The High Court granted five applicant groups a joint customary marine title (CMT) over Te Tāhunao Rangataua, the eastern-most arm of the Tauranga Harbour.
Seven applicant groups applied under the Marine and Coastal Area (Takutai Moana) Act 2011 (Act)for CMT over Te Tāhuna o Rangataua, an estuary in Tauranga Harbour. Five groups consolidated their applications at the end of the hearing into one joint application while the other two kept theirs separate but asked to be included in the joint CMT.
There was no substantive opposition to the application and the Crown accepted the test for CMT had been met on the evidence.
To satisfy the requirements for CMT, the applicant group must prove they hold the area in accordance with tikanga and have exclusively used and occupied it since 1840 without substantial interruption.
Held in accordance with tikanga
Following the High Court decision in Re Edwards, Powell J rejected the Crown’s submission that holding in accordance with tikanga requires a proprietary-like holding of the area as this would “severely restrict the possibility of a successful application” and is therefore inconsistent with the Act. Instead, the test, while it may contain proprietary-like elements, must be viewed through a tikanga lens that reflects the continuity of customary relationship with land.
Applicants must provide evidence to show they have a type of mana to exercise over the area because it falls within their rohe. This is derived from whakapapa and can be shown by actions and practices and external acknowledgement of their mana.
The five joint applicants were all descendants of the victors of a battle in the area at the turn of the 18th century. The other two were the descendants of the defeated and displaced. The Court found the five joint applicants held the area in accordance with tikanga for over 300 years.
Exclusive use and occupation without substantial interruption
Powell J found “use and occupation to the exclusion of all others as the words on their face might suggest is not required”. The context of the Act, the nature of the physical environment and the nature of tikanga colour the meaning of the words and suggest a lower threshold is more appropriate. The Act also specifies that use for fishing and navigation does not of itself exclude CMT. The test also recognises the transient nature of occupation of the foreshore and seabed.
Interruptions to use and occupation also have to be informed by the relevant tikanga and the activities performed in the area in accordance with tikanga. A lack of interference with the applicant groups’ exercise of customary use over the area by Māori or the wider community may provide evidence of exclusive use and occupation.
Access to Te Tāhunao Rangataua is relatively limited. It is surrounded by Māori freehold land and rural, industrial and roading reserve. Access is also impeded by mangroves and the shallowness of the Te Tihi/Welcome Bay side of the estuary. The Crown historian thought the “very limited” extent of third party use of the area throughout history was a “notable feature”. Resource consents issued over time are now mostly located outside the common marine and coastal area and none impacted on the type of rights and authority exercised by the five joint applicants, who have a strong history of exercising kaitiakitanga responsibilities in the area.
However, there was little evidence of occupation or use by the other two applicants.
Extinguishment
The Tauranga Foreshore Vesting and Endowment Act 1915 gave the Tauranga Harbour Board title over the foreshore of Tauranga Harbour and included a poorly defined outline of the vested area. The Foreshore and Seabed Endowment Revesting Act 1991 revested the foreshore in the Crown “as if it had never been alienated”.
The Court concluded it must take a protective approach to customary interests and interpret these liberally in favour of indigenous groups. The orthodox position that customary interests, once extinguished, cannot be revived is no longer correct. They can be revived if legislation provides otherwise. However, the Court found the 1915 Act never clearly and expressly extinguished customary rights in the first place, meaning they remained intact.
The Court found the five joint applicants had clearly met the tests for CMT but dismissed the other two applications. The joint applicants now need to submit a draft CMT order for consideration and consider what further evidence and submissions, if any, are needed to determine the nature and scope of wāhi tapu areas and what restrictions might be needed to protect these.
Stage 2 of the Ngā Pōtiki priority application included the are a seaward of Pāpāmoa and was heard in September 2021.
Franks Ogilvie acted for Landowners Coalition Incorporated in two of the first multi-party cases to be considered by the High Court: Re Edwards and Re Clarkson. Re Edwards is currently before the Court of Appeal.
For further information on this case or similar issues, please contact Director Brigitte Morten.
