Hei tīmatanga - Introduction
A decade after its enactment, 2021 saw the first major wave of case law emerging from the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act). Three cases (with a fourth soon to be released) by three separate High Court Judges were published, concerning different areas and iwi, hapū and whānau across Aotearoa New Zealand. My position as expressed in this article is that the cases reflect not only a promising start to the application of the Act for claimant iwi, hapū and whānau, but also are indicative of a broader trend in the Aotearoa New Zealand legal system: that the Courts are increasingly engaging and applying both tikanga Māori and the common law together as Aotearoa’s “third law”,[1] creating a legal system unique to this country and its people.
In my view, three key themes can be ascertained from the case law concerning the Act so far. They are the:
- application of tikanga Māori as law and evidence;
- exclusivity; and
- mandate of the applicants.
After setting out the background to the Act and the 2021 case, I will discuss each theme in turn.
Kōrerorero - Discussion
The statutory framework in a nutshell
It is important to start with a very brief foray into the statutory framework underpinning the Act. More in-depth analysis is set out at [22]-[77] of Re Edwards.
The Marine and Coastal Area (Takutai Moana) Act was enacted in 2011 to repeal and replace the controversial Foreshore and Seabed Act 2004, following the recommendations of a Waitangi Tribunal report,[2] and a Ministerial Review Panel.[3] In essence, the Act is designed to provide for and acknowledge the customary rights and interests of Māori in the takutai moana/foreshore and seabed, referred to as the “common marine and coastal area”.[4] The Act allows for this in two ways. A whānau, hapū, or iwi (referred to as “applicant groups” in the Act) can seek:
- “Protected customary rights” (which essentially amounts to protection of particular activities or uses of the takutai moana); and/or
- “Customary marine title” (which gives a group limited title/rights over a specified area of the takutai moana).
An applicant group can either apply to the Court for a recognition order for protected customary rights (PCRs) and customary marine title (CMT), or directly engage with the Crown for these rights. This article focuses on the former approach.
The threshold that an applicant group must reach in order to succeed in an application for PCRs and/or CMT is ostensibly a high one. For a PCR, the applicant group must prove on the balance of probabilities that the particular right/activity:[5]
a. has been exercised since 1840;
b. continues to be exercised; and
c. is exercised in accordance with tikanga.
The right/activity also cannot have been extinguished as a matter of law, and s 51(2) sets out a range of activities that cannot be classified as PCRs, including regulated activities under the Fisheries Act 1996 or commercial aquaculture activities (precluding almost all fishing activities).
For a CMT, the applicant group must prove on the balance of probabilities that they:[6]
a. hold the specified area in accordance with tikanga;
b. have, in relation to that specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption, or received it, at any time after 1840, through a customary transfer.
As with PCRs, CMT cannot exist if it has previously been extinguished by law.
For the purposes of the article, it is important to note that under s 99 of the Act, a Court may obtain the advice of a pūkenga, or expert, to assist with questions of tikanga.
The three cases
As at 1 December 2021, four substantive cases concerning applications under the Act have been published.[7] Three of these cases were released this year – they are:
a. Re Edwards (Whakatōhea (No 2));[8]
b. Re Clarkson & Ors;[9] and
c. Ngā Pōtiki & Ors – Stage 1 – Te Tāhuna o Rangataua.[10]
High Court hearings in Ahuriri and Tauranga for Re Ngāti Pāhauwera and Ngā Pōtiki & Ors – Stage 2 respectively also occurred in 2021.
The detailed background to these cases are set out in other articles in the December issue of this journal (see links above) and so I will only briefly summarise what is necessary for context.
Re Edwards
Re Edwards concerned a number of applications under the Act in and around the rohe of Te Whakatōhea in the Eastern Bay of Plenty. There were a number of overlapping applicants, who, by the time the hearing had commenced, had formed into three broad groupings: Whakatōhea Kotahitanga Waka, Te Kāhui Takutai Moana o Ngā Whānui Me Ngā Hapū, and “other applicants”, which included Te Ūpokorehe and Ngāi Tai. Te Rūnanga o Ngāti Awa and Te Rūnanga a Te Whānau (for Te Whānau-ā-Apanui) appeared as applicant groups participating as interested parties, while the Attorney-General also appeared as an interested party.
His Honour Churchman J ultimately found that a number of the applicants had satisfied the test for CMT from Maraetotara in the east, to Tarakeha in the west. The successful applicants consisted of the “Te Kāhui” grouping and Te Ūpokorehe, with CMT being shared with Ngāti Awa in the western part of the area, and with Ngāi Tai in the eastern part. His Honour also granted PCR orders over a number of activities for the aforementioned hapū, as well as Ngāti Muriwai. These included non-commercial whitebaiting, gathering natural resources and rongoā, carrying out traditional practices such as burying whenua and holding tangihanga, and kaitiakitanga-based practices.
The Court made a number of important findings and observations in the case, both in relation to the Act, and on the application of tikanga. I will discuss a number of these in more detail below, but a non-exhaustive list of some of the most important aspects of the decision includes:
- a detailed discussion of customary title in the foreshore and seabed, which affirmed the approach of the Court of Appeal in Attorney-General v Ngāti Apa that Māori customary title was not necessarily extinguished;[11]
- a summary of the standard and burden of proof for the statutory tests under the Act;[12]
- a detailed discussion of tikanga, including an acknowledgment of tikanga as the first law of Aotearoa New Zealand,[13] and an assessment of important tikanga values applicable to the case, particularly whanaungatanga;[14]
- a ruling that raupatu did not amount to “substantial interruption” to the use and occupation of the takutai moana for the applicant groups;[15] and
- an adoption of the Canadian concept of “joint” or “shared” exclusivity (discussed in detail in the following section).[16]
Re Clarkson
Re Clarkson concerned an application by the Clarkson Whānau, specifically Ketepunga Matana Clarkson, Ketepunga Kaylene Clarkson, and Catherine Clarkson over an area stretching from the north of Whangaehu (in Central Hawke’s Bay) to the south side of Cape Turnagain (in the Tararua District), covering approximately 14.6 km of coastline. This application overlapped with four others, and those four overlapping claimants appeared as interested parties opposing the application. They were: Ngāti Kere, Ngāti Kahungunu, Rangitāne, and Te Hika o Pāpāmua.
Her Honour Mallon J ultimately dismissed the application, but delayed that dismissal for six months to allow the Clarkson whānau to amend their application to a PCR application over the gathering of karengo seaweed. A critical issue in the case was mandate – the interested parties argued that the Clarkson Whānau did not have the mandate to bring the application on behalf of the hapū who had mana whenua rights over the area, and did not hold the area in accordance with tikanga. Mallon J agreed, finding that on the evidence and despite their enduring connection to the coast, it was not the Clarkson Whānau who held the application area in accordance with tikanga, but rather the hapū of that area.[17] Other important aspects of the judgment included:
- an important discussion of the mandate of applicant groups more broadly;[18] and
- a finding that land ownership of the area is only a relevant factor to be considered when determining whether CMT exists, rather than being a mandatory consideration or the only relevant factor.[19]
Ngā Potiki
Ngā Pōtiki concerned the first stage of an application for a single CMT by seven applicant groups over Te Tāhuna o Rangataua, the eastern-most part of the Tauranga Harbour. Powell J granted CMT to five of the applicant groups (collectively referred to as the Rangataua Working Party applicants), who sought to hold that CMT jointly through a new legal entity called Ngā Pāpaka o Rangataua.
His Honour Powell J held that the hapū of the Rangataua Working Party clearly satisfied the statutory requirements for CMT, having maintained a strong physical and cultural uninterrupted connection and occupation over Te Tahuna o Rangataua since well before 1840. However, his Honour was not convinced that there was sufficient evidence to find that the two other applicant hapū, Ngāti Ruahine and Ngāi Te Ahi (both physically located further away from the harbour, but with the latter having strong whakapapa links to the successful hapū), had met the test for CMT.
Again, a non-exhaustive list of some of the most important aspects of the decision includes:
- a firm affirmation of Churchman J’s tikanga-centred approach to the phrase “holds in accordance with tikanga”;[20]
- a definition of exclusivity that is also tikanga-centred, and determines that use and occupation do not have to be continuous or constant;[21]
- an approach which essentially encouraged a joint, unified application for a single CMT to be shared amongst the applicant hapū;[22] and
- an important shift in the approach to extinguishment of customary rights, whereby Powell J characterised the orthodox position as “customary rights, once extinguished, cannot revive unless legislation specifically provides otherwise”.[23]
The first theme: application of tikanga as law and evidence
The three cases under the Act this year have reflected two aspects of the Courts’ evolving approach to assessing and applying tikanga Māori.
The first aspect is in relation to how the Courts have treated tikanga in fact. In all three of the cases, the Judges heavily engaged with evidence in relation to tikanga practices and processes when considering applications for PCR and CMT. On one hand, this is unsurprising, given that the statutory tests require the applicant groups to prove that PCRs have been exercised in accordance with tikanga, and CMT has been held in accordance with tikanga. The Courts therefore are practically required to engage with evidence of tikanga practices as part of the proceedings.
On the other hand, this does give rise to the relatively novel situation whereby the Courts are carrying out often in-depth analysis of lengthy tikanga-based evidence by a number of applicant groups and witnesses. Outside of certain specific areas such as resource management law,[24] this level of engagement with tikanga-based evidence is arguably not a common occurrence in the Senior Courts. For example, in each of the three cases, the Judges closely considered the practice of collecting resources (including kaimoana, plants for rongoā, and wai tai or wai tapu),[25] as well as more intangible practices such as karakia and wānanga,[26] and the issuing of rāhui both as possible PCRs, and in assessing whether an applicant group held an area in accordance with tikanga.
What this might mean for the future is that mere assertion of principles such as kaitiakitanga and manaakitanga will be insufficient for success in the Court system. As the Courts, for better or worse, become more comfortable with the principles and assessing tikanga-based evidence, applicant groups may have to provide more detailed evidence of specific practices grounded within those principles in order to succeed in an application for PCRs or CMT. A statement that an applicant group practices kaitiakitanga or are kaitiaki does not appear to be enough; applicant groups will need to show that they have carried specific activities evidencing their role as kaitiaki. For example, in Re Edwards, when considering an application by Te Uri o Whakatōhea Rangatira Mokomoko for a PCR over activities relating to their role as “protectors of the western boundary of Whakatōhea and protectors of the natural resources…”, Churchman J found that a PCR could be granted only over the activities specified and detailed in the witness evidence (which related to planting on the dunes of the takutai moana to preserve their health) rather than a broader PCR encompassing kaitiakitanga more generally.
The willingness of the Courts to substantially engage in this evidence is a positive sign, but also brings its own challenges. Evidence of these particular activities may be difficult to articulate in detail, either because the kaumatua who are practiced in carrying them out may have passed away (given that some applicant groups, such as those in the Re Edwards hearing, waited close to two decades for their day in court), and because of the tapu nature of certain activities and the mātauranga related to those activities, meaning that some witnesses may be unwilling to share details of the activities in court.
The second aspect is the role of tikanga as law. It is apparent from the three judgments this year that the Courts have been willing to apply principles of tikanga and/or a tikanga-based approach, in tandem with western legal concepts found within the Act. This is arguably a reflection of the growing application of tikanga as part of Aotearoa New Zealand’s law more generally, evident in a range of cases occurring over the past several years,[27] as the Courts push New Zealand’s law closer towards William J’s conception of “Lex Aotearoa” or the “Third Law”. There are two compelling examples of this approach. The first is the interpretation of the phrase “holds in accordance with tikanga”. In Re Edwards, counsel for the Attorney-General, as well as counsel for the Landowners Coalition, submitted that the term needed to be interpreted with reference to Western proprietorial, or proprietary-like concepts, such as intention to control the area, or intent to exclude others.
His Honour Churchman J held differently. The Judge engaged in an analysis of tikanga as at 1840, and stressed that the Western concepts of Dominium and Imperium had no counterpart in tikanga Māori. Instead:[28]
In the Māori view of creation, the central figures are Papatūānuku (the earth mother) and Ranginui (the sky father) with the earth being created when these two were thrust apart by their children. They are regarded in tikanga as ancestors and one does not own one’s ancestors. Ancestors are the source of whakapapa and whakapapa is a tikanga that dictates Māori societal norms and relationships. In tikanga rather than there being an emphasis on exclusive individual or collective title to any part of land, the focus was on the use of and relationship with resources of the land and sea including manaakitanga. Perhaps most importantly for this litigation the concept of exclusion was fundamentally inconsistent with the tikanga values of manaakitanga and whakapapa.
The Court determined the term “holds in accordance with tikanga” was different to be a proprietor of the area. The exercise involved looking outward from the applicant’s perspective rather than around European legal concepts.[29] That is, the starting point for that part of the statutory test entailed identifying the relevant tikanga of the area, and determining who holds the area based on tikanga evidence and the lived experience of the applicant groups.[30] This was an affirmation of the Māori Land Court’s approach to the term, which is also used to determine whether land is customary Māori land under the Te Ture Whenua Māori Act 1993.[31]
Their Honours Powell J and Mallon J supported this approach. In Re Clarkson, Mallon J cited with approval the Māori Land Court case of John da Silva v Aotea Māori Committee and Hauraki Māori Trust Board (which Churchman J referred to when making his ruling in the paragraph above), where the Court held that “in relation to the word “held” that “there is no connotation of ownership but rather that it is retained or kept in accordance with tikanga Māori”.[32] Mallon J went on to state that “holds the specified area in accordance with tikanga” is something different to being the proprietor of the area - it is a factual assessment and one that will be heavily influenced by those who are experts in tikanga.[33]
In Ngā Pōtiki, Powell J described Churchman J’s approach to the term as “clearly correct”, as the more territorial-like rights for CMT (as opposed to usufructuary-like rights under PCR) Act did not require or imply any requirement for reading into tikanga a legal concept like “proprietary” – it was neither a prerequisite to the issue of a CMT, nor a component of the test to be applied.[34]
What is perhaps more important than these acknowledgements by the Court, was the application of those principles within the statutory test. Both Mallon and Churchman JJ engaged in a detailed assessment of whakapapa and whanaungatanga relationships between the applicant groups, to consider who in fact held the application area in accordance with tikanga, or in the words of the pūkenga in Re Clarkson, who were the people with the “sand between their toes”.[35] In both cases, the Judges appeared to be aware of the interconnection between mana moana/mana whenua, and whakapapa and whanaungatanga – described above by Williams J as a “unifying principle” within tikanga Māori. Similarly, Powell J detailed and affirmed evidence given by Dr Kahautu Maxwell, who stated that mana over the takutai moana was through whakapapa, which afforded an individual or hapū entitlement to the takutai moana. This whakapapa (and subsequently) mana connection was an important part of Powell J’s conclusion that the Rangataua Working Party held the area in accordance with tikanga.[36]
The second example is the concept of “substantial interruption”. This was a particularly important issue in Re Edwards, where the hapū of Whakatōhea had been subject to a significant raupatu over their whenua in 1866, when the Crown confiscated some 448,000 acres of land in the eastern Bay of Plenty, including all of the land abutting the coastline under the New Zealand Settlements Act 1863, as “punishment” for participating in the land wars, and in response to the killing of missionary C S Völkner.[37] Alongside the confiscation, extensive looting and destruction of Māori assets resulted in significant economic, spiritual and physical hardship for the hapū of Whakatōhea. Churchman J acknowledged this, but importantly, stressed that this did not substantially disrupt the relationship that the applicant groups had with the takutai moana.[38] His Honour referred to an acknowledgement by the Crown historian that Whakatōhea hapū continued to use and rely on the takutai moana for sustenance, and maintain their relationship and connection with the area. Referring to the experience of Moriori on Rekohu, Churchman J held that the confiscation of lands and destruction of property (the outcome of raupatu across the country) would not necessarily severe the connection of a group to an area if they continued to exercise their rights over it, which occurred here with Whakatōhea hapū and the takutai moana.
This is a critical part of the decision, both for the applicant groups in that case, and for applicants with future hearings. Despite certain academics and the Waitangi Tribunal suggesting that application of the New Zealand Settlements Act 1863 in confiscating land in certain regions was legally tenuous at best and wholly unlawful at worst,[39] it would be a significant challenge to argue that all confiscatory actions by the Crown in all cases under the Act were ultra vires or unlawful, particularly given Fitzgerald J’s recent decision in Te Ara Rangatū o te iwi o Ngāti Te Ata Waiohua Inc v Attorney-General, where it was held that confiscation of land on the Āwhitu Peninsula in 1864 under this particular Act was lawful.[40]
Therefore, the Court in Re Edwards has signalled that the better approach is not to take the legal route, but to consider substantial interruption on a foundation of tikanga. That is, the key question is not:
Was the raupatu which confiscated land (including land abutting the takutai moana) legal?; but
Did the raupatu sever the applicant group’s connection with the takutai moana, or do they still exercise their rights under tikanga over the area?.
This assessment will likely entail consideration of whether the applicant group continues to exercise ahi kaa, their role as kaitiaki over the area, and other customary rights such as the gathering of kaimoana.
Substantial interruption may obviously still be made out in other circumstances, and Churchman J signalled as such in Re Edwards.[41] However, without this approach, it is likely that the prospect of success for many applicant groups across Aotearoa could be severely inhibited under the Act. Given the number of iwi who have been subject to historical raupatu/confiscation, a strictly legalistic approach to raupatu which automatically presumes substantial interruption would make the statutory test even harder to satisfy.
The second theme: exclusivity
A large number of the applications under the Act overlap each other. A critical issue for the courts therefore, is how multiple applicant groups can be awarded CMT when each one needs to prove “exclusive use and occupation” over an area. This is where the concept of “shared exclusivity” is important.
At first glance, the concept “shared exclusivity" may appear oxymoronic. However, to understand the importance of the concept to the cases heard under the Act, as well as its potentially critical role in future cases, the statutory language and text needs to be considered. As discussed above, for an applicant group to succeed in being granted a CMT order, they need to prove exclusive use and occupation from 1840 to the present day without substantial interruption.[42] There is an awkward juxtaposition between this requirement, and the requirement under s 58(1)(a) that the applicant group hold the specific area in accordance with tikanga. This is because the common law concept of exclusivity in possession or ownership in relation to land, coasts, lakes, and rivers differs greatly from the complex web of whakapapa-based collective rights within tikanga and te ao Māori – with whanaungatanga being described extrajudicially by Williams J as the “unifying idea” underlying tikanga:[43]
Relationships are not contractual or proprietorial. They are not freely entered into. They are blood relationships in which the relationship itself dictates its terms and conditions. Other values such as mana, tapu, utu and kaitiakitanga should really be seen as effects or consequences of whanaungatanga. This is important to understand.
Both Churchman and Mallon JJ have acknowledged this tension in decisions under the Act, citing the Waitangi Tribunal’s 2003 Te Whanganui a Tara Report, where it described such rights under tikanga as:[44]
Māori customary rights to land and associated waterways and to the sea were complex, fluid, and multilayered. Physical occupation and cultivation created only one layer of rights, albeit an important one.
The tension between these systems of law comes to a head through s 58. A significant challenge for the courts posed by the Act is how to avoid perpetuating further injustice whereby an applicant group is denied CMT under the principles of the common law, for not using and occupying and using an area exclusively, but instead sharing it with other groups (such as other whānau, hapū or iwi) – an approach that can be entirely consistent with tikanga Māori.
This is where the concept of “joint” or “shared” exclusivity provides some sort of middle ground. The concept arises from Canadian jurisprudence concerning native title, particularly the Canadian Supreme Court case of Delgamuukw v British Columbia.[45]
In that case, two First Nations groups (the Gitxsan and Wet’suwet’en peoples) sought a declaration of ownership from the Courts over their traditional lands. The case, which had a lengthy procedural history, eventually came before the Supreme Court, who considered the concept of native or “Aboriginal” title, and determined that it was based on exclusive use and occupation of lands, in accordance with customary laws prior to the assertion of British sovereignty.[46]
A majority of the Court (with reasons given by Lamer CJ) suggested that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognising that joint title could arise from shared exclusivity. That concept was described by the judges as follows:[47]
The meaning of shared exclusivity is well-known to the common law. Exclusive possession is the right to exclude others. Shared exclusive possession is the right to exclude others except those with whom possession is shared. There clearly may be cases in which two aboriginal nations lived on a particular piece of land and recognized each other’s entitlement to that land but nobody else’s.
Given the similarity in language between the statutory test under s 58, and the language of “exclusive use and occupation” in the test for Aboriginal title, it was always likely that the concept of shared exclusivity would arise in cases under the Act. This occurred in Re Edwards, where both counsel for a number of the applicant groups, as well as counsel for the Attorney-General, suggested that the concept of “shared exclusivity” could be applied in relation to the s 58 test for CMT. Churchman J accepted that it could, and concluded that the structure of the Act was consistent with a jointly held CMT between applicant groups, rather than two overlapping CMTs for the same area each held by different parties (as multiple CMTs would give rise to practical problems with the exercise of rights flowing from those CMTs).[48] An award of CMT, jointly held between a number of the applicant groups, was awarded, with Churchman J expressing that while there clearly needed to be co-operation and agreement between the holders of joint CMT, these were not insurmountable issues, because:[49]
Tikanga has in the past provided for the exercise of a complex web of overlapping rights. It should be able to assist in parties holding CMT on a joint or shared exclusive basis working out how to jointly exercise the rights conferred by a grant of CMT.
A similar approach was taken by Powell J in Ngā Pōtiki. His Honour awarded a single CMT to be held jointly between five applicant groups as part of the Rangataua Working Party, who Powell J found had provided clear evidence of a “deep and abiding connection” on a practical, cultural, historical and spiritual level with the application area, and had used and occupied the application area, with very little third party interference, since well before 1840.[50]
It is also worth noting that Powell J affirmed the approach to exclusivity in Re Edwards, and then arguably advanced it slightly further – acknowledging that “there is no indication that [the Act] has set out a test that cannot possibly be met”.[51] Instead, noting that s 7 of the Act confirms that it was intended to acknowledge Te Tiriti o Waitangi, Powell J held that it was quite clear that the requirement for exclusive use and occupation in s 58(1)(b)(i) "does not in fact require exclusivity" nor indeed occupation that is either continuous or constant.[52] Instead, interpretation of the concept needed to be informed by tikanga. For example, when considering whether third party access was consistent with exclusive use and occupation, Powell J referred to Delgamuukw (and the more recent Canadian Supreme Court case of Tsilhqot’in Nation v British Columbia), and noted that the applicant’s own customs would need to be applied in making this assessment.[53] Therefore, exclusive use and occupation, when reconciled with the rest of the Act, clearly sets a much lower threshold than the wording of the section would otherwise suggest. What is required, according to Powell J, is evidence of authority giving rise to an ability or intention to exclude others, noting that tikanga may not in fact require the actual exclusion of third parties at any point.[54]
While the issue of shared exclusivity did not explicitly arise in Re Clarkson, Mallon J appeared to support its approach, noting:[55]
Shared exclusivity is not what is envisaged by this applicant group. It might be appropriate where there are overlapping claims, as is the case with Ngāti Kere, Rangitāne, Te Hika o Pāpāuma and Ngāti Kahungunu, if each of these groups met the statutory test for a CMT.
The concept of “shared exclusivity” and its application so far should be approached with cautious optimism. It is apparent that the Courts have sought to utilise a concept which allows them to (hopefully) avoid some potential injustices arising from Parliament’s somewhat contradictory requirements under s 58. The concept essentially applies principles from both the common law and tikanga Māori, by incorporating an approach where “exclusivity” can at least partly accommodate principles of whanaungatanga, in which applicant groups can provide evidence of “sharing” their exclusivity and thus jointly hold CMT. While still not necessarily easy to satisfy, the statutory threshold has been interpreted in a manner which is fairer and more practical than what appears from the text at face value. The Courts, particularly Powell J in Ngā Pōtiki, have been clear that exclusivity, shared or otherwise, should be centred around tikanga Māori, rather than the strict ownership-based rules of property law.
This is important. One of the biggest risks in adopting the concept of “shared exclusivity” – and this risk is still present – is the possible overreliance of counsel or the Courts on Canadian or Australian case law. I do not purport to be an expert in any way on either of these jurisdictions, but the Act is New Zealand law, and New Zealand law is currently in an arguably unparalleled situation. It is currently in the process of an evolution where tikanga Māori and the common law are increasingly applied and acknowledged together – as two parts of a unique legal system. It is not, in Churchman J’s words in Re Edwards, particularly helpful to attempt to strictly apply the Canadian and Australian jurisprudence on Aboriginal title, or traditional Western proprietary concepts, and in fact doing so could result in unjust outcomes whereby the statutory threshold is rendered almost impossibly high if the applicants have to prove exclusivity based on Western proprietary concepts alone. The critical focus in considering exclusivity, or shared exclusivity, must be on tikanga. This perhaps reflects the courts approach to embracing an emerging common law of Aotearoa, or "Lex Aotearoa", whereby western legal concepts and tikanga Māori are both applied together.
The third theme: the mandate of the applicants
The issue of who can, and/or should, hold the mandate to represent whānau, hapū or iwi groups who have mana whenua over the takutai moana is one faced by both the courts and applicants in cases under the Act so far, particularly where applications overlap.
The difficulty of an appropriate mandate is not a new one in Māori-Crown relations. The Treaty Settlement Process has been encumbered by a number of mandate-related issues, and there has been considerable criticism of how the mandate structure has been applied in that context.[56] Dalton-Mill identifies three discrete issues with the Crown’s approach to overlapping claims and mandate in relation to tikanga Māori:[57]
a. The Crown adopts a Western approach, and imposes Western concepts of time on Māori claimants, when for those claimants, reaching a state of ea (settlement or resolution) may take a long time under tikanga, particularly where intergenerational mamae and raruraru are involved;
b. The Crown utilises a “predominance of interests” approach that is individualistic and runs counter to tikanga;
c. The Crown does not require overlapping claims to be dealt with according to tikanga, or through a tikanga-based process.
Therefore, a significant challenge for the Courts in cases under the Act is how to avoid the injustices and difficulties that arise from mandate requirements present in a statutory framework arguably even more inflexible than the Treaty Settlement process.
The answer ultimately lies with Dalton-Mill’s third identified issue. That is, the application of a tikanga-based process whereby whānau, hapū and iwi can consider who has the mandate to represent them, and if successful, to hold CMT and PCR for them, based on their own tikanga. Autonomy and sovereignty, mana and rangatiratanga, need to be placed back with these groups for a successful process to occur. This is difficult in a highly-westernised legal framework, and in a court system dictated by strict time constraints. But, the Courts so far appear to be cognisant of this issue, and have taken certain steps arguably in the right direction to resolve it.
Take, for example, Re Edwards. In that case, the court adjourned for a week during the hearing in order to allow the applicant groups to engage in a tikanga-based process of kōrero between each other, facilitated by the two pūkenga appointed in that case, Mr Doug Hauraki and Dr Hiria Hape.[58] Following the process, and after the evidence had been presented, the pūkenga were able to devise a tikanga-based poutarawhare as a construct whereby they considered the parties who held the application area in accordance with tikanga could jointly hold a single CMT together. This was adopted by the Court, who accepted the approach and used it to help determine its conclusion as to who held the area in accordance with tikanga.[59]
The rohe of Whakatōhea has previously faced challenges with mandate in relation to Crown policy and practice. A Waitangi Tribunal inquiry (with the report issued in 2018) found that the Crown's recognition of the mandate of the Whakatōhea Pre-settlement Claims Trust) to negotiate settlement of historical Treaty of Waitangi claims breached the Treaty principles of partnership and active protection by prioritising its political objective of concluding settlements by mid-2020 over a process that was fair to Whakatōhea.[60]
The Court appeared keen to avoid similar issues arising here. This is where the benefit of appointing pūkenga, and allowing where possible for a tikanga-facilitated process, is evident. As Dr Carwyn Jones has noted, if the Crown is going to get the often-raised issue of mandate right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.[61] Similarly, the Courts appear to be aware that in order to both avoid future injustices, and provide for a durable scheme for the takutai moana in Aotearoa New Zealand, they must at least provide some support for the applicant groups to engage in a tikanga-based process of determining mandate. Sections 99 and 107 of the Act will be important provisions if a tikanga-based process is to succeed going forward. Section 99 allows the Court to appoint a pūkenga or refer a question of tikanga to the Māori Appellate Court, while s 107 allows the Court flexibility in dealing with an application, and preserves its inherent jurisdiction. This allows the Court some flexibility to work with the pūkenga or the Māori Appellate Court to develop its own bespoke rules and processes for hearings that are tikanga-compliant, and to hopefully circumvent the sometimes-rigid nature of the Act and traditional court proceedings. As discussed above, Re Edwards provides a useful template for the role of pūkenga that can hopefully evolve futher in future hearings.
It is important to reiterate here that this is far from an easy task. The Act and the Court system are inflexible; courts will likely be unwilling to continually adjourn or postpone hearings, and the adversarial nature of the Courts themselves do not easily allow for a consensus-building, tikanga-based process. This inflexibility, and the issue of mandate has also arguably further been augmented by the somewhat arbitrary cut-off date in the Act, which required whānau, hapū, and iwi to have determined their application area and resolved a mandate for representation, in order to file an application within six years of the Act passing (the statutory cut-off date for filing was April 2017).[62] However, where the Courts have been able to provide the applicant groups with some support, such as through pūkenga, tikanga-based processes and encouraging consensus-building before and during the hearing, those applicant groups have been able to take those opportunities offered, and effectively utilise them to formulate a clearer mandate.
Similarly, in Ngā Potiki, the parties appeared to present a relatively consistent and complementary approach to the application. The seven applicant groups, particularly the five groups within the Rangataua Working Party, sought a single CMT, and by presenting evidence as a united front (such as expert evidence on tikanga and mātauranga Māori), this appeared to make it easier for the Court to determine who held the area in accordance with tikanga. It can be inferred from this judgment that the consensus reached between the parties before the hearing started, made the issue of mandate, as well as the overall statutory assessment, easier of the Court to consider.
Re Clarkson also evidenced the importance of this approach, but in different circumstances which led to a different result. A critical issue in that case was whether the Clarkson whānau group, or the broader hapū (Ngāti Kere), held the mandate to bring an application over the specified area. Mallon J concluded that on the evidence, particularly the tikanga evidence in this case, a hapū mandate was necessary and tika in these circumstances.[63] The Clarkson Whānau was only one of a number who had a deep and abiding connection with the takutai moana in the application area, but they did not have the mandate to represent those other whānau.[64]
This determination (as it arguably was also in Re Edwards) was informed by an assessment of who held the application area in accordance with tikanga – which included detailed consideration of the tikanga evidence. Mallon J held:[65]
To put it another way, if any group holds the area in accordance with tikanga and has exclusively used and occupied it since 1840, I am not satisfied the applicant group advanced here is the group that does so. They may be some of such a group but the evidence is that others would be included in that group. This means that a mandate to represent those others must be shown.
Her Honour stressed that the process of applying under the Act was not sufficient to demonstrate mandate in itself. Instead, there needed to be consideration of the ‘tika’ approach – that is, who on the evidence, had the right and ability under tikanga, to represent the whānau and or hapū of the area.[66]
Ngā kupu whakatepe - Conclusion
Where to from here – concluding and looking toward the future
As discussed above, the three cases released so far give cause for cautious optimism about the Act and how it may apply in the future. Caution is required, given that the statutory tests under the Act have a high threshold, and will be difficult to apply in some situations, such as where there are a large number of overlapping applicants. However, applicants can also be optimistic in noting that the Courts have sought to remedy these challenges through a willingness to engage with and apply tikanga, and find novel means to deal with issues such as exclusivity and substantial interruption. In my view, an analysis of the decisions so far suggests that there are three factors useful to bear in mind for future cases:
- First, it appears critical that a unified mandate is sought before a hearing. The success of this is clear from Ngā Pōtiki and Re Edwards, and in the dismissal of the application in Re Clarkson. While this is not necessarily easy to reach agreement and mandate in a system governed by western law, a benefit of reaching a mandate before the hearing is that the parties are less constrained by the law, and can carry it out on a tikanga-governed basis, and then take that tikanga approach to the Court, rather than the other way round.[67]
- Second, the increased use and application of tikanga gives rise to the risk that it may be misapplied and misinterpreted in correlation with Western legal concepts. Annette Sykes has aptly commented on this risk, and noted the huge strain upon the Courts to deal with over 200 applications under the Act.[68] This is where use and appointment of pūkenga (the practice of the Courts so far is to appoint a pūkenga nominated by the parties) and expert witnesses will be absolutely critical in ensuring the local tikanga, and more general principles, are carefully articulated and applied.
- Third, there are a number of issues in relation to the statutory tests under the Act that will require further clarification and development. Churchman J's decision in Re Edwards has been appealed to the Court of Appeal on both questions of law and on factual findings. It is likely that the critical concepts guiding Churchman J's decision, including joint exclusivity, the effect of the dual pathway (i.e. ensuring that those groups directly negotiating with the Crown will not be prejudiced by awards of CMT or PCR granted by the Courts), and the interpretation of exclusive use and occupation, "held in accordance with tikanga", and substantial interruption will all be considered on appeal. Appellate court guidance on these concepts by the highest courts will be useful, and is needed. Clarification on discrete issues will also be needed – for example the appellate courts may need to reconsider the Supreme Court decision of Paki v Attorney-General (No 1),[69] given the issue of CMT over river mouths leading into the moana being extinguished by law in light of that case has arisen, and likely will continue to arise.[70]
If applied in a zealously strict manner, the Act has the potential to perpetuate injustice, rendering many claims nearly impossible to succeed. The Waitangi Tribunal has already criticised the procedural aspects of the Act as falling well short of Treaty compliance.[71] But the Courts have not yet taken that approach, and appear conscious of their role, both in dealing with applicant groups who have waited many years for their claims to be heard, and their position in Aotearoa New Zealand’s evolving legal system. Hence, a promising start.
Ngā kupu āpiti - Notes
* The author worked as a Judges’ Clerk for Justice Churchman during the time Re Edwards was heard, written and released. Views expressed are the author’s own.
[1] See Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 12 Waikato Law Review 1; and Ani Mikaere “Tikanga as the First Law of Aotearoa” (2007) 10 New Zealand Yearbook of Jurisprudence 24.
[2] Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (WAI 1071, 2004).
[3] Pākia ki uta pākia ki tai | Report of the Ministerial Review Panel: Ministerial Review of the Foreshore and Seabed Act 2004 (30 June 2009).
[4] Marine and Coastal Area (Takutai Moana) Act 2011, s 4. I acknowledge that the Act has a number of other objectives as set out in s 4, but for the purposes of this article, this is the most important one.
[5] Marine and Coastal Area Act 2011, s 51(1).
[6] Marine and Coastal Area Act 2011, s 58.
[7] The first substantive case under the Act, Re Tipene [2016] NZHC 3199, was released nearly five years ago, and concerned an application over a small marine and coastal area to the south west of Rakiura. Although analysis of Re Tipene is outside the scope of this current article, which focuses on the key jurisprudential themes arising from the 2021 Takutai Moana cases, the decision is of importance because it provided a template for how the Act might be applied, and is referred to and affirmed in all three of the 2021 cases. For analysis of that decision, see: https://maorilawreview.co.nz/2017/03/takutai-moana-customary-marine-title-recognised-rakiura-status-of-applicant-tipene/.
[8] Re Edwards (Whakatōhea (No 2)) [2021] NZHC 1025 (“Re Edwards”).
[9] Re Clarkson & Ors [2021] NZHC 1968 (“Re Clarkson”).
[10] Ngā Pōtiki & Ors – Stage 1 – Te Tāhuna o Rangataua [2021] NZHC 2726 (“Ngā Pōtiki”).
[11] See [57]-[76], particularly [73]-[76].
[12] See [78]-[103].
[13] At [69] and [110].
[14] At [272]-[308].
[15] At [200] and [204]-[206].
[16] At [145]-[168].
[17] See [226]-[227].
[18] At [158]-[172] and [218]-[228].
[19] At [173]-[195].
[20] At [24]-[28].
[21] At [29]-[45].
[22] At [9].
[23] At [147].
[24] See for example, cases involving wāhi tapu under the Resource Management Act 1991, such as Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496, and Taueki v McMillan – Horowhenua 11 (Lake) Block (2014) 324 Aotea MB 144.
[25] See, for example, Re Edwards, above n 8, at [175]-[176] and [550]-[552]; Ngā Potiki, above n 10, at [82]-[83]; and Re Clarkson, above n 9, at [81]-[90], [118] and [146].
[26] It is important to note that under s 51(2)(e), intangible practices may only be recognised as PCR if it is manifested by the relevant group in a physical activity or use related to a natural or physical resource. In Re Edwards at [381] Churchman J held that this could include practices such as karakia and wānanga, if there was evidence applicant group going down to the takutai moana to perform a karakia or going to the takutai moana for the purpose of wānanga, tangihanga or sharing mātauranga Māori.
[27] See for example Trans-Tasman Resources Limited v The Taranaki-Whanganui Conservation Board [2021] NZSC 127; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291; Mercury NZ Ltd v Waitangi Tribunal [2021 NZHC 654; Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2020] NZCA 86; and Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].
[28] At [111].
[29] At [130].
[30] At [130]-[131].
[31] Te Ture Whenua Māori Act 1993, s 129(2)(a). See also John da Silva v Aotea Māori Committee and Hauraki Māori Trust Board (1998) 25 Tai Tokerau MB 212 .
[32] Re Clarkson, above n 10, at [181].
[33] At [204].
[34] At [25].
[35] Re Clarkson, above n 9, at [202] and [204]; and Re Edwards, above n 8, at [306]-[307].
[36] See [78]-[79].
[37] For a detailed discussion of the history of this raupatu, see Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea (Penguin Books, Auckland, 2007). The killing of Volkner of course led to a further injustice for Whakatōhea Māori – the trial and execution of Mokomoko. See s 3 of the Mokomoko (Restoration of Character Mana and Reputation) Act 2013, Te Ture mō Mokomoko o Hei Whakahoki i te Ihi, te Mana, me te Rangatiratanga; and Craig Coxhead “Bring them Justice” (2000) 4 New Zealand Yearbook of Jurisprudence 43.
[38] At [202].
[39] See Richard Boast “An Expensive Mistake: Law, Courts and Confiscation on the New Zealand Colonial Frontier” in Richard Boast and Richard Hill (eds) Raupatu: The Confiscation of Māori Land (Victoria University Press, Wellington, 2010); and Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi (Wai 143, 1996) at 128-129.
[40] Te Ara Rangatū o te iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882. See David Williams’ Māori Law Review Article for further commentary on the matter: Raupatu - declarations of unlawfulness and breach of fiduciary duties refused - Ngāti Te Ata.
[41] See [230].
[42] Section 58(1)(b)(i).
[43] See Joseph Williams “He Pukenga Wai” (lecture delivered at the Resource Management Law Association’s Annual Salmon Lecture, September 2019) at 7-8.
[44] Te Whanganui a Tara Me Ona Takiwa: Report on the Wellington District (Waitangi Tribunal Report Wai 145, 2003) at [2.2]. See Re Tipene, above n 7, at [15]; and Re Edwards, above n 8, at [122].
[45] Delgamuukw v British Columbia [1997] 3 SCR 1010.
[46] See [112]-[115].
[47] At [158].
[48] At [169].
[49] At [170] (footnote omitted).
[50] See [79] and [83]-[84].
[51] At [32].
[52] At [34]-[35].
[53] At [38]-[40].
[54] At [41].
[55] At [225].
[56] See for example, Waitangi Tribunal Whakatōhea Mandate Inquiry Report (Wai 2662, 2018).
[57] Morgan Dalton-Mill “Te Ara Tika: Towards Tikanga-centric Processes for Māori Claimants to Resolve Overlapping Claims of Mana Whenua Status over Rohe in Aotearoa’s Treaty Settlement Process” (LLB (Hons) Dissertation, University of Auckland, 2021) at 19-20.
[58] For some background to this, see Re Edwards - Minute no.22 of Churchman J (13 August 2020). All of the minutes and judgments concerning the Act are available at: hwww.courtsofnz.govt.nz/the-courts/high-court/high-court-lists/marine-and-coastal-area-takutai-moana-act-2011-applications-for-recognition-orders/.
[59] Re Edwards, above n 8, at [331].
[60] Waitangi Tribunal Whakatōhea Mandate Inquiry Report, above n 38.
[61] https://maorilawreview.co.nz/2018/05/whakatohea-mandate-inquiry-report-recognising-a-mandate-to-negotiate-a-settlement/.
[62] See s 100(2) of the Act.
[63] At [227].
[64] At [220].
[65] At [226].
[66] At [227].
[67] For a detailed discussion of the issue of mandate in overlapping claims disputes, see Rhianna Morar Kia Whakatōmuri Haere Whakamua: Implementing Tikanga Māori as the Jurisdictional Framework for Overlapping Claims Disputes (2021) 52 VUWLR 197; and Morgan Dalton-Mill Te Ara Tika:Towards Tikanga-centric Processes for Māori Claimants to Resolve Overlapping Claims of Mana Whenua Status over Rohe in Aotearoa’s Treaty Settlement Process, above n 39.
[68] See Annette Sykes “The Myth of Tikanga Māori in the Pākehā Law” (Nin Thomas Memorial Lecture 2020, Auckland Law School, 5 December 2020).
[69] Paki v Attorney-General [2012] NZSC 50; [2012] 3 NZLR 277.
[70] See the discussion of this in Re Edwards, above n 8, at [342]-[361].
[71] See Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report (Wai 2660, 2020).
