Māori applicants succeed in seeking marine title and coastal rights in Hawkes Bay, but old legal requirements block one group winning a long fight over the Mōhaka River entrance
The third significant case in a row taken under the Marine and Coastal Area (Takutai Moana) Act has seen Māori awarded customary marine title and protected rights, this time across a long stretch of Hawkes Bay coast.
But a decades long fight by local Māori to regain control to protect the mouth of the Mohaka River did not succeed, because of a quirk in a coal mines law and a Supreme Court judgment that prevented the High Court granting Ngāti Pāhauwera marine title.
The Hawkes Bay case comes after successful early applications under the Marine and Coastal Area (Takutai Moana) Act by iwi in the eastern Bay of Plenty around Opotiki, and for Tauranga Harbour.
A total of 250 groups are seeking declarations of their title to waters and the shore, and for customary rights such as collecting hangi stones, sand, driftwood, and whitebait fishing and waka launch sites.
The Act replaced the controversial Foreshore and Seabed Act 2004 and provides for marine title for successful applicants who can demonstrate they have held the particular coast and waters in accordance with tikanga and exclusively used and occupied it from 1840 without substantial interruption.
Customary marine title is a property interest that allows iwi to have a say over certain activities that need resource consent, for example the building of new wharves or fish farms. It does not restrict free public access, fishing recreation and many other common activities.
Preliminary hearings and substantive cases are lined up from February throughout this year, from Whāngarei to Nelson and Dunedin, and from Gisborne to New Plymouth.
"There is no doubt that Ngāti Pāhauwera held this area in accordance with tikanga as at 1840 and have continued to do so." – Justice Peter Churchman
In the Hawkes Bay case, coastline from 11km south of Napier up to a stream just south of Wairoa will be divided between the four applicants – Ngāti Pāhauwera (near Mōhaka), Ngai Tahū O Mohaka-Waikare, Maungaharuru-Tangitū Trust, and Ngāti Pārau.
All identify as members of the Ngāti Kahungunu iwi, but also see themselves as having distinct identities.
As well as hearing evidence of the groups' continued use of the coast, and observance of tikanga, the court heard from the seafood industry, Hawkes Bay Regional Council, Pan Pac Forest Products Ltd (which runs a paper mill with an effluent discharge to the sea), and outdoor recreation associations.
The case is in the name of Ngāti Pāhauwera as it had already made an application under the former Foreshore and Seabed Act for a customary rights order, and had had direct negotiations with the Crown before that law was replaced.
Justice Peter Churchman said: "The history of Ngāti Pāhauwera’s application for their claimed rights and interests over the takutai moana in their rohe stretches back over three decades."
Evidence from earlier applications and hearings over the Mōhaka River, including the Māori Land Court, the Planning Tribunal, three Waitangi Tribunal inquiries, and a Crown-appointed independent assessor’s report was presented at this case.
"Going back over the history of Ngāti Pāhauwera’s application provides a small but significant illustration of how long Ngāti Pāhauwera have been attempting to have their claimed rights and interests in the takutai moana recognised, and also explains how they became a 'priority applicant' under the Act," the judge wrote.
In this case Ngāti Pāhauwera wanted all the waters under its application to be recognised as wahi tapu (sacred) but Justice Churchman decided specific areas of water could have rahui (bans) imposed on third parties for particular times, but not the entire area. "Only limited evidence was given in relation to the tapu nature of the whole area, all of which related to particular parts of it, rather than the entirety of the area."
Ngāti Pāhauwera were also unsuccessful in seeking title and protection rights orders for the waters where the Mōhaka River meets the sea, this time because of an existing Supreme Court ruling on another river mouth. If the waters are deemed to be 'navigable' they are therefore vested to the Crown under the Coal Mines Act Amendment Act.
If such waters are thus vested in the Crown, title cannot also be granted to others. The coal mines law has since been repealed but the relevant section on navigable river mouths has been continued in the Resource Management Act.
Justice Churchman said it was clear the area where the Mōhaka River reached the sea was of great significance to Ngāti Pāhauwera, was in its core area of interest, and the group had fought for a long time to protect or regain control over it.
He heard evidence on whether the river really was navigable, but because of an earlier court ruling that had to be based on its navigability in 1903.
After hearing historical evidence from lawyers for the Attorney-General, who argued it was navigable, and from local Māori who opposed that view, the judge decided on the balance of probabilities at that time, 119 years ago, the Mōhaka could be navigated.
"Counsel for the Attorney-General adduced a range of evidence which indicated that the mouth of the river was between the late 19th and early 20th Century used as a location/stop for transport, a small hub for trading purposes (particularly materials from farms, such as wool), and as a small port," the judge wrote.
"I am bound by the decision of the Supreme Court in Paki. I note that in that case, the Supreme Court was not applying the law to the circumstances of rivers such as the Mōhaka, which are more influenced by the tides and weather than the Waikato River at Pouakani."
He hinted that Ngāti Pāhauwera could benefit if the issue was now to go up the chain to the Court of Appeal or Supreme Court.
"It is possible that the appellate courts looking at the matter now would not interpret the effect of the Coal Mines legislation in the same way, in light of the different circumstances relating to coastal/tidal rivers that will be subject to the navigability test in application under this Act, and also in light of the Supreme Court’s very recent observations on the importance of the Treaty of Waitangi and its principles in considering construction of statutory language. However, until the decision in Paki is reconsidered, I am bound to follow it."
Justice Churchman went further, however: "I am also of the view that the application of this legislation extinguishing customary Māori title (through the Coal Mines Act, applied via the RMA), effectively amounts to extinguishment via a sidewind, and results in an injustice for the people of Ngāti Pāhauwera in this case.
"The Attorney-General, in closing, acknowledged Ngāti Pāhauwera’s continued and consistent connection to the Mōhaka River, and particularly its mouth... There is no doubt that Ngāti Pāhauwera held this area in accordance with tikanga as at 1840 and have continued to do so and, but for the Coal Mines legislation, would be entitled to an order for [customary marine title] in respect of it."
