WhakatŌHea Kotahitanga Waka (Edwards) v NgĀTi Ira O Waioweka

[2025] NZSC 104

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
 [2025] NZSC 104

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 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:	15 August 2025

JUDGMENT (NO 2) OF THE COURT

AThe Attorney-General’s appeals on the navigable rivers issue and challenging the award of PCRs to Ngāti Muriwai are dismissed.

B        With the qualification that the part of WKW’s appeal regarding the boundaries of CMT Order 1 does not need to be determined, WKW’s appeal is dismissed. 

C        Te Upokorehe’s appeals are dismissed. 

DNgāti Muriwai’s appeal is allowed on the terms set out below at [258].

E        Ngāti Ruatākenga’s appeal challenging the award of PCRs to Ngāti Muirwai is dismissed. 

FKuatere Marae’s appeal is allowed on the terms set out below at [271].

G        Te Kāhui’s appeal in relation to Whakaari and Te Paepae o Aotea is allowed.  The question of whether the test for CMT under s 58 of MACA is met in regard to Whakaari and Te Paepae o Aotea is remitted to the High Court for reconsideration. 

H        To the extent it remains live, Te Kahui’s appeal in relation to the decision to remit CMT Order 1 to the High Court is dismissed. 

ICMT Order 2 is formally amended to capture the Ōhiwa Harbour in full.

JWhakatāne District Council, and Ngāti Muriwai and Kutarere Marae’s applications to adduce further evidence are allowed.

KThe application by Te Kāhui to adduce further evidence is to be addressed by the High Court.

LThe applications to file submissions out of time are allowed.

MCosts are reserved.  If costs cannot be agreed, the parties should file memoranda on costs on or before Friday 10 October 2025.

____________________________________________________________________

REASONS OF THE COURT

Table of Contents

Para No

Introduction

[1]

Background

[4]

Issues

[9]

Navigable rivers

[11]

Background

[11]

Legislation

[16]

The Courts below

[19]

High Court

[19]

Court of Appeal

[22]

Submissions on the effect of s 261(2) of the 1979 Act

[23]

Attorney-General’s submissions

[23]

Crown Regional Holdings Ltd and Ōpotiki District Council’s
submissions

[25]

Te Kāhui’s submissions

[28]

Effect of s 261(2)

[33]

Effect of Paki (No 1)

[35]

Wording of s 261(2) of the 1979 Act

[41]

Comparison with Ngāti Apa

[51]

Conclusion on Ngāti Apa

[60]

Legislative history of the 1903 Act and relevant case law

[61]

(a)     Parliamentary materials

[63]

                  (b)      Mueller v The Taupiri Coal-Mines (Ltd)

[70]

            (c)      Relevance of Mueller to the passage of s 14

[78]

             (d)     Summary of our conclusions on the legislative history

[83]

Does s 11(3) of MACA revive extinguished customary title and

rights?

[86]

Attorney-General’s submissions

[87]

Te Kāhui’s submissions

[91]

Discussion

[92]

Summary of our conclusions on navigable rivers

[93]

Result

[94]

Status of the Edwards application

[95]

Background

[95]

The Courts below

[100]

The issues

[101]

Our analysis

[102]

The relevance of mandate

[102]

A hapū or iwi-wide approach?

[116]

Effect of s 125

[119]

  Result

[122]

Te Upokorehe—claim to exclusive rights

[123]

Background

[123]

The Courts below

[124]

High Court

[124]

Court of Appeal

[127]

The parties’ submissions

[131]

Our analysis

[135]

Relevance of lack of objection in the Court of Appeal

[136]

Shared exclusivity

[140]

Is a rehearing required?

[151]

(a)     Whakapapa and waka

[154]

(b)     Mana whenua and ahi kā

[158]

(c)     Historical pā and modern marae

[178]

(d)     Use of the moana

[183]

Conclusion on remittal of CMT

[202]

Inclusion of Ngāti Ngāhere in CMT orders

[206]

Summary of conclusions on Te Upokorehe’s appeal

[221]

Application by Ngāti Muriwai

[224]

Background

[224]

The Courts below

[228]

The appeals and parties’ submissions

[232]

Evidence—whakapapa

[236]

Evidence—status and continuity

[239]

Ngāti Muriwai as an applicant group

[250]

Ngāti Muriwai’s CMT application

[253]

Ngāti Muriwai’s PCR application

[256]

Result

[258]

Status of Kutarere Marae

[259]

The Courts below

[262]

The parties’ submissions

[264]

Evidence

[266]

Kutarere Marae as an applicant group

[268]

Whakaari and Te Paepae o Aotea

[272]

Background

[272]

The parties’ submissions

[277]

The evidence

[280]

Tītī

[286]

Fishing

[293]

Spiritual significance

[298]

  Our analysis

[304]

Other matters relating to CMT Orders 1 and 2

[321]

Remittal of CMT Order 1

[321]

Boundaries of CMT Order 2

[325]

Procedural matters

[328]

Applications to adduce further evidence

[328]

Application to file submissions out of time

[333]

Costs

[334]

Summary of conclusions

[336]

Navigable rivers

[337]

Effect of s 261(2) of the 1979 Act

[338]

Effect of s 11(3) of MACA

[343]

Status of the Edwards Application

[344]

Te Upokorehe—claim to exclusive rights

[348]

Shared exclusivity

[350]

Requirement for a rehearing

[352]

Ngāti Ngāhere

[359]

Application by Ngāti Muriwai

[361]

Status of Kutarere Marae

[365]

Whakaari and Te Paepae o Aotea

[367]

Disposition

[369]

Appendix A: The Parties

Appendix B: Key Areas in the Ōhiwa Harbour

Appendix C: Compensation Court Grants for Hiwarau and        Hokianga Island

Introduction

[1]       This is the second of two judgments relating to recognition of customary rights in the harbours, river mouths, beaches and seascape of the eastern Bay of Plenty.

[2]       In our first judgment, we addressed the meaning of s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), which contains the test that must be met to obtain an award of customary marine title (CMT).[1]  By way of brief recapitulation, we found s 58 is one mechanism by which the Act’s overarching purpose of reconciliation is achieved.  In practice (by virtue of s 106), the applicant group must prove they hold the claim area in accordance with tikanga—where to hold means more than the mere exercise of rights and is informed by tikanga.  The applicant group must also prove they have used and occupied the claim area from 1840 to the present day; where use and occupation means making extensive use of the space (in light of its nature and resources), along with an intention and some capacity to exercise control over it (to the extent permitted by law).  The burden then shifts to contradictors to prove that use and occupation has not been exclusive or has been substantially interrupted (with mere interference being insufficient).

[1]Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hāpū o Te Whakatōhea [2024] NZSC 164, [2024] 1 NZLR 857 (Glazebrook, Ellen France, Williams, Kós and French JJ) [SC judgment].

[3]       This second judgment resolves the remaining issues under the seven appeals before this Court.  These issues are dealt with under the following headings: navigable rivers; status of the Edwards application; Te Upokorehe—‍claim to exclusive rights; application by Ngāti Muriwai; status of Kutarere Marae; Whakaari and Te Paepae o Aotea; disposition in the Courts below; and procedural matters.  We begin by briefly summarising the background to the present appeals.  We then set out the relevant issues and address them in turn.

Background

[4]       In discussing the background to the appeals in our first judgment, we began by recording that it was common ground that, as at 1840, Māori held pre-existing rights in what MACA terms the “common marine and coastal area”.[2]  We noted that it was also common ground that, in 2004 immediately before the enactment of the Foreshore and Seabed Act 2004, at least some of those rights were still held by their descendants.  The Foreshore and Seabed Act extinguished those rights and replaced them with a limited system of statutory recognition.  Subsequently, MACA formally revived the rights and replaced them with a limited system of statutory recognition.[3]  We also noted the other side of the narrative, namely, the evolution of a complex of other rights and interests in the coastal and marine area including rights of access and navigation recognised in the common law and tikanga.[4]  We identified that balance and reconciliation between these various rights and interests as key aims underpinning the enactment of MACA.[5] 

[2]As to the nature and range of these rights, see the discussion in our first judgment, SC judgment, above n 1, at [52]–[54], of the Kauwaeranga judgment of Chief Judge Fenton of the Native Land Court: Alex Frame “Kauwaeranga judgment” (1984) 14 VUWLR 227; and that of Chief Judge Morrison in Te Whaaro Oneroa a Tohe (90 Mile Beach) (1957) 85 Northern MB 126 (85 NMB 126) 15 November 1957 at 126-127.

[3]At [2].

[4]At [3].

[5]At [74], [77], and [104]–[106].

[5]       Against this background, we turn then to discuss the relevant provisions of MACA but, given the extensive discussion in our first judgment here we only provide a brief summary of MACA and the procedural history.  We will go into further detail as required when addressing the particular issues before this Court.

[6]       MACA governs the recognition and legal expression of customary rights in the common marine and coastal area.  Under MACA, the common marine and coastal area cannot be owned.[6]  However, the Act protects specified private property rights and activities, as well as public access, navigation and fishing rights.[7]  Importantly, MACA also allows iwi, hapū and whānau groups to apply (to the High Court or through Crown negotiations) for recognition of their extant[8] customary rights in the claim area.[9]  The two types of recognition order are for CMT and protected customary rights (PCRs).[10]  The former is territorial in nature whereas the latter focuses on discrete activities and uses in an area.  Section 58 sets out the test for CMT recognition and s 51 provides the test for PCRs.

[6]Section 11(2).

[7]See, for example, ss 20–21 and 26–28.

[8]While the Foreshore and Seabed Act 2004 extinguished remaining customary rights in the marine and coastal area, they are restored under s 6 of the Marine and Coastal Area (Takutai Moana) Act 2011 [MACA].

[9]Section 94.  Applicant groups had to apply by 3 April 2017, being within six years of the enactment of MACA: s 100(2).

[10]MACA also provides for participation rights but these are not at issue in the present appeals: see s 47.

[7]       Te Whakatōhea is one iwi that seeks recognition of its customary rights under MACA—specifically in the eastern Bay of Plenty around Ōpōtiki.  In Appendix B we provide a map showing this area and its relevant features.  Originally, an iwi-application (the Edwards application) was made to the Māori Land Court under the Foreshore and Seabed Act 2004,[11] but it was automatically transferred to the High Court once MACA was enacted.[12]  In 2017, several groups within Te Whakatōhea brought their own applications, arguing recognition orders should be held at hapū/whānau, rather than iwi, level.  Further, other iwi asserted competing interests in the claim area and various third parties (such as the Attorney-General and relevant local authorities) sought to be heard on the applications.  In Appendix A, we set out the full list of relevant parties and their involvement in the proceedings.[13]  Notably, two umbrella groups have formed within the proceedings: Whakatōhea Kotahitanga Waka (WKW) and Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū (Te Kāhui).  WKW is the umbrella group supporting the Edwards application, and Te Kāhui consists of four hapū of Te Whakatōhea who have brought their own applications.[14]

[11]We note that the late Claude Edwards and other representatives had also made an earlier, iwi‑wide application under s 131 of Te Ture Whenua Māori Act 1993 [TWMA] before the enactment of the Foreshore and Seabed Act.

[12]MACA, s 125.

[13]See also SC judgment, above n 1.

[14]While Ngāti Ruatākenga is not formally part of Te Kāhui, as its customary marine title [CMT] application was under the 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.

[8]       On 7 May 2021, the High Court granted several PCRs as well as three CMT orders.[15]  However, on 18 October 2023 the Court of Appeal ordered a rehearing in respect of two of the CMT orders[16]—referred to here as CMT Order 1 and CMT Order 2.  CMT Order 1 incorporates the westernmost coastal area from Maraetōtara in the west to Tarakeha in the east, and out to the 12‑nautical‑mile limit.  It would be jointly held by the four hapū within Te Kāhui, Ngāti Ngāhere and Te Upokorehe.  CMT Order 2 incorporates the western part of the Ōhiwa Harbour and would be jointly held by the CMT Order 1 groups and Ngāti Awa.  WKW was not included in either CMT order.[17]  A major focus of the Court of Appeal judgment was the interpretation of s 58.  In November 2024, seven appeals were heard in the Supreme Court.  On 2 December 2024, this Court issued its first judgment which allowed the appeal by the Attorney-General in relation to the interpretation of s 58.  This judgment addresses the remaining issues.

Issues

[15]Re Edwards Whakatōhea [2021] NZHC 1025, [2022] 2 NZLR 772 (Churchman J) [HC judgment].

[16]Re Edwards Whakatōhea [2023] NZCA 504, [2023] 3 NZLR 252 (Cooper P, Miller and Goddard JJ) [CA judgment]. The Court of Appeal was unanimous as to the result, but divided as to aspects of the reasons. While Miller J dissented on aspects of s 58, the majority adopted much of his analysis. Where his reasons reflect the unanimous views of the Court, we will refer to the Court as a whole. Where the reasons address a disputed point, we will signal this.

[17]HC judgment, above n 15, at [660(a)–(b)].

[9]       The appeals raise issues of statutory interpretation and application, as well as procedural matters.  The broad issues on appeal are as follows:

(a)Whether recognition orders can be granted in respect of navigable rivers:

(i)Did s 261(2) of the Coal Mines Act 1979 (1979 Act) and its predecessor, s 14(1) of the Coal-mines Act Amendment Act 1903 (1903 Act), extinguish customary title and rights to the beds of navigable rivers?

(ii)If customary title and rights were extinguished, were they resurrected by s 11(3) of MACA?

(b)The present status (and effect) of the iwi-wide Edwards application:

(i)Does the fact that WKW had a mandate[18] for the original iwi-application remain relevant despite several hapū subsequently withdrawing support?

[18]Given the common usage of “mandate” in earlier MACA proceedings (and other relevant applications), we continue to use this term.  However, as is common ground, we acknowledge “mandate” does not fully encapsulate the concepts of mana and rangatiratanga. 

(ii)Does s 125 afford priority, substantive or procedural, to the Edwards application?

(c)Whether Te Upokorehe has exclusive rights within the claim area:

(i)Is it relevant that Te Upokorehe withdrew its opposition to Ngāti Awa being included in CMT Order 2 in the Court of Appeal?

(ii)Is shared exclusivity available where one group does not recognise shared interests in the area?

(iii)It is possible to have separate overlapping CMTs?

(iv)Should the Court of Appeal have remitted CMT Order 2 relating to Ōhiwa Harbour for a rehearing in light of Te Upokorehe’s claim that it holds the mana in Ōhiwa Harbour to the exclusion of others?

(v)Should Ngāti Ngāhere have been included in CMT Orders 1 and 2?

(d)Whether the Courts below were correct in dealing with the CMT and PCR application by Ngāti Muriwai:

(i)Was Ngāti Muriwai entitled to be recognised in CMT Orders 1 and 2 under s 58?

(ii)Was Ngāti Muriwai entitled to PCRs under s 51?

(e)Whether the Court of Appeal was correct to conclude that Kutarere Marae is not an “applicant group” under s 9.

(f)Whether any of the applicant groups are entitled to CMT orders with respect to Whakaari and Te Paepae o Aotea.

(g)Disposition in the Courts below:

(i)Was the Court of Appeal correct to remit CMT Order 1 while making its own findings in respect of CMT Order 2?

(ii)Do the boundaries of CMT Order 2 need to be amended?

(h)Procedural matters in this Court:

(i)applications to adduce further evidence;

(ii)application to file submissions out of time; and

(iii)costs.

[10]     We will discuss each issue in turn.

Navigable rivers

Background

[11]     MACA’s definition of “marine and coastal area” includes the beds of rivers that are part of the coastal marine area within the meaning of the Resource Management Act 1991.[19]  In this case, the claims for CMT Order 1, as well as several applications for PCRs, include the confluence of the Waiōweka and Ōtara rivers at the mouth of those rivers, which form an estuary known as Pakihikura. 

[19]MACA, s 9 definition of “marine and coastal area”, para (b); and see Resource Management Act 1991, s 2 definition of “coastal marine area”, para (b).

[12] We consider two questions relating to navigable rivers. The first is whether s 261(2) of the Coal Mines Act 1979 (1979 Act),[20] and its predecessor, s 14(1) of the Coal-mines Act Amendment Act 1903 (1903 Act),[21] extinguished customary title and rights to navigable rivers.  Recognition orders cannot be granted in respect of customary title or rights that are “extinguished as a matter of law”.[22]  It is accepted on appeal that the relevant portion of the Waiōweka and Ōtara rivers is navigable.[23]

[20]The Coal Mines Act 1979 [1979 Act] has since been repealed, but the effect of s 261 is preserved by s 354(1)(c) of the Resource Management Act.  See Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 [Paki (No 1)] at [32] per Elias CJ, Blanchard and Tipping JJ.

[21]Section 14 of the Coal-mines Act Amendment Act 1903 [1903 Act] was re-enacted several times before it became s 261 of the 1979 Act: without substantive amendment in s 3 of the Coal-Act Compilation Act 1905 and s 3 of the Coal-mines Act 1908, and later with an amended definition of “navigable river” in s 206 of the Coal-mines Act 1925 [1925 Act].  Apart from some changes to the punctuation and the order of the subsections, and to the definition of navigable river, s 261 of the 1979 Act was identical to s 14 of the 1903 Act.  These developments are outlined in Paki (No 1), above n 20, at [31]–‍[32] per Elias CJ, Blanchard and Tipping JJ, [113] per McGrath J and [124] per William Young J.  The Court said that the amendment to the definition of navigable river was not intended to change its meaning: at [33] per Elias CJ, Blanchard and Tipping JJ, [116] per McGrath J and [127] per William Young J.

[22]MACA, ss 51(1)(c) and 58(4).

[23]See the discussion of the evidence of navigability in HC judgment, above n 15, at [361].

[13]     If customary title and rights had been extinguished, the second question is whether s 11(3) of MACA, which divests the Crown of ownership of any part of the common marine and coastal area, resurrected any customary title and rights.

[14]     If customary title and rights in navigable rivers have not been extinguished, or have been resurrected by virtue of s 11(3), recognition orders may be made in relation to the beds of navigable rivers—relevantly, for present purposes, including at the confluence of the Waiōweka and Ōtara rivers.

[15]     We start by setting out the relevant legislation and summarising the decisions in the Courts below.  We then consider each question in turn.

Legislation

[16]     Section 261 of the 1979 Act provided:

261     Right of Crown to bed of navigable river—

(1)       For the purpose of this section—

“Bed” means the space of land which the waters of the river cover at its fullest flow without overflowing its banks:

“Navigable river” means a river of sufficient width and depth (whether at all times so or not) to be used for the purpose of navigation by boats, barges, punts, or rafts.

(2)Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown; and, without limiting in any way the rights of the Crown thereto, all minerals (including coal) within such bed shall be the absolute property of the Crown.

(3)Nothing in this section shall prejudice or affect the rights of riparian owners in respect of the bed of non-navigable rivers.

[17]     Section 51(1)(c) of MACA provides that a protected customary right is a right that “is not extinguished as a matter of law”.  Section 58(4) similarly provides that “customary marine title does not exist if that title is extinguished as a matter of law”.

[18]     Section 11(3) of MACA provides:

(3)On the commencement of this Act, the Crown and every local authority are divested of every title as owner, whether under any enactment or otherwise, of any part of the common marine and coastal area.

The Courts below

High Court

[19]     The High Court held that the vesting of the beds of navigable rivers in the 1979 Act extinguished customary rights and title in those beds.  It was therefore not able to grant CMT over any area that included the mouth of a navigable river.  The Court considered itself bound to follow the decision of this Court in Paki v Attorney-General (Paki (No 1)), which it said clarified the definition of “navigable” for the purposes of the 1979 Act, and held that, if a river was navigable as at 1903, its bed is deemed to have been vested in the Crown.[24]

[24]HC judgment, above n 15, at [347] and [361] referring to Paki (No 1), above n 20.

[20]     The Court found that there was extensive evidence that the Waiōweka River was navigable as at 1903.  It therefore held that the boundary of CMT Order 1 ran in a straight line across the mouth of the river as a continuation of the mean high-water springs on either side of the mouth.[25]

[25]HC judgment, above n 15, at [361].

[21] There was evidence of customary activities being undertaken in accordance with tikanga in the Waiōweka and Ōtara rivers, including fishing for whitebait,[26] and collecting traditional material for cultural practices.[27]  However, the Court considered it was precluded from granting PCRs in respect of those rivers as they were not part of the takutai moana because their beds were vested in the Crown.[28]

Court of Appeal

[26]At [491], [506], [527], [536] and [592].

[27]At [537]–[538].

[28]At [491], [527] and [592].  See also statements to that effect in Re Edwards (Whakatōhea Stage Two) (No 7) [2022] NZHC 2644 (Churchman J) [HC Stage Two judgment] at [496] and [510].

[22]     The Court of Appeal set out the High Court’s finding on the effect of the 1979 Act, and the appellant’s two submissions: that earlier legislation was insufficiently clear to expropriate customary rights and title, and that, if they had been extinguished, then s 11(3) of MACA reinstated them.[29]  The Court then accepted the latter submission without commenting on the High Court’s findings or the first submission.  It held that s 11(3) of MACA reversed any previous vesting of riverbeds in the common coastal and marine area under the 1979 Act.[30]

Submissions on the effect of s 261(2) of the 1979 Act

Attorney-General’s submissions

[29]CA judgment, above n 16, at [240]–‍[243] per Miller J. 

[30]At [244] per Miller J.  The Court of Appeal’s reasoning on that point is described more fully below at [86].

[23]     The Attorney-General submitted that s 14 of the 1903 Act, the predecessor to s 261 of the 1979 Act, was enacted to address the uncertainty caused by Mueller v The Taupiri Coal- Ltd (Mueller).[31]  It is submitted that Parliament’s clear intention in passing s 14 was to vest the full beneficial ownership—akin‍to freehold title—in navigable riverbeds in the Crown.  The nature of such ownership is, in the Attorney‑General’s submission, inconsistent with the continuance of any prior rights and interests, including customary rights and interests.

[31]Mueller v The Taupiri Coal-Mines (Ltd) (1900) 20 NZLR 89 (CA) [Mueller].

[24]     Whakatāne District Council, Crown Regional Holdings Ltd (CRHL) and Ōpōtiki District Council (ODC) endorsed the Attorney-General’s submissions on this point.

Crown Regional Holdings Ltd and Ōpōtiki District Council’s submissions

[25]     CRHL and ODC have, at various times, shared responsibility and held resource consents for the Ōpōtiki Harbour Development Project (the Harbour Project).[32]  In its Stage Two judgment on the form of the recognition orders, the High Court found that the parts of the Harbour Project that did not fall within the definition of reclaimed land in s 29(1) of MACA had substantially interrupted the applicants’ holding of the relevant area in accordance with tikanga, and that area should be excluded from CMT Order 1.[33]  That finding is currently on appeal to the Court of Appeal by Ngāti Patumoana, represented by Te Kāhui in these proceedings, and it is therefore not before this Court. 

[32]The Ōpōtiki Harbour Development Project, which has been supported by more than $100 million of central and regional government funding, is a scheme to develop the Ōpōtiki Harbour into a fully ‍functional deep-water harbour, capable of supporting a large aquaculture industry.

[33]HC Stage Two judgment, above n 28, at [23]–[29].

[26]     The question of substantial interruption is related to the navigable rivers issue because the Harbour Project and associated works are partly located in areas which, but for the High Court’s finding that s 261 of the 1979 Act extinguished customary title to the beds of navigable rivers, would have been part of the common marine and coastal area.  CRHL and ODC raised concerns that, if the Court of Appeal’s decision is upheld,[34] CMT Order 1 will cover those areas, which may give rise to uncertainty in relation to future consenting and leasing opportunities.

[34]CRHL had filed an appeal in this Court raising the Court of Appeal’s failure to direct that a further hearing of evidence would be required as a consequence of its finding that the common marine and coastal area included the area one kilometre upstream of navigable rivers.  That appeal was abandoned after the High Court confirmed a hearing on the papers would be held in relation to that area and CRHL would be entitled to be heard: Re Ngāti Patumoana [2024] NZHC 1435 at [82]–‍[83].

[27]     Whakatāne District Council supported this submission.

Te Kāhui’s submissions

[28]     Te Kāhui submitted that s 261 of the 1979 Act does not prevent a recognition order for CMT or PCRs extending to navigable rivers.  Te Kāhui noted that this issue was not before this Court in Paki (No 1).[35]

[35]Paki (No 1), above n 20.

[29]     In Te Kāhui’s submission, the text of s 261 is not sufficiently clear and plain to extinguish customary rights and interests.  They submitted that the use of “vested” indicates that only radical title was conferred, with customary title remaining intact.  The word “deemed” adds nothing to that.  They relied on the fact that the wording in the 1979 Act is very similar to the wording of the statutes at issue in Attorney- v Ngāti Apa.[36]  Te Kāhui highlighted that extinguishment of customary rights can be partial, and they contrasted the wording of s 261 of the 1979 Act with the explicit language in s 14(1) of the Native Land Amendment and Native Land Claims Adjustment Act 1926 of “free[ing] and discharg[ing] from … Native customary title”.[37]

[36]Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).

[37]This is now the Māori Land Amendment and Māori Land Claims Adjustment Act 1926.

[30] Te Kāhui noted that the English common law recognises that rights of navigation do not nullify customary rights and interests with respect to activities unrelated to travel,[38] and that there is a longstanding legal policy that Crown ownership of minerals in land is not inconsistent with private ownership of that land.

[38]Te Kāhui submitted that this is reflected in ss 14(1), 27 and 59(3) of MACA.

[31]     Te Kāhui further submitted that, from a tikanga perspective, rivers are taonga and cannot be compartmentalised.  They highlighted the comment of the Court of Appeal in Te Rūnanganui o Te Ika Whenua Inc Society v Attorney-General that the 1979 Act “may not be sufficiently explicit to override or dispose of” the concept of a river as taonga, meaning “a whole and indivisible entity, not separated into bed, banks and waters”.[39]

[39]Te Rūnanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) [Te Ika Whenua] at 26 citing Waitangi Tribunal Te Ika Whenua – Energy Assets Report (Wai 212, 1993) and Waitangi Tribunal The Mohaka River Report (Wai 119, 1992).

[32]     Te Tāwharau supported Te Kāhui’s submissions on this point.

Effect of s 261(2)

[33]     Neither of the Courts below analysed whether s 261(2) of the 1979 Act extinguished customary title to the beds of navigable rivers.  The High Court relied instead on Paki (No 1) as authority that it did.  We first discuss whether this was correct.[40]  We then analyse the wording of s 261(2), before turning to a comparison with the wording at issue in Ngāti Apa.[41]  After this, we discuss the legislative history of s 14 of the 1903 Act.

[40]No party to the present appeal sought to argue that Paki (No 1), above n 20, was authority for the proposition that s 261(2) of the 1979 Act extinguished customary rights and title.  We nevertheless address this question, given it was the basis of the High Court decision.

[41]Ngāti Apa, above n 36.

[34]     Because of our conclusions on these issues, we do not need to consider Te Kāhui’s submission that any vesting of the beds of navigable rivers in the Crown did not extinguish customary title to those rivers because, as a matter of tikanga, rivers cannot be compartmentalised into discrete parts.  

Effect of Paki (No 1)

[35]     Paki (No 1) concerned a representative claim brought in the High Court on behalf of the descendants of owners of five blocks of land adjoining the Waikato River at Pouakani, near Mangakino.  The Crown had acquired title to the relevant blocks between 1887 and 1899.[42]  The plaintiffs sought a declaration that the Crown ownership of the riverbed was subject to a constructive trust in their favour.[43]  The plaintiffs accepted that the Crown had obtained with the riparian lands ownership of the bed of the river to the middle of the stream (usque ad medium filum aquae) by virtue of a conveyancing presumption of the English common law (midway presumption).[44]  The plaintiffs also accepted that, if the relevant part of the river was navigable, then it had been vested in the Crown under s 14 of the 1903 Act and their claim could not succeed.[45]  Because of these concessions, the only issue dealt with by this Court in Paki (No 1) was whether the 32 km stretch of the Waikato River adjoining the Pouakani blocks was a “navigable river”.[46]  This Court held that this stretch of river was not navigable.[47]

[42]Paki (No 1), above n 20, at [3] per Elias CJ, Blanchard and Tipping JJ.

[43]Paki v Attorney-General [2009] 1 NZLR 72 (HC) at [3]. Appeals were subsequently heard before the Court of Appeal and this Court: Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125; and Paki (No 1), above n 20.  In Paki (No 1), the plaintiffs claimed that a constructive trust arose because the Crown’s acquisition of the riverbed had entailed a breach of fiduciary duties owed to Māori on the basis the common law presumption of riparian ownership of the bed of the river to the middle of the stream [midway presumption] was not explained to the Māori owners, meaning the Crown had acquired ownership without their free and informed consent: at [5] per Elias CJ, Blanchard and Tipping JJ.

[44]Paki (No 1), above n 20, at [15] per Elias CJ, Blanchard and Tipping JJ.

[45]At [6] and [13] per Elias CJ, Blanchard and Tipping JJ.

[46]At [1] per Elias CJ, Blanchard and Tipping JJ.

[47]At [89] per Elias CJ, Blanchard and Tipping JJ and [118] per McGrath J.  In reaching this conclusion, this Court rejected the Court of Appeal’s approach to navigability of assessing the navigability of the river as a whole: at [56]–[70] per Elias CJ, Blanchard and Tipping JJ and [118] per McGrath J.  William Young J agreed on the approach to be taken, but dissented on the factual issue as to whether the relevant stretch of river was navigable: at [183] and [188].  The substantive issue of whether there was a constructive trust in favour of the Māori owners was later considered by this Court in Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.

[36]     The High Court in the present case was therefore not correct to treat Paki (No 1) as authority on the effect on customary land of s 261(2) of the 1979 Act and its predecessor, s 14(1) of the 1903 Act.  Indeed, the Court in Paki (No 1) explicitly said that it was not necessary to consider that question:[48]

Because it is not claimed that the bed of the river is Māori customary land or Māori freehold land, it is not necessary to consider in the present appeal whether the terms of s 14 would apply to such land (an application doubted in relation to customary land by Cooke P in Te Runanganui o Te Ika Whenua Inc Society v Attorney-General).

[48]Paki (No 1), above n 20, at [13] per Elias CJ, Blanchard and Tipping JJ citing Te Ika Whenua, above n 39, at 26. McGrath J likewise said it was “not necessary at this time to determine whether or not the [midway presumption] applies to rivers that could potentially be held by Māori under their customs and usages”: at [92]. As noted above at [34], we are also not dealing with the submission that under tikanga a river cannot be divided into constituent parts.

[37]     In Te Runanganui o Te Ika Whenua Inc Society v Attorney-General, the Court of Appeal had said:[49]

… the Waitangi Tribunal have adopted the concept of a river as being taonga.  One expression of the concept is “a whole and indivisible entity, not separated into bed, banks and waters”.  The vesting of the beds of navigable rivers in the Crown provided for by the [1903 Act] and succeeding legislation may not be sufficiently explicit to override or dispose of that concept …

[49]Te Ika Whenua, above n 39, at 26 citing Te Ika Whenua – Energy Assets Report, above n 39, and The Mohaka River Report, above n 39.

[38]     The majority in Paki (No 1) noted that the English common law was applied in New Zealand from 14 January 1840 “so far as applicable to the circumstances of the said Colony of New Zealand”.[50]  It said, however, that the Treaty of Waitangi prevented any English common law presumptions of Crown ownership arising in relation to land held by Māori under their customs and usages.  This meant that the midway presumption did not enter New Zealand law in 1840 and, further, that the midway presumption could not apply unless Māori customary interests had been excluded, for example, by purchase or statute.  The majority noted that, because the Crown had to own land before it could grant it, the midway presumption “was therefore first applied in interpretation of Crown grants, as in Mueller”, and then when there were subsequent alienations of such Crown-land.[51]

[50]Paki (No 1), above n 20, at [18] per Elias CJ, Blanchard and Tipping JJ citing English Laws Act 1858, s 1.

[51]At [18] per Elias CJ, Blanchard and Tipping JJ citing Mueller, above n 31.

[39]     The majority also noted that the land at issue in Mueller had been “freed from Māori customary ownership and granted by the Crown as general land”.  The question whether Māori customary owners of riparian lands owned the beds of rivers adjoining those lands was not at issue and, the majority explained, had in other cases been treated as a question of custom for Native Land Court investigations.  Further, the question whether the midway presumption applies to Māori freehold land was not settled.  The parties did not question the application of the midway presumption in New Zealand, “either at all or in relation to alienation of Māori customary land or the freehold title derived from it under the provisions of the Māori land legislation”.  As the plaintiffs did not claim that the midway presumption did not apply or that it had been rebutted, the majority stated that “[i]t would be wrong for this Court to depart from application of the presumption”.[52] 

[52]Paki (No 1), above n 20, at [24] per Elias CJ, Blanchard and Tipping JJ.

[40]     We conclude that the High Court erred by relying on Paki (No 1) for the proposition that s 261(2) of the 1979 Act extinguished Māori customary interests in the beds of navigable rivers.  The Court of Appeal did not analyse that question.  Nor did it examine whether the midway presumption applied to sales of riparian lands by their customary owners.  This means that a more detailed analysis of the 1979 Act has yet to be conducted.  We therefore turn now to consider the effect of s 261(2).

Wording of s 261(2) of the 1979 Act

[41]     The rule that statutory extinguishment of customary property rights can only be achieved through “clear and plain” language is well settled.[53]  The issue here is whether the wording in s 261(2) of the 1979 Act is sufficiently clear to meet this standard. 

[53]Ngāti Apa, above n 36, at [148]–[149] per Keith and Anderson JJ. Keith and Anderson JJ cited R v Sparrow [1990] 1 SCR 1075 at 1099; Mabo v Queensland (1988) 166 CLR 186 at 213–214 per Brennan, Toohey and Gaudron JJ; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64 per Brennan J (with whom Mason CJ and McHugh J agreed: at 15), 111 per Deane and Gaudron JJ and 195–196 per Toohey J citing in turn Central Control Board (Liquor Traffic) v Canon Brewery Co Ltd [1919] AC 744 (HL) at 752 per Lord Atkinson; Te Rūnanga o Muriwhenua v Attorney‑General [1990] 2 NZLR 641 (CA) at 655; and Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC) at 691–692. See also Ngāti Apa, above n 36, at [113] per Gault P and [185] per Tipping J.

[42]     For ease of reference, we repeat s 261(2) here:

Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown; and, without limiting in any way the rights of the Crown thereto, all minerals (including coal) within such bed shall be the absolute property of the Crown.

[43]     There is no wording in s 261(2) that explicitly references customary rights and title, let alone makes it clear that there is extinguishment of such rights and title.  Indeed, there is no specific language at all vesting title to the beds of navigable rivers in the Crown.  Rather, the word “remain” assumes the Crown already owns such riverbeds.[54]  The Crown can only own land beneficially if it has purchased or otherwise acquired it from the customary owners.[55] 

[54]See Attorney-General v Leighton [1955] NZLR 750 (CA) at 791–792 per Adams J. In that case, Adams J (in dissent) considered that the words “shall remain” indicated the provision was intended to have declaratory effect, saying “There are no words purporting to vest or divest anything.”: at 792.

[55]Customary title continues in existence until it is “extinguished by sale to the Crown, through investigation of title through the Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority”: Ngāti Apa, above n 36, at [47] per Elias CJ.

[44]     In addition, the words “[s]ave where the bed of a navigable river is or has been granted by the Crown” suggest that s 261(2) is concerned with Crown grants.  It therefore does not impact upon customary rights or title, which are not granted by the Crown.[56]

[56]This conclusion is reinforced by the legislative history of s 14 of the 1903 Act: see below at [69] and [84]–[85].

[45]     We consider that the words “shall remain” are declaratory rather than expropriatory.[57]  The wording is not clear or plain enough to extinguish customary rights and title.  Section 261(2) merely provides that, except where rights to the riverbed have been or are granted, the beds of navigable rivers remain in Crown ownership when it grants riparian lands.  The words “shall remain” indicate that the Crown already owned such riverbeds and therefore presuppose that the Crown had purchased or otherwise acquired the riverbed from the customary owners.

[57]But see our discussion below on the extent of the savings in s 261(2) of the 1979 Act for past grants: below n 95.

[46]     We note that the issue of whether the midway presumption applies in New Zealand to cases involving the sale of Māori customary land to the Crown or to cases involving Māori freehold land did not arise in this case.[58]  We therefore make no comment on this.  This Court likewise did not decide that question in Paki (No 1) as, in that case, the plaintiffs conceded that the Crown had obtained ownership of the riverbed to the middle line.[59] 

[58]Relevantly, in Re the Bed of the Whanganui River [1962] NZLR 600 (CA), the Court of Appeal held that the midway presumption applied in respect of Native Land Court investigations of title into riparian lands: at 608–610 per Gresson P, 618–620 per Cleary J and 624–627 per Turner J. That conclusion contradicted the earlier findings of the Royal Commission tasked with inquiring into the Whanganui River, and has since been doubted by the Court of Appeal and the Waitangi Tribunal: see Harold Johnston “Report of Royal Commission Appointed to Inquire Into and Report on Claims Made by Certain Maoris in Respect of the Whanganui River” I [1850] AJHR G2 at 9 and 12; Te Ika Whenua, above n 39, at 26–27; and Waitangi Tribunal The Whanganui River Report (Wai 167, 1999) at 277–‍279.

[59]See above at [35].

[47]     The language in the second part of s 261(2) deeming minerals to be the “absolute property” of the Crown is in our view also merely declaratory.  It is designed to make it clear that one of the incidents of the Crown’s remaining ownership of the riverbed when it grants riparian lands is absolute ownership of the minerals in the bed of the river, this “without limiting in any way the rights of the Crown” in respect of the riverbed.[60]

[60]There is a possibility that the phrase “without limiting the rights of the Crown thereto” refers to rights to minerals, but this seems unlikely given it is difficult to conceive of any rights that would not arise from “absolute ownership”.

[48]     Even if the words relating to minerals are to be construed as confiscatory,[61] the “absolute property” phrase can be contrasted with the phrase in the first part of the subsection declaring that the beds of navigable rivers “shall remain and shall be deemed to have always been vested in the Crown”.  Where the Crown has not yet acquired the riverbed from its customary owners, that language could, if applicable to customary rights at all, only signify the Crown’s acquisition of radical title over the riverbed as a result of its assertion of sovereignty.  As confirmed in Ngāti Apa (discussed in the next section), that did not displace customary rights and interests in land.[62] 

[61]We emphasise that we are not called upon in this case to decide whether, even if the “absolute property” phrase in s 261(2) of the 1979 Act is confiscatory, the language would be explicit enough to deprive Māori of rights or title to minerals in the beds of navigable rivers where the riverbed remains in customary ownership.  We note that it is possible for the Crown to own minerals even if land is in private ownership: see Crown Minerals Act 1991, ss 10 and 11. 

[62]Ngāti Apa, above n 36, at [29]–[34] per Elias CJ, [102] per Gault P, [160] per Keith and Anderson JJ and [183] per Tipping J.

[49]     We agree with the comments of McGrath J in Paki (No 1) on s 14 of the 1903 Act, where he said:[63]

The words, “the bed of such [navigable] river shall remain and shall be deemed to have always been vested in the Crown” are declaratory of Parliament’s view of Crown ownership of riverbeds under the law preceding the legislation coming into force.  This expression and affirmation of the view that beds of navigable rivers always vested in the Crown indicated that Parliament did not regard the legislation as confiscatory.  Only explicit grants of title to the riverbed created “existing rights”.  It follows that the legislation is not to be read as affecting property rights.

[63]Paki (No 1), above n 20, at [103(b)] (emphasis in original) citing Leighton, above n 54, at 791–‍792 per Adams J.

[50]     The majority in Paki (No 1) did not comment on McGrath J’s reasoning in this regard but they did make it clear that they were not dealing with the issue of customary title, as noted above.[64]  They also considered the effect of s 14(1) of the Native Land Amendment and Native Land Claims Adjustment Act, which declared the beds of Lake Taupō and of the portion of the Waikato River from Lake Taupō to the Huka Falls “to be the property of the Crown, freed and discharged from the Native customary title (if any) or any other Māori freehold title thereto”.[65]  The majority said that this specific legislation may suggest that that part of the river was not seen in 1926 as navigable.[66]  Importantly, however, the majority considered it equally possible that the 1926 legislation was prompted by “doubts as to the efficacy of s 14 [of the 1903 Act] in relation to Māori customary or freehold land”.[67]

Comparison with Ngāti Apa

[64]Above at [36].

[65]See Paki (No 1), above n 20, at [42] per Elias CJ, Blanchard and Tipping JJ.

[66]At [43] per Elias CJ, Blanchard and Tipping JJ.

[67]At [43] per Elias CJ, Blanchard and Tipping JJ.  We note however that, given s 14 of the Native Land Amendment and Native Land Claims Adjustment Act 1926 arose as a result of a negotiated settlement following a 1923 application to the Native Land Court for title to the bed of Lake Taupō, it may simply have been that the applicants had claimed the bed of the Lake all the way to the Huka Falls: see Ngāti Tūwharetoa, Te Kotahitanga o Ngāti Tūwharetoa and the Crown Deed of Settlement of Historical Claims (8 July 2017) at [2.314]–‍[2.325].

[51]     In Ngāti Apa, the Court of Appeal analysed whether various statutory provisions had extinguished customary rights and interests to the foreshore and seabed.  Particularly relevant is s 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 (1977 TSA) and its predecessor, s 7 of the Territorial Sea and Fishing Zone Act 1965 (1965 TSA) (together, the Territorial Sea Acts).

[52]     Section 7 of the 1977 TSA provided:[68]

7        Bed of territorial sea and internal waters vested in Crown—

Subject to the grant of any estate or interest therein (whether by or pursuant to the provisions of any enactment or otherwise, and whether made before or after the commencement of this Act), the seabed and subsoil of submarine areas bounded on the landward side by the low-‍water mark along the coast of New Zealand (including the coast of all islands) and on the seaward side by the outer limits of the territorial sea of New Zealand shall be deemed to be and always to have been vested in the Crown.

[68]Section 7 of the Territorial Sea and Fishing Zone Act 1965 contained no material differences.  Section 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 was repealed by s 31 of the Foreshore and Seabed Act 2004.

[53]     Neither s 7 of the 1977 TSA nor s 261(2) of the 1979 Act contains any indication of intention to expropriate customary rights.  The operative phrase in s 261(2), that the beds of navigable rivers “shall remain and shall be deemed to have always been vested in the Crown”,[69] is nearly identical to the equivalent component of s 7, that the seabed “shall be deemed to be and always to have been vested in the Crown”.[70]  The only material difference is the substitution of the phrase “shall remain … vested” in s 261(2) by the phrase “shall be deemed to be … vested” in s 7 of the 1977 TSA.  The different placement of the word “deemed” is a function of this change in wording from “shall remain” to “shall be” and is thus of no moment.  If anything, the substitution of “shall be” for “shall remain” suggests s 7 could be seen as less likely to be merely declaratory than s 261(2). 

[69]Section 14(1) of the 1903 Act is the same in this regard: see above n 43.

[70]We note that this Court in Paki (No 1), above n 20, did not analyse the wording of s 261(2) and in particular its application in cases involving customary title: see above at [35]–[36].

[54]     Nevertheless, the Court in Ngāti Apa unanimously held that the Territorial Sea Acts did not extinguish Māori customary interests in the seabed.[71] This was attributed to various factors, including the language of “deeming” and “vesting”,[72] and that the Acts primarily dealt with matters of sovereignty, not property.[73]  The Court highlighted the compatibility of Crown radical title and Māori customary property,[74] and the absence of language clearly indicating any expropriatory intention.[75] 

[71]Ngāti Apa, above n 36, at [63] per Elias CJ, [113] per Gault P, [160]–[162] per Keith and Anderson JJ and [203] per Tipping J.

[72]At [63] per Elias CJ and [160] per Keith and Anderson JJ.  Keith and Anderson JJ highlight, at [160], that the Native Land Acts of 1909 and 1931 and the Māori Affairs Act 1953, among others, defined “customary land” as “land which, being vested in the Crown, is held by natives or the descendants of natives under the customs and usages of the Māori people” (emphasis in original): see Native Land Act 1909, s 2; Native Land Act 1931, s 2; and Māori Affairs Act, s 2.

[73]At [63] per Elias CJ and [161]–[162] per Keith and Anderson JJ.

[74]At [63] per Elias CJ, [113] per Gault P and [160] per Keith and Anderson JJ.

[75]At [63] per Elias CJ and [162] per Keith and Anderson JJ. Gault P, relatedly, dismissed counsel’s argument that the amendment of s 4 of the Mining Act 1926 effected by s 11 of the Territorial Sea and Fishing Zone Act suggested that s 7 of that Act vested title in the Crown in fee simple, as “express legislative enactment would have been expected”: at [113]. Likewise, Tipping J patently thought the language was insufficient to expropriate customary property; he stated that there was “no need to discuss the Territorial Sea legislation” as it “cannot possibly be regarded as having extinguished the status of any Māori customary land”: at [203].

[55]     Elias CJ considered it significant that the Territorial Sea Acts protected existing property interests.[76]  The same is true of s 261 of the 1979 Act, which preserves both Crown grants of the beds of navigable rivers and the rights of riparian owners in respect of the beds of non-navigable rivers.[77]  In both the Territorial Sea Acts and s 261 of the 1979 Act, the protection of existing property interests demonstrates a lack of confiscatory intention.  Such an intention is likewise apparent from the comments of the Premier in Parliament to that effect during the passage of the 1903 Act.[78]  

[76]At [63].

[77]The rights of riparian owners in non-navigable rivers might include fishing rights, or rights of ownership acquired by express grant or because of the midway presumption.

[78]See below at [65].

[56]     One of Keith and Anderson JJ’s reasons for concluding that the Territorial Sea Acts did not have extinguishing effect was the difference between those Acts and s 206 of the Coal-mines Act 1925 (1925 Act), a prior version of s 261(2) of the 1979 Act which the Solicitor-General in Ngāti Apa contended had inspired the wording of s 7 of the 1965 TSA.[79]  In Keith and Anderson JJ’s view, the exclusion of the phrase “shall be the absolute property of the Crown” from the Territorial Sea Acts was significant.  That phrase “recognise[d] the coexistence of the radical title of the Crown and other (beneficial) property”, and in the case of the 1903 Act it meant the Crown “had both and was the ‘absolute’ owner”.[80] 

[79]Ngāti Apa, above n 36, at [161]. Neither Gault P nor Tipping J considered this point. Elias CJ did not analyse this point herself, although she agreed with Keith and Anderson JJ’s reasons relating to the Territorial Sea Acts: at [63]. Section 206 of the 1925 Act was essentially the same as s 261 of the 1979 Act: see above n 21.

[80]Ngāti Apa, above n 36, at [161].

[57]     We do not agree with Keith and Anderson JJ that the inclusion of the “absolute property” phrase in s 261(2) of the 1979 Act and its predecessors conferred upon the Crown both radical and beneficial title over the beds of navigable rivers.

[58]     As noted above, we consider the “absolute property” phrase to be declaratory and not confiscatory.  The absolute ownership of minerals in the beds of navigable rivers is an incident of the continuing ownership of the beds of those rivers referred to in the first part of s 261(2).  As explained above, this assumes the Crown already owned the riverbed.[81] 

[81]Above at [47]. See also above at [43]–[48].

[59]     Keith and Anderson JJ did not analyse s 206 of the 1925 Act in any detail.  In particular, they did not consider the significance of the division of s 261(2) into two distinct parts and the placement of the “absolute property” phrase, which clearly relates not to the beds of navigable rivers but to the minerals within those beds.  Even if the words “absolute property” were confiscatory (and we do not consider that they were) they would therefore relate to the minerals only and not the riverbeds themselves.[82] 

Conclusion on Ngāti Apa

[82]See above at [48].

[60]     The wording of s 261(2)—excluding the phrase relating to minerals—is essentially the same as the wording of the Territorial Sea Acts, which the Court in Ngāti Apa unanimously held did not extinguish customary property title and interests.  This reinforces the view already reached from our analysis of the wording of s 261(2) that the 1979 Act did not extinguish Māori customary title and rights.

Legislative history of the 1903 Act and relevant case law

[61]     We now turn to the legislative history.  We first summarise the parliamentary materials concerning the passage of s 14 of the 1903 Act.  We then summarise the decision of the Court of Appeal in Mueller and make some comments on that decision, before assessing its relevance to the passage of s 14.[83]  Finally, we outline our conclusions on the legislative history.

[83]Mueller, above n 31.

[62]     We discuss Mueller because of the Attorney-General’s submission that s 14 was enacted in response to that case.  This Court in Paki (No 1) was also of this view.[84]  This Court said that Mueller confirmed that the midway presumption applied in New Zealand but that it could be rebutted where the circumstances showed that the grantor had not intended to part with the riverbed.[85]  This Court said that the effect of Mueller was that “whether the presumption was rebutted in any case was a matter requiring investigation of the facts and, in the case of dispute, court determination”.[86]  This Court considered that s 14 of the 1903 Act was enacted to eliminate that uncertainty.[87]

(a)       Parliamentary materials

[84]Paki (No 1), above n 20, at [28], [54] and [67] per Elias CJ, Blanchard and Tipping JJ, [102] per McGrath J and [129] per William Young J.  This was common ground between the parties so the Court did not hear argument on it: at [28] per Elias CJ, Blanchard and Tipping JJ.

[85]At [22] per Elias CJ, Blanchard and Tipping JJ.  See also at [94]–[97] per McGrath J and [131]–‍[133] per William Young J.

[86]At [23] per Elias CJ, Blanchard and Tipping JJ.

[87]At [28], [54] and [67] per Elias CJ, Blanchard and Tipping JJ, [96]–[97], and [102] per McGrath J and [129] per William Young J.  Argument was not heard on this point in Paki (No 1) as the parties accepted this was the case.  This Court in Paki (No 1) also said that s 14 was motivated by concerns as to securing both Crown ownership of minerals and public navigation rights in respect of navigable rivers: at [28]–[29] per Elias CJ, Blanchard and Tipping JJ, [111] per McGrath J and [161] per William Young J.

[63] The Coal-mines Act Amendment Bill began as a private member’s bill, which the Government subsequently adopted. The Bill’s initial purposes were to improve miners’ participation in medical decisions,[88] and to entitle miners to overtime payments.[89]  Several substantive changes were made to the Bill throughout the legislative process expanding its scope.

[88](12 November 1903) 127 NZPD 509–510.

[89]Coal-mines Act Amendment Bill (No 2) 1903 (89-1), cl 2.

[64]     Relevantly, on 12 November 1903, at the Committee of the Whole House stage, the Minister of Mines moved to add the following clause to the Bill: “It is hereby declared that all coal and lignite under any river exceeding thirty-three feet in width is vested in His Majesty.”[90]  After the clause was read a second time, the Leader of the Opposition moved to insert the words “subject to existing rights” into the proposed clause after the word “that”.[91]  The amendment was carried 34 votes to 27, but the clause as amended was subsequently negatived; Hansard does not record why.[92]

[90](12 November 1903) 127 NZPD 511.

[91](12 November 1903) 127 NZPD 512.

[92](12 November 1903) 127 NZPD 512.  The term “negatived” here indicates that the clause failed to pass its third reading.

[65]     On 17 November 1903, the Premier moved that the Bill be recommitted for the sole purpose of inserting the clause that would become s 14 of the 1903 Act.  Hansard records that the Premier acknowledged the Opposition’s concern that the previous clause did not sufficiently “conserve existing rights” but said that:[93] 

[t]he Government did not wish in the slightest degree to disturb existing rights, but there was a difficulty as to how they should avoid that.  A new clause had been drafted which [the Premier] thought would meet the difficulty.

[93](17 November 1903) 127 NZPD 681.

The House then agreed to that clause, after which the Bill was reported and read a third time.[94]

[94](17 November 1903) 127 NZPD 681.

[66]     It is worthwhile here to outline the differences between the clause initially proposed and s 14 as enacted.  The first proposed clause was solely directed at securing Crown ownership of coal in the beds of navigable rivers, assuming that the 33-foot limit was a proxy for navigability.  That clause did not assert Crown ownership of riverbeds.  The amendment proposed by the Opposition was that this should be “subject to existing rights”.  That must have been a reference to existing rights to coal, as at this stage the amendment was only concerned with rights to coal, not to the riverbed.

[67]     In s 14 as enacted the section was extended to all minerals, and definitions of “bed” and “navigable river” were included.  The reference to the riverbeds being owned by the Crown was also introduced.  Section 14 expressly preserved any rights of riparian owners in the beds of non-rivers.  It also excluded cases “where the bed of a navigable river is or has been granted by the Crown”.[95]

[95]There is an issue as to whether this savings clause protected only explicit grants of the beds of navigable rivers or also protected grants arising from the midway presumption.  In Paki (No 1), above n 20, this Court considered, in obiter, comments that it only protected explicit grants: at [51] per Elias CJ, Blanchard and Tipping JJ, [103(a)] per McGrath J and [166] per William Young J.  The majority (with whom McGrath J agreed) and William Young J referred to the obiter comments of Fair J in Leighton in support of the conclusion that the savings clause was limited to express grants: Leighton, above n 54, at 770 and 772–773. Leighton concerned s 206 of the 1925 Act, but that section was essentially the same as s 261 of the 1979 Act: see above n 21.  In dissent in Leighton, Adams J took a contrary view. He considered that the savings clause was not limited to express grants. In his view, s 206 was not intended to interfere with past or future grants, especially as that section did not provide for compensation: at 789–792. The other majority judge, Stanton J, did not express a view on the savings clause. We do not need to resolve this issue. In any event, it probably makes no difference given the likely contemporary understanding of the effect of the decision in Mueller was that the midway presumption was rebutted in respect of navigable rivers more generally: see below at [76].

[68]     The purpose of the redrafted s 14, according to the Premier, was to meet the Opposition’s concerns about protecting existing rights.  It is safe to assume from the fact the clause was passed with no further objection that the Opposition was satisfied the clause as drafted did protect existing rights.[96]

[96]We note below at [80] that the clause was designed to codify the result in Mueller, which had likely been understood at the time as having decided that the midway presumption was rebutted with regard to navigable rivers: see below at [76] and [78].

[69]     Finally, it is important to stress that there is no mention in the legislative history of any purpose of affecting or appropriating customary rights or title.  As we discuss further below, s 14 as enacted concerned Crown grants, which are distinct from customary rights.[97]

(b)      Mueller v The Taupiri Coal-Mines (Ltd)

[97]Below at [81]–[82]. See also above at [44].

[70]     Mueller concerned an application by the Commissioner of Crown Lands for the Auckland Land District for a declaration that a stretch of the bed of the Waikato River, which the defendant riparian owner was mining for coal, was vested in the Crown.[98]

[98]Mueller, above n 31, at 104 per Williams J. There is a fuller summary of the facts of Mueller in Paki (No 1), above n 20, at [20] per Elias CJ, Blanchard and Tipping JJ.

[71]     In Mueller, the Court of Appeal affirmed the application in New Zealand of the midway presumption in respect of non-tidal rivers.  The presumption could be rebutted if the surrounding circumstances showed that the grantor had not intended to part with the riverbed.[99]  The Court held by majority that the midway presumption had been rebutted in the instant case, although for varying reasons.[100]

[99]Mueller, above n 31, at 94–96 per Stout CJ, 104–105 per Williams J (with whom Conolly J concurred: at 113), 113–114 per Edwards J and 125 per Martin J, all applying Lord v The Commissioners for the City of Sydney (1859) 12 Moore PC 473, 14 ER 991 (PC).

[100]Stout CJ dissented.  He thought there was “no circumstance external to the grant, save the navigability of the river” that showed the Crown’s intention to reserve the bed of the river: Mueller, above n 31, at 103.

[72]     Williams J (with whom Conolly J concurred) considered that the presumption was displaced due to the circumstances of the grant, in particular that the river was crucial for accessing military settlements:[101] the river was “a highway of necessity, there being in fact no other highway”.[102]

[101]At 108–110.

[102]At 113.

[73]     Edwards and Martin JJ likewise considered that the fact the river was the “only practicable highway” indicated that the presumption had been rebutted.[103]  Edwards J further considered that the Highways and Watercourses Diversion Act 1858, which empowered local authorities to alter or control watercourses, had rebutted the presumption, at least in respect of grants made after it came into operation.[104]  Martin J agreed, relying also on the Marine Act 1866.[105]

[103]At 126, and see at 125 per Martin J, and 119–121 per Edwards J.

[104]At 114–115.  This applied, in Edwards J’s opinion, to both navigable and non-navigable rivers, as is clear from his dissenting reasons in R v Joyce (1905) 25 NZLR 78 (CA) at 96–101.

[105]Mueller, above n 31, at 126–127.

[74]     Relevantly to this appeal, Edwards J said that no public right of navigation to which the grant might have been subject could have been established while the land (including the riverbed) was in customary ownership.[106]  Williams J (without concluding on the point) was inclined to agree, and noted that, if that was the case, it supported the view that the Crown did not intend to deprive itself of title to the riverbed of what was “in fact the only practicable highway”.[107]

[106]At 121–124. 

[107]At 113, and see at 112.

[75]     We make some comments on Mueller.  First, it is important to note that Mueller related to coal mining.  The objective of the Commissioner of Crown Lands in bringing the proceedings was not to secure navigation rights in the river,[108] but to prevent the defendant from mining coal in the riverbed.  The navigability of the river was only relevant insofar as the Commissioner argued (successfully) that this rebutted the midway presumption.

[108]Martin J highlighted that there was no evidence that the defendant, or any other person, had attempted to interfere with or to claim a right to interfere with the erection of wharves on the river or the use of the river as a highway: at 125.

[76]     Second, all the Judges in the majority considered that the fact the river was the only practicable highway suggested the presumption had been rebutted.  While the requirement for a river to be the only practicable highway seems to the modern eye to be an onerous one, the state of transport at the time suggests otherwise.  New Zealand’s road network in 1903 was rudimentary and did not provide full coverage.  Motorised cars were novel and not at all widespread.  The railway network was still being developed.[109]  Rivers remained imperative for transport.  It therefore appears likely that, at the time the 1903 Act was passed, Mueller was interpreted as holding that the midway presumption was rebutted in respect of navigable rivers more generally.[110]  As noted above, the Opposition appeared to be satisfied that the final form of s 14 protected existing rights.[111]

[109]Carl Walrond “Roads” (1 March 2016) Te Ara | The Encyclopedia of New Zealand < and James Watson “Transport – overview” (10 June 2013) Te Ara | The Encyclopedia of New Zealand < FM Brookfield has likewise considered that s 14 of the 1903 Act accorded with Mueller “so far as the majority judgments rest on (in effect) a presumption that the Crown does not intend to grant any part of the bed of navigable rivers when the riparian land is granted”: FM Brookfield “Constitutional Law” [1994] NZ Recent Law Review 376 at 381.

[111]See above at [68].

[77]     Third, and most significantly, Mueller related to rebuttal of the midway presumption on the grant or sale of riparian land and did not pertain to situations where the Crown had yet to acquire title to the riverbed from the customary owners.[112]  This was recognised by this Court in Paki (No 1).[113]

(c)       Relevance of Mueller to the passage of s 14

[112]See the comments of Edwards and Williams JJ outlined above at [74].

[113]Paki (No 1), above n 20, at [24] per Elias CJ, Blanchard and Tipping JJ.

[78]     There is no mention of Mueller in the parliamentary history.  It is reasonable to assume, however, that the Minister of Mines was aware of the state of the existing law, and therefore aware of Mueller, when he proposed the amendment vesting ownership in the Crown of “all coal and lignite under any river exceeding thirty-three feet in width”.[114]  Section 14 as passed extended the scope to cover all minerals, preserved rights related to non-navigable rivers and included a definition of “navigable river”.[115]

[114]See above at [64].

[115]See above at [67].

[79]     The purpose of Parliament in enacting s 14 was to assert Crown ownership of coal (extended to all minerals in the final version) in the beds of navigable rivers.[116]  That this was the purpose is apparent from the placement of s 14 in a coal mining statute.  It is telling that Crown ownership of coal was the sole purpose of the original amendment proposed by the Minister of Mines.  At that stage, there was no mention of Crown ownership of the riverbeds themselves.

[116]It can be assumed that the 33-foot river width in the clause originally proposed by the Minister of Mines was intended to be a proxy for navigability.

[80]     The effect of s 14 was to codify the result in Mueller: that the midway presumption was rebutted where a river was navigable and therefore that any coal and other minerals in the riverbed remained in Crown ownership when riparian land was the subject of a Crown grant.[117]  Section 14 would remove any remaining uncertainty and eliminate the risk of future litigation.  As this Court noted in Paki (No 1), the effect of Mueller was that the individual facts and circumstances had to be investigated to decide whether or not the presumption had been rebutted.[118]

[117]As we note above at [76], Mueller was likely interpreted at the time to mean that the midway presumption was rebutted in respect of Crown grants of riparian land of navigable rivers, meaning that any coal in the riverbed remained in Crown ownership.

[118]See above at [62].

[81]     This Court in Paki (No 1) considered that another purpose of s 14 was to secure public navigation rights.[119]  Assuming this were the case, there are indications it was a secondary purpose.[120]  We do not, however, need to decide whether or not securing public navigation rights was a purpose of s 14.  This is because, even if it was, this cannot alter the fact that s 14 was concerned with Crown grants and not with customary land.

[119]Paki (No 1), above n 20, at [29] per Elias CJ, Blanchard and Tipping JJ, [111] per McGrath J and [161] per William Young J.

[120]There was no mention of protecting navigation rights in the parliamentary materials, and Mueller did not concern navigation: see above at [75]. We also note that there were various other pieces of legislation in effect at that time expressly protecting navigation rights or which related more clearly to navigation. For instance, s 212(2) of the Harbours Act 1878 empowered the Governor in Council to make regulations for the safe navigation of rivers. We note too the Land Drainage Act 1893, the River Boards Act 1884 and the Public Works Act 1894. Further, the common law position was that public navigation rights were not inconsistent with private ownership of riverbeds: Paki (No 1), above n 20, at [16] per Elias CJ, Blanchard and Tipping JJ.  The common law position is reflected in s 27 of MACA, which preserves navigation rights within the marine and coastal area.  Tikanga also recognised rights of passage for navigation (subject to consent): Re the Bed of the Whanganui River [1955] NZLR 419 (CA) at 433 per Cooke J, 440 per Adams J and 461 per North J. Hutchison J agreed with Cooke and North JJ: at 424. We recognise, however, that the position according to tikanga may differ between iwi.

[82]     We reiterate that there is nothing in the statutory wording or the legislative history to suggest that the purpose of s 14 was to expropriate customary rights and title, whether to secure public navigation rights or otherwise.[121]  We again highlight that, due to the concessions made by the appellants in Paki (No 1), this Court did not deal with the issue of whether the midway presumption applies to sales of customary land.  Nor did it deal with whether s 14 abrogated customary title and rights to the beds of navigable rivers.[122]

(d)      Summary of our conclusions on the legislative history

[121]See above at [69].

[122]See above at [35]–[36] and [39].

[83]     The primary purpose of s 14 was to assert Crown ownership of coal and other minerals in the beds of navigable rivers.  This is clear from its position in a mining statute and from the fact that the clause initially proposed pertained only to coal.[123]  Although there is no reference to Mueller in Hansard, the most likely explanation for s 14 is that it was intended to reflect and codify Mueller, which was likely interpreted as having held the midway presumption to be rebutted in respect of navigable rivers.[124]

[123]See above at [79].

[124]See above at [76].

[84]     It is clear from the legislative history that s 14 was not concerned with rights or title to customary land.  The legislative history contains no mention of customary rights or title.[125]  Nor were customary rights at issue in Mueller.[126]  Mueller and s 14 concerned Crown grants, which can only be made once land has been acquired from its customary owners.[127]  Accordingly, and regardless of the effect (if any) of s 14 on other existing rights in the beds of navigable rivers,[128] the legislative history does not suggest that s 14 can be construed as having extinguished customary title and rights.

[125]See above at [69] and [81]–[82].

[126]See above at [77].

[127]See above at [43]–[45].

[128]See above n 95.

[85]     The legislative history therefore conforms with our conclusion on the statutory wording and does not distinguish this case from Ngāti Apa.[129]

Does s 11(3) of MACA revive extinguished customary title and rights?

[129]Ngāti Apa, above n 36.

[86]     The Court of Appeal concluded that s 11(3) of MACA reversed any previous vesting of the common marine and coastal area in the Crown under the 1979 Act.  Its reasons on that point were brief.  It said:[130]

Section 58(4) contemplates that CMT may be extinguished in law, but that provision appears to contemplate extinguishment of CMT by means other than Crown ownership that was subsequently reversed.  I observe that, under s 11(5)(c), the special status accorded to the common marine and coastal area does not affect certain powers exercisable by or under an enactment.

[130]CA judgment, above n 16, at [244] (footnote omitted) per Miller J.

Attorney-General’s submissions

[87]     The Attorney-General submitted that the Court of Appeal wrongly treated s 11(3) of MACA as having the effect of reviving customary interests extinguished prior to MACA coming into force.[131]  In the Attorney-General’s submission, the purpose of s 11(3) is to divest the Crown and local authorities of every title as owner of any part of the common marine and coastal area, to give effect to subs (2).  It is simply a divesting provision which is entirely forward-looking; it does not purport to address extinguishing events that occurred prior to MACA coming into force.

[131]Whakatāne District Council, Crown Regional Holdings Ltd and Ōpōtiki District Council endorsed the Attorney-General’s submissions on this point.

[88] The Attorney-General submitted that the revival of extinguished customary rights requires express legislation. The Attorney-General referred to cases arising under MACA which indicate that specific wording is required to revive customary interests,[132] and stressed that s 6(1) of MACA—which expressly “restore[s] and give[s] legal expression” to customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004—‍supports this view.

[132]Ngā Pōtiki Stage 1 — Te Tāhuna o Rangataua [2021] NZHC 2726, [2022] 3 NZLR 304 at [145]–‍[147]; and Re Ngāti Pāhauwera [2021] NZHC 3599 at [250]–[260].

[89]     The Attorney-General noted that in the Departmental Report on the Marine and Coastal Area (Takutai Moana) Bill 2010, the Ministry of Justice | Te Tāhū o te Ture explained that the Government’s intention was to provide for the recognition of “extant rights” that have existed continually since before 1840, consistently with the doctrine of customary title.[133]  The Departmental Report also recorded the Government’s intention that grievances arising from the extinguishment of property rights to the takutai moana would continue to be resolved through the Treaty settlement process.[134] 

[312]   Nor does the Court of Appeal’s approach take sufficient account of the nature of the place.  The practicalities, such as distance and weather conditions,[378] would also have been relevant, along with the difficulties of staying on the island.  There would need to be a reason to go out there but that does not mean, in context, either an absence of mana over the area or that fishing these grounds cannot reflect shared exclusivity.  Rather, the indicia and intensity of the use and control can be seen as a reflection of the nature of the seascape here rather than evidence that control is not possible.

[378]Lawrence Tukaki-Millanta A Report to the Waitangi Tribunal on Behalf of Te Whānau-A-Te-Ēhutu on the Whakaari Claim (WAI-225) (May 1995) at [6.3].

[313]   Various explanations were advanced as to why Te Whānau-ā-Apanui went first in harvesting tītī.  The Court of Appeal considered they controlled access.  This aspect may require further testing of the evidence.[379]  But priority in and of itself, while important, does not necessarily mean exclusivity.  It may do, but that is not axiomatic.[380] 

[379]For example, it may be that a possible counter-description was provided by Heremaia Warren in 2020 when he framed the process as iwi working together to determine the location of the birds.

[380]See our reference to Associate Professor Erueti’s description of tikanga-based land rights above at [200].

[314]   Te Whānau‑ā‑Apanui said its lack of protest about others placing a rāhui over areas within its rohe is explicable by the scale of the tragedy and the exceptional nature of the circumstances involving, as was the case, the loss of lives.  Whether that approach will carry the day is not for us to decide.  We would not have to determine who has the right to impose rāhui over particular areas unless the evidence was clear that Te Whakatōhea had no rights in this respect.  The evidence is far from clear on that.  Indeed, what is clear is that Te Whakatōhea was involved in the latter-day imposition of a seascape-wide rāhui that is reflective of the kind of relationship with the seascape referred to in our first judgment.  The evidence was the rāhui were in place for several weeks and were respected, including by third parties.  It reflects a strong form of regulatory control.  The rest of the details have to be determined by the High Court.

[315]   In drawing these threads together, there is a helpful summation of the evidence we have discussed in the Crown submissions in this Court.  The relevant passage is as follows:

There was evidence of the [Whakatōhea] hapū imposing rāhui over the sea out to Whakaari, the existence and use of fishing grounds significantly offshore, mapping evidence which contained precise descriptions of fishing grounds and locations of underwater features (such as rocks, the nature of the sea floor and the particular types of fish caught in these locations), and historical evidence of Whakatōhea being involved in shipping and regular travel across the sea to both Whakaari (for muttonbirding) and Te Paepae o Aotea (which is Māori customary land vested for all of the Mātaatua waka).

[316]   As this passage indicates, the end result of the evidence is to make clear there is an overlapping matrix of rights and interests, administration and control with various parties participating in this framework.  The question is not whether Te Whakatōhea’s rights existed at all, but rather, how to construct the matrix of rights that is clearly present in context.  In undertaking that construction, this Court in our first judgment said the exercise was contextual.  That contextual aspect is missing from the assessment in the Courts below. 

[317]   Because the right question has not been addressed, we have determined that the matter should be remitted back to the High Court for rehearing.  We do not consider it is possible or appropriate for us to determine whether CMT should be granted.  For a start, while Te Whānau-ā-Apanui says its rights are so strong as to exclude all others bar, possibly, Ngāti Awa, their limited involvement in the proceedings makes it difficult to reach a definitive conclusion.  We add that the existence of collateral procedures, namely, the prospect of negotiations with the Crown, which are unconnected (or barely connected) with the Court processes under MACA can be awkward.  This is the reality of the dual pathways.  While we respect Te Whānau‑ā‑Apanui’s decision to negotiate with the Crown, if it seeks to negate the claims of Te Whakatōhea, it may need to consider whether to take a more active role in the court proceedings.

[318]   Further, we do not immediately see any bar to Ngāi Tai and Te Upokorehe being included in the rehearing on this aspect.  If there are objections to this course, they can be dealt with in the High Court. 

[319]   Finally, we are conscious in remitting this issue back to the High Court that much time and resources have already been put into the evidence and testing that evidence.  It is important the matter not simply start again entirely.  As all of the parties participated in the High Court to some degree, the record of the evidence and testing of it would be available for the High Court.  If counsel want to recall a witness or call a new witness, they will have to make a case for that in the High Court.

[320]   In summary, Te Kāhui’s appeal in relation to Whakaari and Te Paepae o Aotea is allowed.  We remit the matter to the High Court.

Other matters relating to CMT Orders 1 and 2

Remittal of CMT Order 1

[321]   Te Kāhui appealed from the decision of the Court of Appeal to remit CMT Order 1.  The Court of Appeal had remitted this order as it concluded the High Court needed to consider Te Upokorehe’s claim to sole exclusivity in this area and had failed to consider Ngāti Awa’s interests in the Disputed Area.[381] 

[381]See CA judgment, above n 16, at [285]–[286] and [293] per Miller J.  See also above at [132].

[322]   In support of its appeal, Te Kāhui initially argued that the Court of Appeal was wrong to remit CMT Order 1.  Counsel subsequently clarified that Te Kāhui accepted a rehearing would be necessary in relation to the Disputed Area.  It is not clear whether Te Kāhui accepted remittal concerning the rest of the area covered by CMT Order 1. 

[323]   It is appropriate to remit the entire area covered by CMT Order 1.  It is plain that there is at least consensus regarding the need to reconsider the Disputed Area.  Further, Te Upokorehe also argues exclusive rights and notes that the current CMT Order 1 covers an area over which it does not seek recognition.  These matters can be best addressed in the High Court on remittal.  The High Court will also be able to address this Court’s conclusions on the issue of navigable rivers in relation to the boundaries of CMT Order 1.  Accordingly, Te Kāhui’s appeal challenging the remittal of CMT Order 1 is dismissed.

[324]   WKW appealed the boundaries of CMT Order 1.  Given this Order is being remitted to the High Court, there is no need to determine this issue.

Boundaries of CMT Order 2

[325]   In the High Court, Churchman J made CMT Order 2 in relation only to the western part of Ōhiwa Harbour.[382]  This reflected Ngāti Awa’s interest in that part of the harbour.  It was unclear what was intended in terms of the eastern part of Ōhiwa Harbour.

[382]HC judgment, above n 15, at [66(b)], and see above at [8].

[326]   The successful applicants in relation to CMT Order 2—the four hapū within Te Kāhui, Ngāti Ngāhere, Te Upokorehe and Ngāti Awa—are agreed that, for simplicity, there should be only one CMT order relating to the Ōhiwa Harbour.  This has also been the basis on which the successful applicants have approached subsequent matters.

[327]   We agree.  Accordingly, we formally amend CMT Order 2 to capture the Ōhiwa Harbour in full. 

Procedural matters

Applications to adduce further evidence

[328]   Te Kāhui, Whakatāne District Council, and Ngāti Muriwai and Kutarere Marae sought leave to adduce further evidence.  Section 105 of MACA allows a court to:

… receive as evidence any oral or written statement, document, matter, or information that the Court considers to be reliable, whether or not that evidence would otherwise be admissible. 

[329]   Te Kāhui sought to adduce two affidavits concerning tikanga Māori.  The affidavits were by Professor Tā Pou Temara and Dr Moana Jackson.  Tā Pou Temara’s affidavit was filed as part of the Stage Two High Court hearing and Dr Jackson’s affidavit has been filed in a different MACA proceeding.  Te Kāhui submitted that the Court would be assisted by having access to the affidavits’ general expositions of tikanga as law relevant to the takutai moana.  Te Whānau-ā-Apanui opposed the application, submitting that the affidavits are not fresh updating evidence as substantial evidence on tikanga has already been heard by experts.  While Te Whānau-‍ā-Apanui acknowledged that the majority of the evidence is not objectionable, it opposed the fact evidence in the affidavit of Tā Pou Temara relating to Whakaari.  This is because Tā Pou Temara was only asked to review evidence of experts of Te Whakatōhea and did not review the evidence of Te Whānau‑ā‑Apanui.  It is argued that introducing the evidence at this late stage would prevent Te Whānau-‍ā-‍Apanui from testing it through cross-examination. 

[330]   Given we are remitting CMT Order 1 and the matters relating to Whakaari and Te Paepae o Aotea, we leave it to the High Court to determine whether to allow Te Kāhui’s application.

[331]   Whakatāne District Council sought leave to file affidavit evidence which had originally been filed as part of the Stage Two High Court hearing as a supplementary bundle.  The affidavits set out the relevant structures and assets owned by the Council.  There were no objections to the evidence being filed.  We grant the application to adduce the four affidavits listed at [3] of the memorandum of counsel on behalf of Whakatāne District Council as an interested party dated 4 October 2024.

[332]   Finally, at the hearing counsel for Ngāti Muriwai and Kutarere Marae filed an affidavit by Roger Townshend—who described himself as a proposed expert in Canadian First Nations’ Aboriginal title and rights.[383]  The affidavit has been previously filed in the Waitangi Tribunal and compares Canadian and New Zealand jurisprudence.  We grant the application to adduce this affidavit.

Application to file submissions out of time

[383]We note that it is unclear whether counsel for Ngāti Muriwai and Kutarere Marae sought leave to adduce this evidence.  However, given it is evidence of foreign law (which concerns a question of fact), leave is required: see Supreme Court Rules 2004, r 40; Evidence Act 2006; MP v Attorney‑General [2021] NZCA 482, [2022] 2 NZLR 632 at [39]; and Hawaiki Submarine Cable LP v Tonga Cable Ltd [2019] NZHC 1595, [2019] NZAR 1775 at [56].

[333]   Te Kāhui, Ngāti Muriwai and Kutarere Marae all sought leave to file submissions out of time.  These submissions were all received shortly after the agreed time and raised important matters for consideration by this Court.  The applications to file submissions out of time are granted for all parties.

Costs

[334]   Te Kāhui and WKW applied for indemnity costs.  Te Upokorehe supported indemnity costs in principle but submitted that the decision should be reserved.  The Attorney‑General submitted that any decision on costs should await the judgment.

[335]   Costs are reserved.  If costs cannot be agreed, the parties should file memoranda on costs on or before Friday 10 October 2025.

Summary of conclusions

[336]   The following summary outlines our conclusions.  It does not provide complete coverage of the reasoning and should be read in the context of the full reasons set out above.

Navigable rivers

[337]   The Attorney General’s appeal on the navigable rivers issue is dismissed, but for reasons that differ from those of the Court of Appeal.

Effect of s 261(2) of the 1979 Act

[338]   The High Court was wrong to rely on Paki (No 1) as authority that s 261(2) of the 1979 Act extinguished customary rights and title to the beds of navigable rivers.  The effect of s 261(2) was not at issue in Paki (No 1) and this Court left open the question whether that section extinguished customary property interests.[384]

[384]See above at [35]–[36].

[339]   Applying settled principles of statutory interpretation, the wording of s 261(2) is not sufficiently clear to extinguish customary rights or title to the beds of navigable rivers.  Importantly, there is no language that explicitly references customary rights or title.  Indeed, there is no language vesting rights in the Crown: the phrase “shall remain” presupposes that the Crown has already purchased or otherwise acquired the riverbed from its customary owners.[385]  The language is merely declaratory and not confiscatory.  Further, the phrase “remain vested and … be deemed to have always been vested in the Crown” is essentially the same as the provisions in the Territorial Sea Acts which were unanimously held in Ngāti Apa not to have expropriatory effect with regard to customary land.[386]

[385]See above at [43]–[45].

[386]Ngāti Apa, above n 36, and see above at [60].

[340]   The phrase deeming minerals to be the “absolute property” of the Crown in s 261(2) is also declaratory.  Because s 261(2) applies when the Crown already has full and beneficial ownership of the riverbed, the “absolute property” it has in minerals is simply an incident of that ownership.[387]  However, even if the “absolute property” phrase in s 261(2) is confiscatory, the contrasting language of the phrases relating to the Crown’s rights to minerals and to the beds of navigable rivers is significant.[388]  We emphasise that, even if the “absolute property” phrase is expropriatory, we are not called upon in this case to decide if s 261(2) is sufficiently clear to expropriate customary rights to minerals in the beds of navigable rivers.[389]

[387]See above at [47].

[388]See above at [48].

[389]See above n 61.

[341]   The legislative history of s 14 of the 1903 Act supports the above conclusions.  The purpose of s 14 was to assert Crown rights to minerals, especially coal, in the beds of navigable rivers.[390]  The legislative history suggests that s 14 was intended to reflect what was thought to be the existing state of the law with regard to Crown grants: that Mueller was authority for the proposition that the midway presumption was rebutted in respect of navigable rivers.[391]  Even assuming that there was a secondary and unexpressed purpose of securing public navigation rights, there is nothing in the legislative history that suggests any purpose of expropriation with regard to customary land.[392]  Mueller was not concerned with customary land.[393]  Both that case and s 14 concerned Crown grants, which can only be made once land has been acquired from its customary owners.[394] 

[390]See above at [79].

[391]See above at [76] and [80].

[392]See above at [69] and [81]–[82].

[393]See above at [77].

[394]See above at [77] and [69], and see [43].

[342]   Accordingly, as customary title and rights to the beds of navigable rivers have not been extinguished, the beds of navigable rivers meet MACA’s definition of “marine and coastal area”, and therefore recognition orders may be made in relation to them if the other requirements in MACA are met. 

Effect of s 11(3) of MACA

[343]   As we have concluded that s 261(2) of the 1979 Act did not extinguish customary title and rights to navigable rivers, we do not need to decide whether s 11(3) of MACA resurrected those interests.[395]

Status of the Edwards Application

[395]See above at [92].

[344]   WKW’s appeal is dismissed.

[345]   Given the hapū of Te Whakatōhea appeared for themselves and did not support the Edwards application, it can no longer be said the Edwards application is being brought for the hapū.  Where, as here, the takutai moana rights are held at the hapū level, and it is demonstrated that the iwi no longer speaks for the hapū on those rights, the Courts below were correct not to recognise the mandate originally given to the Edwards application.[396]  

[396]See above at [111].

[346]   While it may be that an iwi-wide approach is still preferable, the holder of any CMT is yet to be identified and it will be for the successful groups to determine themselves how to express their rights and at what level.[397]  Resolution of this matter out ‍of in accordance with tikanga processes is encouraged, and is likely to result in a more durable outcome.[398] 

[397]See above at [113] and [117].

[398]See above at [107].

[347]   We add that the Edwards application does not have substantive priority over other applications by virtue of its having been transferred under s 125 of MACA.  Section 125 affords temporal priority only.[399]

Te Upokorehe—claim to exclusive rights

[399]See above at [119]–[121].

[348]   Te Upokorehe’s appeal is dismissed. 

[349]   As a preliminary matter, we found that Te Upokorehe’s decisions at the Court of Appeal stage not to object to Te Kāhui’s inclusion in CMT Order 2, and to withdraw its opposition to Ngāti Awa’s inclusion in CMT Order 2, are not fatal to its argument that CMT Order 2 should be remitted to the High Court.[400]  While Te Upokorehe’s approach in the Court of Appeal to its present argument is not necessarily helpful, the question of the proper treatment of CMT Order 2 was kept live in the Court of Appeal.

Shared exclusivity

[400]Above at [138].

[350]   MACA envisages orders being made for CMT over areas where there is shared exclusivity.  The court need only be satisfied that the applicant groups hold all customary rights according to tikanga in the relevant area to the exclusion of others.  The best means for resolving matters of entitlement as between the applicant groups will be through a tikanga process undertaken over time.[401]

[401]Above at [141].

[351]   However, separate overlapping CMTs are not permissible under MACA.[402]  It is not consistent with the statutory scheme to have two or more separate overlapping CMTs in relation to the same area where, as we have said, MACA contemplates that a joint CMT can be made to reflect shared exclusivity.[403]  Further, separate overlapping CMTs create practical problems—in particular, that no one group could exercise the rights conferred unilaterally.  While some similar problems may arise in relation to the exercise of rights under joint CMTs, such issues can be resolved in accordance with tikanga.[404]

Requirement for a rehearing

[402]Above at [150].

[403]Above at [58]–[143], and see [150].

[404]Above at [145]–[148], and see [149].

[352]   There is nothing to suggest the Court of Appeal was wrong to conclude Te Upokorehe had not shown it held mana exclusively in relation to the Ōhiwa Harbour.  Accordingly, CMT Order 2 does not need to be remitted to the High Court for rehearing on this basis.[405]

[405]Above at [202], and see [151].

[353]   A review of the evidence relied on by Te Upokorehe to substantiate its claim to exclusivity confirms that a joint CMT is the correct outcome.[406]

[406]See above at [153].

[354]   Te Upokorehe claims that its descent lines are distinct from other applicant groups.[407]  However, this is not necessarily evidence of political and legal separation for the purposes of resource rights.  The nature of the Ōhiwa Harbour as an area in which many interests and whakapapa threads converge does not suggest exclusivity in any one group.[408]

[407]See above at [154].

[408]See above at [156]–[157].

[355]   Contrary to Te Upokorehe’s submission, beyond general issues as to the Compensation Court’s processes, several specific features of the Court’s allocations of the Hiwarau and Hokianga Island reserves render the allocations of those reserves unreliable as evidence of Te Upokorehe’s exclusive rights.  These include uncertainties as to the intentions behind the allocations; the displacement caused by the raupatu and how this affected the ability of potential claimants to access the Compensation Court in Ōpōtiki; and the ongoing challenges to the allocation of the reserves in the Native Land Court, Parliament and the Waitangi Tribunal since 1898.

[356]   The fact that there are Te Upokorehe marae immediately surrounding the Ōhiwa Harbour was also emphasised in support of its argument as to exclusivity.[409]  However, this argument ignores complexities arising from the potential linkages and affiliations of these marae with other groups.[410]  This reflects the whakapapa linkages of those residing in the rohe, and the fact that several groups have rights in the area.

[409]See above at [178].

[410]See above at [179]–[181].

[357]   Evidence relied on by Te Upokorehe to demonstrate that the use of the resources occurs under the mana of Te Upokorehe is consistent with a number of groups exercising mana in the area.  The evidence shows that there is a level of complexity as to the nature of these rights.  It may be that the rights are not equal.  However, this does not necessarily mean that only one group has exclusive rights in terms of the test for CMT, nor does it reflect the position in tikanga.  Rather, these complexities are reflective of the nature of the seascape and the strong links between groups in the rohe.[411]

[411]See above at [201].

[358]   Te Upokorehe has a claim in the Waitangi Tribunal, as part of Wai 1750, alleging breaches of the principles of the Treaty of Waitangi in relation to the Ōhiwa Harbour and land abutting the Harbour.[412]  The evidential issues discussed above can be more suitably addressed, if necessary, by the Tribunal as part of that claim.  If any findings cast real doubt on or contradict the conclusions of this Court, a legislative response or, less desirably, a recall of this Court’s judgment, may be necessary.[413]

Ngāti Ngāhere

[412]See above at [203]–[204].

[413]See above at [205].

[359]   We are satisfied there was sufficient evidence for Ngāti Ngāhere to meet the test for inclusion in CMT Orders 1 and 2.

[360]   While there was not a significant amount of evidence specifically in relation to Ngāti Ngāhere’s rights in the rohe, the evidence was sufficient to meet the test for their inclusion in the CMT orders.[414] 

Application by Ngāti Muriwai

[414]See above at [210] and [220].

[361] Ngāti Muriwai’s appeal is allowed on the terms set out above at [258].

[362]   Ngāti Muriwai is entitled to bring an application as an applicant group under s 9 of MACA (as a hapū or, at least, as a whānau group).[415]  We are also satisfied Ngāti Muriwai is entitled to participate in the CMT orders in terms of the statutory test under s 58, assessing Ngāti Muriwai’s application for CMT as a part of Te Whakatōhea—as is required to give effect to the fundamental role of tikanga in determining CMT applications.[416]

[415]See above at [250].

[416]See above at [254] .

[363]   How these rights are to be given effect is a matter for the hapū of Te Whakatōhea and Ngāti Muriwai to consider and determine in accordance with tikanga.  Ideally, this should occur before the High Court hearing is resumed, but timing is a matter for determination by the High Court.[417]

[417]See above at [255].

[364]   The appeals of Ngāti Ruatākenga and the Attorney-General are dismissed.  The Courts below were correct to award PCRs to Ngāti Muriwai.[418] 

Status of Kutarere Marae

[418]See above at [256]–[258].

[365]   Kutarere Marae’s appeal is allowed. 

[366]   Kutarere Marae meets the definition of an applicant group in s 9(1) of MACA for the purposes of negotiation for a CMT agreement with the Crown.[419]  Despite not categorising itself as a whānau, iwi or hapū, it appears Kutarere Marae consists of individuals and a number of whānau with Te Whakatōhea whakapapa.  It should not be disqualified from negotiation with the Crown for recognition of rights to a CMT on the basis that it is not an applicant group.[420]

Whakaari and Te Paepae o Aotea

[419]See above at [271].

[420]See above at [270].

[367]   Te Kāhui’s appeal in relation to Whakaari and Te Paepae o Aotea is allowed.  We remit to the High Court for reconsideration the question of whether the test for CMT under s 58 of MACA is met in regard to Whakaari and Te Paepae o Aotea.

[368]   By not conducting a contextual analysis, the Court of Appeal asked and answered the wrong questions, and overlooked evidence which could demonstrate a holistic relationship of control with the seascape.[421]  This reconsideration must assess how the matrix of rights and interests (including administration and control) demonstrated by the evidence translate into the MACA context and, in accordance with this Court’s first judgment, in light of the context and nature of the claimed area.[422]  This context includes the status of Whakaari as a landmark; its spiritual significance, the environment’s uninhabitability, harshness and offshore nature; and its valuable resources.[423] 

Disposition

[421]See above at [309].

[422]See above at [316]–[317].

[423]See above at [310]–[312].

[369]   In our first judgment, we allowed the appeal by the Attorney-General in relation to s 58.[424]  We make the following further orders:

[424]SC judgment, above n 1, at [227].

(a)The Attorney-General’s appeals on the navigable rivers issue and challenging the award of PCRs to Ngāti Muriwai are dismissed.

(b)With the qualification that the part of WKW’s appeal regarding the boundaries of CMT Order 1 does not need to be determined,[425] WKW’s appeal is dismissed. 

[425]See above at [324].

(c)Te Upokorehe’s appeals are dismissed. 

(d)Ngāti Muriwai’s appeal is allowed on the terms set out above at [258].

(e)Ngāti Ruatākenga’s appeal challenging the award of PCRs to Ngāti Muirwai is dismissed. 

(f)Kuatere Marae’s appeal is allowed on the terms set out above at [271].

(g)Te Kāhui’s appeal in relation to Whakaari and Te Paepae o Aotea is allowed.  The question of whether the test for CMT under s 58 of MACA is met in regard to Whakaari and Te Paepae o Aotea is remitted to the High Court for reconsideration. 

(h)To the extent it remains live, Te Kahui’s appeal in relation to the decision to remit CMT Order 1 to the High Court is dismissed. 

(i)CMT Order 2 is formally amended to capture the Ōhiwa Harbour in full.

(j)Whakatāne District Council, and Ngāti Muriwai and Kutarere Marae’s applications to adduce further evidence are allowed.

(k)The application by Te Kāhui to adduce further evidence is to be addressed by the High Court.

(l)The applications to file submissions out of time are allowed.

(m)Costs are reserved.  If costs cannot be agreed, the parties should file memoranda on costs on or before Friday 10 October 2025.

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 A: The Parties

In our first judgment, we set out all the parties in the present appeals.  The tables below provide a brief summary.[426] 

[426]We also note that Ngā Hapū o Ngāti Porou were an intervener in the Supreme Court.

Appellants[427]
Name	Description	Relevant involvement in Courts below
Whakatōhea Kotahitanga Waka (Edwards) (WKW)	Umbrella group that supports the original Edwards application.	HC:	Not included in CMT orders.
		CA:	No change.
Ngāti Muriwai	Applicant group within Te Whakatōhea (and part of WKW).  Status as hapū is disputed.  Seeks CMT.	HC:	Not eligible for CMT.
		CA:	Could not obtain CMT in own right but may be able to “participate” in an order.  Meaning of this is disputed.
Kutarere Marae	Community within Te Whakatōhea (and part of WKW).  Status as applicant group is disputed.  Seeking Crown negotiation so was initially only interested party.	HC:	Found it is not an applicant group.
		CA:	Agreed with CA.
Te Upokorehe Treaty Claims Trust on behalf of Te Upokorehe Iwi	Applicant group that says it is an independent iwi.  Disputed by Te Whakatōhea.  Te Upokorehe objects to joint CMT.	HC:	Included in joint CMT Orders 1 and 2.
		CA:	Remitted CMT Order 1 so Te Upokorehe could argue it is the sole rights holder.  Did not remit CMT Order 2.
Attorney-General	Can be interested party in High Court MACA proceedings.	Appealed to this Court on issues of interpretation.
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 Kāhui)[428]	Umbrella group consisting of several hapū of Te Whakatōhea.  Supports CMT Orders (as were successful applicant groups).	HC:	Included in joint CMT Orders 1 and 2.  Failed to establish CMT regarding Whakaari and Te Paepae o Aotea.
		CA:	CMT Order 1 remitted, but established rights in CMT Order 2.  Failed to establish CMT regarding Whakaari and Te Paepae o Aotea.
Ngāti Ruatākenga	Hapū of Te Whakatōhea (and part of Te Kāhui).  Challenges status of Ngāti Muriwai and objects to it holding PCRs.	HC:	Ngāti Muriwai eligible for PCRs.
		CA:	Ngāti Muriwai eligible for PCRs.

[427]We note that parties may be both appellants and respondents/interested parties.  For the sake of simplicity, the tables focus on the primary role of each party.

[428]While Ngāti Ruatākenga is not formally part of Te Kāhui, as its CMT application was under the 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.

Respondents
Name	Description	Relevant involvement in Courts below
Te Tāwharau o Te Whakatōhea (Formerly Whakatōhea Māori Trust Board)	The post-settlement governance entity for Te Whakatōhea.  Generally supports Te Whakatōhea‑related applications.	Not involved in lower Courts.  Its predecessor (Whakatōhea Māori Trust Board) had made an application to ensure no hapū would be excluded if they did not individually apply.
Ngāi Tai and Ririwhenua	Ngāi Tai is an iwi to the east of Te Whakatōhea (with Ririwhenua being a hapū of this iwi).  Opposed Attorney‑General’s interpretation of MACA.	HC:	Granted CMT Order 3.
		CA:	Remitted CMT Order 3.  Ngāi Tai and Ririwhenua did not appeal this.[429]
Te Rūnanga o Ngāti Awa	Represents Ngāti Awa, an iwi to the west of Te Whakatōhea.  Seeks Crown negotiation but participates to the extent its claim overlaps with other applicant groups.	HC:	Not mentioned regarding CMT Order 1.  Included in joint CMT Order 2.  Did not need to determine its interests in Whakaari and Te Paepae o Aotea.
		CA:	Remitted CMT Order 1 to consider Ngāti Awa’s interest.  CMT Order 2 remained.  Did not need to determine its interests in Whakaari or Te Paepae o Aotea.
Landowners Coalition Inc	Incorporated society advocating for private property rights.	Focused on issues of interpretation.

[429]Subsequently, the High Court reheard the application and found Ngāi Tai was entitled to an order for CMT in respect of the area covered by CMT Order 3: Re Jones on behalf of Ngāi Tai Iwi and the Uri of Ngāi Tai Iwi [2024] NZHC 1373. We understand that this is subject to a separate appeal in the Court of Appeal.

Interested parties
Name	Description
Te Whānau-ā-Apanui	Iwi to the east of Ngāi Tai.  Seeks direct engagement with Crown.  Claims exclusive mana over Whakaari.
		Seafood Industry Representatives	Advocates for commercial fishing industry’s inshore sector.
Crown Regional Holdings Ltd (CRHL)	Holds resource consents for port infrastructure in the claimed area.
Relevant local councils	Bay of Plenty Regional Council | Toi Moana, О̄pо̄tiki District Council, and Whakatāne District Council.

Appendix B: Key Areas in the Ōhiwa Harbour

Appendix C: Compensation Court Grants for Hiwarau and Hokianga Island[430]

[430]Taken from “Reports on Settlement of Confiscated Lands”, above n 222, at 13–14.

Bay of Plenty District.—SCHEDULE No. 13, 1872. Lot to be granted under the 4th and 6th clauses of “The Confiscated Lands Act, 1867.”  The Lot herein specified is to be inalienably assured by a Grant in trust to the Members of the Upokorehe Hapu whose names are included in the Schedule attached.
Name of Hapu for certain of whose Members Grant is made.	Names of Trustees		Sex.	Rank.	Address.		Area.	Number and Description of Lot.	Locality.
Upokorehe       …	Peira Haruru       … Hemi Kakitu    … Tatituha Mokai  … Hemi Kuri      …		M. M. M. M.	Native chief Ditto       … Native     … Ditto       …	Ohiwa   … Ditto Ditto Ditto		A. R. P. 13 2  12	Hokianga Island at	Ohiwa
NAMES of Members of the Upokorehe Hapu, for whom Hokianga Island at Ohiwa is granted. Men.
1. Tiera Haruru. 2. Hemi Kakitu. 3. Hemi Kuri. 4. Taituha Paora. 5. Horopapera. 6. Hoeroa. 7. Tiopira.		8. Hemi Hama 9. Wahaika. 10. Watene Pureata. 11. Hoani Akeake. 12. Iraria Kaiponi. 13. Mita Tahanoke.				14. Kokere. 15. Ani. 16. Tamati. 17. Turei. 18. Papu. 19. Mohi Taikororareka.
Women.
20. Marara. 21. Maria Watene. 22. Mere Katene. 23. Hiromene Tipa. 24. Moa. 25. Hinerau Kopiha.		26. Anipeka. 27. Maria Mu. 28. Mere Ngutuhore. 29. Wheato. 30. Ruruhira. 31. Ripeka Wahaika.				32. Hiropuku. 33. Mahana. 34. Hohi. 35. Wakaetena. 36. Rea Te Mara. 37. Erana.
Children.
38. Heni. 39. Waru. 40. Riripeti. 41. Timoti.		42. Tawhi. 43. Kararaina. 44. Otutu. 45. Ngakai.				46. Rahi. 47. Ani. 48. Hinehoa.

Bay of Plenty District.—SCHEDULE No. 14, 1872.
LOT to be granted under the 4th and 6th clauses of “The Confiscated Lands Act, 1867.” The Lot herein specified is to be inalienably assured by a Grant in trust to the Members of the Upokorehe Tribe whose names are included in the Schedule attached.  The right to take lines of road is reserved.
Name of Tribe for certain of whose Members Grant is made.	Names of Trustees		Sex.	Rank.		Address.	Area.	No. and Description of Lot.	Locality.
Upokorehe       …	Peira Haruru        … Hemi Kakitu         … Hoeroa               … Hemi Hamu         … Mita Tahanoke      … Iraia Kaiponi         … Hoani Akeake        …		M. M. M. M. M. M. M.	Native Chief Ditto       … Native     … Ditto       … Ditto       … Ditto       … Ditto       …		Ōhiwa   Ditto Ditto Ditto Ditto Ditto Ditto	Acres. 1,073	Hiwarau Block:— Bounded on the North by high water-mark in Ōhiwa Harbour from the mouth of Nukuhou River to Punawai; on the East by a road surveyed from Punawai to the point where it first strikes Nukuhou River; on the South and West by Nukuhou River.	Ōhiwa
N.B. — Lots 1 and 2, Hiwarau Sections, Pitcairn’s Survey, 25 acres each, are not included in this block.
NAMES of the Members of the Upokorehe Hapū for whom Hiwarau Block is granted.
Men.
1. Tiera Haruru. 2. Hemi Kakitu. 3. Hemi Kuri. 4. Taituha Paora. 5. Horopapera. 6. Hoeroa. 7. Tiopira. 8. Hemi Hama.		9. Wahaika. 10. Watene Pureata. 11. Hoani Akeake. 12. Iraria Kaiponi. 13. Mita Tahanoke. 14. Kokere. 15. Ani.			16. Tamati. 17. Turei. 18. Papu. 19. Mohi Taikororareka. 20. Wiremu Hineahua. 21. Hoani Mokomoko 22. Warena Mokomoko.
Women.
23. Marara. 24. Maria Watene. 25. Mere Katene. 26. Hiromene Tipa. 27. Moa. 28. Rutu 29. Hinerau Kopiha. 30. Ani Peka.		31. Maria Mu. 32. Mere Ngutuhore. 33. Wheato. 34. Ruruhira. 35. Ripeka. 36. Hiropuku. 37. Mahana.			38. Hohi. 39. Whakaetena. 40. Animerata. 41. Rea Te Mara. 42. Erana. 43. Heni Mokau. 44; Huriana.
Children
1. Peta. 2. Heni. 3. Waru. 4. Riripeti.		5. Timoti. 6. Tawhi. 7. Kararaina. 8. Otutu.			9. Ngakai. 10. Rahi. 11. Ani. 12. Hinehou.