Re Edwards (Te Whakatohea No. 2)

• Jurisdiction: New Zealand
• Court: High Court
• Judge: Churchman J
• Judgment Date: 07 May 2021
• Neutral Citation: [2021] NZHC 1025
• Docket Number: CIV-2011-485-817
• Date: 07 May 2021

[2021] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Churchman J

CIV-2011-485-817

UNDER the Marine and Coastal Area (Takutai Moana) Act 2011

IN THE MATTER of an application for an order recognising Customary Marine Title and Protected Customary Rights

BY the late Claude Augustin Edwards (deceased), Adriana Edwards and others on behalf of Te Whakatōhea

BY Dean Flavell on behalf of Hiwarau C, Turangapikitoi Waiōtahe and Ōhiwa of Whakatōhea (CIV-2017-485-375)

BY Larry Delamere on behalf of Pākōwhai Hapū (CIV-2017-485-264), and Te Whānau-a-Apanui (CIV-2017-485-278)

BY Tracy Francis Hillier on behalf of Ngai Tamahaua Hapū (CIV-2017-485-262), and Te Hapū Titoko o Ngai Tama (CIV-2017-485-377)

BY Muriwai Maggie Jones on behalf of Ngāi Tai (CIV-2017-485-270), and Muriwai Maggie Jones and Te Aururangi Davis on behalf of Ririwhenua Hapū (CIV-20170-485-272)

BY Bella Savage and Waipae Perese on behalf of Te Whānau a Harawaka (CIV-2017-485-238)

BY Te Ūpokorehe Treaty Claims Trust and others on behalf of Te Ūpokorehe (CIV-2017-485-201)

BY Christina Davis on behalf of Ngāti Muriwai Hapū (CIV-2017-485-269)

BY Pita Tori Biddle and Karen Stefanie Mokomoko on behalf of Te Uri o Whakatōhea Rangatira Mokomoko (CIV-2017-485-355)

BY Te Rua Rakuraku on behalf of Ngati Ira o Waiōweka (CIV-2017-485-299)

BY John Hata, Te Ringahuia Hata and Antoinette Hata on behalf of Ngāti Patumoana (CIV-2017-485-253)

BY Whakatōhea Māori Trust Board on behalf of Whakatōhea Hapū (CIV-2017-485-292)

Counsel:

T Sinclair and B Cunningham for Te Whakatōhea (CIV-2011-485-817); Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwa of Whakatōhea (CIV-2017-485-375); Pākōwhai Hapū (CIV-2017-485-264); and Te Whānau-a-Apanui Hapū (CIV-2017-485-278)

T K Williams and C Linstead-Panoho for Ngai Tamahaua Hapū (CIV-2017-485-262) and Te Hapū Titoko o Ngai Tama (CIV-2017-485-377)

E Rongo for Ngāi Tai (CIV-2017-485-270) and Ririwhenua Hapū (CIV-2017-485-272)

C Leauga, D Stone and D Lafaele for Te Whānau a Harawaka (CIV-2017-485-238)

B Lyall for Te Ūpokorehe Treaty Claims Trust (CIV-2017-485-201)

M Sinclair, M Sharp and J Waaka for Ngāti Muriwai Hapū (CIV-2017-485-269)

A Warren and K Ketu for Te Uri o Whakatōhea Rangatira Mokomoko (CIV-2017-485-355)

A Sykes, J Chaney (17–21 August) and C Dougherty Ware (31 August–23 October) for Ngāti Ira o Waiōweka (CIV-2017-485-299)

T Bennion for Ngāti Patumoana (CIV-2017-485-253)

J Pou for Whakatōhea Māori Trust Board (CIV-2017-485-292)

C Hirschfeld for Ngāti Huarere ki Whangapoua (CIV-2017-404-482) (watching brief only)

T Castle for Ngāi Taiwhakaea (CIV-2017-485-185) (watching brief only)

Interested Parties:

K Feint QC for Ngāti Ruatakenga (CIV-2017-485-292)

C Finlayson QC, A Dartnall, P Cornegè and S Eldridge for Landowners Coalition Incorporated

H Irwin-Easthope and K Tarawhiti for Te Rūnanga o Ngāti Awa (CIV-2017-485-196)

M Mahuika and N Coates for Te Rūnanga o te Whānau-a-Apanui (CIV-2017-485-318)

R Roff, R Budd and S Gwynn for Attorney-General

M Jones for Whakatāne District Council

T Reweti for Bay of Plenty Regional Council and Ōpōtiki District Council

A Williams for Seafood Industries Representatives

Indigenous — application for recognition orders for either customary marine title or protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 — Tikanga and the Courts — intersection between tikanga and the common law — meaning of “exclusive use and occupation” and “substantial interruption”

The issues were: whether the groups had established exclusive use and occupation without substantial interruption.

The Court held that a number of applicant groups had had satisfied the test for customary marine title. The court granted recognition orders for customary marine title and protected customary rights to a number of applicant groups in the eastern Bay of Plenty, under the Act. In particular, the Court granted three customary marine title over three separate areas of the takutaimoana, and protected customary rights for a range of activities by a number of applicant groups.

In relation to “holds the specified area in accordance with tikanga”, the Court found that, because of the ‘sui generis’ nature of customary marine title, the critical focus of the assessment must be on tikanga, rather than on western proprietary concepts. In relation to “exclusive use and occupation”, the concept of “shared exclusivity”, taken from Canadian jurisprudence, was consistent with the purposes of the Act and could be applied in the circumstances to allow for a single customary marine title order over the claimed takutai moana area shared between the applicants. In relation to “substantial interruption”, the Court determined that while certain physical activities allowed under resource consents and certain physical structures could amount to substantial interruption, the granting of a resource consent itself could not. The loss and confiscation of the applicants' land through raupatu did not sever their connection to the takutai moana.

The Court acknowledged tikanga as the first law of New Zealand, and the growing intersection between tikanga and the common law.

The Court concluded that through their whakapapa, a number of the applicants had links to the earliest Māori settlement of the eastern Bay of Plenty, and that they had been able to establish their mana in relation to the whenua and takutai moana of the area.

The Court assessed each protected customary rights application and issued a range of protected customary rights orders to a number of groups. The exact boundaries of the area subject to the customary marine title orders were be determined at a later hearing.

JUDGMENT (NO. 2) OF Churchman J

Tangaroa piki ake	Tangaroa rise up
Tutara Kauika piki ake	Tutara Kauika rise up
Ruamano piki ake	Ruamano rise up
Taea ngā kino o te wai	Cleanse the impurities of the waters
Kia puta ki Rangiatea	So that they may rise to the heavens of Rangiatea
Ko te Maranḡi	To fall again
Tau atu e rea	Settling, sustaining the earth 1

TABLE OF CONTENTS

Introduction	[1]
PART I — THE PARTIES
The priority application	[4]
The applicant groups	[17]
Other applicants	[19]
Applicants who participated as interested parties	[20]
Other interested parties who were not applicants	[21]
PART II — THE LEGISLATION
Statutory purposes, legislative history and legal concepts
Statutory purposes	[22]
The Treaty, cession of sovereignty and customary title to the foreshore and seabed	[57]
PART III — LEGAL ISSUES	[77]
Standard and burden of proof	[78]
Analysis	[94]
Conclusion	[99]
Holds the specified area in accordance with tikanga	[104]
Tikanga as at 1840	[110]
Analysis	[119]
Conclusion	[144]
Exclusivity
Shared exclusivity	[145]
Conclusion	[168]
Ownership of abutting land	[171]
Substantial interruption	[188]
Raupatu	[193]
Resource consents granted prior to 1 April 2011	[208]
Conclusion	[227]
The effect of reclamation on CMT and PCR claims	[231]
Third-party structures	[251]
Third-party use and occupation	[256]
Conclusion on substantial interruption	[270]
PART IV — TIKANGA
Tikanga and the Courts and tikanga values	[272]
Whakapapa/whanaungatanga	[301]
Pukenga	[308]
The pukenga report	[311]
PART V — TECHNICAL MATTERS
Landward boundaries of the takutai moana relating to rivers and estuaries
Rivers	[333]
Conclusion	[341]
Navigable rivers	[342]
Conclusion	[361]
Estuaries	[362]
PCR issues
Activities that can support a grant of PCR under s 51	[363]
Ambit of PCRs	[366]
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act	[391]
Can PCR and CMT co-exist?	[395]
The “dual pathway” problems and the potential conflict between direct engagement and litigation	[399]
PART VI — ANALYSIS OF THE APPLICATIONS
CMT
Whakatōhea Rangatira Mokomoko	[413]
Kutarere Marae	[421]
Hiwarau C	[425]
Pākōwhai	[431]
Ngāti Muriwai	[439]
Conclusion	[465]
Whakaari and Te Paepae o Aotea	[466]
Ngāi Tai	[479]
PCR	[483]
CIV-2011-485-817 — Edwards priority application	[485]
CIV-2011-485-264 — Application by Larry Delamere on behalf of Pākōwhai	[488]
CIV-2017-485-269 — Application of Christina Davies on behalf of Ngāti Muriwai Hapū	[497]
CIV-2017-485-375 — Dean Flavell on behalf of Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa o Whakatōhea	[514]
CIV-2017-485-253 — Application by John Hata on behalf of Ngāti Patumoana	[521]
CIV-2017-485-299 — Application by Te Rua Rakuraku on behalf of Ngāti Ira o Waiōweka	[535]
CIV-2017-483-355 — Application by Te Uri o Whakatōhea Rangatira Mokomoko	[546]
CIV-2017-485-253 — Application by Tracy Francis Hillier on behalf of Ngai Tamahaua Hapū; and
CIV-2017-485-262 — Application by Tracy Francis Hillier on behalf of Te Hapū Titoko o Ngai Tama and Te Uri o Te Hapū o Titoko Ngai Tama	[577]
CIV-2017-485-201 — Application by Te Ūpokorehe Treaty Claims Trust on behalf of Te Ūpokorehe	[618]
CIV-2017-485-270 — Application by Muriwai Maggie Jones on behalf of Ngāi Tai Iwi and Te Uri o Ngāi Tai; and
CIV-2017-485-272 — Application by Muriwai Maggie Jones on behalf of Ririwhenua Hapū	[643]
CIV-2017-485-292 — Application by the Whakatōhea Māori Trust Board on behalf of Whakatōhea	[649]
PART VII — CONCLUSIONS AND SUMMARY
CMT	[660]
PCR	[668]
...