Summary
The High Court dismissed the Clarkson whānau's application for customary marine title (CMT) after finding that the applicants, Ketepunga Matana Clarkson (deceased) and her daughters, Ketepunga Kaylene Clarkson and Catherine Clarkson (Applicant Group) did not have sufficient mandate to bring a claim on behalf of all those who have whakapapa interests in the area.
Background
The Clarkson whānau application for CMT is the third claim to be considered under the Marine and Coastal Area Act (MACA). It related to a 14.6km stretch of coastline in southern Hawkes Bay from Finlay's Reef to south of Cape Turnagain, and out to the 12 nautical mile limit of the territorial sea.
The claim was largely based on the Applicant Group's ownership of Māori land about 1km inland from the claimed area, and their continued use of customary fishing grounds. The purpose of their application was to "obtain recognition of their place in the community in relation to the area". The claim was originally filed under the Foreshore and Seabed Act 2004 as an application for customary rights orders for the collection of karengo (seaweed). That application was transferred to the High Court as a claim for protected customary rights (PCR) when the MACA came into force. In 2013, the application was amended to an application for CMT instead of a PCR. A CMT order would grant the Clarkson whānau an interest in the claimed area. A PCR would only grant them a protected right to carry out an activity, like gathering karengo.
Four other applicant groups representing hapū and iwi who also claimed CMT over all or part of the Clarkson claimed area appeared as interested parties to respond to the Clarkson claim. Ngāti Kere and Ngāti Kahungunu said the Clarkson application was contrary to hapū tikanga and that it was wrong to divide the coastline into whānau portions. Ngāti Kere said customary interests in the area go well beyond the Clarkson whānau and was not supported.
The Case
The Applicant Group claimed to make their application on behalf of the descendants of Rewia and said they had mandate from some 250 people in their whānau to make the application on their behalf. They claimed that the wider whānau and all those who whakapapa to the area would benefit from the applicants having CMT over the area, even if the CMT is not held on their behalf. However, the Court found that the mandate was given for the application for customary rights to collect karengo under the Foreshore and Seabed Act. The Applicant Group did not have mandate for an application for CMT. The court emphasised evidence from various interested parties that stressed the need for CMT applications to be made on a hapū, not whānau level.
The Court agreed with Ngāti Kere and Rangitāne that the Applicant Group did not hold the area in accordance with tikanga. The landholdings relied on dated back to a decision of the Native Land Court in the 1800s to include invididual names on Maori land titles instead of hapū rangatira. While the Court recognised the Applicant Group's spiritual and "deeply personal" connection to the area, it also found that a hapū mandate is needed for a group to hold an area in accordance with tikanga on a representative basis. In addition, applicants cannot prove exclusive use and occupation of the area, as required by the Act, where there is evidence of overlapping interests of a wider hapū group.
The Court found that landownership was not determinative of CMT, and even if it were, the Applicant Group had not shown that it had mandate to represent all the shareholders. Ownership of Māori land is not necessary to establish that an applicant holds the area in accordance with tikanga, as required by the Act. The Act states that ownership of abutting land is a relevant factor, but it is not a mandatory consideration and not the only relevant factor to be considered. There are also a number of other Māori landholdings close to the application area that the Applicant Group does not own. Applicant groups needs to demonstrate mandate from others who whakapapa to the area and who have an enduring connection to it.
The Court found there was a lack of evidence that the Clarkson whānau used the area out to 12 nautical miles. Most evidence was limited to gathering kaimoana and karengo around the beach and rocks. However, the Court did not actually determine what the boundaries of the application area should be because it found that no claim for CMT could succeed.
Result
The Court dismissed the application for CMT but delayed the implementation of this result for six months and invited the Applicant Group to amend the application to one for PCRs. If an amendment is not filed, the Court will still invite submissions to consider whether PCRs should be granted. The Applicant Group was also encouraged to attend hui it had previously declined with Ngāti Kere and other overlapping applicants whose applications for CMT would include the Clarkson whānau based on their shared whakapapa.
The Court also foreshadowed that a jointly-held CMT might be appropriate for Ngāti Kere, Rangitāne, Te Hika o Pāpāuma and Ngāti Kahungunu if each met the test for CMT when their claims eventually come to court. Because these claims have yet to be heard in full, the Court decided that it would be inappropriate to discuss the "finer points" of what it means to hold an area in accordance with tikanga or what third party actions might constitute a substantial interruption.
Franks Ogilvie appeared in the Clarkson case on behalf of one of the interested parties, the Landowners Coalition Incorporated.
