant group owns
the claim area in any proprietorial sense.
MACA’s legislative history
[73] One common thread running through MACA’s legislative history is that those
who drove it saw it as a second attempt to recognise and reconcile competing interests
in the marine and coastal area, this time with the benefit of distance from the
controversy of 2003–2004. The courts must ascertain the meaning of legislation from
its text and in light of its purpose and context.[106] The very particular history and
[106] Legislation Act 2019, s 10.
context of MACA made recourse to a wide range of legislative materials useful in this
case, because those materials had considerable influence on the final text. Specifically,
they confirm that Parliament consciously drew on the considerable body of
jurisprudence, to which we have referred, when making drafting choices. For that reason all parties agreed that reference to this material was necessary to ascertain
MACA’s purpose.
[74] The theme of reconciliation was reiterated in the Ministerial Review Panel’s
report, referred to in the Preamble of MACA. The Panel advised that a Treaty-based
approach meant “it [was] time to expect that both cultural views should be recognised
in law and to the extent practical, reconciled”.[107] The Panel recognised that such
[107] Ministerial Review Panel Report, above n 83, at 12.
reconciliation could be challenging in light of the “two strikingly different views about
property and access”.[108] The question was not “whose law should prevail” rather
[108] At [3.1].
“whether both laws [could] be accommodated in a bicultural legal regime”.[109] The
[109] At [3.1].
Panel hoped its report would catalyse further dialogue to resolve this question.[110]
[110] At 13.
[75] In his Foreword to the consultation document that followed, the
Hon Christopher Finlayson KC MP, then Attorney-General, put it this way:[111]
[111] Ministry of Justice, above n 90, at 1.
It cannot be over-emphasised that the aim of all this work is to find a just and
enduring solution. A significant number of New Zealanders think the [FSA]
has been divisive and should be repealed. As we work to develop a solution,
the challenge for us will be to avoid dogmatic responses to a complex issue
and, instead, to seek to reconcile various interests for the benefit of all New
Zealanders.
[76] Subsequently, in a regulatory impact statement, the Ministry of Justice noted
the Government’s objective was to “achieve an equitable balance of the interests of all
New Zealanders in the foreshore and seabed”.[112] The identified interests were
[112] Ministry of Justice | Tāhū o te Ture [Ministry of Justice] Review of the Foreshore and Seabed Act
customary interests, recreation and conservation interests, business and development
interests, and local government interests.[113]
[113] Ministry of Justice, above n 90, at 9.
[77] Finally, with the Bill before the House, the parliamentary debates confirm that balance and reconciliation were key aims underpinning the enactment of MACA. The Hon Tariana Turia MP introduced the Bill on behalf of the Attorney-General. In
her introductory speech, she said:[114]
[114] (15 September 2010) 666 NZPD 13998–13999.
The Marine and Coastal Area (Takutai Moana) Bill creates a new regime that
recognises and provides for the legitimate association of w[h]ānau, hapū, and
iwi with the common marine coastal area while ensuring that the interest and
rights of all other New Zealanders in this area are also recognised and
protected.
[78] The Attorney-General affirmed that CMTs and public rights in the marine and
coastal area “can, and do, coexist” and this was recognised in the Bill.[115] Similarly,
[115] (15 September 2010) 666 NZPD 14003.
the Hon Simon Bridges MP described the Bill as “a principled compromise”.[116]
[116] (15 September 2010) 666 NZPD 14017.
Subsequently, the Hon Bill English MP (then Deputy Prime Minister) asserted the Bill
was a “pragmatic approach” and:[117]
[117] (8 March 2011) 670 NZPD 16991–16992.
… just another step that this Parliament and Governments in New Zealand
over the last 20 or 30 years have taken, following a long process of balancing
and incorporating different views of history, justice, and property rights into
the legislative and constitutional structure of New Zealand …
[79] As we come to, this thread of reconciling rights and interests is expressly
referred to in the Preamble and s 4 of MACA. It is key to understanding how
Parliament intended the Act to work.[118]
[118] See below [102]–[126].
[80] The legislative history suggests too that the Bill’s architects gave careful
consideration to the role modern Canadian and Australian jurisprudence should play
in its provisions. The Government thought it was “inappropriate” to base MACA
entirely on another country’s jurisprudence.[119] This was particularly in light of:
[119] Ministry of Justice, above n 90, at [4.5.3].
(a) the nature of New Zealand’s culture, history and constitutional framework;[120] and
[120] Ministry of Justice Regulatory Impact Statement Review of the Foreshore and Seabed Act 2004:
(b) the Ministerial Review Panel’s critique that Australia only recognises rights short of a title in the seabed and that Canada was yet to determine
whether title could be recognised in the seabed.[121]
[121] See Office of the Attorney-General Review of Foreshore and Seabed Act 2004: Principles, Bottom
[81] However, the Government noted that some aspects of the overseas authorities
were helpful as they had developed in a considered way over many years and provided
valuable insights into how to recognise and protect customary rights.[122] Further,
[122] Ministry of Justice, above n 90, at 34.
drawing on overseas jurisprudence was consistent with New Zealand’s legal tradition,
and was especially useful in light, it was considered, of the perceived lack of
New Zealand common law in this area.[123] The Government concluded that overseas
[123] Office of the Attorney-General, above n 121, at [91]. At [93] the authors acknowledge the “wealth
common law should be incorporated to the extent that it related to the New Zealand
context.
[82] There are insights in the Parliamentary debates as to what legislators had in
mind in the test for recognition of customary title (noting that what became s 58 of
MACA did not change materially between introduction and third reading). For
instance, Ms Turia, introducing the Bill to the House, observed:[124]
[124] (15 September 2010) 666 NZPD 13999.
The bill sets out a process by which customary rights that were exercised by
iwi and hapū in 1840 and continue to be exercised today in accordance with
tikanga Māori will be recognised and the future exercise of such rights can be
protected. The bill also provides for the right to seek customary title to a
specific part of the common coastal marine area if that area has been used and
occupied by a group according to tikanga and to the exclusion of others
without substantial interruption from 1840 to the present day.
[83] The Attorney-General’s remarks were to similar effect:[125]
[125] (15 September 2010) 666 NZPD 14003.
The bill also provides for the right to seek customary title to specific parts of
the common marine and coastal area if the area has been used and occupied
by a group according to tikanga without substantial interruption from 1840 to
the present day.
In Committee the Attorney-General emphasised the desirability of codifying the test
for customary title — in contrast to Canada—to avert protracted legal arguments likely
to defeat “the purpose of what many are seeking—namely, certainty and equity”.[126]
[126] (16 March 2011) 670 NZPD 17315.
In the third reading, he returned to his earlier theme as to the thrust of the legislation:[127]
[127] (22 March 2011) 671 NZPD 17649.
It allows for the recognition of customary rights associated with the exercise
of longstanding activities, and it gives iwi, hapū, and whānau the right to seek
customary title to specific parts of the common marine and coastal area to
which they have had longstanding and continuing connections, subject to the
continuing right of access.
[84] Thus, the Bill was to provide guidance for the courts:[128]
[128] (22 March 2011) 671 NZPD 17650 (emphasis added).
… based on the remarks of the Court of Appeal in the Ngāti Apa case, the
experience of Commonwealth jurisdictions such as Canada, and our shared
understanding as New Zealanders of the importance of beach culture and
manaakitanga.
The present appeals
[85] Te Whakatōhea is an iwi whose rohe is situated in eastern Bay of Plenty around
О̄pо̄tiki. For more than 20 years, the iwi has sought recognition of its customary rights
in this area. Here, we provide a brief overview of the procedural history of the appeals
before us, the marine and coastal area to which they relate, and the parties involved.
[86] In 1999, the late Claude Edwards and other hapū representatives of
Te Whakatōhea applied to the Māori Land Court to declare that the specified land
(including the foreshore and seabed) was customary Māori land under s 131 of the
TWMA.[129] Subsequently, and upon the enactment of the FSA, Mr Edwards and other
[129] See HC judgment, above n 1, at [6]. This was likely prompted by the interim decision of the
representatives applied to the Māori Land Court on behalf of the iwi for CROs.[130] We
[130] See HC judgment, above n 1, at [7].
call this application the Edwards application.
[87] After the enactment of MACA in 2011, the Edwards application was
transferred to the High Court to be determined under the new regime.[131] Section 125
[131] At [8].
of MACA transferred pending proceedings under the FSA to the High Court and
prioritised them. Subsequently, and in accordance with a High Court minute, the
applicants amended the Edwards application on 18 May 2015. The amended
application sought a recognition order for PCRs (the new CROs) and/or CMT. At this
stage there was still only one application on behalf of Te Whakatōhea. The application
proposed that recognition orders would be held by a trust which would be formed in
due course.
[88] The area claimed by the Edwards application is situated in the eastern Bay of
Plenty, covering a coastline of approximately 35 km from Maraetо̄tara in the west to
Te Rangi in the east,[132] and extends out to the 12 nautical mile limit of the territorial
[132] This approximation does not include Ōhiwa and Ōpōtiki Harbours.
sea. The area includes О̄hiwa and О̄pо̄tiki Habours; the mouths of the Nukuhou,
Waiotahē, Waioweka, Ōtara, and Waiaua rivers; Whakaari (White Island) and
Te Paepae o Aotea. The below map indicates the land-based boundaries of the claimed
area (as shown by the markers):
[89] In 2017, several hapū and other groups within Te Whakatōhea objected to the Edwards application, arguing recognition orders should be held at hapū, rather than iwi, level.[133] This has led to two umbrella groups forming within the proceedings.
[133] HC judgment, above n 1, at [10].
Whakatōhea Kotahitanga Waka (Edwards), called WKW, consists of those within
Te Whakatōhea who support the original Edwards application. The members of
WKW are:
(a) Claude Augustin Edwards (deceased) and, his daughter, Adriana Edwards (claiming to act on behalf of Te Whakatōhea iwi);
(b) Christina Davis for Ngāti Muriwai; (c) Dean Flavell for Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwa o Whakatōhea;
(d) Larry Delamere for Pākōwhai Hapū; and (e) Barry Kiwara for Kutarere Marae. [90] The other umbrella group is Te Kāhui Takutai Moana o Ngā Whānau me Ngā
Hapū o Te Whakatōhea (Te Kāhui). Te Kāhui is a coalition of four of the hapū of
Te Whakatōhea who no longer support the Edwards application and would prefer
recognition orders be made at the hapū level. The four hapū are Ngāti Ira o Waioweka,
Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua.[134] While they presented a
[134] While Ngāti Ruatākenga is not formally part of Te Kāhui, as its CMT application was under the
coordinated case, at the oral hearing each hapū made its own submissions through its
own counsel on discrete aspects. It should be noted that WKW do not agree that
Te Kāhui represents its constituent hapū. These matters will be addressed in the
second judgment.
| [91] | A | third | iwi-wide | party—Te | Tāwharau | o | Te | Whakatōhea |
(Te Tāwharau)— appeared generally in support of Te Whakatōhea-related
applications. Te Tāwharau replaced the Whakatōhea Māori Trust Board as
Te Whakatōhea’s post-settlement governance entity under the Whakatōhea Claims Settlement Act 2024 and inherited the Trust Board’s 2017 MACA application.[135]
[135] The Whakatōhea Māori Trust Board had made an application to the High Court to ensure that any
Unrelated to any MACA application, and as part of its land claims settlement,
Te Tāwharau acquired the reservation of 5,000 hectares of marine space for
aquaculture.
[92] A further party is Te Upokorehe. It says it is an iwi in its own right with the
predominant interest in Ōhiwa Harbour. Te Kāhui asserts that Te Upokorehe is a hapū
of Te Whakatōhea.
[93] As the area claimed by Te Whakatōhea-related applications overlaps with areas
claimed by neighbouring iwi, these iwi also became involved in the proceedings. They
are Ngāti Awa on Te Whakatōhea’s/Te Upokorehe’s western flank, Ngāi Tai on the
eastern flank,[136] and Te Whānau-ā-Apanui to the east of Ngāi Tai. Those iwi sought
[136] Ririwhenua is a hapū of Ngāi Tai who has also been involved in the proceedings. However, the
to protect their own interests in the overlapping areas.
[94] Various third parties who may be impacted by the interpretation of MACA also
became involved in the proceedings. These include:
(a) the Attorney-General; (b) Bay of Plenty Regional Council | Toi Moana, О̄pо̄tiki District Council, and Whakatāne District Council;
(c) Crown Regional Holdings Ltd (CRHL), which holds resource consents for port infrastructure in the claimed area;
(d) Landowners Coalition Inc (LCI) and Seafood Industry Representatives (SIR), which are advocating for private property rights and the
commercial fishing industry’s inshore sector respectively; and
(e) Ngā Hapū o Ngāti Porou (by an Order in Council in 2020 under Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019, they currently
hold 18 separate CMT areas and are in the process of seeking further
recognition).[137]
[137] Ngā Rohe Moana o Ngā Hapū o Ngāti Porou (Recognition of Customary Marine Title) Order
[95] The High Court granted several PCRs as well as three CMT orders, namely:[138]
[138] HC judgment, above n 1, at [660].
(a) CMT Order 1: Incorporating the western-most coastal area from Maraetо̄tara in the west to Tarakeha in the east, and out to the
12 nautical mile limit. This order would be jointly held by the four
hapū within Te Kāhui, Ngāti Ngāhere (also a hapū of Te Whakatōhea)
and Te Upokorehe.
(b) CMT Order 2: Incorporating the western part of Ōhiwa Harbour.[139] [139] We note that the boundaries of CMT Order 2 are yet to be resolved. We will address this in the
This order would be jointly held by the CMT Order 1 applicant groups
with the addition of the Ngāti Awa, the iwi whose rohe is on
Te Whakatōhea’s western flank.
supported in the cases. Where applicant groups have maintained a strong cultural
connection with an area, harvested its resources and asserted mana in some practical
way, that may be sufficient depending on the mix of facts in a particular case.
[223] We have endorsed the list of relevant indicators in the Attorney-General’s
written submissions that may support a conclusion that this part of the test is met, and we have listed other possible indicators that may also be relevant to the inquiry.[294]
[294] Above at [162]–[164].
We stress however that these lists are neither exhaustive nor cumulative. Rather, the
question is whether they suggest the applicant group still uses and relates to the
claimed seascape in a way that is integrated or holistic—that is, as part of a continuing
order within the applicant group community.
Continuity: “from 1840 to the present day without substantial interruption”
[224] “[F]rom 1840 to the present day” expressly introduces the requirement of
continuity, but there is overlap with other components in s 58, for example ahi kā.[295]
[295] Above at [134].
While ahi kā and “from 1840 to the present day” are not necessarily the same thing,
evidence used to demonstrate one element will often go to establishing the other.[296]
[296] Above at [190].
[225] We have held that substantial interruption has both spatial and temporal
elements so both the physical extent and the duration of any interruption will be
relevant. What is required is “interruption”; interference is insufficient.
The requirement of “substantial” interruption acknowledges the inevitability, since
1840, of some impairment of prior rights and that should not be disqualifying.[297]
[297] Above at [194].
If continuous use and occupation is able, fairly, to be inferred on the evidence, the
effect of s 106 of the Act is that it will be for contradictors to show that it has not been
sufficiently exclusive or that it has, in fact, been substantially interrupted.[298]
[298] Above at [194]. See also at [120] in relation to MACA, s 98(2).
[226] This does not mean the continuity requirement has no teeth but rather requires
an approach sensitive to the historical realities. A factual assessment will be required
as to the spatial and temporal extent of the interruption, in the context of the particular
claimed area and in light of the applicant group’s particular relationship with the place,
keeping in mind the context of MACA’s reconciliation of rights and interests.[299]
[299] Above at [195] and [201].
We have accepted that an applicant group’s use and occupation of an area may be so
crowded out in fact as to be substantially interrupted.[300] The judgment discusses a
[300] Above at [198].
range of matters which may contribute to or constitute substantial interruption but whether they do in fact is a matter of context and degree.[301] That said, only lawful
[301] Above at [196]–[203].
interferences are relevant to the s 58 test.[302]
[302] Above at [199].
Disposition
[227] The appeal by the Attorney-General in relation to s 58 of MACA is allowed.
[228] Costs are reserved.
Solicitors:
Ngātahi Law, Auckland for Whakatōhea Kotahitanga Waka (Edwards)
Te Haa Legal, Ōtaki for Ngāti Muriwai and Kutarere Marae
Te Aro Law, Wellington for Te Upokorehe Treaty Claims Trust on behalf of Te Upokorehe Iwi
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Attorney-General
Annette Sykes & Co, Rotorua for Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and
Ngāi Tamahaua (Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea), Ngāti
Ruatākenga and Te Whānau a Tītoko
Tu Pono Legal Ltd, Rotorua for Te Tāwharau o Te Whakatōhea (formerly Whakatōhea Māori Trust
Board)
Oranganui Legal, Paraparaumu for Ngāi Tai and Ririwhenua
Whāia Legal, Wellington for Te Rūnanga o Ngāti Awa
Kāhui Legal, Wellington for Te Whānau-ā-Apanui, and Ngā Hapū o Ngāti Porou as Intervener
Chapman Tripp, Wellington for Seafood Industry Representatives
Cooney Lees Morgan, Tauranga for Crown Regional Holdings Ltd and Ōpōtiki District Council
R M Boyte, Bay of Plenty Regional Council | Toi Moana, Whakatāne for Bay of Plenty Regional
Council
Brookfields Lawyers, Auckland for Whakatāne District Council
Franks Ogilvie, Wellington for Landowners Coalition Inc
McCaw Lewis, Hamilton for Te Whānau a Mokomoko
Appendix: Table summarising reconciliation in the statutory scheme
[229] The table below summarises how the Act’s four baseline premises are
reconciled at a general and fact-specific level—in particular, how customary rights[303]
[303] Again, the focus here is on CMT.
are reconciled with the other three premises:
| Premise | Reconciliation of competing rights and interests | ||||
| Crown | General reconciliation rules | ||||
| ownership: |
| ||||
| above at [106] |
|
s 74 for protection purposes and s 30 and following for reclamations.
Effect
• No conflict with customary rights.
| Customary | • | Interests (extinguished by FSA) restored and given legal expression |
| rights: above at | under MACA: s 6. | |
| [107] | • | Participation rights, PCRs and CMTs provided for. |
| Vested property | General reconciliation rules | ||
| rights and |
| ||
| expressly |
| ||
| authorised |
|
| activities: above | o | But activities under resource consents granted between MACA’s |
| at [108] | commencement and the effective date not substantial | |
| interruption: s 58(2). |
• Activities that are otherwise lawful unaffected: s 20 • Certain proprietary interests unaffected: s 21 • Protections for accommodated activities: ss 63–65. • CMT rights more limited than freehold title: s 62. • Once application for CMT lodged, those seeking permissions within CMT area must consult with applicant group: s 62–62A.
• But after effective date of CMT:
o permission of CMT group required to carry out any new activity under resource consent or to grant new conservation consent
(unless accommodated activity): ss 62(1)(a)–(b) and 66– 73;
o CMT group has special rights in relation to marine mammal permits, taonga tūturu and the New Zealand coastal policy statement, and to prepare plan to influence policies, rules or authorisations by relevant public authorities: ss 76–77, 82 and
85– 93; and o CMT group owns non-Crown minerals subject to existing
privileges: ss 16 and 83–84.
Fact-specific reconciliation rules
• Applicant must show they hold the area in accordance with tikanga and have used and occupied it from 1840 to the present day: s 58.
o Relationship with area must be integrated and holistic,
demonstrating mana and ahi kā.
o Occupation requires intention and some capacity (as far as the law permits) to control, not actual physical occupation in the nature of residence. • Burden shifts to contradictors to prove non-exclusivity or substantial interruption: s 106 and see s 98(2)(b).
o Exclusive does not require exclusion of all others. o Interruption must go beyond mere interference. o Interruption must be substantial and lawful. • Broad participation rights: ss 102–104. Effect
• Private rights prevail insofar as they conflict with customary rights— but strictly to the extent of the conflict.
• Section 58 test must still be met.
| Public access, | General reconciliation rules | ||||
| navigation and |
| ||||
| fishing rights: |
| ||||
| above at [109] |
| ||||
| Fact-specific reconciliation rules | |||||
|
activities, but note also:
o fishing and navigation do not “of [themselves]” preclude CMT, but could contribute to substantial interruption: see s 59(3). Effect
• Customary rights generally coexist with public rights except in the case of wāhi tapu: ss 78–79.
• Section 58 test must still be met.
and Re Edwards Whakatōhea [2023] NZCA 504, [2023] 3 NZLR 252 (Cooper P, Miller and
Goddard JJ) [CA judgment].
a watching brief.
Coastal Area (Takutai Moana) Act 2011 [MACA] as to tuku or customary transfer.
jurisdiction to investigate title relating to the foreshore. However, he found that s 12 of the
Crown Grants Act 1866 required the boundary to be fixed at the line of the high-water mark: at
478–479.
“underlying” title which goes with sovereignty: at [21] and [29]–[30] citing, among others,
Te Rūnanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 23– 24.
641 (CA); and Te Rūnanganui o Te Ika Whenua Inc Society, above n 10.
among others, Mabo v Queensland (No 2) (1992) 175 CLR 1, and Delgamuukw v British
Columbia [1997] 3 SCR 1010.
definition of “usufruct” in Bryan A Garner (ed) Black’s Law Dictionary (12th ed, Thomson
Reuters, St Paul (Minnesota), 2024) at 1864.
reflected in the provision for non-territorial protected customary rights [PCRs] and territorial
customary marine title [CMT] in MACA.
44, [2014] 2 SCR 257 at [25].
n 23, at [34] citing R v Van der Peet [1996] 2 SCR 507.
n 15.
and Major JJ.
lake bed claims in the New Zealand context see Korokai v Solicitor-General (1913) 32 NZLR 321
(CA).
Vancouver Island: The Nuchatlaht v British Columbia 2024 BCSC 628. However, to avoid the
long trials associated with aboriginal title cases, the applicant group chose not to claim the
foreshore and seabed: The Nuchatlaht v British Columbia 2023 BCSC 804 at [2]; and The
Nuchatlaht v British Columbia 2020 BCSC 252 at [22]. See also Nigel Bankes “Modern Land
Claims Agreements in Canada and Indigenous Rights with Respect to Marine Areas and
Resources” in Stephen Allen, Nigel Bankes and Øyvind Ravna (eds) The Rights of Indigenous
Peoples in Marine Areas (Hart Publishing, Oxford, 2019) 149 at 156 who notes that as at 2019,
the Canadian Courts had failed to provide any definitive rulings on claims to marine spaces; and
see Benjamin Ralston “Aboriginal Title to Submerged Lands in Canada: Will Tsilhqot’in Sink or
Swim” (2016) 22 Indigenous L Bull 22 at 22.
Foreshore and Seabed Act, the RMA and Aquaculture (New Zealand Law Society seminar,
April 2005) 1 at 34.
(Cth) (ALRC Report 126, April 2015) at [2.61]; and Mabo (No 2), above n 15.
422.
Comparison on Native Title to the Foreshore and Seabed” in Andrew Erueti and Claire Charters
(eds) Māori Property Rights and the Foreshore and Seabed: The Last Frontier (Victoria
University Press, Wellington, 2007) 59 at 75–76.
Moana) Act 2011” [2011] NZ L Rev 381 at 396.
between the applicant group and the land, in Western Australia v Ward [2002] HCA 28, (2002)
213 CLR 1 at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
found these rights did not extinguish native title rights: at [285].
(Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[116] per Glazebrook J.
a “rigid” application of continuity and the approach “can facilitate” loss of rights and interests
through the impact of, for example, cultural assimilation: Kent McNeil “The Sources and Content
of Indigenous Land Rights in Australia and Canada: A Critical Comparison” in Louis A Knafla
and Haijo Westra (eds) Aboriginal Title and Indigenous Peoples: Canada, Australia and New
Zealand (UBC Press, Vancouver, 2010) 146 at 151– 152. The Australian Law Reform
Commission, above n 34, at [5.78] says this is a high bar and, at [5.59], that arguably the effect of
the approach to continuity has the effect of countering “any real acknowledgement of the ensuing,
and in many cases, insurmountable, difficulties”.
others (eds) Māori Land Law (2nd ed, LexisNexis, Wellington, 2004) 41 at 42–43 (some footnotes
omitted, emphasis in original).
Angela Ballara Iwi: the Dynamics of Māori Tribunal Organisation from c1769–c1945 (Victoria
University Press, Wellington, 1998) at 195.
rights in what MACA refers to as the common marine and coastal area, and that these rights were
protected by the Treaty of Waitangi: above at [2]. Professor Paul McHugh states that on acquiring
sovereignty over New Zealand, the Crown “did not bring with it any legal confiscation of
pre-existing tribal property rights. It acquired the … (right to govern) without displacing the
tribes’ private rights of land ownership … . This state of affairs was recognised by the Treaty of
Waitangi, but in making such provision and securing the Crown’s so called ‘pre-emptive right’,
the Treaty did no more than declare what would have been the legal position anyway”: Paul
McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford
University Press, Auckland, 1991) at 97. Professor McHugh also notes that the character of these
property rights remains subject to the definition given by the customary law: at 97.
Treaty of Waitangi: “Wheareas by the Treaty of Waitangi entered into by and between Her Majesty
and the Chiefs of New Zealand it was among other things declared that Her Majesty confirmed
and guaranteed to the Chiefs and Tribes of New Zealand and the respective families and
individuals thereof the full exclusive and undisturbed possession of their lands and estates which
they collectively or individually held so long as it should be their desire to retain ...” The Preamble
of the subsequent Native Lands Act 1865 recognised that New Zealand land law was “still subject
to Māori proprietary customs”.
Report Kaupapa Tuatahi (WAI 143, 1996); and Waitangi Tribunal Te Raupatu o Tauranga Moana:
Report on the Tauranga Confiscation Claims (WAI 215, 2004). As to the impact of the Native
Land Court under the Native Lands Act 1865 (and later legislation) see, for example, Waitangi
Tribunal The Hauraki Report (WAI 686, 2006) vol 2; and Waitangi Tribunal Tūranga Tangata
Tūranga Whenua: The Report on the Tūranganui a Kiwa Claims (WAI 814, 2004) vol 2.
Settlement Act 2024.
the individual Chiefs, yield to Her Majesty the exclusive right of Preemption over such lands as
the proprietors thereof may be disposed to alienate”. Article 2 of Te Tiriti o Waitangi states: “Otiia
ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o
era wahi wenua e pai ai te tangata nona te wenua”. See also R v Symonds affirming the Crown
monopsony until the Native Lands Act 1865: R v Symonds (1847) NZPCC 387 (SC). As to Crown
purchases between 1840–1865 see, for example, Waitangi Tribunal The Ngāi Tahu Report (WAI
27, 1991) vol 2. As to Crown ratification of pre-1840 purchases see, for example,
Stafford v Attorney-General [2024] NZHC 3110; and Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997).
1862– 1993” in Richard Boast and others (eds) Māori Land Law (2nd ed, LexisNexis, Wellington,
2004) 65 at 68–70.
Ōrākei (1868) 2 Ōrākei MB 355 (2 OTOK 355); Ōmāhu (1890) 20 Napier MB 131–134 (20 NA
MB 131– 134); Ōmāhu (1892) 26 Napier MB 7–8 (26 NA MB 7–8); Korokai v Solicitor-General,
above n 31; Mangaohane Native Land Court, 24 April 1893 reported in Hawke’s Bay Herald
(Hawkes Bay, 25 April 1893); Owharoa (1870) 5 Hauraki MB 165–166 (5 H MB 165–166);
Re Pukehāmoamoa Native Land Court, 13 November 1880 reported in Hawke’s Bay Herald
(Hawkes Bay, 15 November 1880) 3; “Ōakura” [1866] AJHR A13; and Mōhakatino Parinīnihi
(1882) 1 Mōkau-Waitara MB 48–53 (1 MWA MB 48–53). See also Richard Boast The Native
Land Court 1862– 1887: A Historical Study, Cases and Commentary (Thomson Reuters,
Wellington, 2013); Richard Boast The Native Land Court, 1888– 1909: A Historical Study, Cases
and Commentary (Thomson Reuters, Wellington, 2015) vol 2; and Norman Smith Māori Land
Law (AH & AW Reed, Wellington, 1960) at 84–144.
Court, 1888–1909, above n 63.
Mutunga Claims in the Chatham Islands (Wai 64, 2001).
from the claimant group’s rohe meant the claimant group often incurred large debts to defend their
land interests: David V Williams Te Kooti Tango Whenua: The Native Land Court 1864–1909
(Huia Publishers, Wellington, 1999).
owned by Natives under their customs or usages”.
following as cited in Ngāti Apa, above n 4. This is a reprint of Kauwaeranga (1870) 4 Hauraki
MB 236.
pursuant to s 4 of the Native Lands Act 1867 suspending the jurisdiction of the Native Land
Court over any land within the Auckland Province situated below the mean high-water mark.
The government of the time explained that Māori claims to the foreshore would proliferate
unless the prospect of marine title was suspended. The 1872 proclamation lapsed with the repeal
of the 1867 Act and enactment of the Native Lands Act 1873. Five years later, s 147 of the
Harbours Act 1878 was enacted which, until Ngāti Apa, was treated as resolving the matter. See
the full discussion of the background in Re the Ninety-Mile Beach, above n 6, at 471; and Fergus
Sinclair “Kauwaeranga in Context” (1999) 29 VUWLR 139 at 147–148 and 152.
Waitangi Tribunal The Hauraki Report (Wai 686, 2006) vol 3 at [22.3]–[22.4].
November 1957 at 126–127.
the Ministerial Review Panel — Ministerial Review of the Foreshore and Seabed Act 2004 (30
June 2009) vol 1 [Ministerial Review Panel Report] at 126.
original). See also FSA, s 32; and Richard Boast “The evolution of the Marine and Coastal Area
(Takutai Moana) Act 2011” in Marine and Coastal Area Act — demystifying the hype (New
Zealand Law Society Seminar, August–September 2011) 1 at 13.
s 40(3).
Foreshore and Seabed Act LXVI, UN Doc CERD/C/66/NZL/Dec.1 (11 March 2005) at [4]; and
Rodolfo Stavenhagen Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people UN Doc E/CN.4/2006/78/Add.3 (13 March 2006) at
[55].
and Coastal Area (Takutai Moana) Act 2011”, above n 84, at 15. By March 2010, only one group
had successfully directly negotiated with the Crown, but the agreement had yet to be confirmed
by the High Court: Ministry of Justice Reviewing the Foreshore and Seabed Act 2004:
Consultation document (March 2010) at 14.
Party” (16 November 2008) at 2.
Committee Report]. For completeness we note that changes were made through supplementary
order papers but, unless otherwise stated, these are immaterial for present purposes.
to the marine and coastal area that is not specified freehold land located in that area and is not any
land owned by the Crown that has a specified status.
68(2).
2004: Analysis of Replacement Regimes (6 September 2010) at [34]. See also Ministry of Justice
Marine and Coastal Area (Takutai Moana) Bill: Departmental Report (4 February 2011)
[Departmental Report] at [30].
Post Consultation Decisions (6 September 2010) at 16.
Lines and Next Steps (21 October 2009) at [90].
of jurisprudence” in the Māori Land Court in relation to tikanga and customary land status, but do
not appear to consider this to be the local equivalent of “common law customary title
jurisprudence”.
Māori Land Court in 1997 that the foreshore and seabed could be Māori customary land:
Re Marlborough Sounds Foreshore (1997) 22A Nelson MB 1 (22A NE 1). This was the first
instance decision in the Ngāti Apa proceedings.
Whakatōhea Māori Trust Board, it now works with and supports Te Kāhui. Te Kāhui also includes
Te Whānau a Mokomoko and Te Whānau a Tītoko, who support the appeal but are not parties.
hapū that had not applied would not be excluded. As the proceedings progressed, the application
supported the inclusion of Ngāti Ngahere, Ngāti Patumoana and Ngāti Ruatākenga in any
recognition orders.
High Court treated Ngāi Tai and Ririwhenua’s applications as a joint application and they have
provided a single set of submissions to this Court.
2020. Ngāti Porou has a bespoke MACA agreement with the Crown that is affirmed by Ngā Rohe
Moana o Ngā Hapū o Ngāti Porou Act 2019.
second judgment.
Cooper P and Goddard J.
Hapū o Te Whakatōhea [2024] NZSC 33 (Glazebrook, Ellen France and Williams JJ). We note
that one of the appeals—that brought by Crown Regional Holdings Ltd—has since been
abandoned.
enactment: Ministry of Justice, above n 90, at 7. See below from [106].
limited ability to override CMTs for protection purposes; and s 30 and following for vesting Crown
ownership in the case of reclamations.
MACA’s commencement and a CMT coming into effect does not constitute substantial
interruption for the purposes of the s 58 test.
infrastructure.
in tikanga and in the common law. For example, Professor Richard Boast KC argues that Kirby J’s
dissent in Yarmirr was correct and fit best with the law and practice in England and in British
colonies: RP Boast “Foreshore and Seabed, Again” (2011) 9 NZJPIL 271 at 281.
[285] Kirby J dissenting.
under s 62(1)(g) to prepare a potentially influential planning document. While that may be the
case, it is clear that in other respects, CMT rights are fewer and weaker than freehold title. This
is a key aspect of MACA’s reconciliation purpose. SIR emphasised the significance of the CMT
group’s veto right over RMA consents (s 62(1)(a)). Owners of freehold titles also have that veto
as (unlike CMTs) freehold titles are exclusive.
ss 60– 93.
common marine and coastal area. Under subs (2), such structures are to be regarded as personal
property not forming part of the common marine and coastal area. Subsection (3) then provides
that any person who, before MACA’s commencement, had an interest in the structure “continues
to have that interest in the structure as personal property until the person’s interest is changed by
a disposition or by operation of law”.
applicant groups could not meet the test for the period after rights were extinguished under the
FSA: s 32(2)(a).
FSA, s 32(2)(b). Ownership of contiguous land, while relevant, is no longer required under
MACA.
Report, above n 95, at 36. We note that the legislative history often conflates non- exclusivity and
substantial interruption with extinguishment as a matter of law, even though those three terms are
used in separate parts of the s 58 test. This may have been no more than convenient shorthand as s 106 concerns both PCRs and CMTs, while only the latter refers to “exclusive” and “substantial
interruption”. In any event, the intention that non-exclusivity, substantial interruption and
extinguishment are matters for contradictors to prove, however, remains clear throughout the
legislative history.
(201- 1) at 40.
(Independent— Te Tai Tokerau), 17400 per the Hon Parekura Horomia MP (Labour—Ikaroa-
Rāwhiti), 17402–17403 per the Hon John Boscawen MP (ACT), 17404–17405 per Rāhui Katene
MP (Māori Party— Te Tai Tonga) and 17425–17427 per the Hon Mita Ririnui MP (Labour).
below at [138].
was drawn.
Native Land Court jurisprudence above at [33]–[57].
common law concepts of property.
“mana whakahaere” <
of the place claimed and the characteristics of a particular applicant group. For example, in
Tsilhqot’in, the Supreme Court of Canada took into account the fact the applicant group was small
in number and the land was extensive but harsh, only capable of supporting a limited number of
people. Exclusive use and occupation had to be considered in light of these factors: see Tsilhqot’in,
above n 23, at [37], [41]–[42] and [49].
[194] per La Forest and L’Heureux-Dubé JJ concurring.
First Nation v Canada (Attorney General), above n 31; and Saugeen First Nation v Canada
(Attorney General) 2021 ONSC 4181, [2021] OJ 4201.
would likely accord with principles of tikanga and the common law. We agree with the
Court of Appeal that public access and recreational uses must be treated in the same way as fishing
and navigation: see CA judgment, above n 1, at [120] per Miller J and [426(f)] per Cooper P and
Goddard J.
applicant groups may have lost title to contiguous land through Treaty-breaching raupatu and that
such a loss should not automatically preclude recognition of CMT: Departmental Report,
above n 112, at [1437].
above n 90, at 36.
at [148] per Lamer CJ, Cory and Major JJ.
and [89] per Gleeson CJ, Gummow and Hayne JJ. See also the Canadian cases of Delgamuukw,
above n 15, at [151] Lamer CJ, Cory and Major JJ; and R v Marshall 2005 SCC 43, [2005] 2 SCR
220 at [67] per McLachlin CJ, Major, Bastarache, Abella and Charron JJ. Developing doubt about
the applicability of the continuity requirement in Canada led to Parliament expressly including
such a requirement in the FSA and subsequently in MACA: Department of the Prime Minister and
Cabinet Foreshore and Seabed Bill: Departmental Report (8 October 2004) at 11– 12; and
McHugh, above n 33, at 16.
majority reasons provides that substantial interruption may be caused by lawful activities and then
discusses activities expressly authorised by legislation. These are not necessarily the same thing.
We take express legislative authority to be the intended effective limitation; but would note that if
the legislation in question had also to meet the Ngāti Apa test for general statutory extinguishment
of customary rights, then that would be a considerable hurdle. For completeness, we note the
existence of s 354(3) of the Resource Management Act 1991 [RMA], which provides:
“Any person may use or occupy any part of the common marine and coastal area without obtaining
consent, unless consent must be obtained under [the RMA, another Act, or an instrument or order
made under an enactment.]” That section has existed in various forms since the RMA’s enactment
in 1991. We need not decide the implications of this section, but also note s 144 of the TWMA
(as enacted)— whereby actions for recovery of possession, trespass and other injury in respect of
customary land could only be brought by or on behalf of the Crown, or by the Māori Trustee on
behalf of the beneficial owners of the land—and with predecessor provisions dating back to 1909:
see, for example, Native Land Act 1909, Part 4; and Māori Affairs Act 1953, Part 14.
coastal area. This confirms that permanent occupation of the area by structure or other means
must be lawful. That said, s 30(4) provides a pathway for unlawful reclamations to pass into the
full legal and beneficial ownership of the Crown. This is achieved when the Minister responsible
for the administration of the Land Act 1948 signs a certificate to that effect: see MACA, s 29(1)
definition of “Minister”.
intensive use of the resources within the area. And other structures within a seascape may actually
enhance fisheries. See also the evidence in the High Court that the loss of abutting land by raupatu
led to greater reliance on the applicant group’s fisheries: HC judgment, above n 1, at [202].
per Tipping J. This is not, however, to be confused with substantial interruption, which is factual,
as we discuss above: see, in particular, above at [199].
preserved by s 354(1)(c) of the RMA. See also Coal-mines Act Amendment Act 1903, s 14(1).
[2021] 1 NZLR 801 at [150]–[151] per William Young and Ellen France JJ and [296] per
Williams J.
challenges, along with the application by Ngāti Muriwai and Kutarere Marae for leave to file reply
submissions out of time and the applications to adduce new evidence made by Te Kāhui and
Whakatāne District Council, will be addressed in the second judgment of the Court.
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