Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025

Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025 [7 May 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2011-485-817[2021] NZHC 1025UNDER the Marine and Coastal Area(Takutai Moana) Act 2011IN THE MATTERBYBYBYBYBYBYBYof an application for an order recognisingCustomary Marine Title and ProtectedCustomary Rightsthe late Claude Augustin Edwards(deceased), Adriana Edwards and others onbehalf of Te WhakatōheaDean Flavell on behalf of Hiwarau C,Turangapikitoi Waiōtahe and Ōhiwa ofWhakatōhea (CIV-2017-485-375)Larry Delamere on behalf of Pākōwhai Hapū(CIV-2017-485-264), and Te Whānau-a-Apanui (CIV-2017-485-278)Tracy Francis Hillier on behalf ofNgai Tamahaua Hapū (CIV-2017-485-262),and Te Hapū Titoko o Ngai Tama(CIV-2017-485-377)Muriwai Maggie Jones on behalf of Ngāi Tai(CIV-2017-485-270), and Muriwai MaggieJones and Te Aururangi Davis on behalf ofRiriwhenua Hapū (CIV-20170-485-272)Bella Savage and Waipae Perese on behalfof Te Whānau a Harawaka(CIV-2017-485-238)Te Ūpokorehe Treaty Claims Trust andothers on behalf of Te Ūpokorehe(CIV-2017-485-201)BYBYBYBYBYChristina Davis on behalf of Ngāti MuriwaiHapū (CIV-2017-485-269)Pita Tori Biddle and Karen StefanieMokomoko on behalf of Te Uri oWhakatōhea Rangatira Mokomoko(CIV-2017-485-355)Te Rua Rakuraku on behalf of Ngāti Ira oWaiōweka (CIV-2017-485-299)John Hata, Te Ringahuia Hata andAntoinette Hata on behalf of NgātiPatumoana (CIV-2017-485-253)Whakatōhea Māori Trust Board on behalf ofWhakatōhea Hapū (CIV-2017-485-292)Hearing: 17 August–21 August 2020, 31 August–9 October 2020,19 October–23 October 2020Final written submissions received 15 December 2020Counsel: 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); andTe 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 RangatiraMokomoko (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 forLandowners Coalition IncorporatedH 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-GeneralM Jones for Whakatāne District CouncilT Reweti for Bay of Plenty Regional Council andŌpōtiki District CouncilA Williams for Seafood Industries RepresentativesJudgment: 7 May 2021JUDGMENT (NO. 2) OF CHURCHMAN JTangaroa piki ake Tangaroa rise upTutara Kauika piki ake Tutara Kauika rise upRuamano piki ake Ruamano rise upTaea ngā kino o te wai Cleanse the impurities of the watersKia puta ki Rangiatea So that they may rise to the heavens of RangiateaKo te Maranḡi To fall againTau atu e rea Settling, sustaining the earth11 This whakatauki was given in the affidavit of Ms Te Ringahuia Hata, who appeared as a witnessfor Ngāti Patumoana and Ngāti Ira o Waiōweka.TABLE OF CONTENTSIntroduction [1]PART I – THE PARTIESThe 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 LEGISLATIONStatutory purposes, legislative history and legal conceptsStatutory purposes [22]The Treaty, cession of sovereignty and customary title to theforeshore 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]ExclusivityShared 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 – TIKANGATikanga and the Courts and tikanga values [272]Whakapapa/whanaungatanga [301]Pukenga [308]The pukenga report [311]PART V – TECHNICAL MATTERSLandward boundaries of the takutai moana relating to rivers and estuariesRivers [333]Conclusion [341]Navigable rivers [342]Conclusion [361]Estuaries [362]PCR issuesActivities 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 directengagement and litigation [399]PART VI – ANALYSIS OF THE APPLICATIONSCMTWhakatōhea 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 ofNgāti 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 ofNgāti Patumoana [521]CIV-2017-485-299 – Application by Te Rua Rakuraku on behalf ofNgāti Ira o Waiōweka [535]CIV-2017-483-355 – Application by Te Uri o Whakatōhea RangatiraMokomoko [546]CIV-2017-485-253 – Application by Tracy Francis Hillier on behalf ofNgai Tamahaua Hapū; andCIV-2017-485-262 – Application by Tracy Francis Hillier on behalf ofTe 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 Truston behalf of Te Ūpokorehe [618]CIV-2017-485-270 – Application by Muriwai Maggie Jones on behalf ofNgāi Tai Iwi and Te Uri o Ngāi Tai; andCIV-2017-485-272 – Application by Muriwai Maggie Jones on behalf ofRiriwhenua Hapū [643]CIV-2017-485-292 – Application by the Whakatōhea Māori Trust Boardon behalf of Whakatōhea [649]PART VII – CONCLUSIONS AND SUMMARYCMT [660]PCR [668]APPENDIX A – PUKENGA REPORTAPPENDIX B – WHAKAPAPAIntroduction[1] In these proceedings, the Court is required to determine whether any of theapplicants are entitled to recognition orders for either customary marine title (CMT)or protected customary rights (PCRs) under the Marine and Coastal Area(Takutai Moana) Act 2011 (the Act).[2] Many of the issues that arise have not previously been addressed by the Courts.Therefore, this decision has implications for some 200 other such claims currentlybefore this Court.[3] This decision is divided into seven parts. Part I is the introduction anddescription of the parties. Part II is a discussion of the background and legislativehistory of the Act, as well as its statutory purposes. Part III considers legal issuesunder the Act that have not arisen before. Part IV addresses issues of tikanga. Part Vaddresses technical matters. Part VI analyses the applications and whether theapplicants have satisfied the relevant statutory tests. Part VII sets out the conclusionsand a summary of the judgment.PART I – THE PARTIESThe priority application[4] The late Claude Edwards was a rangatira of Te Whakatōhea.2 He was amongthe first to pursue litigation in respect of Māori rights in the coastal and marine area.Over many years he sought to advance claims on behalf of Whakatōhea and it is as aresult of his actions and determination that these proceedings became the secondproceedings seeking recognition orders under the Act to be heard.3[5] In 1989, Mr Edwards filed a claim in the Waitangi Tribunal on behalf ofWhakatōhea for the wrongs suffered as a result of Crown action, including raupatuand confiscation of the iwi's coastal lands.[6] On 6 January 1999, Mr Edwards filed an application on behalf of Whakatōheain the Māori Land Court (MLC) seeking recognition of customary rights in the takutaimoana.4[7] On 17 January 2005, Mr Edwards applied to the MLC for recognition ordersunder the Foreshore and Seabed Act 2004 (the Foreshore and Seabed Act).5[8] Following the repeal of the Foreshore and Seabed Act and its replacement withthe Act in 2011, Mr Edwards' application was transferred from the MLC to the HighCourt. In accordance with the Act,6 Mr Edwards' application became a "priority"application. That meant that, because it was an application existing at the time the Actcame into effect, it was accorded priority as to the allocation of a hearing. In all otherrespects it had the same status as other applications for recognition orders.2 His role in the affairs of Te Whakatōhea is described in Ranginui Walker Ōpōtiki-Mai-Tawhiti:Capital of Whakatōhea (Penguin Books, Auckland, 2007). See in particular Chapters 7 and 8.3 The first such proceedings were Re Tipene [2016] NZHC 3199.4 Application for Investigation of Māori Customary Land A19990003 (6 April 1999). Thisapplication was originally signed by representatives of all Whakatōhea hapū including Mr CharlieAramoana on behalf of Ūpokorehe although he withdrew his support on 7 September 1999.5 Application for Customary Rights Order A20050001647 (17 January 2005).6 Section 125(3) of the Act directs that the Court give priority to applications transferred to it fromthe MLC ahead of any other applications.[9] An amended application was filed on 18 May 2015 and was, like the earlierapplications, stated to be filed on behalf of all Whakatōhea hapū. It recorded that, atthe date of filing, three mandated hapū representatives had been confirmed:Rita Wordsworth for Ngai Tamahaua, John Hata for Ngāti Patumoana (Ngāti Patu),and Robert Edwards for Ngāti Ruatakenga (Ngāti Rua). The application indicated thatit was anticipated that other hapū representatives would join the application.[10] The priority application remained the only Whakatōhea application forrecognition orders until 2017 when there was a flurry of applications from some12 separate hapū or whānau associated with the priority applicant, along with threeapplications which overlapped with the priority applicants on its eastern boundary.[11] In a minute of 21 November 2018,7 the Court made timetabling orders tofacilitate a hearing of the priority application and all overlapping claims. The Courtestimated, that, at that time, there were some 20 such claims.[12] When the hearing of this matter finally commenced, two of the overlappingclaims had been struck out,8 and two other applicants chose not to proceed.9[13] By minute of 27 May 2019,10 the Court directed that some 15 claimants whoseclaims overlapped the priority application, but who had sought direct engagement withthe Crown, be served with a copy of the priority application and given an opportunityof participating in the hearing of the priority application. One of the direct engagementapplicants, Mr Kiwara on behalf of Kutarere Marae, played an active role in theseproceedings.[14] Throughout the various case management conferences held in respect of theseproceedings, the Court encouraged applicants with overlapping claims to engage withother applicants whose claims were overlapping to see whether any agreementbetween applicants could be reached that might reduce the number of competingclaims.7 Re Edwards (Minute No 2 of Collins J) 21 November 2018.8 Re Dargaville [2020] NZHC 2028, and Re Paul [2020] NZHC 2039.9 Te Uri a Tehapu CIV-2017-404-562; and Re Paul CIV-2017-485-513.10 Re Edwards (Minute No 1 of Churchman J) 27 May 2019.[15] In response to that encouragement, a number of hui and wānanga took placebetween the various applicants with the result that, when the hearing commenced,there were essentially three broad groupings of applicants as well as threeneighbouring iwi who participated in the hearing. Ngāti Awa and Te Whānau-a-Apanui did not wish the Court to determine their claims but participated to opposethose aspects of the applicants' claims that overlapped their claims. The overlap areasinvolved were the western Ōhiwa Harbour, relating to Ngāti Awa and Whakaari Islandand Te Paepae o Aotea (Volkner Rocks – hereafter referred to as Te Paepae o Aotea)relating to both Ngāti Awa and Te Whānau-a-Apanui.[16] The other neighbouring iwi, Ngāi Tai, asked the Court to determine its claims,but only to the extent that those claims overlapped with the priority applicant's claims.The areas involved were at the eastern boundary of the priority application's specifiedarea and Whakaari/White Island (hereafter referred to as Whakaari).The applicant groups[17] Several of the applicants co-operated with other applicants in the preparationof their cases. This resulted in three broad groupings of parties.[18] The groups of applicants that ultimately presented their cases at the hearingwere:(a) Whakatōhea Kotahitanga Waka (WKW). This group consisted of:(i) the Edwards Priority Application (CIV-2011-485-817);(ii) D Flavell for Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwaof Whakatōhea (CIV-2017-485-375);(iii) C Davis for Ngāti Muriwai Hapū (CIV-2017-485-269);(iv) L Delamere for Pākōwhai Hapū (CIV-2017-485-264);(v) L Delamere for Te Whānau-a-Apanui Hapū(CIV-2017-485-278) (discontinued other than in respect ofWhakaari on 7 October 2020); and(vi) B Kiwara on behalf of Kutarere Marae (CIV-2011-485-817),who was associated with the WKW Group but as an interestedparty rather than an applicant.(b) Te Kāhui Takutai Moana o Ngā Whānui Me Ngā Hapū (Te Kāhui):(i) Ngāti Patumoana (CIV-2017-485-253);(ii) Ngāti Ira o Waiōweka (CIV-2017-485-299);(iii) Ngai Tamahaua Hapū (CIV-2017-485-262);(iv) Te Hapū Titoko a Ngai Tamahaua (CIV-2017-485-377);(v) Whakatōhea Rangatira Mokomoko (CIV-2017-485-355); and(vi) Associated with Te Kāhui but not formally part of that groupwas the Whakatōhea Māori Trust Board who advanced claimson behalf of Ngāti Ruatakenga11 and Ngāti Ngāhere(CIV-2017-485-292).Other applicants[19] Applicants that were not part of either the WKW or Te Kāhui groupings butwanted the Court to determine all or part of their claims were:(a) Te Ūpokorehe (CIV-2017-485-201);(b) Ngāi Tai (CIV-2017-485-270); and11 Spelt Ruatakenga in the Whakatōhea dialect, Ruatakena in the Tūhoe dialect and Rua for short.(c) Ririwhenua (CIV-2017-485-272) (effectively Ngāi Tai and Ririwhenuapresented a joint claim).Applicants who participated as interested parties[20] Other interested applicants, who had claims that partly overlapped with WKWor Te Kāhui groupings, but did not want the Court to determine their claims were:(a) Te Rūnanga o Ngāti Awa (CIV-2017-485-196) (Te Rūnanga oNgāti Awa did not seek to have any part of its application determinedby the Court through this proceeding, but instead participated on thebasis of addressing and opposing parts of the applicants' claims thatoverlapped with Ngāti Awa's application and made claims ofexclusivity, specifically the area between Maraetōtara and ŌhiwaHarbour. It ultimately accepted its interests at Whakaari and Te Paepaeo Aotea were shared with the applicants other than Ngāi Tai butmaintained that it exclusively held Moutohorā (Whale Island));(b) Te Rūnanga o Te Whānau (CIV-2017-485-318) (representingTe Whānau-a-Apanui, Te Rūnanga also did not seek to have any part ofits application determined by the Court through this proceeding, butopposed the applicants' claims of exclusivity over Whakaari); and(c) Te Whānau a Harawaka (a hapū of Te Whānau-a-Apanui)(CIV-2017-485-238) (after amendment of the priority applicant's claimremoving much of the overlap, this applicant was only interested in theapplicants' claim regarding Whakaari/Te Paepae o Aotea).Other interested parties who were not applicants[21] Other parties who had an interest in the application and appeared in thisproceeding included:(a) the Attorney-General (the Attorney-General appeared in the "interestsof all the public", recognising that his role is one of "independentaloofness", but that given the untested nature of the legislation, heshould appear to ensure the Court has all the relevant informationbefore it and to assist in the interpretation and application of the Actthrough legal submissions);(b) the Landowners' Coalition Incorporated (the Landowners' Coalitionappeared as an interested party in a limited capacity, providing openingand closing submissions and cross-examining witnesses on what theyconsidered to be critical issues for the Court, particularly focusing onthe operation of s 106 of the Act, and taking the position that none ofthe applications had satisfied the requirements for a grant of PCR orCMT);(c) Seafood Industry Representatives (the Seafood IndustryRepresentatives played a minor role in the proceedings, providingevidence on behalf of the seafood industries in opposition to theEdwards application on the basis that exclusive use and occupation bythe applicants was substantially interrupted by commercial fishing andmarine farming activities in the Eastern Bay of Plenty);(d) the Whakatāne District Council (the Whakatāne District Council alsoplayed a minor role in the proceedings, providing the Court withevidence of the various structures and assets owned by the Council inthe coastal marine area claimed by the applicants, and seeking to ensurethat its ongoing interests in the area, including over those structures andassets, were protected); and(e) the Ōpōtiki District Council (the Ōpōtiki District Council appeared andprovided evidence predominantly to inform the Court of the Council'sŌpōtiki Harbour Development Project, which is discussed in greaterdetail in Part V of this judgment which addresses the landwardboundaries of the takutai moana relating to rivers and estuaries).PART II – THE LEGISLATIONStatutory purposes, legislative history and legal conceptsStatutory purposes[22] The purposes of the Act were summarised in the decision of Re Tipene,12 andI adopt the analysis of Mallon J set out at [26]-[44] but, as a number of the matters inissue in these proceedings involve disputed points of statutory interpretation notaddressed in Re Tipene it is necessary to once again examine the text and purpose ofthe Act.13[23] As the Supreme Court has directed, in ascertaining the purpose of an Act, theCourt must "have regard to both the immediate and the general legislative context" ofthe Act, as well as its "social, commercial, or other" objectives.14[24] The legislative context and social objectives of the Act are clearly set out inthe Preamble. The Preamble records that the predecessor legislation, the Foreshoreand Seabed Act, was enacted, in part, by way of response to the decision of the Courtof Appeal in Attorney-General v Ngāti Apa which had held that the MLC hadjurisdiction to determine claims of customary ownership to areas of the foreshore andseabed.15[25] It noted that in its Report on the Crown's Foreshore and Seabed Policy, theWaitangi Tribunal had found the policy underpinning the Foreshore and Seabed Actto be in breach of the Treaty of Waitangi,16 and that a 2009 Ministerial Review Panelhad come to the conclusion that the Foreshore and Seabed Act was severelydiscriminatory against whānau, hapū and iwi, and had recommended new legislation12 Above n 3.13 Interpretation Act 1999, s 5.14 Commerce Commission v Fonterra Co-operative Group Limited [2007] NZSC 36, [2007] 3 NZLR767 at [22]. In relation to the application of the Treaty of Waitangi to the interpretation see Barton-Prescott v Director General of Social Welfare [1997] 3 NZLR 179 (HC) at 184. This case waslater affirmed in New Zealand Māori Council v Attorney-General [2007] NZCA 269 andNgaronoa v Attorney-General [2017] NZCA 351 at [44]-[46]. It is authority for the propositionthat, for the purposes of the interpretation of statutes, the Treaty has a direct bearing, whether ornot there is a reference to it in the statute.15 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).16 Waitangi Tribunal Report on the Crown's Foreshore and Seabed Policy (WAI 1071, 2004)at 5.1.1-5.1.3.to reflect the Treaty of Waitangi and to recognise and provide for the interests ofwhānau, hapū and iwi, and for public interests in the foreshore and seabed.[26] The Preamble finishes by stating:This Act takes account of the intrinsic, inherited rights of iwi, hapū andwhānau, derived in accordance with tikanga and based on their connectionwith the foreshore and seabed and on the principle of manaakitanga. Ittranslates those inherited rights into legal rights and interests that areinalienable, enduring, and able to be exercised so as to sustain all the peopleof New Zealand and the coastal marine environment for future generations.[27] Although there is a significant focus on inherited Māori rights, the Preamblehints at the other objective, relating to the rights of all New Zealanders in the coastalmarine area. This objective is articulated more clearly in the purpose section.[28] The purpose of the Act is set out as being:4 Purpose(1) The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of thelegitimate interests of all New Zealanders in the marine andcoastal area of New Zealand; and(b) recognise the mana tuku iho17 exercised in the marine andcoastal area by iwi, hapū, and whānau as tangata whenua; and(c) provide for the exercise of customary interests in the commonmarine and coastal area; and(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).(2) To that end, this Act—(a) repeals the Foreshore and Seabed Act 2004 and restorescustomary interests extinguished by that Act; and(b) contributes to the continuing exercise of mana tuku iho in themarine and coastal area; and(c) gives legal expression to customary interests; and(d) recognises and protects the exercise of existing lawful rightsand uses in the marine and coastal area; and17 Section 9 of the Act defines this term as meaning "inherited right or authority derived inaccordance with tikanga". "Tikanga" is defined in the same section as meaning "Māori customaryvalues and practices".(e) recognises, through the protection of public rights of access,navigation, and fishing, the importance of the commonmarine and coastal area—(i) for its intrinsic worth; and(ii) for the benefit, use, and enjoyment of the public ofNew Zealand.[29] In addition to the purpose section of the Act, two other sections are relevant tothe task of discerning the meaning of those sections in the Act that are challenged inthese proceedings.[30] Under the heading "Customary interests restored", s 6(1) states:Any customary interests in the common marine and coastal area that wereextinguished by the Foreshore and Seabed Act 2004 are restored and givenlegal expression in accordance with this Act.[31] Section 7 of the Act states:In order to take account of the Treaty of Waitangi , this Act recognises, andpromotes the exercise of, customary interests of Māori in the common marineand coastal area by providing,—(a) in subpart 1 of Part 3, for the participation of affected iwi, hapū, andwhānau in the specified conservation processes relating to thecommon marine and coastal area; and(b) in subpart 2 of Part 3, for customary rights to be recognised andprotected; and(c) in subpart 3 of Part 3, for customary marine title to be recognised andexercised.[32] It is important to note that although s 6(1) of the Act states that customaryinterests in the common marine and coastal area that were extinguished in 2004 are"restored", the "restoration" is qualified by the words that immediately follow whichexplain that pre-existing customary rights are "given legal expression in accordancewith this Act". The rights given by the Act are not the same as the inherited rights andinterests referred to in the Preamble. As cl (4) of the Preamble states those rights are"translated" into the rights conferred by this Act.[33] Mr Lyall, counsel for Ūpokorehe, in his opening, submitted that there was verylittle that was "customary" left in the concept of CMT in the Act. That observationhighlights the fact that although the Preamble and purpose sections of the Act refer toreinstating pre-existing customary entitlements and translating "inherited rights intolegal rights and interests", the specific rights actually conferred by the Act are muchnarrower and more limited than the customary title and rights that Māori would haveenjoyed and exercised in the foreshore and seabed as at 1840.[34] I acknowledge that there is an argument that because the Act does not createcustomary title but merely reverses the extinguishment of customary title achieved bythe Foreshore and Seabed Act, those aspects of customary title that traditionallyexisted but have not been replicated in the Act nonetheless continue to exist. Thisargument is based on the observations of Tipping J in Ngāti Apa, that if Parliamentintended to extinguish customary title it would "need to make its intention crystalclear",18 and arguably had not done so in the Act. The argument also draws supportfrom the observations of Goddard J in the Trans-Tasman Resources v Taranaki-Whanganui Conservation Board case where he said:19Section 7 records that in order to take account of the Treaty, MACA recognisesand promotes the exercise of customary interests of Māori in the commonmarine and coastal area. MACA does not bring the underlying customaryinterests into existence. Rather it provides a mechanism for recognising them.Where that recognition has taken place, those recognised interests qualify asexisting interests by virtue of paragraph (f) of the s 4 definition of the term"existing interests". In the meantime, pending such recognition, tangatawhenua with customary interests continue to have and enjoy those customaryinterests, and those customary interests qualify as existing interests underparagraph (a) of the definition.[35] The contrary argument is that, the wording in s 11(2) of the Act which says:neither the Crown nor any other person owns, or is capable of owning thecommon marine and coastal area, as in existence from time to time after thecommencement of this Act.indicates the "crystal clear" intention of Parliament to extinguish all Māori customaryinterests in the foreshore and seabed other than those specifically granted by the Act.[36] As it is not necessary to resolve this issue in this case, I will leave it forconsideration in a case where it directly arises.18 Attorney-General v Ngāti Apa, above n 15, at [185].19 Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2020] NZCA 86 at [168].[37] In Ngāti Apa, the Court of Appeal did not attempt to define what attributescustomary title to the foreshore and seabed might have. It did not attempt to make anycomparison with the sorts of property rights or title, such as usufructuary rights or feesimple title recognised at common law. But the judgment makes two things clear:firstly, the Crown had not acquired ownership of customary title to the foreshore andseabed from Māori in 1840; and secondly, the existence and extent of customaryproperty rights was not to be gauged from applying common law concepts but fromapplying tikanga. Elias CJ said:20Any prerogative of the Crown as to property in foreshore and seabed as amatter of English common law in 1840 cannot apply in New Zealand ifdisplaced by local circumstances. Māori custom and usage recognisingproperty in foreshore and seabed lands displaces any English CrownPrerogative and is effective as a matter of New Zealand law, unless suchproperty interests have been lawfully extinguished. The existence and extentof any such customary property interest is determined in application oftikanga.[38] A number of counsel submitted that the property rights created by the Act were"sui generis".21 Such a submission is well-founded. While the Act repealed theprovision in the Foreshore and Seabed Act 2004 which had vested ownership of theforeshore and seabed in the Crown as its absolute property,22 it put ownership, at leastin the sense akin to a fee simple title, beyond the reach of Māori by declaring:23Neither the Crown or any other person owns, or is capable of owning, thecommon marine and coastal area, as in existence from time to time after thecommencement of this Act.[39] No Certificate of Title in respect of CMT is registrable under the Torrens LandTransfer System.[40] The property rights in the common marine and coastal area available under theAct are limited to only three categories:20 Attorney-General v Ngāti Apa, above n 15, at [49].21 Black's Law Dictionary (11th ed, Thomson Reuters, 2019) at 1734 defines this Latin term asmeaning "Of its own kind or class; unique or peculiar".22 Foreshore and Seabed Act 2004, s 13(1).23 Section 11(2).(i) Conservation processes(a) a right for "affected iwi, hapū or whānau";24 to "participate inconservation processes in the common marine and coastal area" as setout in s 47(3) of the Act;(b) the rights conferred in subpart 1 of Part 3 of the Act also extend tocreating an obligation on a marine mammals officer appointed underthe Marine Mammals Protection Act 1978 to "have particular regard tothe views of any affected iwi, hapū or whānau expressed to theofficer";25 and(c) the rights to participate in conservation processes are not dependentupon an applicant group holding CMT or PCR. They are therefore notrelevant to these proceedings and will not be further discussed.(ii) Protected customary rights (PCR)[41] For a PCR to be recognised, three requirements must be satisfied:26(a) that right has been exercised since 1840;(b) has continued to be exercised in a particular part of the common marineand coastal area in accordance with tikanga by the applicant group,whether it has been continued to be exercised in exactly the same or asimilar way, or evolved over time; and(c) is not extinguished as a matter of law.24 That term is defined in s 47(1) as meaning "iwi, hapū, or whānau that exercise kaitiakitanga in thepart of the common marine and coastal area where a conservation process is being considered" toparticipate in certain conservation processes. The relevant processes are detailed in s 47(3).25 Section 50(3).26 Marine and Coastal Area (Takutai Moana) Act 2011, s 51.[42] Notably, an applicant group does not need to have an interest in land in orabutting the specified part of the common marine and coastal area in order to establisha PCR.27[43] However, s 51(2) sets out a range of activities that are excluded from the ambitof PCRs. These include activities:(a) that are regulated under the Fisheries Act 1996;(b) that are a commercial aquaculture activity (within the meaning of s 4of the Māori Commercial Aquaculture Claims Settlement Act 2004);(c) that involve the exercise of:(i) any commercial Māori fishing right or interest, being a right orinterest declared by s 9 of the Treaty of Waitangi (FisheriesClaims) Settlement Act 1992 to be settled; or(ii) any non-commercial Māori fishing right or interest, being aright or interest subject to the declarations in s 10 of the Treatyof Waitangi (Fisheries Claims) Settlement Act 1992;(d) that relate to:(i) wildlife within the meaning of the Wildlife Act 1953, or anyanimals specified in Schedule 6 of that Act;(ii) marine mammals within the meaning of the Marine MammalsProtection Act 1978; or(e) that are based on a spiritual or cultural association, unless thatassociation is manifested by the relevant group in a physical activity or27 Section 51(3).use related to a natural or physical resource (within the meaning ofs 2(1) of the RMA).[44] A PCR allows the applicant to exercise certain customary rights over therelevant takutai moana without a resource consent under the RMA and grants themexemption for payment of certain charges under that Act.28 However, this may onlyoccur if the PCR is exercised in accordance with:29(a) tikanga;(b) the requirements under subpart 2 of Part 3 of the Act;(c) the specific PCR order or agreement that applies to the applicant group;and(d) any controls imposed by and notified by the Minister of Conservationunder ss 56 and 57 of the Act (set out in more detail below).[45] Without the written approval of the group holding the PCR, a consent authoritymust not grant a resource consent for an activity (including a controlled activity) to becarried out in an area with PCR if the activity will, or is likely to, have adverse effectsthat are more than minor on the exercise of a PCR,30 unless the relevant PCR groupgives written approval for the proposed activity, or the exceptions in s 55(3) apply.[46] An applicant group that has been granted a PCR may also:31(a) delegate or transfer the rights conferred by a PCR order or an agreementin accordance with tikanga;(b) derive a commercial benefit from exercising its PCRs, except inrelation to the exercise of:28 Marine and Coastal Area (Takutai Moana) Act 2011, s 52.29 Section 52(3).30 Guidance on determining "adverse effects", "written approval" and other processes related to s 55is set out in Part 1 of Schedule 1 of the Act.31 Section 52(4).(i) a non-commercial aquaculture activity; or(ii) a non-commercial fishery activity that is not a right or interestsubject to the declarations in s 10 of the Treaty of Waitangi(Fisheries Claims) Settlement Act 1992;(c) determine who may carry out any particular activity, use, or practice inreliance on a PCR order or agreement; or(d) limit or suspend, in whole or in part, the exercise of a PCR.[47] In terms of delegation and transfer of PCRs, this may only be made to a personidentified within the relevant PCR order or agreement to whom that right may bedelegated or transferred.32 Any delegation or transfer of a PCR must be notified to theresponsible Minister and Chief Executive (detailed in s 110 of the Act) and registeredon the Marine and Coastal Area Register under s 114, with any delegation or transfernot taking effect until either the PCR order is varied under s 111, or the PCR agreementitself is varied.33[48] Finally, if at any time the Minister of Conservation determines that the exerciseof PCRs under a PCR order or agreement has or is likely to have a significant adverseeffect on the environment, the Minister may impose controls, including any terms,conditions, or restrictions that they think fit, on the exercise of those rights.34 Anyperson may apply to the Minister for controls to be imposed on the exercise of a PCR,stating the reasons for the application.35(iii) Customary marine title (CMT)[49] A CMT provides for an interest in land but does not include a right to alienateor otherwise dispose of any part of a customary marine title area.36 A CMT effectively32 Section 53(1).33 Section 53(3).34 Section 56(1).35 Section 56(2).36 Section 60(1)(a).provides for a bundle of rights that include RMA rights for controlled activities,37 aconservation permission right,38 right to protect wāhi tapu,39 rights in relation tomarine mammal watching permits and consultation about changes to coastal policystatements,40 prima facie ownership of newly found taonga tūturu,41 ownership ofcertain minerals,42 and the right to create a planning document.43[50] The requirements for a CMT to be recognised are that:44(a) the applicant group holds the specified area in accordance with tikanga;and(b) has, in relation to the specified area:(i) exclusively used and occupied it from 1840 to the present daywithout substantial interruption; or(ii) received it, any time after 1840, through customary transfer.45[51] Notably, there is there is no substantial interruption to the exclusive use andoccupation of a specified area of the common marine and coastal area if, in relation tothat area, a resource consent for an activity to be carried out wholly or partly in thatarea is granted at any time between the commencement of the Act and the effectivedate.46[52] Section 59 provides for a number of matters that this Court may take intoaccount when determining whether CMT exists in a specific area of the commonmarine and coastal area. These include:4737 See ss 66-70.38 See ss 71-75.39 See ss 78-81.40 See ss 76-77.41 See s 82.42 See s 83.43 See ss 85-9344 Section 58.45 The definition of a customary transfer and its requirement is set out in s 58(3) of the Act.46 Section 58(2).47 Section 59(1).(a) whether the applicant group or any of its members–(i) own land abutting all or part of the specified area48 and havedone so, without substantial interruption, from 1840 to thepresent day;(ii) exercise non-commercial customary fishing rights in thespecified area, and have done so from 1840 to the present day;and(b) if paragraph (a) applies, the extent to which there has been suchownership or exercise of fishing rights in the specified area.[53] I discuss the relevance of ownership of abutting land to a grant of CMT in moredetail at [171]-[187] below, but note that under s 59(3), the use at any time, by personswho are not members of an applicant group, of a specified area of the common marineand coastal area for fishing or navigation does not, of itself, preclude the applicantgroup from establishing the existence of CMT.[54] Finally, like PCRs, CMT may also be delegated or transferred in accordancewith tikanga.49 Section 61 sets out the requirements and restrictions on delegation andtransfer of CMT under the Act.[55] The property rights conferred by the Act that have the closest similarity toconventional ownership rights are PCRs and CMT. However, they confer limitedrights. The fact that the property rights conferred by the Act are so limited and sodifferent to common law property rights of ownership is relevant to these proceedingsin two respects:(a) it means that attempting to interpret or define concepts used in the Actby reference to common law proprietorial rights is inappropriate; and48 This land is defined in s 59(4).49 Section 60(3).(b) it lessens the usefulness of reference to Canadian and Australianauthorities in relation to Aboriginal title.Notwithstanding the fact that some of the wording in the Act appears to reflectlanguage used by the Canadian Supreme Court, the sort of Aboriginal title that theCanadian Courts were addressing is fundamentally different to the relatively limitedproperty rights available as PCR and CMT, and the analogy between the Canadiancases and the New Zealand law should not be overstated.50[56] A number of counsel submitted that their submissions in support of theirclients' applications were without prejudice to the position of their clients that thetruncation of rights to CMT in the foreshore and seabed in the way the Act has done,is unlawful and a breach of the Treaty of Waitangi. Those claims are being consideredby the Waitangi Tribunal and they are not matters that the Court is called upon todecide in these proceedings.The Treaty, cession of sovereignty and customary title to the foreshore and seabed[57] As the focus of both s 51 (PCR) and s 58 (CMT) is on the rights exercised byapplicant groups as at 1840 in accordance with tikanga and the continued use of thoserights, it is useful to start with an examination of the situation that existed in the areasubject to these applications prior to 1840.[58] For the reasons that I now set out, I have concluded that, as at 1840, theapplicant groups identified in Part VI of this decision who are entitled to recognitionorders in this case had mana motuhake and tino rangatiratanga over the specified areasin question. They held customary title to the relevant parts of the takutai moana.[59] For the last millennium, Māori have inhabited Aotearoa/New Zealand.51 Inrespect of the area that is the subject of these proceedings, Te Moana-a-Toi (the easternBay of Plenty), radiocarbon dating of early occupation sites has confirmed occupation50 This topic is addressed in detail at [118]-[144] below.51 See Atholl Anderson, Judith Binney and Aroha Harris Tangata Whenua: A History(Bridget Williams Books, Wellington, 2015) at 54.and use of marine and coastal resources going back at least 700 years.52 For example,an excavation in the 1990s of the Tokitoki Historic Reserve located in the ŌhiwaHarbour revealed a midden with an occupation layer dating back to approximately700 years ago:53A series of exposed, eroding sections along the harbour's edge were cleaneddown and drawn – over a distance of approximately 30m. The sectionrevealed a deep midden layer, largely intact, which was up to 60cm thick andcontained a wide range of faunal species, artefacts and intact hangi. A smallarea excavation was undertaken to provide additional material for the researchproject. While this was in progress a short section of the bank was cleaneddown in that location, which revealed a deeper, and therefore earlier,occupation layer. More importantly, this early layer rested immediately on topof a layer of Kaharoa Ash – a very distinctive grey ash found throughout thenorth-eastern North island, originating from an eruptive event near Rotoruaca. 700 years ago, that provides an excellent chronological marker. Thecleaned section also revealed postholes and other features cut through the ash,and a small number of artefacts and faunal material including: minnow luresof both stone and fossilised wood; adze fragments; bone fishhooks; and, sealand moa bone.[60] Later in this judgment, and also in Appendix B, I set out an analysis of theevidence presented to this Court and to the pukenga of the whakapapa, history andbackground of the applicant groups and their neighbouring iwi and hapū.[61] Prior to the end of the 18th century, Māori were the sole occupants ofNew Zealand. They held, and exercised, sovereignty over the whole country. In te aoand te reo Māori the notion of sovereignty is often referred to as mana motuhake andtino rangatiratanga.54 As noted by the Waitangi Tribunal in its Report on the Crown'sForeshore and Seabed Policy, at the point at which Te Tiriti o Waitangi/The Treaty of52 This was established in the evidence through a number of reports by expert witnesses called bythe parties, including Dr Desmond Kahotea Whakatōhea and the Common Marine and CoastalArea (October 2019) at 75; Felicity Kahukore Baker Mō Ake Tonu Atu – Te Ūpokorehe TakutaiMoana Overview Report (February 2020) at 2.0 referring to Ewan Johnson Ōhiwa Harbour(March 2003) at 21.2 and Rick McGovern-Wilson Heritage assessment: Tokitoki Reserve ŌhiwaHarbour (July 2012) at 2; Bruce Stirling Te Mana Moana o Te Kāhui Takutai Moana o ngā whenuame ngā hapū o Te Whakatōhea – Historical Issues (January 2020), at [25] and Garry LawArchaeology of the Bay of Plenty (June 2008) at 29.53 Rick McGovern-Wilson Heritage assessment: Tokitoki Reserve Ōhiwa Harbour, above n 52, at 5.54 See for example, Waitangi Tribunal Report on the Crown's Foreshore and Seabed Policy,above n 16 at 2.1.5; Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims ConcerningNew Zealand Law and Policy Affecting Māori Culture and Identity (WAI 262, 2011) at 24; andWaitangi Tribunal Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims –Pre-publication Version Parts I and II (WAI 898, 2018) at 6.11. I acknowledge however, thatthe English and Māori terms do not carry exactly the same meaning.Waitangi was signed in 1840, Māori exercised the authority of tino rangatiratangaunder tikanga Māori in their relationship with the coastal land and waters.55[62] The advent of European colonisation commenced in Te Moana-a-Toi about30 years after Lieutenant James Cook had first engaged with Māori in 1769.56[63] When it was signed in 1840, there were critical differences in the wording ofthe English and Māori versions of Te Tiriti relating to sovereignty. The Englishversion recorded that the Māori chiefs who signed it ceded to the Queen of England(sic) "absolutely and without reservation all the rights and powers of Sovereignty "which they possessed. Whereas the Māori version reserved "tino rangatiratanga" andtheir many "taonga" (which included their fisheries) to Māori.57[64] In addition to the original copies of Te Tiriti signed at Waitangi on 6 February1840, some eight other copies (all but one were written in te reo) were transportedaround New Zealand for signing by local chiefs.58 In May 1840, seven local chiefssigned a te reo version of the Treaty at Ōpōtiki.59 Those chiefs were the tūpuna(ancestors) of a number of witnesses in these proceedings. For example, Mr Te RiakiAmoamo, a kaumatua and historian of Whakatōhea and specifically the hapū ofNgāti Rua, stated:I am the son of Tiwai Amoamo and Te Urututu Kui Gage. My paternalgrandfather was Amoamo Te Riaki, who was a direct descendant ofAporotanga, a rangatira who signed Te Tiriti o Waitangi on behalf ofNgāti Ruatakenga hapū. My paternal grandmother came off Rangihaerepo, arangatira who signed Te Tiriti on behalf of Ngai Tama, but he can also affiliateto Ngāti Patu and Ngāti Ruatakenga. Therefore, I descend from two of thesignatories who signed Te Tiriti at Ōpōtiki on 27 and 28 May 1840.55 At 2.1.5. According to the Tribunal, this authority included a spiritual dimension, a physicaldimension, a dimension of reciprocal guardianship, a dimension of use, manaakitanga and rightsrelating to manuhiri (loosely translated as guests) from across the seas.56 For reference to Cook's engagement with Māori in the application area see: AC Lyall Whakatōheaof Ōpōtiki (Reed Publishing, Auckland, 1979) at 148-149 and Bruce Stirling Te Mana Moana o teKāhui Takutai Moana o Ngā Whenua me Ngā hapū o Te Whakatōhea Historical Issues, aboven 52, at [21].57 Waitangi Tribunal Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims – Pre-publicationVersion Parts I and II, above n 54, at 3.3.2.4.58 See Claudia Orange The Treaty of Waitangi (Bridget Williams Books, Wellington, 2011) at 69.59 Ranginui Walker Ōpōtiki-Mai-Tāwhiti: Capital of Whakatōhea, above n 2, at 58-59.[65] On 21 May 1840, Lieutenant Governor Hobson proclaimed sovereignty onbehalf of the British Crown over the whole country.60[66] As at 1840, Māori had customary title (sometimes referred to as Aboriginaltitle) in relation to the foreshore and seabed.61 That customary title did notautomatically pass to the Crown on its assertion of sovereignty.62 As noted byKeith and Anderson JJ in Ngāti Apa, the common law recognises two types of Crowntitle to real property or land, including land below the sea – imperium and dominium:63English law, consistently with much international practice, has also longrecognised two different Crown interests in land areas, including land belowthe sea, sometimes referred to as imperium and dominium or in the words ofa leading European international lawyer of the mid-18th century as "l'Empire"(or "Souverainété") and "le Domaine" (Vattel, Droit des Gens (1758) book 1,paras 204-205). Lord Chief Justice Hale in 1667 in De Iure Maris ch IVsimilarly distinguished between the King's right of jurisdiction or royalty andhis right of propriety or ownership in marine areas. That right of ownershipwas however subject to the liberty of the common people of England to fishin the sea and its creeks and arms unless the King or some subject had gaineda propriety exclusive of that common liberty.[67] The New Zealand Courts have now accepted that while the Crown acquiredthe radical or underlying title to the whole of the territory of New Zealand upon theproclamation of British sovereignty over New Zealand, that title was subject tocustomary or Aboriginal title rights.64 For example, in Ngāti Apa, Elias CJ stated thatMāori customary land was not the creation of the Treaty of Waitangi or of statute(although it was confirmed by both), and that it was property in existence at the timeCrown colony government was established in 1840.65 Her Honour went on to state60 The North Island by Treaty and the South Island and Stewart Island by "discovery".See Claudia Orange The Treaty of Waitangi, above n 58, at 64.61 Attorney-General v Ngāti Apa, above n 15, at [14].62 At [47], [85] and [183].63 At [132]. For an analysis of these concepts see Robert Makgill and Brianna Parkinson"The Commons, Common Law and Common Marine Coastal Area" (Continuing Legal EducationPaper for Environmental Law Intensive, November 2019) at 92. Black's Law Dictionaryabove n 21 at 615 defines dominium as "absolute ownership including the right to possessionand use; a right of control over property that the holder might retain or transfer". It can bedescribed as direct or beneficial ownership, or the Crown's absolute ownership of land. Black'sLaw Dictionary at 903, defines imperium as "Power or dominion; esp., the legal authoritywielded by superior magistrates under the Republic, and later by the emperor under the Empire".It can be described as sovereignty, territorial or radical title, namely the Crown's supreme legaland territorial authority over land.64 See Te Runanganui o te Ika Whenua Society v Attorney-General [1994] 2 NZLR 20 (CA)at 23-24 per Cooke P; Attorney-General v Ngāti Apa, above n 15, at [183] per Tipping J.65 At [14].that the common law has previously, recognised pre-existing property after a changein sovereignty, citing the Privy Council in Amodu Tijani v Secretary, Southern Nigeria,who stated:66A mere change in sovereignty is not to be presumed as meant to disturb rightsof private owners; and the general terms of a cession are prima facie to beconstrued accordingly. The introduction of the system of Crown grants whichwas made subsequently must be regarded as having been brought aboutmainly, if not exclusively, for conveyancing purposes, and not with a view toaltering substantive titles already existing.[68] Tipping J affirmed this approach in his decision in the Ngāti Apa judgment,holding that:67When the common law of England came to New Zealand its arrival did notextinguish Māori customary title. Rather, such title was integrated into whatthen became the common law of New Zealand. Upon acquisition ofsovereignty the Crown did not therefore acquire wholly unfettered title to allthe land in New Zealand. Land held under Māori customary title becameknown in due course as Māori customary land. So much is established by thejudgment of the Chief Justice whose discussion I will not seek to emulate.[69] It is important to briefly note that at the point in 1840 when the Treaty wassigned, there was an intersection between what Williams J and others have termed astwo separate legal systems in Aotearoa New Zealand.68 According to Williams J anda number of academic commentators, tikanga Māori was brought across the PacificOcean and developed by Māori over the past millennium, forming the first law,sometimes referred to as "Kupe's Law", in Aotearoa New Zealand.69 The second lawof New Zealand, brought over by the British hundreds of years later, was the commonlaw, sometimes referred to as "Cook's Law".70 As noted by Williams J, the signing ofthe Treaty of Waitangi acted as the "point of contact" between the first and secondlaws; the "mechanism through which these two systems of law would be formally66 At [15]. See also Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 407-408.67 At [183].68 See Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in ModernNew Zealand Law" (2013) 12 Waikato Law Review 1; Ani Mikaere "The Treaty of Waitangi andRecognition of Tikanga Māori" in Michael Belgrave, Merata Kawharu and David Williams (eds)Waitangi Revisted: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press,Melbourne, 2005) at 330-349; Ani Mikaere "Tikanga as the First Law of Aotearoa" (2007)10 New Zealand Yearbook of Jurisprudence 24 at 25; and Jacinta Ruru "First Laws: TikangaMāori in/and the Law" (2018) Māori Law Review 29 at 34-36.69 Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in ModernNew Zealand Law", above n 68, at 2-3.70 At 5-6.brought together in some sort of single accommodation".71 The Courts have acceptedthis fact, and have started to engage in an analysis of the relationship between the firstand second laws of Aotearoa New Zealand and their impact on the current legalsystem.72[70] The Court of Appeal in Ngāti Apa was cognisant of this intersection. Tipping Jstated:73It is also important to recognise that the concept of title, as used in theexpression Māori customary title, should not necessarily be equated with theconcepts and incidents of title as known to the common law of England. Theincidents and concepts of Māori customary title depend on the customs andusages (tikanga Māori) which gave rise to it. What those customs and usagesmay be is essentially a question of fact for determination by the Māori LandCourt.[71] I consider the impact of tikanga Māori on the legislation, and in this case, inParts III and IV of the judgment.[72] In addition to being subject to native customary title, the Crown's right ofDominium, at common law, was also subject to certain public rights such as navigationand fishing. The concept of communal public rights in the foreshore and seabed is notnovel and goes back to ancient Greek and Roman law such as the "Institutes ofJustinian", a body of Roman law assembled in approximately 530AD.74[73] Although initially the New Zealand Courts acknowledged and respected Māoricustomary title as something confirmed by the Treaty,75 by 1877, in the case ofWi Parata v Bishop of Wellington,76 the Courts rejected that approach. For more thana century Māori customary title in the whenua and takutai moana was denied.71 At 7.72 Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291 at [43].See also Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94]; and Trans-TasmanResources Ltd v Taranaki-Whanganui Conservation Board, above n 19, at [177].73 At [184].74 See Makgill and Parkinson "The Common Law and Common Marine Coastal Area", above n 63,at 88.75 See R v Symonds (1847) NZPCC 387 (SC) at 394.76 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC).[74] In 1963, the Court of Appeal in Re The Ninety Mile Beach,77 specifically heldthat the foreshore and seabed below low water mark had been vested in the Crown in1840 free of customary rights and title.[75] As noted above at [24], the settled assumptions about Crown ownership of theforeshore and seabed and the extinguishment of customary title were turned on theirhead by the 2003 decision of the Court of Appeal in Attorney-General v Ngāti Apa.78The Court of Appeal in that case held that the MLC had jurisdiction to determineclaims of customary title to the foreshore and seabed and that customary title wasrecognised at common law until lawfully extinguished.[76] Elias CJ's comments on Wi Parata and Re The Ninety Mile Beach andNgāti Apa are important. Together with other Judges in the case (with Gault Jdissenting), Elias CJ held that Re The Ninety Mile Beach was wrongly decided, andthat both cases represented "extreme viewsnot supported by authority".79 Instead,the applicable common law principle in the circumstances of New Zealand was thatthe rights of property were respected and continued to exist on assumption ofsovereignty, and could only be extinguished by consent or in accordance with statutoryauthority.80 According to the Court of Appeal, the reasoning in Re The Ninety MileBeach reflected an affirmation of the Wi Parata decision which rather than beingconsistent with precedent, was in fact something of an outlier, contrary to thereasoning in other judgments, including R v Symonds, Re the Lundon and Whittaker'sClaims Act 1871, Nireaha Tamaki v Baker, Manu Kapua v Para Haimona andAmodu Tijani v Secretary, Southern Nigeria.8177 Re The Ninety Mile Beach [1963] NZLR 461.78 Attorney-General v Ngāti Apa, above n 15, at [85]-[91].79 At [85].80 At [85].81 At [87]. I acknowledge that there are contrary views to Elias CJ's reasoning: see David WilliamsA Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland UniversityPress, Auckland, 2011) at 144-145; and Mark Hickford "John Salmond and Native Title inNew Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920" (2007)38 Victoria University of Wellington Law Review 853 at fn 93.PART III – LEGAL ISSUES[77] There are a number of issues which did not arise in Re Tipene which do arisein this case. That is because this case involves multiple overlapping applications andcontests between different applicant parties. Issues arising include:(a) the standard and burden of proof;(b) the meaning of the phrase "holds the specified area in accordance withtikanga" in s 58(1)(a) including the function of tikanga, and the role ofpukenga in interpreting it, under the Act;(c) the meaning of the terms "exclusively used and occupied" and "withoutsubstantial interruption" in s 58(1)(b)(i) including whether a concept of"shared exclusivity" may exist under the Act, as well as more technicalissues such as where to measure the boundary of the takutai moana inrelation to rivers and estuaries, and the effect of reclamations on CMTand PCR claims;(d) questions about what sort of activities can support a grant of PCR unders 51;(e) the nature of CMT under s 58, including whether a jointly held CMTcan be issued; and(f) the correct procedure to follow when there are overlapping claims beingadvanced in both the Court and pursuant to direct negotiations with theCrown in respect of the same or a similar area.Standard and burden of proof[78] Section 106 of the Act specifically sets out the burden of proof:Burden of proof(1) In the case of an application for recognition of protected customaryrights in a specified area of the common marine and coastal area, theapplicant group must prove that the protected customary right–(a) has been exercised in the specified area; and(b) continues to be exercised by that group in the same area inaccordance with tikanga.(2) In the case of an application for the recognition of customary marinetitle in a specified area of the common marine and coastal area, theapplicant group must prove that the specified area–(a) is held in accordance with tikanga; and(b) has been used and occupied by the applicant group, either–(i) from 1840 to the present day; or(ii) from the time of a customary transfer to the present day.(c) in the case of every application for a recognition order, it ispresumed, in the absence of proof to the contrary, that acustomary interest has not been extinguished.[79] The burden of proof set out in s 106 is significantly different from thecorresponding provision in the Foreshore and Seabed Act. The test specified in thatact for "territorial customary rights", which was the equivalent of customary title atcommon law, required that:82The area was used and occupied, to the exclusion of all persons who did notbelong to the group, by members of the group without substantial interruptionfrom 1840 until the present (and not taking account of any spiritual or culturalassociation unless that is manifested by a physical activity or use related to anatural or physical resource); andThe group had continuous title to contiguous land (i.e. land abutting theforeshore).[80] The requirement for an applicant group to hold continuous title to contiguousland has been removed. Furthermore, the requirement to prove that the specified areawas used and occupied to the exclusion of persons who did not belong to the grouphas been amended so that, in relation to PCR what is required is proof that the PCRhas been exercised in the specified area and continues to be exercised by the applicant82 Foreshore and Seabed Act 2004, s 32.group in the same area in accordance with tikanga. In relation to CMT, the applicantgroup must prove that the specified area has been held in accordance with tikanga andthat the area has been used and occupied by the applicant group from 1840 to thepresent day. The presumption that a customary interest has not been extinguished isnew.[81] Section 106 was amended during the Select Committee process. What is nows 106 in the Act was originally cl 105 in the Bill. On the issue of who has to proveextinguishment of customary rights, the then Minister in charge of the Bill respondedto a question from Rahui Katene (a Māori Party MP) in this way:83Hon Christopher Finlayson (Attorney-General): Under clause 105 of the Bill, ifthe Crown does not accept that customary title exists in an area, then the Crownhas to prove customary title has been extinguished. This requirement isconsistent with what the Court of Appeal said in the Ngāti Apa case. Under thecurrent legislation applicant groups have to prove the negative – namely thatextinguishment has not occurred. The requirement is contrary to what the Courtof Appeal said in Ngāti Apa and goes against the usual rules about the burdenof proof.[82] Minister Finlayson, in the Select Committee, also made a clear statement aboutwhat applicants did have to prove. He said:84Clause 105 is an important clause, and it is the subject of an amendment in theSupplementary Order Paper. This is the burden of proof clause, and it has beenclarified to ensure that applicant groups are expected only to prove the positiveelements in the tests.[83] At the same Committee meeting, member Rahui Katene stated:85If the Crown cannot prove extinguishment then customary title will berecognised, provided the other elements of the test are met.[84] Member Katene also said at the same Committee meeting:86The clause as redrafted is explicit that claimant groups must prove only thepositive elements of the test – for example, the group has held the area orcustomary rights have been exercised since 1840, in accordance with tikanga.This means that the Crown is responsible for proving that the applicant group'suse and occupation of the area has not been exclusive, that there has been a83 (21 September 2010) 667 NZPD 14107.84 (17 March 2011) 670 NZPD 17393.85 (17 March 2011) 670 NZPD 17405.86 (17 March 2011) 670 NZPD 17405.substantial interruption to the group's occupation of the area, or that there hasbeen extinguishment at law.[85] It is immediately apparent that there is a disconnect between Ms Katene'sstatement that:the Crown is responsible for proving that the applicant group's use andoccupation of the area has not been exclusive, that there has been a substantialinterruption to the group's occupation of the area, or that there has beenextinguishment at law.and the express wording of s 106(2). Section 106(2)(b) states that, in addition to thefact that the applicant group must prove that the specified area is held in accordancewith tikanga, an applicant must also establish that the specified area "has been usedand occupied by the applicant group" from 1840 to the present day.[86] A problem also arises from the fact that s 106 does not address the three otherprovisions in the Act which set out what is required to be proved by an applicant for arecognition order.[87] Section 98 of the Act provides:Court may recognise protected customary rights or customary marine title(1) the Court may make an order recognising a protected customary rightor customary marine title (a recognition order);(2) the Court may only make an order if it is satisfied that the applicant–(a) in the case of an application for recognition of a protectedcustomary right, meets the requirements of section 51(1); or(b) in the case of an application for recognition of customarymarine title meets the requirements of section 58.[88] The use of the words "The Court may only make an order " indicates that itis mandatory for the Court to be satisfied that the specific requirements of ss 51 and58 are met. Both the sections contain elements that are not referred to in s 106. Inrelation to PCR, s 106 omits the requirement in s 51(1)(a) that a PCR must have beenexercised since 1840.[89] In relation to CMT, s 106 omits reference to the requirement in s 58(1)(b)(i)that the specified area has been exclusively used and occupied without substantialinterruption.[90] Unsurprisingly, given the wording in s 106, a number of applicants havesubmitted that they are not obliged to prove, in relation to PCR, that the PCR has beenexercised "since 1840" and, in relation to CMT, that they have held the specified area"exclusively" and "without substantial interruption".[91] A variant on this submission was that of Mr Lyall, counsel for Ūpokorehe, whosubmitted, that in relation to a CMT recognition order: "It should not be until Stage 2,who should hold the orders, and the form they should take (that exclusivity comes tothe fore)".[92] Ms Roff, for the Attorney-General, submitted that while s 106(3) clearlyshifted the burden away from applicants as to the issue of whether customary rightshad been "extinguished", it was necessary to read s 106 together with ss 51, 58 and 98and that, when this was done, it was clear that the Act required applicants forrecognition orders to prove that the elements set out in ss 51 and 58 existed.[93] Similar submissions were made by Mr Finlayson QC on behalf of theLandowners Coalition Incorporated.Analysis[94] In Re Tipene, the burden of proof was not discussed in detail with the Courtsimply stating:87The applicant group must prove that customary marine title exists in thespecified area (as per the requirements of s 58). It is presumed, in the absenceof proof to the contrary, that a customary interest has not been extinguished.[95] The reference to "the requirements of s 58" supports the view that, in relationto an application for a recognition order of CMT, the Court saw the burden of proof87 At [39] (footnotes omitted).on the applicants as amounting to all of the elements set out in s 58, not the morelimited matters set out in s 106(2).[96] In the present case, the interpretation of the burden of proof advanced by someof the applicants to the effect that there is no onus on them to establish, in respect of aclaim for PCR, that the rights claimed had been exercised "since 1840" or, in relationto CMT, that the rights claimed had been used "exclusively" and "without substantialinterruption" creates significant practical problems. This arises from the fact that thereare competing applications each asserting the exercise of rights on an exclusive basisand without substantial interruption.[97] If there was an automatic assumption that the mere assertion of such rights wassufficient without the need for any proof, then the Court would have no way ofdetermining whether the applicants asserting such rights in fact met the requirementsof either ss 51 or 58.[98] The concepts of exclusivity and without substantial interruption are differentto the concept of extinguishment. They are positive elements of s 58. Proving thatrights were exercised exclusively and without substantial interruption is not, as somecounsel submitted, imposing a burden on applicants to prove a negative. Neither isthere any justification for the submission that the issue of exclusivity only arises at thestage of considering who should hold the orders and the form they should take.Satisfaction of the elements of s 58 is a threshold or jurisdictional requirement to beestablished before the Court can consider whether CMT should be granted.Conclusion[99] I therefore reach the same conclusion that Mallon J did in Re Tipene thatapplicants for recognition orders are required by s 98 to prove all of the positiveelements set out in ss 51 and 58 but have no obligation to prove that their customaryrights have not been extinguished. As stated by Mallon J, it is assumed in the absenceof proof to the contrary that customary interests have not been extinguished.[100] As to the standard of proof, these are civil proceedings in the High Court andthe starting point is that the civil burden of proof, on the balance of probabilities, isapplicable. Clearly, s 106(3) creates a presumption in favour of non-extinguishmentand to that extent the normal standard of proof is altered.[101] I note that the Māori Land Court in exercising similar powers assessingcustomary rights and interests in relation to land has adopted the position that suchrights and interests must be established in accordance with the ordinary civil standardof proof.88[102] In relation to the standard of proof, Mr Finlayson, for the LandownersCoalition submitted that despite the latitude expressed in s 105 as to the Court beingable to accept in evidence, any oral or written statement, document, matter orinformation that the Court considers to be reliable "whether or not that evidence wouldotherwise be admissible", this did not override the obligation in s 7(2) of the EvidenceAct 2006 that evidence that is not relevant is not admissible.[103] He submitted that much of the evidence tendered by applicants established nomore than that the applicant had mana tuku iho,89 which he submitted was not directlyrelevant to the issues before the Court. He did not refer to any specific evidence. Iaccept that some of the evidence, particularly in respect of matters that could not bethe subject of a PCR recognition order, was of limited relevance, however, suchevidence was generally relevant to broader questions such as whether or not theapplicant group had used or occupied the specified area or had held it in accordancewith tikanga.90 I therefore do not accept the submission that such evidence should bedisregarded.Holds the specified area in accordance with tikanga[104] In Re Tipene, the Court held that the evidence "overwhelmingly" establishedthat the specified area was held in accordance with tikanga. It therefore did not needto examine the meaning of that phrase.9188 See Bristol v Ngāti Rangi Trust [2017] Chief Judge's MB 269 (2017 CJ 269) at [24], and Tau vNgā Whānau o Morven & Glenavy – Waihao 903 Section IX Block [2010] Māori Appellate CourtMB 167 (2018 APPEAL 167) at [61].89 Defined in s 9 as an inherited right or authority derived in accordance with tikanga.90 See, for example, s 59(1)(a)(ii) in relation to the significance of the non-commercial customaryfishing rights.91 At [153].[105] In the present case, there is a fundamental disagreement between the applicantson the one hand, and the Attorney-General and Landowners Coalition on the otherhand, as to the true meaning of "held in accordance with tikanga".[106] Counsel for the Attorney-General submitted:[15] The requirement that the specified area be held by the applicant groupin accordance with tikanga requires something more than the operation of asystem of tikanga in the area. This is because s 58(1)(a) is concerned withterritorial rights and as such the Court must be satisfied the evidence shows aproprietary or proprietary-like holding of the specified area of the CMCAaccording to tikanga.[16] In order to satisfy the Court that this is the case, the applicant groupneeds to provide evidence that shows:16.1 there is a system of tikanga in place;16.2 which is widely understood and guides everyday behaviour;and16.3 that the activities and practices of the applicant group amountto a proprietary or proprietary-like holding under that system.Of particular relevance will be evidence of activities thatshow an intention to control the CMCA according tocustomary rules and interests, as opposed to just the exerciseof rights or carrying out [of] an activity.[107] Ms Roff also distinguished the requirements of s 58 from those relating to s 51and PCRs, noting that in respect of PCRs, the requirement in s 51(1)(b) was that theright must be "exercised in accordance with tikanga" as opposed to s 58(1)(a)"holds in accordance with tikanga". She submitted that it was significant that inrespect of PCRs, the right may be exercised in accordance with tikanga even if theperson or group exercising the right does not have a territorial interest in the area wherethe activity occurs.[108] Mr Finlayson, for the Landowners Coalition, made similar submissions.[109] In essence, counsel for the Attorney-General and Landowners Coalition soughtto divide s 58(1)(a) into two parts and to consider the concept of "holds the specifiedarea" separately to the concept of "in accordance with tikanga".Tikanga as at 1840[110] Up until the assertion of sovereignty by Great Britain in 1840, the sole systemof law in New Zealand was tikanga Māori. Unsurprisingly, to the extent that it relatedto the foreshore and seabed, tikanga bore little resemblance to the legal system of GreatBritain which had its origins in Greek and Roman law as developed by the commonlaw. Tikanga reflected the belief systems, values and life experience of the tangatawhenua. How the tangata whenua related to land differed fundamentally fromconcepts of land ownership and tenure that had been developed in feudal England andhad led to a system where the monarch (the Crown) held absolute sovereign title to allland.[111] The concepts of Dominium and Imperium92 had no counterpart in tikangaMāori. In the Māori view of creation, the central figures are Papatūānuku (the earthmother) and Ranginui (the sky father) with the earth being created when these twowere thrust apart by their children. They are regarded in tikanga as ancestors and onedoes not own one's ancestors. Ancestors are the source of whakapapa and whakapapais a tikanga that dictates Māori societal norms and relationships.93 In tikanga ratherthan there being an emphasis on exclusive individual or collective title to any part ofland, the focus was on the use of and relationship with resources of the land and seaincluding manaakitanga.94 Perhaps most importantly for this litigation the concept ofexclusion was fundamentally inconsistent with the tikanga values of manaakitangaand whakapapa.[112] As discussed above, both Ms Roff and Mr Finlayson sought to have the word"holds" infused with European proprietorial concepts. They both submitted that it wasnecessary for an applicant to establish more than that a system of tikanga existed inrelation to the takutai moana, and further submitted that this could only be done if the92 Discussed above at [66] and [72].93 Discussed in greater detail in Part IV of this decision.94 Manaaki is derived from mana and aki portrays the idea that mana is fulfilled by reciprocal actions.That is, the giving and acceptance of kindness to others gives mana to both the host and the guest.See Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium ofReferences to the Concepts and Institutions of Māori Customary Law (Victoria University Press,Wellington, 2013) at 205.evidence established that the applicants held the specified area in a manner consistentwith western proprietorial concepts.[113] Ms Roff put the submission this way.This is because s 58(1)(a) is concerned with territorial rights and, as such, theCourt must be satisfied the evidence shows a proprietary or proprietary-likeholding of the specified area of the CMCA according to tikanga.[114] Mr Finlayson submitted:Hold is not defined in MACA but is frequently utilised in other propertylegislation in relation to proprietary interests in land. For example, theProperty Law Act 2007.[115] He further submitted:A plain reading of this section (s 58(1)(a)) requires "hold" to be interpreted ashaving a similarly proprietary nature to the usage of the word in other propertylegislation.[116] Counsel placed some emphasis on the importance of the concept of control,particularly in the sense of excluding others, when considering whether a specifiedarea was "held".[117] Counsel for the applicants sought to interpret s 58(1)(a) in a different way.They submitted that the phrase "Holds the specified area in accordance with tikanga"must be read as a whole and that the focus of the Court's inquiry should be on theconcept of tikanga rather than any attempt to interpret the concept of "holds" inaccordance with western notions of property law.[118] The applicants referred to case law which cautioned against interpreting issuesrelating to customary land title by reference to common law concepts of property; theydistinguished the Canadian and Australian decisions from which the concept of"control" was drawn; they noted that the rights conferred by the Act were far fromstandard property rights and were also subject to rights such as public access,navigation and recreational fishing rights; submitted that a restoration of a role for theTreaty was a central feature of the Act, and made extensive submissions as to how thetakutai moana was "held" in accordance with tikanga.Analysis[119] As set out above at [28], the Act has four purposes. None of those statedpurposes are consistent with an interpretation of the word "holds" in a way that wouldincorporate concepts of proprietorial interests as recognised either at common law orin other statutes dealing with land.[120] The last three of the stated purposes (recognition of the mana tuku ihoexercised in the marine and coastal area by iwi, hapū and whānau as tangata whenua,provision for the exercise of customary interests, and acknowledgement of the Treatyof Waitangi), favour an interpretation which focuses on tikanga and the exercise ofthat tikanga by the claimant groups rather than any reference back to common law orstatutory property rights.[121] In Attorney-General v Ngāti Apa,95 the Court of Appeal endorsed thecomments of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria,96 inrelation to the identification of customary property interests. The Court of Appealsaid:97Viscount Haldane in Amodu Tijani v Secretary, Southern Nigeria emphasisedat p 404 that ascertainment of the right according to native custom "involvesthe study of the history the particular community and its usages in each case".He recognised, at p 403, the need for caution in applying English legalconcepts to native property interests, speaking of the necessity for "getting ridof the assumption that the ownership of land naturally breaks itself up intoestates, conceived as creatures of inherent legal principle". The danger of suchassumption cuts both ways: it may be dismissive of customary interests lessthan recognisable English legal estates; and it may cause lesser customaryinterests to be inflated to conform with familiar legal estates.[122] This Court in Re Tipene acknowledged that customary interests to land andassociated waterways including the sea, were different to English land law concepts.The Court quoted from a 2003 Waitangi Tribunal report its observations about suchrights which concluded with the statement that such rights:9895 Above n 15.96 Amodu Tijani v Secretary, Southern Nigeria, above n 66.97 At [33].98 Re Tipene above n 3, at [15] quoting the Waitangi Tribunal in Te Whanganui a Tara me onaTakiwa: Report on the Wellington District (WAI 145, 2003) at 2.2.they formed a complex web not easily understood by those familiar with amarkedly different English system of land tenure.[123] The wording in s 58(1)(a) is similar to the wording used to define Māoricustomary land in Te Ture Whenua Māori Act 1993 which defines such land as being"held by Māori in accordance with tikanga Māori".99[124] This wording was considered by the Māori Land Court in the case ofJohn da Silva v Aotea Māori Committee and Hauraki Māori Trust Board.100Previously Te Ture Māori Whenua Act required the Court to make decisions not inaccordance with tikanga Māori but in accordance with "the ancient customs andusages of Māori people" which, as a result of what became known as "the 1840 rule",had been interpreted by the Courts as being the customs and usages that existed as at1840.101[125] The Court held that it was not appropriate to:102make its determination from a Pākehā or Court perspective of Māoricustoms and usages – from the outside looking in but was required to make itsdetermination according to tikanga Māori – from the inside.[126] Specifically, in relation to the word "held" in s 129(2)(a) of the Te TureWhenua Māori Act, the Court said:103The important word here is "held". There is no connotation of ownership butrather that it is retained or kept in accordance with tikanga Māori.[127] Section 3 of the Te Ture Whenua Māori Act (as it existed at the time of thedecision in John da Silva) defined tikanga as meaning "Māori customary values andpractices". This is the same definition of tikanga as in s 9 of the Act.[128] Because the types of recognition orders available under the Act relate to suigeneris property interests that are very different to, and much more limited than thefee simple type of property rights available under western law, it is wrong to attempt99 Te Ture Whenua Māori Act 1993 at s 129(2)(a).100 John da Silva v Aotea Māori Committee and Hauraki Māori Trust Board (1998) 25 Tai TokerauMB 212 (25 TTK 212).101 At 238.102 At 215.103 At 217.to import into s 58(1)(a) a requirement that an applicant demonstrate something in thenature of a proprietorial interest that might be consistent with other interests in landrecognised by common law or statute.[129] Interpreting s 58(1)(a) in this manner would also be inconsistent with the statedpurpose of the Act, particularly recognition of the mana tuku iho of applicant groupsas tangata whenua, provision for the exercise of customary interests in the takutaimoana and acknowledgement of the Treaty of Waitangi. It is also difficult to see howit would achieve the purpose of implementing a durable scheme to protect all thelegitimate interests of New Zealanders in the takutai moana,104 as it would severelyrestrict the possibility of a successful application.[130] Holding an area of the takutai moana in accordance with tikanga is somethingdifferent to being the proprietor of that area. Whether or not an applicant group hasestablished that they held an area in accordance with tikanga is to be determined byfocusing on the evidence of tikanga, and the lived experience of that applicant group.The exercise involves looking outward from the applicant's perspective rather thaninward from the European perspective and trying to fit the applicant's entitlementsaround European legal concepts.[131] I accept that an applicant must establish more than simply that a system oftikanga in relation to the takutai moana existed. However, the identification of thattikanga is the essential first step in the process. Whether a specified area can be saidto be "held" in accordance with that tikanga, involves a factual assessment that will beheavily influenced by the views of those who are experts in tikanga.[132] Williams J, writing extra judicially in "Lex Aotearoa: An Heroic Attempt toMap the Māori Dimension in Modern New Zealand Law",105 endorsed observationsmade by the Environment Court in Ngāti Hokopu ki Hokowhitu v Whakatāne District104 Section 4(1)(a) of the Act.105 Above n 68, at 21.Council106 in relation to the ascertainment of particular Māori values, where the Courthad said:107In our view there can be some meeting of the two worlds. We start with theproposition that the meaning and sense of a Māori value should primarily begiven by Māori. We can try to ascertain what a concept is (by seeing how itis used by Māori) and how disputes over its application are resolved accordingto tikanga Ngāti Awa [the relevant iwi in the area]. Thus, in the case of analleged waahi tapu we can accept a Māori definition as to what that is (unlessMāori witnesses or records disagree among themselves).[133] Counsel for the Attorney-General and the Landowners Coalition, in theirclosing submissions, both submitted that in order to establish that a specified area hadbeen "held" in accordance with tikanga, it was necessary for the applicant to show anintention and ability to "control" the relevant area of the takutai moana.[134] In support of this proposition, counsel relied on Canadian jurisprudenceprincipally the decisions of the Supreme Court of Canada in Tsilhqot'in Nation vBritish Columbia108 and Delgamuukw v British Columbia.109[135] Ms Roff submitted that:Canada has a similar test [to that in the Act] for proving Aboriginal title. Itrequires land to have been exclusively occupied by the Aboriginal group priorto British sovereignty and, where present occupation is relied on as proof ofoccupation pre-sovereignty, continuity of occupation between present and pre-sovereignty occupation.The Supreme Court of Canada has considered that to "sufficiently occupy theland for the purpose of title, the Aboriginal group must show that it hashistorically acted in a way that would communicate to third parties that it heldthe land for its own purposes. This standard does not demand notorious orvisible use akin to proving a claim for adverse possession, but neither can theoccupation be purely subjective or internal". Those Acts must "indicate apermanent presence and intention to hold and use the land for the group'spurposes". That Court stressed that "exclusivity of occupation" requires"intention and capacity to control the land". It is submitted that "capacity"means "ability".Similarly, English common law cases relating to possessory title in theforeshore and seabed place considerable weight on acts of exclusion and106 Ngāti Hokopu ki Hokowhitu v Whakatāne District Council [2002] NZEnvC 421; (2002) 9 ELRNZ111.107 At [43].108 Tsilhqot'in Nation v British Columbia [2014] 2 SCR 256.109 Delgamuukw v British Columbia [1997] 3 SCR 1010.physical control, or on occupation and use of the marine environment by theconstruction and control of structures (citations omitted).[136] Counsel acknowledged that the Supreme Court of Canada was consideringnative title over dry land in British Columbia rather than New Zealand's marine andcoastal area, but submitted that the approach taken could inform consideration ofwhether exclusive use and occupation of the takutai moana had been established.[137] The main problem in relying on this Canadian Supreme Court decision is thatwhat the Court was considering was customary or Aboriginal title to land. Theconsequences of a declaration of the existence of customary title to land in Canada arevery different to the consequences of a declaration of CMT in Aotearoa/New Zealand.[138] Ms Feint QC, counsel for Ngāti Ruatakenga, correctly submitted in her closingsubmissions:110The threshold at which the Canadian and Australian tests are set is influencedby the legal and constitutional consequences that flow from a finding ofcustomary title in that jurisdiction. If an applicant group obtains customarytitle in Canada, they have the ability to exercise exclusive possession atcommon law of the area subject to their title; and the ability of the CanadianState to regulate that area or interfere with their rights is subject to fiduciaryduties and a detailed proportionality test similar to that found in Article 1 ofthe Canadian charter (see Tsilhqot'in Nation v British Columbia at [85]-[88]).[139] As explained at [33] above, CMT under the Act is not the equivalent ofcustomary title to the takutai moana. It is not property that can be owned, it is subjectto the exercise of substantial rights by others including access, navigation and fishingrights,111 and whether the statutory test is met is to be decided not in accordance withcommon law or other principles addressing customary title to land, but in accordancewith the tikanga that is applicable to the specified area of the takutai moana.[140] In Te Runanganui o Te Ika Whenua Inc Society v Attorney-General, Cooke P(as he then was) said:112110 See also Chapter Three in Paul McHugh, Aboriginal Title: The Modern Jurisprudence of TribalLand Rights (Oxford University Press, 2011) for a discussion of the different emphasis that theCanadian and Australian cases put on Aboriginal law and custom as opposed to common lawconcepts when determining customary title.111 These rights are set out in detail in ss 26-28 of the Act.112 Te Runanganui o Te Ika Whenua Inc Society v Attorney-General, above n 64, at 24.The nature and incidents of Aboriginal title are matters of fact dependent onthe evidence in any particular case.[141] Equally, the question of whether the requirements of s 58(1)(a) of the Act havebeen met is a question of fact, and the focus of the factual inquiry is on tikanga.[142] As is discussed below, the concept of control of land by exclusion from it ofothers not of the applicant group, is not a concept that sits comfortably with coretikanga values such as manaakitanga and whanaungatanga.[143] In Australia, rights to customary title are statutorily prescribed and not asstrong as in Canada, but unlike under the Act, there is a right to statutory compensationif a State or the Federal Government has expropriated any land held by Aboriginalgroups.113Conclusion[144] The task for the Court in considering whether the requirements of s 58(1)(a) ofthe Act have been met is therefore not to attempt to measure the factual situationagainst western property concepts or even the tests at common law for theestablishment of customary land rights. It is also not particularly helpful to attempt toapply the Canadian and Australian jurisprudence on Aboriginal title. The critical focusmust be on tikanga and the question of whether or not the specified area was held inaccordance with the tikanga that has been established.ExclusivityShared exclusivity[145] Section 58(1)(b)(i) requires exclusive use and occupation of the specified areafrom 1840 to the present day. Such use and occupation must be without substantialinterruption.[146] Counsel for the Attorney-General, in closing, submitted that there wasevidence to suggest that most, if not all of the applicant groups, could establish use113 See Northern Territory v Griffiths [2019] HCA 7 at [3].and occupation in respect of at least part of the application area as at 1840. It wassubmitted that the issue for the Court was whether that use and occupation had beenexclusive and continuous since 1840 without substantial interruption.[147] It was further submitted that an objective assessment was required of:(a) the nature of the use and occupation; and(b) whether it was continuous exclusive use and occupation.[148] Ms Roff submitted that this analysis would be " likely to be influenced bytikanga Māori, including whakapapa, rāhui and the principle of ahi kā". It was furthersubmitted that in undertaking this analysis, regard must be had to the context in whichthe claim was being bought. This was said to include geographical landscape,remoteness, environmental factors and changes in technology.[149] Reference was made to the test in the Canadian jurisprudence relating to theproving of Aboriginal title. Relying on the Canadian jurisprudence, it was submittedon behalf of the Attorney-General that the words "exclusive use and occupation" inthe Act required the applicant to show an intention and ability to control the specifiedarea against third parties. The submissions expressly referred to Tsilhqot'in Nation vBritish Columbia where the Supreme Court of Canada had said "Exclusivity ofoccupation "requires" intention and capacity to control the land".114[150] For the reasons discussed at [55] and [118]-[144] above, tests promulgated inCanadian cases considering a different type of property right to CMT are of limitedrelevance.[151] The Attorney-General's submissions went on to assert:English common law cases relating to possessory title in the foreshore andseabed place considerable weight on acts of exclusion and physical control oron occupation and use of the marine environment by the construction andcontrol of structures.114 Above n 108, at [48].[152] Again, as discussed, English common law cases about possessory title relateto a concept very different to the much more limited property right conferred by CMTin the Act, let alone the concepts in tikanga Māori.[153] Counsel for the Attorney-General acknowledged the possibility of theexistence of a concept of "shared exclusivity" in relation to the use and occupation ofthe takutai moana, and further submitted that a positive act which might indicateexclusivity in the specified area was the placing of rāhui. It was conceded that therewas extensive evidence put forward by the applicant groups in relation to the placingof rāhui within their customary rohe and that this evidence showed generally that rāhuiwere complied with by both Māori and non-Māori.[154] Counsel for the Attorney-General also acknowledged that the decision of theSupreme Court of Canada in Delgamuukw v British Columbia raised the possibility ofseveral groups holding an area of dry land on the basis of "shared exclusivity".115 Itwas submitted that shared exclusivity was permitted under the Act.[155] On the evidence in this case, counsel for the Attorney-General conceded thatthere were areas of shared interest in the application area relating to the seawardboundary, Ōhiwa Harbour and Whakaari. However, this concession was qualified bya significant caveat. It was submitted by counsel for the Attorney-General that beforethe Court could find that a number of applicants shared exclusivity to all or part of theapplication area, it was necessary that their applications be formally combined orjoined so as to form one "applicant group".[156] Conversely, counsel for Te Rūnanga o Ngāti Awa, Ms Irwin-Easthope,contended that if shared exclusivity is available under the Act, then it must be the casethat it can be shared among the applicant groups as otherwise, other than onamendment to the pleadings, shared exclusivity would hardly ever be able to existunder the Act as it would only be able to apply to within one applicant group.[157] Counsel for the Attorney-General submitted that the nature of the rights andinterests of these groups for the purpose of recognising CMT may not necessarily be115 Above n 109, at [158].of equal status if there was recognition and agreement amongst the group as to thedifferent interests. However, Ms Roff stated that:The inability of one iwi, hapū or whānau to recognise the rights and interestsof another to the same shared specific area will frustrate a shared exclusivityclaim for CMT.In the present case, whilst there is general acknowledgement that other iwi,hapū and whānau occupy and use overlapping areas, such as around ŌhiwaHarbour, there remains disagreement between some of the applicant groups asto the nature of the occupation and use and whether it was exclusive.[158] In particular, counsel relied on the evidence given by Felicity Kahukore Bakeron behalf of Te Ūpokorehe Treaty Claims Trust which asserted that Te Ūpokorehe heldmana over Ōhiwa Harbour, and that any rights other groups claim to exercise in thearea are done so under the mana of Te Ūpokorehe.[159] Counsel also noted that there was no recognition or acceptance by Ms Bakerthat groups other than Te Ūpokorehe held mana in that area. It was submitted that"This creates a fundamental issue for the application of shared exclusivity across thisarea.".[160] The other difficult area identified by counsel was the area from Maraetōtara toŌhiwa Harbour. Ms Roff noted the position of Te Rūnanga o Ngāti Awa that, althoughthey acknowledged shared customary interests in Ōhiwa Harbour, they claim to holdexclusive customary interests from Maraetōtara to Ōhiwa Harbour.[161] Although the conclusion of the availability of "shared exclusivity" for thepurposes of CMT is driven by a consideration of whether the specified area is held inaccordance with tikanga rather than the application of Canadian or Australianjurisprudence, such a conclusion is not inconsistent with that jurisprudence.[162] Even in the context of considering customary title to land, the CanadianSupreme Court in Delgamuukw, the Court accepted that multiple groups could sharetitle. Chief Justice Lamer, speaking for himself and Cory and Major JJ said:116116 Delgamuukw, above n 109, at [158].In their submissions, the appellants pressed the point that requiring proof ofexclusive occupation might preclude a finding of joint title, which is sharedbetween two or more Aboriginal nations. The possibility of joint title has beenrecognised by American courts: United States v Santa Fe Pacific RailroadCo., 314 US339 (1941). I would suggest that the requirement of exclusiveoccupancy and the possibility of joint title could be reconciled by recognisingthat joint title could arise from shared exclusivity. The meaning of sharedexclusivity is well-known to the common law. Exclusive possession is theright to exclude others. Shared exclusive possession is the right to excludeothers except those with whom possession is shared. There clearly may becases in which two Aboriginal nations lived on a particular piece of land andrecognised each other's entitlement to that land but nobody else's.[163] In the same judgment, La Forest J, speaking for himself and L'Hureux-Dube Jsaid:117The way I see it, exclusivity means that an Aboriginal group must show thata claimed territory is indeed its ancestral territory and not the territory of anunconnected Aboriginal society. On the other hand, I recognise the possibilitythat two or more Aboriginal groups may have occupied the same territory andused the land communally as part of their traditional way of life. In caseswhere two or more groups have accommodated each other in this way, I wouldnot preclude a finding of joint occupancy. The result may be different,however, in cases where one dominant Aboriginal group has merely permittedother groups to use the territory or where definite boundaries were establishedand maintained between two Aboriginal groups in the same territory.[164] Lamer CJ noted in Delgamuukw:118Aboriginal title has been described as sui generis in order to distinguish itfrom "normal" proprietary interests, such as fee simple. However, as I willnow develop, it is also sui generis in the sense that its characteristics cannotbe completely explained by reference either to the common law rules of realproperty or to the rules of property found in aboriginal legal systems. As withother aboriginal rights, it must be understood by reference to both commonlaw and aboriginal perspectives.[165] Similarly, at [190], La Forest J noted:It follows from these cases that the aboriginal right of possession is derivedfrom the historic occupation and use of ancestral lands by aboriginal peoples.Put another way, "aboriginal title" is based on the continued occupation anduse of the land as part of the aboriginal peoples' traditional way of life. Thissui generis interest is not equated with fee simple ownership; nor can it bedescribed with reference to traditional property law concepts.117 At [196].118 At [109]. See also Lamer CJ's observations at [156].[166] In terms of the Canadian jurisprudence, it is also clear that where competingclaimant groups completely deny each others' history in claims to title, sharedexclusivity, on the facts, cannot exist. This does not require the differing applicantgroups to have necessarily been amicable throughout their history but does entail someacknowledgment of the other's interest. As noted by one of the leading Canadianscholars on shared exclusivity, Professor Kent McNeil:119But why is amicability even a requirement? Surely the issue to be determinedis whether two or more Aboriginal groups together made exclusive use of theland and excluded others who did not have their permission to enter. Theycould be in exclusive occupation even if their relationship was not free ofconflict.[167] In Ahousaht Indian Band v Attorney-General of Canada, the Supreme Courtof British Columbia said:120The Claim Map sets out the Territories that each of the plaintiff nationsindividually claims Aboriginal title to there are large areas of overlap The problem with these areas of overlap is that while resource rights arenon-exclusive and can legally overlap, Aboriginal title is exclusive so cannotlegally overlap.Although it is possible to have areas of shared Aboriginal title, no such areasexist on these facts and shared title has not been pled. Instead each bandbelieves that they have title exclusively and that the opposing band iswrong Conclusion[168] Unlike the Western proprietary concepts that counsel for the Attorney-Generaland the Landowners Coalition sought to import from the Canadian jurisprudence intothe Act (and which, as discussed above, were inconsistent with the Act and the notionof holding the area in accordance with tikanga), it is consistent with the purpose of theAct and the focus in s 58(1) for the concept of shared exclusivity to be available inNew Zealand. Therefore, on this particular issue, I will follow a similar approach tothat taken by the Canadian Courts.119 Kent McNeil "Exclusive Occupation and Joint Aboriginal Title" (2014) 48 University of BritishColumbia Law Review 821 at 855.120 Ahousaht Indian Band v Attorney-General of Canada 2007 BCSC 1162 at [28]-[29].[169] I have concluded that the structure of the Act is consistent with a jointly heldCMT rather than two overlapping CMTs for the same area each held by differentparties. If there were multiple CMTs for the same area then there would be practicalproblems with the exercise of the rights which flow from the grant of CMT. CMTconfers on an applicant group the right to use, benefit from or develop a CMT areaincluding deriving a commercial benefit. CMT rights can also be delegated andtransferred. There would also be practical problems if two groups held CMT andwanted to exercise the various rights conferred by s 62.[170] Jointly holding CMT avoids some of these problems. There will clearly needto be co-operation and agreement between the holders of joint CMT but these are notinsurmountable issues. Tikanga has in the past provided for the exercise of a complexweb of overlapping rights.121 It should be able to assist in parties holding CMT on ajoint or shared exclusive basis working out how to jointly exercise the rights conferredby a grant of CMT.Ownership of abutting land[171] Mr Finlayson, counsel for Landowners Coalition submitted that an importantquestion was whether the applicant was able to exercise control of a specified areaagainst any third party. He gave an example of an applicant who owned land abuttingthe foreshore and seabed being able to control access to that part of the foreshore andsubmitted that this " would be very good evidence of an intention to control the areaagainst a third party, in this case a stranger." He then submitted that this could:be contrasted with a public beach near Ōpōtiki to which everyone has accessand where no person would be able to indicate to a third party that they wouldnot have access.[172] The issue of ownership of abutting land is one significant difference betweenthe Act and its predecessor, the Foreshore and Seabed Act. The Act modifies theposition existing under the earlier legislation,122 by stating that ownership of landabutting all or part of the specified area is only a matter which may be taken intoaccount in determining whether CMT exists rather than a prerequisite. Its relevance121 See [122] above.122 Section 59(1)(a)(i).will depend very much on the facts. Here, it is of minimal significance. To the extentthat the applicant groups no longer own abutting land, it was as a result of confiscationrather than voluntary sale. As discussed at [193]-[207], loss of abutting coastal landdid not sever the applicants' connection with the takutai moana.[173] It is also difficult to see how the ability to control access to abutting land couldbe determinative of the existence of CMT. That is because the Act provides that CMTis specifically subject to extensive general rights of access as well as navigation andfishing rights.123[174] In urging upon the Court the same western proprietary approach to that takenby the Canadian Courts, counsel overlooks the fact that the takutai moana is not usedor occupied in anything like the same way that land is. More importantly, such aninterpretation would undermine the test in s 58(1)(a) to the effect that the specifiedarea was held in accordance with tikanga. The ability to exclude others in the sensepropounded by counsel for the Attorney-General and the Landowners Coalition, is atodds with the important tikanga values of whanaungatanga and manaakitanga.[175] The evidence of Ngāti Ruatakenga tohunga and kaumatua, Mr Te RiakiAmoamo, on the topic of exclusivity was:We have the right to exercise our customary authority (mana andrangatiratanga) in relation to our own seascape. For the same reason, wewould not go onto other tribal (iwi) seascapes because we would bechallenged. Our customary areas are not as rigid as Western boundarieshowever. Other Whakatōhea hapū can come into our sector, for instance, wewouldn't stop Ngāti Patu coming to fish in our area. The tikanga is that weshare the kai because our hapū of Whakatōhea are related to each other bywhakapapa, and it is part of our collective responsibility to care for ourwhānaunga, as they do for us (this is known as manaakitanga). In that respectwe are a tribal collective.[176] Mr Amoamo went on to explain that within the Whakatōhea takutai moana,different hapū had different rights and responsibilities. He gave an example throughthe fact that if there was a drowning within a particular part of the rohe associated withhis hapū then he would have the mana to conduct the necessary karakia and to imposeand lift a rāhui. He also acknowledged that different hapū would have responsibilities123 See ss 26-28.as kaitiaki. This was illustrated by the fact that Ngāti Rua would go to Ōhiwa to gatherkaimoana, but that other hapū performed the role of kaitiaki in this area. Heemphasised that within the Whakatōhea takutai moana, there were no hard lines andthat hapū did not have exclusive areas. He specifically stated: "Our sea territory isshared in Whakatōhea". That was one reason why he supported the six Whakatōheahapū (those identified by the pukenga in their poutarāwhare) as jointly holding CMT.[177] The evidence before the Court was that the sharing of access to resources wasnot limited just to the six hapū of Whakatōhea but in certain areas (for example,Whakaari and Western Ōhiwa Harbour) extended to other iwi.[178] Mr Finlayson was dismissive of the concept of "shared exclusivity". Hesubmitted:On the face of it, a claim to shared exclusivity is oxymoronic. One canhowever theoretically conceive a situation where two whānau, as at 1840,agreed that they should share exclusively a specified part of the commonmarine and coastal area and that together they shall represent to any otherperson that they have a shared exclusive use and occupation. There would ofcourse have to be evidence for such an arrangement, and it cannot be said thatthe default position for competing applicant groups is that, if they cannot show[that] a specified area has been exclusively used and occupied by an applicantgroup on its own, then there may be a shared exclusivity as a consolation prize.Competing applicant groups cannot be said by default to have sharedexclusivity.[179] It is correct to submit that shared exclusivity is not a "default" outcome wheretwo competing applicant groups are each claiming they have exclusive rights.[180] However, it goes too far to suggest that there must have been some expressagreement in 1840 of which there is evidence before there could be a finding of sharedexclusivity. That submission ignores the context and also the role of tikanga. Thepukenga have found that as a matter of tikanga, the takutai moana betweenMaraetōtara and Tarakeha and out to Whakaari, was shared between the sixWhakatōhea hapū. That is consistent with the evidence given by tohunga such asTe Riaki Amoamo referred to above.[181] As I have discussed earlier in this judgment, the nature of joint title or sharedexclusivity under CMT must also be considered from a tikanga perspective. In theCanadian context, this is usefully described by Professor McNeil:124the Chief Justices' characterization of Aboriginal title as sui generis alsoimplies that, whether unshared or joint, the title needs to be consideredinternally as well as a unique property interest that has to be defined on itsown terms. We therefore should not expect joint Aboriginal title to conforminternally to the common law concepts of joint tenancy or tenancy in common.Chief Justices Lamer and McLachlin have told us that, as Aboriginal titlearises from the historic relationship between the Crown and Aboriginalpeoples, both their legal systems have to be taken into account. This is theapproach they have taken to defining Aboriginal title externally. Butinternally, it seems to me that the common law is not relevant because control,management, and use of Aboriginal title land is a matter for the titleholdersthemselves to determine, which must entail self-government and theapplication of their own laws. Where joint title is concerned, the internalrelationship is between the joint Aboriginal titleholders, not with the Crown.Accordingly, the legal systems of the Aboriginal titleholders and theinteractions of those legal systems should inform the internal dimensions ofjoint title. This approach is consistent with the way the rights of the membersof an Aboriginal group having unshared Aboriginal title govern distributionand use of lands among themselves in accordance with their own internal laws.[182] Taking this approach to the concept of shared exclusivity, the "evidence for thearrangement" is that which was accepted by the pukenga in arriving at theirconclusions. There is no need for evidence of some formal agreement orunderstanding that goes beyond the tikanga findings.[183] As discussed above, Ms Baker of Te Ūpokorehe Treaty Claims Trust has adifferent view to the other five Whakatōhea hapū as to the basis upon which certainareas were held in accordance with tikanga. It is open to both the pukenga and theCourt to come to a different view from Ms Baker as to what the facts established.[184] A finding of shared exclusivity amongst the six Whakatōhea hapū is not of a"contemporary arrangement entered into for the purposes of this proceeding". That,as Mr Finlayson rightly submits, would not meet the requirements of the Act. Five ofthe six hapū identified in the poutarāwhare of the pukenga accepted that the takutai124 Kent McNeil "Exclusive Occupation and Joint Aboriginal Title", above n 119, at 863.(footnotes omitted).moana was shared in accordance with tikanga. Ūpokorehe did not dispute the fact thatthe other hapū shared the area, their dispute was the basis upon which this was done.[185] The original application by Claude Edwards was filed on behalf of all of theWhakatōhea hapū. It included Ūpokorehe.125 The application filed on behalf of theWhakatōhea Māori Trust Board also proceeded on a similar basis. There are thereforeapplications before the Court consistent with the conclusion that there was sharedexclusivity as between the six hapū.[186] On this basis, it cannot be asserted that the conclusion that six hapū sharedexclusivity of the specified area is some sort of 'default' position manufactured by theCourt to deal with the fact that no single applicant exclusively held the specified area.[187] As noted by the pukenga in their report, the issue of how any CMT is to beheld is a matter for future discussion between the parties and finalisation in the secondhearing. The pukenga were hopeful that the poutarāwhare adopted by them mightallow for the recognition of different interests as between the hapū. That is possible.It is also possible that Ūpokorehe might not accept the Court's adoption of the pukengafindings and not wish to be part of any CMT which they jointly held with other hapū.That would obviously be a matter for them. However, the Court hopes that, as thepukenga encouraged, there might be discussions between parties leading to an agreedoutcome in accordance with tikanga.Substantial interruption[188] Although s 58(1)(b) sets the test for CMT as requiring the applicant to haveexclusively used and occupied the specified area from 1840 "without substantialinterruption", the Act does not define what substantial interruption might mean.[189] Counsel for the Attorney-General submitted that the following matters might,in the present case, amount to substantial interruption of the applicants' exclusive useof the takutai moana:125 See n 4 above.(a) raupatu;(b) resource consents in the application area granted prior to 1 April 2011;(c) permanent structures in the application area; and(d) third party use and occupation.[190] Relevant factors in assessing whether any or all of these matters constituted asubstantial interruption were submitted as being the:(a) duration of the matter being considered;(b) frequency with which an interrupting activity took place;(c) overall extent of the activities; and(d) nature of the activity itself and how it affected (or affects) the applicantgroups.[191] Mr Finlayson noted that the phrase "substantial interruption" had been takenfrom jurisprudence on Australian native title. He accepted that the Australianjurisprudence was "quite distinct" from the New Zealand test because, in Australia,the concept really deals with interruption of a cultural connection whereas inNew Zealand, "any substantial interruption must relate to exclusive use andoccupation".[192] He submitted that factors relevant to considering whether there had beensubstantial interruption included the development of harbours, wharves, jetties, andother infrastructure such as pipes; the regulation of the relevant part of the coast byeither local or regional government, and the effect of raupatu. He did acknowledgethat raupatu related to dry land but not land below the mean highwater mark.Raupatu[193] Extensive evidence was given by all applicants on the subject of raupatu andthe effect that it had on the relationship of the applicants and the takutai moana.[194] The particular raupatu referred to was that which occurred in 1866. The Crownconfiscated some 448,000 acres of land in the eastern Bay of Plenty which includedall the best agricultural land and all of the land abutting the coastline.126 Nominallythe purpose of the New Zealand Settlements Act 1863 was to punish "rebels" forparticipating in the land wars although land belonging to rebel and loyal Māori alikewas confiscated and subsequently returned, although the groups to which the land was"returned" were not necessarily those from whom the land had been confiscated. Inreality, as well as "punishing" Māori, this strategy provided the Crown with land itcould either sell for a profit or dispose of as a reward to settlors who had participatedas members of the various "irregular" forces who had fought in the land wars on theside of the Crown.127[195] The practice of confiscation was not unique. Writing about the invasion ofWaikato in 1863, Vincent O'Malley has stated:128Plans for the invasion were agreed between Grey and Colonial Ministers inJune 1863. An integral part of the scheme involved confiscating the lands ofall Māori who resisted the invading troops. Not only would this ensure thatthe war turned a profit, through the sale of confiscated territory to settlers, butit would also cement Crown control of the newly conquered areas, whichwould have military settlers planted on them. The British had first adopted amodel of confiscation and occupation in Ireland in the 17th century. Grey hadserved in Ireland as a young officer in the army and between his twoNew Zealand governorships had also implemented a similar policy during histime in charge of the Cape Colony (now part of South Africa).[196] The submissions on behalf of the Attorney-General noted the recent decisionin Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohau Incorporated v The Attorney-General,129 where the High Court held that the confiscation of land under the 1863126 Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 2, at 125.127 At 123.128 Vincent O'Malley The New Zealand Wars Ngā Pakanga o Aotearoa, (Bridget Williams Books,2019), at 105.129 Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohau Incorporated v The Attorney-General[2020] NZHC 1882.Act in the Waikato area was not invalid on account of failing to comply with the termsof the 1863 Act, nor ultra vires, because such actions were subsequently validated bythe New Zealand Settlements Acts Amendment Act 1866.[197] However, whether the raupatu was lawful when it took place, ultra vires itsempowering legislation or subsequently validated by amending legislation is not amatter that needs to be resolved in this case. Neither is the issue of whether or not theraupatu was in breach of the Crown's obligations under the Treaty of Waitangi.[198] Whakatōhea do not yet have a Tribunal decision on their raupatu claims.However, neighbouring iwi do. In its Ngāti Awa Raupatu Report, the WaitangiTribunal described the Crown confiscation of Ngāti Awa lands as a breach of theTreaty of Waitangi.130 Similarly, the Ngāti Awa Claims Settlement Act 2005specifically acknowledges that confiscation of Ngāti Awa lands as part of the raupatuwas unjust, unconscionable and a breach of the Treaty of Waitangi. The Tūhoe ClaimsSettlement Act 2014 contains similar wording.[199] There is no doubt that the raupatu resulted in severe and enduring economicconsequences on Whakatōhea. Up until the 1860s, Whakatōhea iwi and rangatira hadbeen heavily involved in the coastal trade, both owning and crewing a number ofsailing vessels that traded between Ōpōtiki and Auckland (and other places). Evidencewas produced at the hearing of Hira Te Popo of Ngāti Ira, who owned a flour mill thatprocessed local wheat into flour for transport to Auckland.[200] The confiscation, with its associated extensive looting and destruction ofMāori assets, clearly produced widespread economic hardship.131 However, it did notsubstantially disrupt the relationship that the applicants had with the takutai moana.[201] Although many of the hapū of Whakatōhea were displaced from theirtraditional coastal settlements as a result of the confiscation, reservations wereallocated at Ōpape, the Hiwarau Block and Hokianga Island in Ōhiwa Harbour.130 Waitangi Tribunal The Ngāti Awa Raupatu Report (WAI 46, 1999) at 1.4.131 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 2, at 141-142; Ewan Johnston ŌhiwaHarbour (WAI 894, A116, 2003) at 134; and Judith Binney Encircled Lands: Te Urewera 1820-1921 (Bridget Williams Books, 2009) at 110.[202] Mark Derby, the historian called by the Attorney-General, acknowledged theevidence given on the part of the applicants to the effect that far from interrupting theuse and occupation of the takutai moana by the various applicant groups, the raupatuincreased their dependence on the takutai moana particularly as a source of food giventhe confiscation of all of their cultivated lands and the destruction of the other assetssuch as the flour mill and farm machinery that had been used to produce food.[203] In closing submissions, counsel for the Attorney-General acknowledged thatthere was no evidence to suggest that any of the applicant groups living in theapplication area at the time of raupatu and subsequently, were denied access to thetakutai moana, or its resources as a result of raupatu. The submissions note that withthe creation of the Ōpape Reserve and the Ōhiwa Harbour Reserves, Ngāti Rua andŪpokorehe were not, in fact, displaced from their traditional tribal lands.[204] Given the consistency of the conclusions drawn by all of the expert historians,and the evidence of the applicants, I am satisfied that raupatu did not substantiallyinterrupt the holding by the applicants of the takutai moana in accordance with tikanga.[205] The raupatu did not physically remove hapū from the coast, but even thedestruction of the larger waka used for offshore fishing, had relatively short-termconsequences.[206] In terms of tikanga, the confiscation of lands and destruction of property wouldnot have severed the connection with the takutai moana. That is because Whakatōheahapū continued to exercise their rights in respect of the takutai moana.[207] The issue of the rights that a people subjected to raupatu who remained in thearea was considered by the Waitangi Tribunal in the Rekohu Report.132 That reportdealt with the subjugation and enslavement of Rekohu Moriori by Ngāti Mutunga andNgāti Tama. The report supports a conclusion that unless the group were all killed,rights were likely to remain where the group remained in the area and continued toexercise ahi kā.133132 Waitangi Tribunal Rekohu: A Report on Moriori and Ngāti Mutunga Claims in the ChathamIslands (WAI 64, 2016).133 At 143.Resource consents granted prior to 1 April 2011[208] The existence of resource consents issued prior to 1 April 2011 and the factthat Local or Regional Councils had regulated part of the coastal marine area areappropriately dealt with together. Section 58(2) of the Act provides:For the purpose of subsection (1)(b), there is no substantial interruption to theexclusive use and occupation of a specified area of the common marine andcoastal area if, in relation to that area, a resource consent for an activity to becarried out wholly or partly in that area is granted at any time between–(a) the commencement of this Act; and(b) the effective date.[209] Counsel for the Attorney-General submitted that the wording of s 58(2) gaverise to an inference that a resource consent for an activity granted before thecommencement of the Act could amount to a substantial interruption of the applicantgroups' use and occupation of the takutai moana.[210] Attached as an appendix to the Attorney-General's closing submissions was alist of all current resource consents relating to the specified area that was the subjectof the applications, together with a summary of those consents.[211] The summary showed that the majority of the resource consents related toŌhope, Ōhiwa Harbour, Ōpōtiki Harbour, and Waiōtahe Beach. Reference was alsomade to the resource consents held by Eastern Sea Farms for the operation of a3,800 hectare marine farm, situated approximately 8.5 kilometres offshore fromŌpōtiki. The summary noted that there were no resource consents at Tirohanga andnone at Ōpape.[212] The resource consents relating to Ōhope are for facilities which support theŌhope township such as resource consents controlling streams, for erosion protection,and for the provision of stormwater and sewerage outlets. Other resource consentsrelate to recreational activities and commercial fishing off Ōhope. The mostcontentious resource consent was said to relate to the sewerage outfall 550 metresoffshore from the mean highwater springs off Ōhope Beach, and the Ōhope sewerageplant. The information provided showed that there had been extensive involvementof local iwi and hapū in relation to these and other resource consents.[213] In relation to the Ōhiwa Harbour, it was noted that various consents were heldby local councils, the Bay of Plenty Regional Council and third parties such as theproprietor of the Ōhiwa Marine Oyster Farm. The oyster farm consent allowedoccupation of 20,100 square metres in Ōhiwa Harbour.[214] In relation to Ōhiwa Harbour, there are resource consents relating to wharfconstruction, the construction of slipways and boat ramps, and the construction ofother structures in the takutai moana including for the laying of cables, the building ofa café over the foreshore and seabed, and the creation of sea walls.[215] There was evidence that, at least from the 1990s, in relation to applications forresource consents involving the takutai moana, local authorities consulted with localiwi and hapū, including Whakatōhea, Ūpokorehe, Ngāti Awa and Tūhoe. Theinformation indicated that many of the local iwi and hapū had carried out akaitiakitanga role in relation to Ōhiwa Harbour with Ūpokorehe being prominent andhaving two resource consents themselves, one relating to erosion protection works inrespect of the Tokitoki midden site and the other relating to mangrove management inŌhiwa Harbour.[216] In relation to Waiōtahe Beach, Ngai Tamahaua were noted as having opposed,along with Ūpokorehe, a subdivision which cut across the urupā and wāhi tapu knownas Te Arakotipu.[217] In relation to the Eastern Sea Farms, marine farm consents information showedthat although the Whakatōhea Māori Trust Board were the 54 percent owners ofEastern Sea Farms Limited, and the application was expressly supported byNgāti Ngāhere, Ngāti Ira, Ngāti Rua and Ngāti Patu, there had been opposition fromŪpokorehe, Ngāti Awa, and Ngāti Hokopu ki Wairaka.[218] The resource consents relating to Ōpōtiki Harbour had mainly been granted tothe Ōpōtiki District Council to facilitate the use of Ōpōtiki Harbour, includingconstructing a pipeline across the river and constructing a jetty and pontoon forswimming activity. The most significant resource consent related to reclamation ofmore than one hectare of the coastal marine area at Pakihikura (at the Waiōwekariver mouth).134[219] Mr Bennion, counsel for Ngāti Patumoana, submitted that the grant of aresource consent under the RMA, did not operate to extinguish property rights as amatter of law. He referred to the Court of Appeal in Ngāti Apa rejecting an argumentfrom the New Zealand Marine Farming Association that claims of ownership ofproperty in the foreshore and seabed were inconsistent with the controls of the coastalmarine area under the RMA. The Court had said:135The statutory system of management of natural resources is not inconsistentwith existing property rights as a matter of custom. The legislation does noteffect any extinguishment of such property.[220] Mr Bennion went so far as to submit that "no activities authorised by resourceconsents issued under the 1991 Act can amount to a substantial interruption as a matterof fact." He based this argument on the fact that in s 6 "matters of nationalimportance", the RMA provided that all persons exercising functions and powersunder the Act were obliged to recognise and provide for, as a matter of nationalimportance:(e) the relationship of Māori and their culture and traditions with theirancestral lands, water, sites, wāhi tapu, and other taonga.[221] Mr Bennion submitted that the coastal marine area is "ancestral land andwaters" subject to s 6(e) of the RMA. He also relied on s 7 of the RMA which providedthat in achieving the purposes of the act, all persons exercising functions and powersunder it in relation to managing the use, development and protection of natural andphysical resources, were obliged to have particular regard to kaitiakitanga.[222] Mr Bennion also referred to the New Zealand Coastal Policy Statement 2010(NZCPS). Policy 2 of the NZCPS lists seven principles required to be taken into134 Reclamation as a source of substantial interruption is dealt with below at [231]-[250].135 Attorney-General-Ngāti Apa, above n 15, at [75] and [76].account in relation to the coastal environment. The first three of those principlesprovide:Policy 2: The Treaty of Waitangi, tangata whenua and MāoriIn taking account of the principles of the Treaty of Waitangi (Te Tiriti oWaitangi), and kaitiakitanga, in relation to the coastal environment:(a) recognise that tangata whenua have traditional and continuing culturalrelationships with areas of the coastal environment, including placeswhere they have lived and fished for generations;(b) involve iwi authorities or hapū on behalf of tangata whenua in thepreparation of regional policy statements, and plans, by undertakingeffective consultation with the tangata whenua; with such consultationto be early, meaningful, and as far as practicable in accordance withtikanga Māori;(c) with the consent of tangata whenua and as far as practicable inaccordance with tikanga Māori, incorporate mātauranga Māori inregional policy statements, in plans, and in the consideration ofapplications for resource consents, notices of requirement fordesignation and private plan changes.[223] As set out at [208] above, s 58(2) of the Act dictates that the issue of a resourceconsent in the marine and coastal area at any time between the commencement of theAct and the effective date of the Act does not amount to substantial interruption of theexclusive use and occupation of a specified area. It is not clear why resource consentsissued prior to those dates should not also have that effect. There is nothing the RMAor its predecessor Acts that would indicate Parliament intended that the grant of aresource consent in the takutai moana would extinguish customary rights. There iscertainly nothing that could be described as a "crystal clear" expression of intention tothat effect.136[224] I adopt comments of the Court of Appeal in Ngāti Apa referred to at [219]above. While the physical activities authorised by a grant of resource consent mayhave the practical effect of amounting to a substantial interruption to the exclusive useand occupation of part of a particular specified area, the fact that a Council has issueda resource consent does not automatically have that effect.136 See the discussion at [34] above.[225] There is force in Mr Bennion's argument that ss 6 and 7 of the RMA actuallysupport a finding that it was the Act's intention to recognise and provide for therelationship of Māori and their culture and traditions with their ancestral lands, water,wāhi tapu and other taonga.[226] Although the Court was not provided with any examples of other forms ofregulation of the takutai moana by local authorities amounting to substantialinterruption, there is no obvious reason why such regulation should be treateddifferently to the grant of resource consents, unless there is a clear intention toextinguish customary rights. One such activity which would have this effect isreclamation.137 I note that the High Court of Australia has made it clear that regulatingwhat can happen within an area does not extinguish native title rights. In Yanner vEaton, the Court said:138Regulating particular aspects of the usufructuary relationship withtraditional land does not sever the connection of the Aboriginal peoplesconcerned with the land (whether or not prohibiting the exercise of thatrelationship altogether might, or might to some extent). That is, saying to agroup of Aboriginal peoples, "you may not hunt or fish without a permit",does not sever their connection with the land concerned and does not deny thecontinued exercise of the rights and interests that Aboriginal law and customrecognises them as possessing.Conclusion[227] I accept the arguments advanced by Mr Bennion discussed above. Nothing inthe RMA shows an intention to extinguish Māori customary rights. The Court ofAppeal decision in Ngāti Apa confirmed that the statutory system of managingresources set out in the RMA did not have that effect.[228] There are many provisions in the RMA and in documents created pursuant toit such as the NZCPS that are supportive of customary Māori interests in the coastalmarine area. I also note that many of the resource consents granted in the relevantarea prior to the commencement of the Act were granted either after consultation withMāori or with active participation by Māori in the process of considering the consentapplication.137 The consequences of reclamation are discussed at [231]-[250] below.138 Yanner v Eaton [1999] HCA 53 at [38].[229] I therefore do not accept that the Court can draw an inference that because anactivity in the coastal marine area is carried out pursuant to a resource consent thatpre-dates the commencement of the Act, that it automatically amounts to a "substantialinterruption" of the exclusive use and occupation of the takutai moana by the applicantgroups.[230] The activity itself, depending on its nature, scale and intensity may have thateffect. Activities relating to port infrastructure such as wharves, jetties or slip waysmay well amount to substantial interruption. The same for sewerage or other outfallpipelines. But whether they do is to be determined by an examination of the facts ineach case, not by applying a presumption.The effect of reclamation on CMT and PCR claims[231] Subpart 3 of Part 2 of the Act sets out a comprehensive regime relating to thevesting of reclaimed land. The purpose of this subpart is, as set out in the Act, toprovide certainty to business and development interests in respect of investments inreclamations and to balance the interests of all New Zealanders, including theirinterests in conservation.139 Under s 29 of the Act, reclaimed land is defined aspermanent land formed from land that formerly was below the line of mean high-watersprings and that, as a result of a reclamation is located above the line of mean high-water springs, but does not include:(a) land that has arisen above the line of mean high-water springs as aresult of natural processes, including accretion; or(b) structures such as breakwaters, moles, groynes, or sea walls.[232] Section 13 of the Act is also relevant on this point. That section provides:13 Boundary changes of marine and coastal area(1) This Act (other than section 11(4)) does not affect any enactment orthe common law that governs accretions or erosions.139 Section 29(2).(2) However, if, because of a change caused by a natural occurrence orprocess, any land, other than a road, that is owned by the Crown or alocal authority becomes part of the marine and coastal area, then thatland becomes part of the common marine and coastal area (even ifthat land consists of or is included in a piece of land defined by fixedboundaries).(3) If land has, because of a change caused by a natural occurrence orprocess, ceased to be part of the common marine and coastal area, andthe title to that land is not determined by an enactment or the commonlaw, then the land vests in the Crown as Crown land and is subject tothe Land Act 1948.[233] The terms "accretion" and "erosion" are described by the authors ofHinde McMorland & Sim Land Law in New Zealand as follows:140Accretion occurs where the sea, or tidal water, or lake water recedes graduallyand imperceptibly from the land, or where a river gradually and imperceptiblymoves away from one bank, adding to the land by depositing shingle and silt,or where, by gradual and imperceptible means, wind-blown sand is depositedalong the water boundary thus increasing the area of the land. In such casesthe new land belongs to the owners of the parcels of land to which it is added.Erosion is the opposite process. It occurs where the sea, tidal water, or, nodoubt, lake water, gradually and imperceptibly encroaches on the land, orwhere a river gradually and imperceptibly washes away one of its banks. Insuch cases the owners of the parcels of land which are being eroded lose thoseparts of their land which have been washed away.[234] Returning to subpart 3 of Part 2, s 30 dictates that land that has been eitherlawfully or unlawfully reclaimed from the common marine and coastal area is vestedin the Crown, and thus held by the Crown as its absolute property.141[235] Where a lawful reclamation has occurred, the reclaimed land vests in theCrown when a Regional Council approves a plan of survey under s 245(5) of theRMA.142[236] Where it is an unlawful reclamation, the reclaimed land vests when the relevantMinister signs a certificate that:(a) describes the position and extent of the reclaimed land; and140 Donald William McMorland and others Hinde McMorland and Sim Land Law in New Zealand(online ed, LexisNexis) at 9.139(a) (footnotes omitted).141 See subs (1)-(4) of s 30.142 Section 30(1) and (2).(b) states that s 30(4) of the Act applies to the reclaimed land.[237] Section 31 provides that all land that:(a) immediately before the commencement of this Act was–(i) part of the public foreshore and seabed under the Foreshore andSeabed Act 2004; or(ii) vested in the Crown under the Land Act 1948; or(iii) subject to the Foreshore and Seabed Endowment Revesting Act1991; or(iv) otherwise owned by the Crown; and(b) is not set apart for a specified purposeis now vested in the Crown absolutely, as the full legal and beneficial owner of thatland.[238] However, s 31 does not affect any lesser interest held, immediately before thecommencement of the Act by a person other than the Crown in existing reclaimedland; or the ownership in structures fixed to, or under or over, existing reclaimedland.143[239] This subpart therefore sets out a range of provisions which comprehensivelyvest reclaimed land from the common marine and coastal area as the absolute propertyof the Crown, outside of the limited exceptions in subpart 3 of the Act. It will beapparent that applications for PCR and CMT over reclaimed land that is subject to thesubpart cannot succeed, given that such land is entirely vested in the Crown.143 See also s 18, which dictates that a person who, immediately before the commencement of theAct, had an interest in a structure fixed to, or under or over, any part of the common marine andcoastal area, continues to have that interest in the structure as personal property until the person'sinterest is changed by a disposition or by operation of law.[240] This subpart also enables a "developer" of reclaimed land to apply to therelevant Minister for a "grant to the developer of an interest in that reclaimed land".Essentially, under s 34, the relevant Minister may grant interests in reclaimed land,and under s 35, a "developer" (a person which could include a CMT group who holdsthe resource consent for the reclamation by which the land is formed, whether or notthat resource consent was obtained after the commencement or completion of thereclamation) is an eligible applicant who may apply for those interests.[241] Section 36 articulates the matters that the Minster must take into account indetermining what interest in the reclaimed land should be granted. They are:144(a) whether the applicant is to be granted an interest in the reclaimed land and, ifso, whether that interest should be a freehold interest or a lesser interest:(b) if a lesser interest is to be granted, the terms and conditions of that lesserinterest;(c) any conditions that must be fulfilled before any interest in the reclaimed landis granted;(d) the encumbrances, restrictions, or conditions (if any) that should attach to anyinterest (including a freehold interest) to be granted.[242] The Minister must also take into account the following matters:145(a) the minimum interest in the reclaimed land that is reasonably needed to allowthe purpose of the grant to be achieved;(b) the public interest in the reclaimed land, including existing or proposedpublic use of the reclaimed land;(c) whether, and the extent to which, the public is benefiting, or is to benefit, fromthe use or proposed use of the reclaimed land;144 Section 36(1).145 Section 36(2).(d) any conditions or restrictions imposed on the resource consent that authorisedthe reclamation;(e) whether any historical claims have been made under the Treaty of WaitangiAct 1975 in respect of the reclaimed land or whether there are any pendingapplications under Part 4;(f) the cultural value of the reclaimed land and surrounding area totangata whenua;(g) the financial value of the reclaimed land to the Crown;(h) any natural or historic values associated with the reclaimed land;(i) the potential public access, amenity, and recreational values of the reclaimedland;(j) any special circumstances of the applicant, including the amount of anyinvestment made by the applicant in respect of the reclaimed land.[243] Section 37 introduces a presumption that certain applicants (including portcompanies and port operators) who make an application under s 35 for interests inreclaimed land are presumed to be granted a freehold interest unless they do not wishto be granted that interest or the Minister is satisfied that there is a good reason not togrant that interest. The existence of such a freehold interest would preclude the grantof CMT.[244] Finally, ss 44 and 45 establish a right of first refusal: if the freehold interest issold by the owner of that interest at any point in the future, it must first be offered tothe Crown, and then to any iwi and hapū that exercise customary authority in the area.[245] One particular reclamation which was the subject of considerable evidence wasthe Ōpōtiki Harbour Entrance Proposal. In a memorandum dated 22 October 2020,counsel attached a full copy of the decision of the Bay of Plenty Regional Council'scommittee on resource consent applications for the Ōpōtiki Harbour EntranceProposal (dated 29 July 2009). In the decision, the proposal is summarised as follows:Ōpōtiki District Council (the Applicant) has applied for resource consents toundertake a variety of activities associated with the establishment of a newŌpōtiki Harbour Entrance approximately 400 m east of the existingWaiōweka/Otara Rivers entrance. The new entrance will comprise a new120 m channel, two river training walls (approximately 500 m in length) andscour protection works. The existing river mouth will be closed.[246] The activities relating to this proposal that are likely to have the greatest effecton an order for CMT or PCR under the Act include the reclamation of more than onehectare of foreshore and seabed, erection of training walls, removal of more than50,000 m3 of material from the foreshore and seabed (to create the new entrancechannel), and deposition of more than 50,000 m3 of material from the foreshore andseabed. These are all restricted coastal activities under the New Zealand CoastalPolicy Statement. Other relevant activities include:(a) discharge of sediment, slurry water and sediment-laden stormwater intothe coastal marine area;(b) take of coastal water;(c) diversion of coastal water; and(d) erection and removal of temporary structures (including in the coastalmarine area).[247] The decision of the Regional Council's committee on resource consents detailsthat Mr Te Riaki Amoamo appeared at the resource consent hearing, and on behalf ofTe Whakatōhea, expressed his support for the proposal:[Mr Amoamo's] evidence provided an outline of Whakatōhea history and thatthe proposed site lies solely within the Whakatōhea rohe. He also outlinedimportant Whakatōhea taonga within the vicinity of the proposal. Overall, hestated that Whakatōhea support the proposal as it was important in helping tore-establish their social and economic wellbeing.[248] Further on in the decision, it is stated that:The Tangata Whenua (Whakatōhea) supports this application and presentedevidence in support of the applicant. The main basis on which the applicationis supported is that it is likely to help re-establish Whakatōhea's economicbase – something that has previously been significantly undermined. Also theproposal does not affect any areas of significance, such as waahi tapu, sites ofcultural significance or other taonga.[249] The affidavit of Mr Gerard McCormack (an employee of Ōpōtiki DistrictCouncil overseeing the proposal) provides additional background on the proposal.Although approved by the Bay of Plenty Regional Council committee in 2009, theproject was only recently granted funding (in the form of some $79 million from theProvincial Growth Fund) in 2019, with additional funding being granted in February2020. Mr McCormack deposes that the implementation phase commenced in March2020:The first part of the implementation phase during 2020 includes design,modelling and trials. Training wall construction is due to commence in mid-2021, with dredging and river closure to follow in 2022 and through into 2023.[250] For the reasons that relate to other reclamations, the part of this proposal thatresults in the issue of a certificate of title on the basis that the land involved has arisenabove the line of mean high-water springs, means that it is no longer within the takutaimoana and therefore no longer falls within the area in respect of which CMT can beissued. That leaves those aspects of the proposal that fall outside the definition ofreclaimed land in s 29 of the Act and could be described as "structures such asbreakwaters, moles, groynes or seawalls". Such structures need to be considered onthe same basis as other third-party structures in the takutai moana such as pipelines.Third-party structures[251] Whether a structure in the takutai moana has the effect of amounting to asubstantial interruption to the part of the specified area in which the structure islocated, is a question of fact.[252] The Act provides that such structures are effectively the personal property ofthe entity that has been granted resource consent to place them in the takutai moana.Some structures, such as sewerage outfall pipelines will amount to a substantialinterruption of the exclusive use and occupation of that part of a specified area. Theylimit the ability of an applicant group to undertake activities such as fishing andnavigation in the area immediately around the structure. Other structures such asnavigation buoys or markers, breakwaters, seawalls or similar structures, may actuallyenhance the use of the relevant parts of the takutai moana not only by applicant groupsbut also others.[253] Where the applicant groups support the creation and maintenance of suchstructures such as is clearly the case in relation to aspects of the Ōpōtiki HarbourEntrance Proposal, it is difficult to see why the fact that the structures physically existshould be said to amount to a substantial interruption of exclusive use and occupationso as to require the exclusion of such structures from any grant of CMT.[254] I approach this matter on the basis that structures such as sewerage outfallpipelines which should be excluded from a grant of CMT will be able to be identifiedat the next stage of this hearing where the form of the CMT is to be determined.[255] In relation to some structures (for example working wharves), obligationsarising under the Health and Safety at Work Act 2015 or issues relating to thecommercial activities undertaken in or around such structures mean that the theyshould also be excluded from CMT. Examples of the latter may well be the EasternSea Farms Limited 3,800-hectare marine farm and the three oyster farms in ŌhiwaHarbour. However, because the submissions of the parties did not squarely addressthe issue of which structures should be excluded from any grant of CMT that will needto be the subject of further submissions at the next stage of this hearing.Third-party use and occupation[256] Whether any third-party use or occupation of the takutai moana is sufficient toamount to a substantial interruption or to otherwise preclude the grant of CMT is alsoa question of fact. There has been insufficient evidence provided to the Court to allowthe Court to conclude that third-party use had, in fact, amounted to substantialinterruption.[257] As a grant of CMT is expressly subject to rights of navigation, fishing andaccess, the fact that third parties, for example, use boat launching ramps, access theforeshore or sea for recreational activities, or go fishing from or in the takutai moanais not sufficient of itself to exclude CMT.[258] As discussed, the presence of some third-party activities such as the operationof marine farms may be sufficient to mean that in respect of the area where thoseactivities are undertaken, CMT should not issue on the basis that the presence of theseactivities amount to a substantial interruption in the use and occupation of the takutaimoana. However, that is also a matter that will need to be addressed in the next partof the hearing in this case.[259] There is no doubt that there is extensive commercial and recreational fishingundertaken in that part of the takutai moana that is the subject of applications for CMTand PCR (including around Whakaari).[260] Seafood Industries Representatives took part in the hearing. Daryl Sykes,giving evidence for the Seafood Industries, noted that the holder of CMT had "apowerful veto right over future aquaculture activities in the area" and the holder ofPCR in an area that was potentially adversely affected by a proposed marine farm wasrequired to give their approval before a coastal permit could be granted. Theimplication was that the possibility that the holder of a CMT or PCR might be able tolimit or control the granting or renewal of a coastal permit was a bad thing or at leastsomething that the Court should have regard to in determining whether CMT or PCRshould be issued.[261] The Act specifies what the consequences of a grant of CMT or PCR are. Thatincludes giving the holders of CMT and PCR clear rights in relation to applicationsfor activities such as permits for marine aquaculture. If applicants for CMT or PCRmeet the tests for such recognition orders, then the fact that this has implications forexisting or potential holders of coastal permits for aquaculture activities cannot justifythe Court refusing to award CMT or PCR.[262] After detailing the various types of commercial fishing and aquacultureactivity that occurred in the specified area, Mr Sykes concluded his affidavit by saying:I find it difficult to reconcile those circumstances with the apparent claims inthese proceedings of the exclusive use and occupation of the Edwardsapplication area from 1840 to the present day without substantial interruption.[263] This is essentially a legal submission to the effect that the applicants have notmet the test set out in s 58(1)(b)(i) of the Act for CMT in relation to exclusive use andoccupation from 1840 without substantial interruption. Legal questions, including themeaning of the phrase "without substantial interruption" are not matters where theCourt is greatly helped by the views of witnesses for interested parties as opposed tosubmissions from counsel.[264] In the present case for the reasons I now set out, I conclude that the fact thatthird parties undertake both commercial and recreational fishing activities in thespecified area does not amount to a substantial interruption of the holding of thespecified area in accordance with tikanga by the applicant group identified by thepukenga in their poutarāwhare.[265] One of the consequences of holding an area in accordance with tikanga is theobligation of manaakitanga. That obligation can extend as far as sharing the resourcesof the takutai moana with non-Māori.[266] The Court heard evidence that at times when commercial fishing interestssought to abuse or over-exploit the resource (such as the close inshore fishing bytrawlers dramatically affecting the resource available to the tangata whenua) Māoriwould protest. That is not inconsistent with holding the specified area in accordancewith tikanga, and in fact demonstrates the tikanga obligation of kaitiakitanga or theduty to conserve or safeguard the resource.[267] I am also guided by s 59(3) which specifically states that:The use at any time, by persons who are not members of an applicant group,of a specified area of the common marine and coastal area for fishing ornavigation does not, of itself, preclude the applicant group from establishingthe existence of customary marine title.[268] The fact that third parties access the takutai moana for navigation and a varietyof recreational activities, can also be analysed in the same way. In accordance withtikanga, the applicant group has extended manaakitanga. They have appropriatelyobjected when third parties breached tikanga by doing things like desecrating wāhitapu such as urupā. That is also consistent with their role as kaitiaki.[269] Given the fact that any grant of CMT is expressly subject to third-party rightsof navigation, fishing and access, it is unlikely that Parliament intended the test of"substantial interruption" to have been met if the activities said to amount tosubstantial interruption relate to navigation, fishing or access. That would not beconsistent with the purposes of the Act discussed above.Conclusion on substantial interruption[270] By way of conclusion on the general topic of substantial interruption, I holdthat raupatu did not have the effect of substantial interruption and neither did thegranting of resource consents prior to 1 April 2011, or the fact that local authoritiesmay have regulated the takutai moana.[271] Reclamation, where a title has been issued, or will be issued, will have thateffect as the land in question is no longer in the takutai moana. Whether a structurelawfully constructed in the takutai moana has the effect of amounting to a substantialinterruption so that the area covered by the structure or relating to the activitiesundertaken on or around such structures, should be excluded from CMT, is a matter offact which the Court will not be able to make final determinations on until the nextpart of the hearing has been held.PART IV – TIKANGATikanga and the Courts and tikanga values[272] Given the significant role that tikanga plays in applications and decisions underthis Act, I will briefly discuss some recent jurisprudence which articulates therelationship between tikanga Māori and the common law. I reiterate here that it is notthe role of the Court to define the tikanga of the applicants. As I discuss at [308]below, the proper authorities on tikanga are those who have been tasked or honouredwith the mātauranga of their tīpuna – the knowledge and wisdom passed down to themby their ancestors. The Court has discretion under s 99 of the Act to appoint expertsof this nature in the form of pukenga, and their role in this case is more generallydiscussed in greater detail below at [308]-[310].[273] A useful starting point in considering the relationship between tikanga Māoriand the common law, is the case of Takamore v Clarke. In that case, the SupremeCourt indicated that often evaluation of a case within the common law of New Zealandrequires reference to tikanga, and that tikanga is part of the values of the common lawparticular to this country.146 Elias CJ observed:147Values and cultural precepts important in New Zealand society must beweighed in the common law method used by the Court in exercising itsinherent jurisdiction, according to their materiality in the particular case. Thataccords with the basis on which the common law was introduced intoNew Zealand only "so far as applicable to the circumstances of the colony".It is the approach adopted in Public Trustee v Loasby and, in Australia, inManktelow v Public Trustee. Māori custom according to tikanga is thereforepart of the values of the New Zealand common law.[274] Similarly, Tipping, McGrath and Blanchard JJ held that the common law ofNew Zealand requires reference to the tikanga, along with other important cultural,spiritual and religious values, and all other circumstances of the case as matters thatmust form part of the evaluations.148146 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94]–[95] per Elias CJ, [150] and[164] per Tipping, McGrath and Blanchard JJ. See also Natalie Coates "What does Takamoremean for tikanga?" (2013) Māori Law Review 14 at 19-20.147 At [94].148 At [164].[275] As discussed above, in Ngāti Apa, the Court of Appeal observed that the scopeof Māori customary property rights and interests depended on the customs and usages,such as tikanga Māori, which gave rise to those rights and interests.149 Tipping Jexplicitly stated that "Māori customary law is an ingredient of the common law ofNew Zealand".150[276] More recently, in Ngāti Whātua Ōrakei Trust v Attorney-General, Elias CJobserved that rights and interests according to tikanga may be legal rights recognisedby the common law and, in addition, establish questions of status which haveconsequences under contemporary legislation.151[277] In the recent case of Trans-Tasman Resources Ltd v Taranaki-WhanganuiConservation Board, the Court of Appeal observed that it is, or should be, "axiomaticthat the tikanga Māori that defines and governs the interests of tangata whenua in thetaonga protected by the Treaty is an integral strand of the common law ofNew Zealand".152 Following this conclusion, the Court held that the tikanga Māorithat governs the relationship between iwi and relevant taonga must be taken intoaccount as an "applicable law" under s 59(2)(l) of the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012, and that consideration of tikangarequired engagement with key concepts (such as whanaungatanga and kaitiakitanga)"as they are understood and applied by Māori: that is the only perspective from whichtikanga concepts can be meaningfully described and understood".153[278] Finally, I note that Palmer J observed in his recent decision of Ngawaka vNgāti Rehua-Ngātiwai ki Aotea Trust Board (No 2), tikanga is recognised within thecommon law, and within Acts of Parliament.154[279] Section 9 of the Act defines tikanga as "Māori customary values andpractices". The use of the word "tikanga" in s 58(1)(a) is obviously intended to refer149 At [13]-[20].150 At [185].151 Ngāti Whātua Ōrakei Trust v Attorney-General [2018] NZSC 84; [2019] 1 NZLR 116 at [77].152 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 19, at [177].153 At [178].154 Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2), above n 72, at [43].to the principles of customary law that govern the relationship between iwi, hapū,whānau and the takutai moana, and the rights and responsibilities that flow from that.[280] The Māori customs and values that the Act defines tikanga as meaning, do notproduce an exactly parallel legal system to that of western law. As Williams J said:155tikanga and law are not co-extensive ideas. Tikanga includes customs orbehaviours that might not be called law but rather culturally sponsored habits.[281] Williams J quoted from a paper by Sir Hirini Moko Mead that said:156Tikanga embodies a set of beliefs and practices associated with procedures tobe followed in conducting the affairs of a group or an individual. Theseprocedures are established by precedents through time, are held to be rituallycorrect, are validated by usually more than one generation and are alwayssubject to what a group or individual is able to do Tikanga are tools of thought and understanding. They are packages of ideaswhich help to organise behaviour and provide some predictability and howcertain activities are carried out. They provide templates and frameworks toguide our actions and help steer us through some huge gatherings of peopleand some tense moments in our ceremonial life. They help us to differentiatebetween right and wrong and in this sense have built-in ethical rules that mustbe observed. Sometimes tikanga help us survive.[282] After noting that there was some debate about the number of core values at thecentre of tikanga, Williams J suggested the following list:157• whanaungatanga or the source of the rights and obligations of kinship;• mana or the source of rights and obligations of leadership;• tapu as both a social control on behaviour and evidence of theindivisibility of divine and profane;• utu or the obligation to give and the right (and sometimes obligation)to receive constant reciprocity; and• kaitiakitanga or the obligation to care for one's own.155 "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law",above n 68, at 2-3.156 Hirini Moko Mead "The Nature of Tikanga" (paper presented to Mai I Te Ata Hāpara Conference,Te Wānanga o Raukawa, Otaki, 11-13 August 2000) as cited in Law CommissionMāori Customary Values in New Zealand Law (NZLC SP9, 2001) at [72].157 At 3.[283] Williams J specifically identified whanaungatanga out of these core values asthe glue that held the system together, particularly in relation to the use of resources,and noted that no right in resources could be sustained without the right holdermaintaining an ongoing relationship with the resource (sometimes referred to as ahikā). He further observed:158The point is that whanaungatanga was, in traditional Māori society, not justabout emotional and social ties between people and with the environment. Itwas just as importantly about economic rights and obligations. Thus rightsdepended on right holders remembering their own descent lines as well as thedescent lines of other potential claimants to the right.[284] The Court of Appeal has accepted that whanaungatanga and whakapapa werevery broad concepts. In R v Taulapapa, the Court said:159whakapapa refers to the interconnectedness of communal knowledge andrelationships past, present and future ... [and] includes genealogy, spiritualconnections, and a person's interconnectedness with their environment.[285] As noted above, the Court of Appeal has also said, in a different context, thatwhen a Court is attempting to analyse tikanga, specifically including whanaungatangaand kaitiakitanga:160That analysis needed to engage with those concepts as they are understoodand applied by Māori: that is the only perspective from which tikanga conceptscan be meaningfully described and understood.[286] In addition to the claimant groups giving detailed evidence about their tikangaand how they held the specified areas in accordance with that tikanga,Ngāti Ruatakenga also called Professor Emeritus David Vernon Williams who, amongother things, explained the differences between tikanga and law. He said:Western law no doubt arose out of social norms which reflected fundamentalvalues accepted in the wider community, or at least the law-makers' perceptionof what the shared community values were. Nevertheless, there is a cleardistinction in conventional Pākehā understandings between the body of therules of law on the one hand and the underlying values on the other hand.Tikanga Māori does not draw such a clear distinction. Tikanga Māori includesthe values themselves and does not differentiate between sanction-backedlaws and advice concerning non-sanctioned customs. In tikanga Māori, the158 At 4.159 R v Taulapapa [2018] NZCA 414 at [13].160 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86at [178].real challenge is to understand the values because it is these values whichprovide the primary guide to behaviour and not necessarily any "rules" whichmay be derived from them. Without an understanding of these values, theprescriptions may appear to be contradictory. Thus, it is considered importantto articulate these underlying values first before dealing with the variouscategories within which tikanga Māori applies.[287] Professor Williams identified the same five underlying values of tikanga thatWilliams J had.161 He also acknowledged that his list was not a definitive one andreferred to the seven values identified in the list prepared by (then) Judge E. T. Duriein the paper Custom Law.162 Judge Durie's seven values were:• whanaungatanga;• mana;• manaakitanga;• aroha;• mana tūpuna;• wairua; and• utu.[288] Professor Williams noted that whanaungatanga meant that neat lines could notbe drawn between groups or between kin groups, or between humans and the physicalworld. This evidence was relevant to the consequences of drawing straight lines on amap delineating an applicant's "specified area" and the concept of "exclusivity"discussed below. He said:Within iwi, hapū and whānau – the collective entities of Māori society –whanaungatanga operates like a magnet. The most notable orators are alwaysable to emphasis commonality of whakapapa and interconnectedness, thusdownplaying the separation between groups. It is accordingly extremelydifficult to exclude individuals from collective membership because of thepervasiveness of the whanaungatanga ethic. Thus, the definition ofmembership of one hapū rather than another and of one iwi rather than anotheris always somewhat vague – broad and grey definitions rather than black andwhite distinctions. This also contributed to the difficulty Māori have in layingdown territorial boundaries with the precision which might be required for theborders of a nation State. Whanaungatanga emphasises the inclusiveness161 At [282] above.162 See Eddie Durie Custom Law (Discussion paper presented to the Waitangi Tribunal,January 1994), available at www.wgtn.ac.nz/stout-centre/research-units/towru/publications/Custom-Law.pdf.which permeates Māori values – an inclusiveness which extends towhakapapa links with non-human resources and beings. Whanaungatanga isopposed to exclusiveness.[289] Another element of tikanga identified by Professor Williams which is relevantto claims under s 58(1)(a) is in his statement at [96]:• resource boundaries were conceived of lineally, and radially with rightsor authority radiating from a central heart to uncertain fringes;• the authority of a hapū in an area was not necessarily exclusive. Hapūclaimed the resources of territories exclusively or conjointly with others.Many resources were shared by several hapū – not all hapū areas werecontiguous but were intersected by the use rights of others.[290] According to Professor Williams, Māori property rights in accordance withtikanga are "particularly overlapped and intertwined".[291] The Waitangi Tribunal has echoed this view:163A difficulty occurs today when people, both Māori and Pākehā, try to translatethis customary network of rights and connections into an environment of"straight-line" boundaries. Resource rights were complex, convoluted, andoverlapping. They almost never phased cleanly from hapū to hapū as onepanned across the customary landscape. Instead most resource complexes hadprimary, secondary and even tertiary right holders from different hapūcommunities, all with individual or whānau interests held in accordance withtikanga, and therefore by consent of their respective communities. All rightsvested and were sustained by the currency of whakapapa.[292] Ms Feint, in her opening submissions for Ngāti Ruatakenga submitted:164Customary rights in land or sea were sourced in a number of ways, the mostcommon of which are take tūpuna (ancestral inheritance); take taunaha (thediscovery and naming of places by ancestors); take raupatu (victory andbattle); and take tuku (inter-group transfers carrying reciprocal obligations).All take had to be consummated by the regular exercise of rights held, i.e.ahi kā roa.[293] She also referred to a Waitangi Tribunal report where it was stated:165A Māori person is only "Māori" in relation to tauiwi (non-Māori): in relationto other Māori they are tribal, and their tribe is connected to a rohe (tribal163 Waitangi Tribunal Tūranga Tangata, Tūranga Whenua: The Report on the Turanganui a KiwaClaims (WAI 814, 2004) at 18.164 At [29]. See Tūranga Tangata, Tūranga Whenua: The Report on the Turanganui a Kiwa Claims,above n 163, at 17.165 At 17.territory). Their stories and their whakapapa confirm their roots in the placesoccupied by their forebears and their membership of a particular hapū. Whothey are and where they come from are thus inextricably intertwined:whakapapa and rohe are like the weft and the warp of a whāriki (woven flaxfloor mat).[294] In relation to the nature of boundaries, as noted at [77] of the closingsubmissions of Ngāti Patumoana, the Ngāti Awa Raupatu Report said:166The point is that hapū were defined not by land boundaries but by whakapapaand allegiance. Though sometimes depicted as permanent, they in factchanged shape over time through amalgamation, incorporation, migration, orlateral division. They could also include persons of separate descent group.Further, the land itself was not seen to be dissected by lines on plans. It wasviewed not as a combination of enclosed allotments but in terms of resourcesites that the hapū, or particular families of the hapū, habitually used. Thequestion was not where the boundary lay between hapū but which hapū couldaccess a particular resource and what time and for what purpose. Resourcescould thus be shared and persons from distant hapū could have use rights in aparticular resource, like a mussel-bearing rock in a harbour. Access was basedsimply upon respect for immemorial user and historical relationships with theusers.To complicate matters, individual Māori travelled and used resources for asfar as their whakapapa lines would take them and were acknowledged by localpeople. Then, because of earlier migrations and wars, there were also sites ofparticular ancestral significance for some hapū in lands that stood clearlywithin the areas occupied by other hapū.[295] This approach was endorsed by the Waitangi Tribunal Te Tau Ihu o te Waka aMaui Report:167Although boundaries were sometimes mentioned, we believe that Ngai Tahuand various Te Tau Ihu iwi had overlapping rights in the statutory takiwā,though to different degrees on the East and West Coasts. Rights did notdepend on one factor alone, such as conquest or occupation, and could varyover time. We think it more appropriate to think in terms of "bundles" and"layers" of rights. Rights recently established by conquest could bestrengthened by continuing acts of use and occupation. Those who lost theirrights by conquest and enslavement, could regain them later, though only bypeaceful arrangements after 1840.166 Above n 130, at 132.167 Waitangi Tribunal Te Tau Ihu o Te Waka a Maui: Report on the Northern South Island Claims(WAI 785, 2008) at 153-154.[296] The Crown has always taken the approach that all areas of land as at 1840 hadMāori owners, even areas heavily contested between traditional groups. At [75] of hisclosing submissions for Ngāti Patumoana, Mr Bennion submitted:In 1847, Chief Justice Sir William Martin commented, "So far as yet appears,the whole surface of these islands, or as much of it as is of any value to man,has been appropriated by the natives".[297] Even though I am satisfied that there has been no 'substantial interruption' tothe use and occupation of the takutai moana, in accordance with tikanga not everyinterruption would have severed the connection.[298] In the case of Bell v Churton, the Māori Land Court considered what wassufficient to "hold" land under Te Ture Whenua Māori Act 1993. The test is whetheran area is "held by Māori in accordance with tikanga Māori" under ss 129(2)(a) and132(1)-(2).168[299] At [12], the Court said:In any event, as I set out in a previous decision, the authorities confirmed that,while evidence of occupation is invariably a pre-condition, it is not necessaryto demonstrate uninterrupted physical possession. Ahi kā – periodical orregular use consistent with ownership could also be sufficient to maintain theconnection."[300] I endorse that observation.Whakapapa/whanaungatanga[301] Because the establishment of descent lines (whakapapa) and familialrelationships (whanaungatanga), are critical in identifying which applicant group orgroups held a specified area in accordance tikanga, it is necessary to set out theevidence given by the various applicants on this topic. I acknowledge the tapu natureof the whakapapa to the applicants, and stress that it is for the applicants to define anddescribe their own whakapapa, while it is the Court's role to consider whether, basedpartly on the whakapapa evidence provided by the applicants, the tests for CMT and168 Bell v Churton – Mataimoana (2019) 410 Aotea MB 244 (410 AOT 244) (footnotes omitted). Seealso Minhinnick – Maioro Lands (1994) 18 Waikato Maniapoto Appellate Courtr MB 220(18 AWMN 220).PCR have been met. Put simply, the Court does not act as a final arbiter defining thewhakapapa of the applicants.[302] I preface these comments by noting that a number of witnesses emphasised thetapu nature of the evidence about whakapapa and the importance of treatingwhakapapa with care. An example is the evidence of Tracy Francis Hillier who gaveevidence for Ngai Tamahaua and stated:169As Ngai Tamahaua we would not ordinarily present this kōrero outside thewalls of our whare tīpuna, Muriwai. It is my firm view that we have beenforced to engage in this process to uphold the mana motuhake andtino rangatiratanga of Ngai Tamahaua to protect the rights over this taonga forNgā Uri Whakaheke o Ngai Tamahaua of this time and for the future of ourmokopuna.[303] Other witnesses emphasised the importance of starting whakapapa from thebeginning and proceeding through to the end (from Io to Ranginui/Papatūānukudown). It is not possible in this decision, to set out in full all of the extensivewhakapapa evidence given, and no disrespect is intended by paraphrasing orsummarising the evidence. Attached as Appendix B to this decision is a more detailedaccount of the whakapapa evidence from which this summary is drawn.[304] It is important to remember that although many of the applicant groups cantrace their whakapapa back over 700 years, what is now recognised is the Whakatōheaiwi, or even the hapū that are presently recognised as making up that iwi, have beencalled by other names over the centuries. Ancient iwi such as Ngariki, Te Wakanui,Te Hapū Oneone, and Panenehu have evolved into the entities that are applicants inthese proceedings.[305] As various waka arrived from Hawaiki (Takitimu, Rangimatoru, Pakihikura,Nukutere, and Mātaatua all feature in the evidence),170 the identity and make up ofexisting groups changed. Tūpuna including Tārawa, Tautūrangi, Tūnamu, Muriwai,Toroa, Tutāmure, and Hine-i-Kauia were described by the applicants as an integral169 Affidavit of Tracy Francis Hillier dated 20 February 2020 at [2].170 Mr Wallace Aramoana also gave evidence stating that the principal lines of descent forTe Ūpokorehe were not from the Mātaatua waka, but other early roopu, tūpuna and waka in thearea, including the Hapūoneone peoples, Hape ki Tuarangi (who Mr Aramoana said captained theRangimatoru waka) and the Oturereao waka captained by Tairongo.part of the whakapapa and whanaungatanga connections of the different entities ofWhakatōhea. Over generations, intermarriage between neighbouring groups resultedin the distinct identities of each group being merged or blurred, and the numbers ofsome groups dwindled so that the groups ceased to exist independently or wereabsorbed into other larger groups. The evidence presented by the applicants andinterested parties indicated that the neighbouring iwi of Ngāti Awa, Ngāi Tai andTe Whānau-a-Apanui also had whanaungatanga and whakapapa connections toWhakatōhea, through waka such as the Mātaatua, tūpuna such as Toi, and throughintermarriage. It is these complex and evolving relationships that contribute to theconcept of whanaungatanga.[306] Williams J, in his extrajudicial writing on the concept of "whanaungatanga",has observed:171A great deal has been written about Māori cultural understandings andconnections with wai. I do not have time to engage with that material in thedepth I would have wanted but it is useful for my purposes to hit the highlights.As I have written elsewhere, the values that Kupe's descendants applied in thevery new circumstances of Aotearoa were tried and true Polynesian values.The unifying idea of tikanga was whanaungatanga, the principle of kinship.This was the infrastructure around which the Māori values and legal systemhung. Not just as between people, but also as between people and their dead,their as yet unborn, their environment and their conceptual world. This is truestill. Relationships are not contractual or proprietorial. They are not freelyentered into. They are blood relationships in which the relationship itselfdictates its terms and conditions. Other values such as mana, tapu, utu andkaitiakitanga should really be seen as effects or consequences ofwhanaungatanga. This is important to understand.[307] I draw a number of conclusions from the evidence set out in Appendix B tothis decision:(a) the various applicant groups whose evidence is detailed in the appendixhave been able to establish their whakapapa links going back to theearliest Māori settlement of Te Moana-a-Toi;(b) in terms of tikanga, they have been able to establish their mana inrespect of the whenua and takutai moana by that whakapapa, but also171 Joseph Williams "He Pukenga Wai" (lecture delivered at the Resource Management LawAssociation's Annual Salmon Lecture, September 2019) at 7-8.through discovery, the naming of and relationship with geographicalfeatures, long and continuous occupation, and raupatu;(c) although individual hapū may choose to emphasise one line of descentover another, all of the hapū of Whakatōhea share common whakapapa.That whakapapa gives rise to rights and obligations ofwhanaungatanga; and(d) the hapū of Whakatōhea also share whakapapa with Ngāti Awa,Te Whānau-a-Apanui, and Ngāi Tai. One consequence of this is that,at the boundaries of the Whakatōhea rohe, it is not possible to drawstraight lines on a map where it could be said that Whakatōhea ceasedto hold an area in accordance with tikanga in favour of another iwi orhapū. In practice, this means that at the border areas (Ōhope,West Ōhiwa Harbour, Te Rangi and Whakaari), there may be more thanone applicant entitled to a recognition order.Pukenga[308] The proper authorities on tikanga are those living persons who retain themātauranga, which is the knowledge or wisdom passed down to them by theirancestors. Many of the applicants called pukenga from within their own hapū to giveevidence. There was little disagreement between these witnesses as to the tikangarelating to the takutai moana. Extensive evidence was given by Mr Te Riaki Amoamocalled on behalf of Ngāti Ruatakenga. His evidence was endorsed or adopted by anumber of other applicants.[309] The Court also utilised the discretion given by s 99 of the Act to appoint twopukenga to provide advice to the Court on the issue of which group or grouping ofapplicants could be said to have held a specified area or areas of the takutai moana inaccordance with tikanga.[310] The two pukenga appointed were Dr Hiria Hape and Mr Doug Hauraki. Theirappointment was made in consultation with all applicants, and without oppositionfrom any party to the proceedings.The pukenga report[311] The Court appointed pukenga gave advice to the Court on four specificquestions:(a) What tikanga does the evidence establish applies in the applicationarea?(b) Which aspects of tikanga should influence the assessment of whetheror not the area in question is held in accordance with tikanga?(c) Which applicant group or groups hold the application area or any partof it in accordance with tikanga?(d) Who, in fact, are the iwi, hapū, or whānau groups that comprise theapplicant groups?[312] The pukenga produced a detailed written report, a copy of which is attached asAppendix A. They were also cross-examined and provided answers to writtenquestions submitted to them about their report.[313] The pukenga adopted a poutarāwhare, which they described as a "construct",in response to the questions that they were asked. This poutarāwhare comprisedTe Whakatōhea and Ūpokorehe. One of the issues of conflict in the evidence heardby the Court was whether Ūpokorehe was an iwi in its own right or a hapū ofTe Whakatōhea. In devising their poutarāwhare, the pukenga did not purport todetermine that question, nor did they feel that it was necessary to answer the questionsasked about this issue. In this judgment, I see no need to make a ruling on whetherŪpokorehe are a hapū or iwi and the use of the terms hapū or iwi to describe themshould not be interpreted as supporting a finding either way.[314] The six entities constituting the poutarāwhare were identified by the pukengaas being Ngai Tamahaua, Ngāti Ruatakenga, Ngāti Ira, Ngāti Ngāhere,Ngāti Patumoana, and Ūpokorehe. They recommended the issue of a single CMT tothe six named entities of the poutarāwhare.[315] In respect of the other applicants, specifically Whakatōhea RangatiraMokomoko, Hiwarau C Block, Kutarere Marae, and Pākōwhai, the pukengaconcluded that their interests could be accommodated as a result of their inclusionwithin one or more of the component entities of their poutarāwhare.[316] In terms of identifying the tikanga applicable to the application area, thepukenga concluded that although there were some differences in the tikanga describedby the various applicants, these were minor and related to the "practical applicationand the detail of how they were implemented". They noted that the same tikanga"applies and exists across [the rohe of] Te Whānau-a-Apanui, Ngāi Tai, Tūhoe, [and]Ngāti Awa".[317] The aspects of tikanga which the pukenga suggested should influence theassessment of whether or not the specified area was held in accordance with tikanga,were identified as being "mana, tino rangatiratanga, kaitiakitanga, utu, tapu and take-utu-ea". Various examples of those concepts were set out in the report.[318] The pukenga acknowledged the benefit they received from the wisdom oftohunga and kaumatua such as Dr Te Kei o Te Waka Merito (Ngāti Awa),Wallace Aramoana (Te Ūpokorehe), Te Riaki Amoamo (Ngāti Ruatakenga,Te Whakatōhea), Te Rua Rakuraku (Ngāti Ira), Arapeta Mio (Ngāi Tai), andDanny Poihipi (Te Whānau-a-Apanui).[319] The area identified as that being held in accordance with tikanga by the entitiesmaking up the poutarāwhare was described by the pukenga as being from Maraetōtarain the west to Tarakeha in the east.[320] The pukenga noted that there was some "flexibility and fluidity" withintraditional boundaries and that most of the tangata whenua affiliated to more than oneWhakatōhea hapū, and also more than one waka and iwi.[321] In relation to neighbouring iwi, the pukenga identified areas whichneighbouring iwi either held exclusively in accordance with tikanga or jointly with themembers of the poutarāwhare. These included:(a) Ngāti Awa:(i) Whakaari, Maraetōtara West, Tauwhare Pa, West ŌhiwaHarbour;(ii) Ngāti Awa holds the customary interests for Moutohorā(Whale Island), Te Rurima, Turuturu Roimata (Wairaka Rock);(iii) Ōpihi Whanaungakore (cemetery of the unnamed relatives),Te Ana o Muriwai (cave of Muriwai), Kapū Te Rangi,Toikairaku Pa;(b) Te Whānau-a-Apanui (and Te Whānau a Ehutu):(i) Whakaari, Hāwai, Motu River;(c) Ngāi Tai:(i) shared customary interests with Te Kāhui o Ngā Hapū oTe Whakatōhea out to the fishing rocks over to Whakaari andTe Paepae o Aotea.[322] The pukenga concluded that the western boundary of the area which Ngāi Taiheld in accordance with tikanga was Tarakeha and the eastern boundary wasTaumata o Apanui. Some of the areas where the pukenga found that neighbouring iwihad established interests were outside of the specified areas claimed by the applicants.They are therefore not matters which the Court, in these proceedings, should makefindings about.[323] In relation the applicants represented in the poutarāwhare, the pukengaidentified that Ūpokorehe had customary interests in Maraetōtara East,Cheddar Valley, Ōhiwa Harbour, Waiōtahe, Hokianga, Hiwarau C, Waiōweka,Paerāta, and Ōpōtiki-Mai-Tawhiti. These areas are either in or abutting the takutaimoana.[324] The pukenga did not accept the claim that Ūpokorehe's interests wereexclusive to them but considered that they were interests shared with the other fiveWhakatōhea hapū: Ngāti Ira, Ngāti Patu, Ngāti Ruatakenga, Ngai Tamahaua,Ngāti Ngāhere.[325] Although the Court is not bound by the findings of pukenga, where therecommendations of pukenga directly relate to questions of tikanga, they are likely tobe highly influential.[326] In this case, the tikanga values identified by the pukenga were consistent withthe values identified by the experts discussed above at [280]-[290] and also with theevidence given by the applicants' witnesses. An example of this is the affidavitevidence of Te Rua Rakuraku who, after describing Māori customary rights said:Those rights are based in whakapapa; are built on ancient foundations thathave evolved to meet changing circumstances; precede Te Tiriti o Waitangiand the common law definitions of Māori Rights which were introduced after1840.[327] Extensive evidence was tendered to the Court by all applicants of the tikangawhich each applicant said applied to the takutai moana. The applicants contended thatthis evidence established that they held the specified area in accordance with tikanga.That evidence of tikanga is too voluminous for the Court to detail. The Attorney-General's closing submissions had attached to it as Appendix 3, a summary of thetikanga evidence in relation to each of the applicants. That summary ran to some 107pages. The summary is an accurate description of the evidence given on tikanga. Anumber of the applicants referred to the tapū nature of aspects of their tikangaevidence. It is therefore not appropriate for the Court to reproduce that evidence inthis decision.[328] The written submissions on behalf of the Attorney-General also specificallystated that the Attorney-General does not challenge the findings of the pukenga in theirreport on the question of which applicant groups held the application area or any partof it in accordance with tikanga. The submissions did however note that the evidenceset out in the summary primarily related to the intertidal areas or harbours within thespecified area, and that there was a lack of detailed evidence in relation to areas of thetakutai moana distant from the shore, including Whakaari. This observation is correct.However, it is unsurprising that the bulk of the tikanga evidence related to the mostintensively used parts of the takutai moana which were the intertidal, estuary andimmediate coastal areas.[329] There was, however, some evidence relating to the use of the sea as far asWhakaari. The applicants (and neighbouring iwi) presented maps which containedprecise descriptions as to fishing grounds which also included detail as to the locationof underwater features such as rocks or the nature of the sea bottom, as well as detailsof the particular types of fish to be caught in these locations. The importance of thisevidence was expressly noted by the pukenga in their report.172 This evidenceestablished that it was not just the intertidal or estuary areas of the takutai moana thatwere held in accordance with tikanga.[330] The pukenga concluded that five applicants (Mokomoko Whānau, Hiwarau CBlock, Kutarere Marae, Pākōwhai and Ngāti Muriwai) had not established that theyheld a specified area in accordance with tikanga.[331] For the reasons set out at [413]-[465] below, I am satisfied that the evidencesupports such a conclusion and I adopt it. I also accept the pukenga's poutarāwhareapproach and their conclusions that, in accordance with tikanga the six Whakatōheahapū hold the area from Maraetōtara to Tarakeha. The findings are expressly subjectto the qualification that the interests of the poutarāwhare were shared with Ngāti Awain west Ōhiwa Harbour. The precise form of the CMTs for this area will be determinedat the next hearing.172 Pukenga Report at [5](d)(ii)-(iv).PART V – TECHNICAL MATTERSLandward boundaries of the takutai moana relating to rivers and estuariesRivers[333] The Bay of Plenty Regional and Ōpōtiki District Councils and many of theapplicants were uncertain as to where the landward boundary of an application areacould be effectively defined when such an application extended across the mouth of ariver.[334] There are many rivers of significant importance to a number of applicantsunder the Act, and it is therefore necessary to clarify where the boundaries of CMT orPCR are in relation to rivers, and also to explain the source of the Court's jurisdictionin respect of such boundaries. Because of the way the Act defines marine and coastalarea, it is first necessary to look at the RMA and documents created pursuant to thatAct.[335] Section 9 of the Act defines "marine and coastal area" as follows:Marine and coastal area(a) means the area that is bounded,—(i) on the landward side, by the line of mean high-water springs;and(ii) on the seaward side, by the outer limits of the territorial sea;and(b) includes the beds of rivers that are part of the coastal marine area(within the meaning of the Resource Management Act 1991); and(d) includes the subsoil, bedrock, and other matter under the areasdescribed in paragraphs (a) and (b).[336] Section 2 of the RMA defines the "coastal marine area" as:coastal marine area means the foreshore, seabed, and coastal water, and the airspace above the water—(a) of which the seaward boundary is the outer limits of the territorial sea:(b) of which the landward boundary is the line of mean high-watersprings, except that where that line crosses a river, the landwardboundary at that point shall be whichever is the lesser of—(i) 1 kilometre upstream from the mouth of the river; or(ii) the point upstream that is calculated by multiplying the widthof the river mouth by 5.[337] Section 2 of the RMA also provides a definition of "mouth" for the purpose ofthe landward boundary of a coastal marine area:mouth, for the purpose of defining the landward boundary of the coastalmarine area, means the mouth of the river either—(a) as agreed and set between the Minister of Conservation, the regionalcouncil, and the appropriate territorial authority in the period betweenconsultation on, and notification of, the proposed regional coastalplan; or(b) as declared by the Environment Court under section 310 uponapplication made by the Minister of Conservation, the regionalcouncil, or the territorial authority prior to the plan becomingoperative,—and once so agreed and set or declared shall not be changed in accordancewith Schedule 1 or otherwise varied, altered, questioned, or reviewed in anyway until the next review of the regional coastal plan, unless the Minister ofConservation, the regional council, and the appropriate territorial authorityagree.[338] The Bay of Plenty Regional Council has defined the landward boundaries inthe coastal marine area in relation to river mouths within the region by agreement withthe Minister of Conservation and the relevant territorial authorities under s 2(a) of theRMA. This is set out in an agreement dated 1 August 2008 between the Minister forthe Environment, the Bay of Plenty Regional Council and the District Councils ofWestern Bay of Plenty, Tauranga City, Whakatāne and Ōpōtiki (the Agreement).[339] The Agreement dictates that for the purposes of defining the landwardboundary of the coastal marine area within the Bay of Plenty Region, the mouth ofeach river (all set out in the First Schedule of the Agreement) which enters the coastalmarine area between Orokawa Bay and Potikirua Point, is described in Part One of theSecond Schedule to the Agreement. The specific width of the agreed and set mouthsof each river is set out in Part Two of the Second Schedule to the Agreement.[340] The Agreement also states that:For rivers not identified in the First Schedule to this agreement, the agreed andset "mouth" for the purposes of s 2 of the Act [the RMA] shall be a straightline representing a continuation of the mean high-water springs on each sideof the river.Conclusion[341] For the purpose of CMT and PCR, the landward boundary of the river mouthsin the application area can be defined as:The lesser of either one kilometre upstream from the mouth of the river or thepoint upstream that is calculated by multiplying the width of the river mouthby 5, including within that boundary (pursuant to s 9 of the Act), the bed ofthe river, with the exact location of the mouth of the rivers in the applicationarea being defined by the Agreement, specifically schedules one or two, or forrivers not identified in the schedule, the "mouth" being a straight linerepresenting a continuation of the mean high-water springs on each side of theriver, and taking into consideration that the mouth of the Waiōweka and Otararivers will be changed in the near future as a result of the Ōpōtiki HarbourEntrance Proposal.Navigable rivers[342] I now turn to considering the Court's ability to grant CMT over an area whichincludes the mouth of a navigable river. As with the boundaries of river mouths, theissue of the availability of river mouths for recognition in a CMT is determined bylegislation other than the Act. Section 58(4) of the Act provides that, without limitingsubs (2) of that provision, CMT does not exist if that title is extinguished as a matterof law.[343] Section 261(2) of the Coal Mines Act 1979 dictates that:Save where the bed of a navigable river is or has been granted by the Crown,the bed of such river shall remain and shall be deemed to have always beenvested in the Crown; and, without limiting in any way the rights of the Crownthereto, all minerals (including coal) within such bed shall be the absoluteproperty of the Crown.[344] "Navigable" is defined in s 261(1) as "a river of sufficient width and depth(whether at all times so or not) to be used for the purpose of navigation by boats,barges, punts, or rafts".[345] While the Coal Mines Act 1979 has been repealed, s 261(2) has been enshrinedwithin s 354 of the RMA, which states:354 Crown's existing rights to resources to continue(1) Without limiting the Interpretation Act 1999 but subject tosubsection (2), it is hereby declared that the repeal by this Act or theCrown Minerals Act 1991 of any enactment, including in particular—(c) section 261 of the Coal Mines Act 1979,—shall not affect anyright, interest, or title, to any land or water acquired, accrued,established by, or vested in, the Crown before the date onwhich this Act comes into force, and every such right, interest,and title shall continue after that date as if those enactmentshad not been repealed.[346] Therefore, an issue arises: if a river can be defined as "navigable", then the bedof it has vested in the Crown, and if it is vested in the Crown, then CMT could be saidto have already been extinguished, precluding the applicants from having the mouthof the river included in a CMT or PCR order.[347] The starting point in considering the definition of what is "navigable" in thiscontext is the Supreme Court decision in Paki v Attorney-General.173[348] The critical issue in that case was whether a 32 kilometre stretch of theWaikato River, adjoining land at Pouākani (near Mangakino) could be defined as anavigable river and so vested in the Crown under s 14 of the Coal Mines AmendmentAct 1903.174 The plaintiffs in that case were kaumatua of Ngāti Wairangi, Ngāti Moe,Ngāti Korotuohu, Ngāti Ha, Ngāti Hinekahu and Ngāti Rakau and descendants of theoriginal owners of five blocks along the left bank of the Waikato River which weretransferred to Crown ownership between 1887 and 1899.[349] The plaintiffs brought proceedings to the High Court against the Attorney-General on behalf of the Crown, seeking a declaration that Crown ownership of theriverbed to the middle of the river was subject to a constructive trust in favour of theMāori owners, arising because the Crown obtained the riverbed in breach of fiduciary173 Paki v Attorney-General [2012] NZSC 50; [2012] 3 NZLR 277.174 At [1].duties owed to the Māori owners out of the circumstances of the alienations and theTreaty of Waitangi.[350] The Court restricted its focus to determining whether s 14 of the Coal MinesAct applied in the circumstances. A majority of the Court, led by Elias CJ (withTipping and Blanchard JJ concurring), held that the river adjacent to the Pouākanilands was such that it was not navigable within the meaning of the legislation.175[351] The majority first acknowledged that both parties accepted the Crown as beingthe owner of the riverbed adjoining the Pouākani blocks since it acquired those riparianlands. This was because, according to the parties, ownership of the bed of the river tothe middle of the stream (known as usque ad medium filum aquae) was included inthe land obtained by the Crown, through application of a conveyancing presumptionof the English common law.176[352] The Court made the following observation about that presumption:177The English common law conveyancing presumption applied to non-tidalrivers (irrespective of whether they were used for navigation or not), to lakes,and to roads (in which case it carried the ownership ad medium filum viae).In tidal rivers and estuaries, it was ousted by a further presumption of thecommon law (more properly, a prima facie rule of evidence) that, wherenavigable, the bed belonged to the Crown (although the strength and antiquityof the presumption has been questioned by scholars). In reality, in Englandmuch tidal land (including that under navigable waters) was owned privately(either because of Crown grant or because of presumed grant based onimmemorial assertion of ownership). Similarly, the beds of inland waters(including lakes, and irrespective of whether the watercourse was navigablein fact or not) were the subject of extensive private property interests frommediaeval times. Rights of navigation for the public were however alsoextensive both under statutes and as established by user time out of mind, andcould not be interfered with by the riparian landowner. Given the scale ofprivate ownership of land covered by water in England, the principalapplication of the presumption was in the conveyance of land between vendorsand purchasers. It was rebutted by showing that the grantor did not intend topart with the land under water or that the land was not his to grant. Public userights to navigate or (less commonly) to fish, where secured by statute or user,were not inconsistent with private ownership of the land beneath the water.175 At [89].176 At [15].177 At [16] (footnotes omitted).[353] The majority placed particular focus on the case of Mueller v The Taupiri Coal-Mines Ltd.178 They found that in that case, the Court of Appeal had "authoritativelyestablished" that the ad medium filum aquae presumption applied in New Zealand butthat the presumption was rebuttable on the basis of the surrounding circumstanceswhich might show that the grantor (and in particular the Crown) had not intended topart with the riverbed.179[354] The majority stated (and this was accepted by the other members of the Court)that the Coal Mines Act Amendment Act was passed in 1903 as a legislative responseto the decision in Mueller, in order to vest the beds of navigable rivers in the Crown.180The majority also held that the section to be properly considered in terms ofnavigability was the section "currently in force", namely s 261 of the Coal Mines Act1979, as enshrined in s 354(1)(c) of the RMA,181 and that both the character of theriver and its susceptibility for future use for the purposes of navigation should beassessed as at 1903.182[355] In relation to the issue of navigability, the majority determined that a "wholeof river" approach could not have been intended as the assessment by Parliament, andthat a segmented approach should be followed instead, for four principal reasons:183Four principal reasons lead us to conclude that s 261 of the Coal Mines Act,like s 14 of the Coal-mines Act Amendment Act 1903 before it, requires thequestion of "navigability" to be assessed in respect of particular stretches of ariver: a "whole of river" assessment of navigability is inconsistent with thetext of the legislation; assessment of particular stretches is consistent with thecommon law context; the legislative history confirms the textual indicationsthat the legislation sought to strike a balance between private and publicinterests which would be seriously disturbed by a "whole of river" assessment;an interpretation which required the river as a whole to be classified asnavigable or not would be highly inconvenient, suggesting that it could nothave been envisaged and ought not to be adopted.[356] The majority then turned to the definition of "purposes of navigation".Navigability "in fact" of particular stretches of a river could be assessed according to178 Mueller v The Taupiri Coal-Mines Ltd (1900) 20 NZLR 89 (CA).179 At [22].180 At [28].181 At [33].182 At [50].183 At [56].actual use and (where there is no actual use and potential use must be assessed)according to the physical characteristics of the river in the particular place.184[357] The ability to float on the particular section of river at issue would not renderit navigable, unless it provides a connection for the purposes of transportation. Thus(and contrary to the dissenting view of William Young J), river crossings by vesselssuch as ferries, do not make the river crossed "navigable". A "bare possibility ofaccommodating occasional craft", or "the fact that some stretch of water is navigableby some acrobatic tour de force" does not support a general finding of navigability.185Recreational use on its own would not constitute navigability, but could count asevidence of the capacity of a river to support navigation for the purposes of transportand trade.186[358] The majority made the following observation as to evidence of a river's usefor commerce and trade in determining its navigability:187The vessels described in the s 14 definition ("boats, barges, punts or rafts")are all types of craft which had been used for commerce in New Zealand. Usefor the purposes of commerce or trade is the best evidence that a river isnavigable. Such use was significant in Mueller. Whether it is necessary toshow commercial use or its potential was doubted by two members of theCourt of Appeal in Leighton. It is not necessary to go as far. But if not forcommerce or trade, the use of the river must be for the purpose of transportconnection to a terminus on the river or to the sea. Purely local use, not fortrade or transportation purposes (because the stretch able to be used is tooshort), was held not to render the river navigable in Maclaren v Attorney-General for Quebec. The use by rowboats of a stretch of water leadingnowhere, to which there was no public access and which had not been used"for the purposes of commerce" or by "any wayfarer" was insufficient toestablish a public right to use the river in Bourke v Davis. Still less does thesort of "messing about in boats" involved in use of the Waiwhetu Stream inLeighton constitute use "for the purposes of navigation". We agree with theview expressed in that case in the Court of Appeal by Fair J that "navigation"is not appropriately used to cover "slight, intermittent, and restricted use" of akind only jocularly referred to as "navigation".[359] Having considered what might constitute the "purposes of navigation", themajority ultimately found that the stretch of the Waikato River adjoining the Pouākaniblocks was not capable of use for the purpose of navigation. The only evidence was184 At [70].185 At [74].186 At [75].187 At [76] (footnotes omitted).of "sporadic, extremely sparse, and local use" of this stretch and no evidence tosuggest it was "susceptible of use or future use for the purposes of navigation" – therewas no record of any continuous journey along the length of the Waikato River linkingthe Pouākani stretch of river with the upper and lower reaches, and there were onlyfour accounts of river use by watercraft in the stretch of river adjoining those blocks,with that use being slight, intermittent and restricted with no record of transportationof people or goods.188[360] While agreeing with the majority's overall decision, McGrath J wrote aseparate judgment, observing that while the "whole of river" approach should not betaken, there should be a focus on the width and depth of the segment of river at issuewhen considering navigability.189 He also noted that in relation to s 14 of the CoalMines Act, by legislating to acquire or affirm Crown ownership of riverbeds accordingto a concept of the navigability of the river, Parliament was assuming control of thoserivers which were used, or might frequently be used, for purposes of travel andtransport.190Conclusion[361] I am bound to follow the decision of the Supreme Court in Paki v Attorney-General. If a river was navigable as at 1903 then its bed is deemed to have been vestedin the Crown. That vesting would extinguish CMT. There was extensive evidenceprovided to the Court about navigation on the Waiōweka River. That evidenceestablished that as at 1903 there were wharves at Ōpōtiki on the Waiōweka River andthat the river between Ōpōtiki and its mouth was regularly used for travel and trade.The mouth of the Waiōweka River has therefore become vested in the Crown and isnot available for a grant of CMT. The boundary of the CMT at the Waiōweka/Otarariver mouths therefore runs in a straight line across the mouth of the river representinga continuation of the mean high-water springs on each side of the mouth of the river.188 At [84], [87] and [89].189 At [103](c).190 At [111].Estuaries[362] The bed of an estuary and its foreshore are defined for the purposes of theRMA as part of the coastal marine area under that Act.191 As discussed above, s 2 ofthe RMA defines the landward boundary of the coastal marine area as the line of themean high-water springs (with the exception of rivers). Therefore, estuaries withinthe mean high-water springs are part of the coastal marine area and can be includedwith the marine and coastal area under s 9 of the Act and may be subject to orders forCMT and PCR. However, any reclaimed land within an estuary will be subject toSubpart 2 of Part 3 of the Act.192PCR issuesActivities that can support a grant of PCR under s 51[363] There are some 11 separate applications for recognition orders of PCR.[364] The sorts of activities in respect of which PCR has been sought fall generallyinto the following categories:(a) harvesting kaimoana (to feed whānau, kaumatua, hapū and to providekai for hui, tangihanga and marena/weddings);(b) fishing (to feed whānau, kaumatua, hapū and to provide kai for hui,tangihanga and marena);(c) exercise of kaitiakitanga (for conservation of kaimoana and fish stocks,resources and the environment, protection from erosion, marinefarming, caring for plant and mineral resources and sustainablemanagement of resources);(d) exercise of mana motuhake and rangatiratanga;(e) use of resources for medicinal and healing purposes; and191 See Laws of New Zealand – Water: Part III (online ed, LexisNexis), at [56].192 As discussed at [231]-[250].(f) resource extraction (including shells/fossils, wood, bones, sulphur,seaweed, stones and sand).[365] Many of these activities are not able to support a grant of PCR because theyare specifically excluded by the Act.Ambit of PCRs[366] Section 52(2) explicitly places restrictions on certain activities which cannotbe subject to a PCR order. Section 52(2)(a) dictates that a PCR does not include anactivity that is regulated under the Fisheries Act 1996. Fishing is defined under theFisheries Act as follows:193fishing—(a) means the catching, taking, or harvesting of fish, aquatic life, orseaweed; and(b) includes—(i) any activity that may reasonably be expected to result in thecatching, taking, or harvesting of fish, aquatic life, orseaweed; and(ii) any operation in support of or in preparation for any activitiesdescribed in this definition.[367] Under s 89(1) of the Fisheries Act, no person shall take any fish, aquatic life,or seaweed by any method, unless the person does so under the authority of and inaccordance with a current fishing permit.[368] Section 2(1) of the Fisheries Act 1996 provides definitions of fish, aquatic life,and seaweed. "Fish" includes all species of finfish and shellfish, at any stage of theirlife history, whether living or dead. "Aquatic life" means any species of plant or animallife that, at any stage in its life, must inhabit water, whether living or dead, and includesseabirds (whether or not they are in the aquatic environment). "Seaweed" includes allkinds of algae and sea-grasses that grow in New Zealand fisheries waters at any stageof their life, whether living or dead.193 Section 2(1).[369] The vast majority of fishing practices are regulated under the Fisheries Act.This includes many of the fishing activities relied upon in support of applications forPCR by the applicants in these proceedings. A PCR cannot be granted in respect ofthese activities, save for a few limited exceptions. These exceptions are set out ins 89(1) of the Fisheries Act. The relevant exceptions include:(a) the taking of fish, aquatic life, or seaweed by any natural personotherwise than for the purpose of sale and in accordance with any Māoricustomary non-commercial fishing regulations made under, and anyother requirements imposed by, this Act; or(b) any seabirds or protected species (seabirds, although excluded from theambit of s 89(1) of the Fisheries Act are covered by the Wildlife Act1953 as discussed at [372] below); or(c) any whitebait, sports fish, ornamental fish, or unwanted aquatic life;194or(d) seaweed of the class Rhodophyceae while it is unattached and castashore. (It is possible that karengo, a type of seaweed referred to inevidence is part of this class but there was no evidence on this point).[370] However, a number of comments need to be made about these exceptions.[371] In relation to (a), the Fisheries (Kaimoana Customary Fishing) Regulations1998, Fisheries (South Island Customary Fishing) Regulations 1999, and Fisheries(Amateur Fishing) Regulations 2013 recognise and regulate non-commercialcustomary gathering of kaimoana, precluding the granting of PCR over this activity.195194 "Unwanted Aquatic Life" is defined in s 2(1) of the Fisheries Act 1996 as including fish speciessuch as Walking Catfish, European Carp, Japanese Koi, Pike, Piranha, Rudd and Tilapia.195 Regulation 2 of the Fisheries (Kaimoana Customary Fishing Regulations) 1998 defines customaryfood gathering as the traditional rights confirmed by the Treaty of Waitangi and the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992, being the taking of fish, aquatic life, or seaweedor managing of fisheries resources, for a purpose authorised by Tangata kaitiaki/Tiaki, includingkoha, to the extent that such purpose is consistent with Tikanga Māori and is neither commercialin any way nor for pecuniary gain or trade. The activity of customary food gathering is regulatedunder the Fisheries (Kaimoana Customary Fishing Regulations) 1998 in the North Island and the[372] In relation to (b), certain seabirds are regulated under the Wildlife Act 1953.Under that Act, "wildlife" is defined as any animal that is living in a wild state,196while "animal" is defined to include any bird that is not a domestic bird. Under s 2(1),"domestic bird" is defined as:any domestic fowl, duck, goose, or turkey, or any pheasant kept, held,raised, or bred on premises for which the predominant purpose is the sale ofpheasant meat or live pheasants for human consumption; but does not includeany such bird that is living in a wild state, or any other bird not referred to inthis definition notwithstanding that it may be living in a domestic state[373] The two seabirds which are of relevance in this case are tītī (muttonbird) andtōroa (albatrosses). A number of parties gave evidence that in areas such as Whakaari,the applicants engaged in the hunting of tītī, and also gathered feathers from tōroa inthe takutai moana.[374] However, both of these birds do not fit within the definition of "domestic bird"under s 2(1) and are therefore defined as "wildlife" under the Wildlife Act, precludingtheir species from being included within a PCR order under s 51(2)(d)(i) of the Act.[375] In relation to (c), non-commercial whitebait fishing may be included withinthe grant of a PCR (commercial whitebait fishing is regulated under the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992 and therefore is precluded frombeing recognised in a PCR order under s 51(2)(c)(ii)).[376] Marine mammals, such as whales and dolphins are also subject to their ownstatutory regime. Marine mammals are defined under the Marine Mammals ProtectionAct 1978 as:197(a) any mammal which is morphologically adapted to, or which primarilyinhabits, any marine environment; and(b) all species of seal (Pinnipedia), whale, dolphin, and porpoise(Cetacea), and dugong and manatee (Sirenia); and(c) the progeny of any marine mammal; andChatham Islands and regulated in the South Island by the Fisheries (South Island CustomaryFishing) Regulations 1999.196 Wildlife Act 1953, s 2(1).197 Section 2(1).(d) any part of any marine mammal.[377] Section 51(2)(d)(ii) of the Act excludes marine mammals within the meaningof the Marine Mammals Protection Act 1978 from being included within a PCR order,precluding the grant of a PCR over activities relating to marine mammals such aswhales. This includes activities relating to the removal of marine mammals, alive ordead, from the takutai moana.198 However, exercising kaitiakitanga in relation tostranded marine mammals is specifically provided for in the Act as a conservationpractice.199 The Act provides that iwi, hapū and whānau who are affected by thestranding must have their views taken into account by the marine mammals officer incharge of treating the marine mammal.200[378] Section 51(2)(e) states that a PCR cannot include an activity that is based on aspiritual or cultural association, unless that association is manifested by the relevantgroup in a physical activity or use related to a natural or physical resource (within themeaning of s 2(1) of the RMA). Counsel for the Attorney-General submitted that as aresult of this provision, purely spiritual and intangible practices which may be linkedto the exercise of kaitiakitanga, rangatiratanga, and mana motuhake cannot meet thetest for a PCR.[379] While a general and intangible exercise of maintaining rangatiratanga, oracting as kaitiaki, without manifestation of any physical activity or relation to anynatural or physical resource, is precluded from being recognised as a PCR unders 51(2)(e), this does not undermine the right of mana whenua/tangata whenua to assertthose practices within tikanga and te ao Māori. It merely means that they cannot bemade the subject of a recognition order for PCR.[380] As counsel for the Attorney-General acknowledged, an exercise of thesepractices relating to kaitiakitanga, rangatiratanga and mana motuhake that can beconnected to a natural or physical resource and manifested by the relevant group in aphysical activity is able to be recognised by a grant of PCR, provided they meet thestatutory test. Examples could include exercise of kaitiakitanga, such as through198 Marine Mammals Protection Act 1979, s 4(1)(b).199 See s 50.200 Section 50(3)(b).planting resources (counsel for the Attorney-General gave the example of plantingpīngao to protect and strengthen sand dunes), or rangatiratanga through use of thetakutai moana for cultural practices such as communicating mātauranga Māori, waiata,practice of rongoā, wānanga, tangihanga and other practices that involve physicalactivity connected to physical resources of the takutai moana.[381] I do not accept the submission of counsel for the Attorney-General that karakiacannot be recognised through a PCR. Provided that it is connected to a natural orphysical resource and manifested by the relevant group in a physical activity (such asmembers of the applicant group going down to the takutai moana to perform a karakiaor going to the takutai moana for the purpose of wānanga, tangihanga or sharingmātauranga Māori) and satisfies the other elements of the statutory test, the practiceof karakia may be recognised by the grant of a PCR.[382] Turning to taonga tūturu. Rights in respect of taonga tūturu are conferred onholders of CMT rather than PCR. Under the Act, taonga tūturu has the meaning givenin s 2(1) of the Protected Objects Act 1975. The section provides that:taonga tūturu means an object that—(a) relates to Māori culture, history, or society; and(b) was, or appears to have been,—(i) manufactured or modified in New Zealand by Māori; or(ii) brought into New Zealand by Māori; or(iii) used by Māori; and(c) is more than 50 years old.[383] The process for the protection and preservation of taonga tūturu found in anapplication area is set out in s 62(1)(e) which provides that a group holding CMT hasthe prima facie ownership of any taonga tūturu found within the area that the groupholds CMT over from the date on which a recognition order is sealed or agreementbrought into effect. Section 82 of the Act reinforces this.[384] In terms of planting and harvesting plant resources, such as for rongoā and kai,the collection of plant material in the takutai moana (with the exception of seaweed asdiscussed at [368] above) does not appear to be precluded from a PCR recognitionorder under the Act.[385] In terms of resource extraction, use of resources in the takutai moana such ascertain stones and plants (for practices such as rongoā, and practices more generallyor for tangihanga) may be recognised through a PCR order, subject to two limitations.Firstly, s 51(2)(b) of the Act restricts removal of fossils, rock, sand or minerals forcommercial aquaculture;201 and secondly, all petroleum, gold, silver, and uraniumexisting in its natural condition in land is the property of the Crown under s 16(1).[386] In terms of transportation, for example launching and using waka for accessingfishing grounds and sites of cultural importance, these activities may be recognised asPCR provided the relevant statutory test is met.[387] In respect of the exercise of rāhui, I make two observations. Firstly, thestructure of the Act is more consistent with the imposition of rāhui, and the consequentcreation of an area that is subject to tapu, with the holding of CMT rather than PCR.Section 78(1) provides:A customary marine title group may seek to include recognition of a wāhi tapuor a wāhi tapu area.[388] Sections 78(3) and 79 provide further detail about what wāhi tapu conditionsare required to be set out in a CMT order.[389] If the applicants are able to prove both the statutory tests for CMT, as well asproviding evidence which on the balance of probabilities proves that specific, definedlocations within that CMT area are capable of meeting the wāhi tapu threshold under201 Section 4 of the Māori Commercial Aquaculture Claims Settlement Act 2004 defines a commercialaquaculture activity as "an aquaculture activity undertaken for the purpose of sale". Section 4 alsodefines "aquaculture activities" as having the same meaning as in s 2(1) of the ResourceManagement Act 1991. The removal of sand, shells or natural material from the coastal marinearea for the purpose of breeding, hatching, cultivating, rearing or growing fish, aquatic life orseaweed for harvest under s 2(1) of the Resource Management Act, undertaken for the purpose ofsale pursuant to s 4 of the Māori Commercial Aquaculture Claims Settlement Act (provided thatthe removal meant taking material in such quantities that, but for national environmentalstandards, regional coastal plan rules or resource consents, a licence or profit á prendre would benecessary) is therefore precluded as a PCR. Given the qualification under s 12(4) of the ResourceManagement Act however, this would only apply in very limited circumstances.s 78(2), then CMT-holders may be able to exclude the public or public activities fromthat particular area through wāhi tapu conditions in s 79, which may include exerciseof rāhui within those locations. One qualification would be that wāhi tapu conditionsin relation to rāhui would need to comply with the identification of boundaryrequirements in s 79.[390] Secondly, I note while the opportunities for a recognition order in respect ofthe exercise of rāhui under the Act are relatively limited, rāhui may be imposed andadhered to through tikanga. There is nothing preventing the applicants from exercisingtheir own rangatiratanga over the entire area through imposing a rāhui when theyconsider that it is appropriate to do so, but such a rāhui will not necessarily be enforcedunder the Act, but through the laws and norms of tikanga. As Te Rua Rakuraku ofNgāti Ira said in his affidavit evidence:It is important to remember in the context of the present issues that iwi andhapū rights in relation to the marine and coastal area are derived from our owntraditions and customs.Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act[391] In the recent Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 (the NgātiPorou Act), the exercise of customary fishing rights, practices and management areincluded as part of the customary marine title granted to the applicants. This may haveencouraged some applicants to assume that recognition orders made under this Act cancontain similar provisions. The Ngāti Porou Act differs from the Act in that under s 6of that Act, Part 3 of the Marine and Coastal Area (Takutai Moana) Act 2011 (whichsets out the definition and scope of CMT and PCRs) ceases to apply to ngā hapū oNgāti Porou and is essentially replaced by the provisions in that Act.[392] The reasoning for this was explained by Minister for Treaty Settlements, theHon Andrew Little, in the First Reading of the Bill:202This bill will provide a legislative regime for the recognition of theircustomary interests in the common marine and coastal area. In providing thisregime, the Crown honours its commitment to the 2008 agreement. I amdedicated to seeing that the Crown does this. The bill's mechanisms for202 (10 May 2018) 729 NZPD (Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill (No 2) –First Reading, Andrew Little).recognising the customary interests of ngā hapū o Ngāti Porou are similar tothose found in the Marine and Coastal Area (Takutai Moana) Act. However,they have some unique features that reflect the agreement reached with thehapū in 2008. It provides for mechanisms that have been negotiated andagreed between ngā hapū o Ngāti Porou and the Crown that require legislationto bring them into effect.There are provisions within this legislation that are not available under theMarine and Coastal Area (Takutai Moana) Act. These provisions reflect theCrown's commitment to the original deed of agreement, in so far as possible.I would like to draw to members' attention some of the instruments that thisbill provides which are not available under the Marine and Coastal Area(Takutai Moana) Act. The first of these provisions is that ngā hapū oNgāti Porou have up to two years from enactment to apply for customarymarine title. The Marine and Coastal Area (Takutai Moana) Act had a deadlineof 3 April 2017. This variance ensures that ngā hapū o Ngāti Porou havesufficient time to apply for recognition of rights.Secondly, wāhi tapu or wāhi tapu areas can be agreed or ordered by the courtacross the whole application area, not only in the customary marine title areas.However, tests must be met for wāhi tapu or wāhi tapu areas to be applied andare the same as the Marine and Coastal Area (Takutai Moana) Act. There is acustomary fishing regulation-making power, at clause 49. Hapū-basedfisheries management committees will be created. These committees canprepare fisheries management plans and propose by-laws in customary marinetitle areas—similar to that under the Fisheries (Kaimoana Customary Fishing)Regulations) 1998 – but it is the Minister who then approves those plans.[393] The Hon Christopher Finlayson, the Minister originally in charge of the Bill,made a similar clarification in the first reading, stressing that this was effectively a"one-off" piece of legislation:This has been accurately summarised by the Minister in his speech. It is verymuch a one-off piece of legislation, a sui generis piece of legislation reflectingthe intent, on the part of the Crown, to honour the original deed of settlementwhich was signed, as the Minister said, on October 2008 and reflecting all thechanges that have occurred since then[394] Accordingly, it is not permissible for applicants for recognition orders to invitethe Court to grant orders similar to those available to ngā hapū o Ngāti Porou underthe Ngāti Porou Act. The Court can only award CMT and PCR as those concepts aredefined in the Act.Can PCR and CMT co-exist?[395] The extent to which PCR and CMT can co-exist was a matter of contention.Counsel for the Attorney-General and Te Rūnanga o Ngāti Awa submitted that anapplicant group may be granted a PCR over a part of the marine and coastal area thatis subject to CMT held by a separate group, because there is no exclusivity requirementin the test for PCRs. As I have set out in Part V above, the statutory test for a PCR isthat the right or activity in question must have been exercised since 1840, continuesto be exercised in a particular part of the common marine and coastal area inaccordance with tikanga by the applicant group (whether it continues to be exercisedin exactly the same or a similar way, or evolves over time) and is not extinguished asa matter of law.[396] The statutory test therefore does not require any applicant group to showexclusivity or absolute control over the customary rights and activities that they areexercising, but rather proof that those rights were and are grounded in tikanga (andhave been exercised since 1840 without extinguishment by law).[397] In relation to the possibility of multiple overlapping PCRs, I reiterateProfessor Williams' observation at [288] above, and the evidence of Mr Te RiakiAmoamo at [175] above that the principle of whanaungatanga emphasises aninclusiveness and collectiveness which is contrary to the exclusionary exercise ofrights which often forms the basis of the common law legal system, suggesting herethat if those rights were grounded in tikanga, recognising them on a purelyexclusionary basis by refusing to grant a PCR to more than one group when it isestablished on the evidence that multiple groups exercised these rights, would beunreasonable.[398] The very nature of the activities sought to be recognised as PCRs suggest thatit would be illogical to limit a recognition order to one applicant group only, whenthere are a number within the application area. For example, the landing and transportof vessels, collection of traditional resources for practices such as rongoā,203 andtraditional practices at sites within the takutai moana, such as tangihanga and sharing203 The traditional Māori system of healing.of iwi/hapū/whānau mātauranga, occurred and continue to occur across a number ofthe applicant groups, as opposed to a single group. I therefore conclude that the factthat another group holds CMT in an area does not automatically preclude a differentgroup from obtaining an order for PCR in respect of the same area.The "dual pathway" problems and the potential conflict between directengagement and litigation[399] Section 94 of the Act provides what counsel for the Attorney-Generaldescribed as a "dual pathway" for recognition of PCRs and CMT. Under s 94(1), aPCR or CMT relating to a specified part of the common marine and coastal area maybe recognised by:(a) an agreement made in accordance with s 95 and brought into effectunder s 96; or(b) an order of the Court made on an application under s 100.[400] The first pathway, often referred to as the "direct engagement" pathway, isdescribed in ss 95 and 96 of the Act. Under s 95(1), the applicant group and theresponsible Minister on behalf of the Crown may enter into an agreement recognisingeither PCRs and/or CMT.204 The Crown must not enter into an agreement unless it issatisfied that the applicant group has met the requirements of s 51 in the case of a PCR,and s 58 in the case of CMT.205 A decision to enter into negotiations for an agreement,or an agreement itself, is at the discretion of the Crown under s 95(3).[401] Section 96 provides that an agreement with the Crown under s 95 is of no effectunless and until it is brought into effect either:(a) In the case of an agreement to recognise a PCR, on the date prescribedby an Order in Council, which must also specify—(i) the applicant group in sufficient detail to identify it; and204 However, s 95(1) does not apply unless the applicant group, not later than six years after thecommencement of the Act, has given notice to the responsible Minister of its intention to seek anagreement recognising a PCR or CMT, see s 95(2).205 Section 95(4).(ii) the area to which the agreement relates, with a map or diagramthat is sufficient to identify the area; and(b) In the case of an agreement to recognise CMT, by an Act of Parliamenton the date specified in the enactment, introduced by the responsibleMinister and containing the full text of the agreement.[402] The second pathway, the High Court application pathway, allows an applicantto apply to this Court for a recognition order under s 100(1). In Re Tipene, Mallon Jgave useful guidance as to the procedure for a recognition order under the secondpathway in the High Court:206An order for recognition of customary marine title begins with an applicationfiled in the High Court. The Act provides that an "applicant" may make theapplication. It does not specifically define who qualifies as an applicant.The Act specifies what an application must include. This includes adescription of "the applicant group", identification of the particular area towhich the application relates, the grounds on which the application is madeand the name of a person to be "the holder of the order as the representativeof the applicant group." It must be supported by an affidavit (or affidavits)setting out the basis on which the applicant claims to be entitled to therecognition order.The applicant group must serve the application on local authorities withstatutory functions in or adjacent to the specified area, the Solicitor-Generalon behalf of the Attorney-General and any other person who the Courtconsiders is likely to be directly affected. Additionally the applicant groupmust give public notice of the application.Any interested person may appear and be heard on the application if they filea notice of appearance by the due date. The Court may receive as evidenceany oral or written statement, document, matter, or information it considers tobe reliable, whether or not it would otherwise be admissible.[403] The last two paragraphs of the above quote are important. Given the "dual"nature of applications under the Act, there are a number of proceedings before thisCourt in which there are parties with interests in the takutai moana that overlap withthe applicants, but have chosen to take the direct engagement pathway, rather thanseeking a High Court order.207 It is critical that the rights and interests of these partiesinvolved in direct engagement are maintained by ensuring that they have the ability toappear before the Court, as an interested party or cross-applicant, in proceedingsconcerning applications that overlap with their own area of interest.206 Re Tipene, above n 3, at [40]-[43] (footnote omitted).207 Estimates of the number of applicants who have chosen the direct engagement pathway are ashigh as 300.[404] In its Stage 1 Report on the Act, the Waitangi Tribunal indicated that thelegislation engaged the principle of active protection – that is, the Crown's Treatyobligation to actively protect Māori rights and interests.208 I make no comment on thefindings of the Tribunal in relation to the Act in its Stage 1 Report, but note that, asacknowledged by counsel for the Attorney-General in closing submissions, themeasures in the Act under ss 102-104 are important in ensuring that those groupsopting for Crown engagement, but who may be affected by an application in this Court,are not prejudiced by that choice.[405] Although the Act provides that applications for recognition orders mayproceed under either of the "dual pathways", it does not specifically address thequestion of how to proceed when a claim for recognition orders being advancedthrough litigation overlaps a different claim by another applicant group for recognitionorders which is proceeding by way of direct engagement. This situation arises in thepresent case. Ngāti Awa are seeking direct engagement with the Crown and part oftheir claim for recognition orders overlaps the western edge of the claims in theseproceedings and the area around Whakaari.[406] A finding that an applicant group in these proceedings held CMT in theoverlapping area would arguably have the effect of prohibiting the Crown fromcoming to an agreement with Ngāti Awa for a grant of CMT in respect of the samearea. This may produce an injustice. The potential for injustice is lessened where theparty pursuing direct engagement has participated in the Court hearing as an interestedparty but the problem is that the Court will not always hear from such overlappingparties or even be aware that they exist.[407] When I raised this issue with counsel, Mr Finlayson suggested that a solutionmay be to adjourn that part of these proceedings where there were such overlappingclaims to allow the direct engagement process to be completed.208 Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report(WAI 2660, 2020) at 3.3. See also New Zealand Māori Council v Attorney-General [1987]1 NZLR 641 (CA) at 664.[408] Mr Pou, counsel for the Whakatōhea Māori Trust Board, drew to the Court'sattention the power in s 107(5) to stay all or part of an application.[409] Neither option in my view, provides a durable solution. The parties who havechosen to come to Court are entitled to expect that the Court will determine theirapplication. They are also entitled to expect that such a determination will occurreasonably promptly following the conclusion of the hearing.[410] The draft Direct Engagement strategy promulgated by the Attorney-Generalextends as far out as 2045. The Attorney-General has complete control over when anydirect engagement will occur and even a discretion as to whether he is prepared toentertain an application for direct engagement at all. The Court would lose controlover such an adjourned application. It would also not have any influence on theultimate outcome. Potential rights of appeal may continue for years after the hearinghad taken place.[411] In the present case, because Ngāti Awa participated in the hearing by callingevidence and having their counsel cross-examine and make submissions, the potentialfor injustice is reduced although not eliminated. I will therefore determine theapplications for CMT notwithstanding the fact that Ngāti Awa's direct engagementoverlaps, in part, with the specified area that is the subject of these proceedings.[412] As an interested party who participated in the first part of these proceedings,Ngāti Awa are entitled to participate in the second part. It may be that, between thenand now, there may be an opportunity for the parties to communicate directly witheach other in accordance with tikanga to explore whether they can reach any commonground on resolution of overlapping boundary issues.PART VI – ANALYSIS OF THE APPLICATIONSCMTWhakatōhea Rangatira Mokomoko[413] I have adopted the advice of the pukenga that the Mokomoko whānau do notmeet the test for grant of any order of CMT. The members of the applicant groupWhakatōhea Rangatira Mokomoko whakapapa to all hapū of Te Whakatōhea, and inparticular, they share an important whakapapa with Ngai Tama as descendants ofTamahaua and Kura-a-Wherangi and to Ngāti Patumoana.[414] In his closing submissions on behalf of Whakatōhea Rangatira Mokomoko,Mr Warren had said that the "key motivation" for the applicant in filing a whānauapplication for CMT was:The historical and ongoing stigma faced by the uri [descedants] ofMokomoko, as opposed to any claim that they are above or on par with thehapū they connect to.[415] The stigma referred to was the fact that the rangatira Mokomoko was hung forthe murder of the CMS missionary, C S Volkner.209 The Crown used Volkner's murderas a pretext for confiscating some 448,000 acres of land belonging to Whakatōhea andneighbouring iwi.210[416] Subsequent to the confiscation, Te Whakatōhea hapū (and others) wereresettled on small portions of the confiscated land at Ōpape and Ōhiwa. Theireconomic base was destroyed resulting in a legacy of intergenerational poverty.211[417] Mokomoko was posthumously pardoned,212 but that did not result in the returnof any more of the confiscated land. Neither did it entirely erase the stigma that thewhānau felt.209 Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 2, at 103 and 110-117.210 At 125.211 At 172.212 See s 3 of the Mokomoko (Restoration of Character Mana and Reputation) Act 2013, Te Ture mōMokomoko o Hei Whakahoki i te Ihi, te Mana, me te Rangatiratanga. See also: Craig Coxhead"Bring them Justice" (2000) 4 New Zealand Yearbook of Jurisprudence 43.[418] Mr Warren submitted that Whakatōhea Rangatira Mokomoko supported thepoutarāwhare construct advanced by the Court appointed pukenga, in particular theconcept of shared exclusivity, and the suggestion that there be one CMT order to beheld by the six hapū covering the area from Maraetōtara to Tarakeha.[419] It was submitted that any order for CMT utilising the pukenga's poutarāwhareconstruct should reflect "where the whānau fits within the construct". There was alsoa submission that the solution might involve " preamble in the order reflecting therole of the rangatira Mokomoko as the protector of the western boundary ofTe Whakatōhea."[420] The exact form of the CMT will be decided at the next hearing but given thegeneral support of the Whakatōhea Rangatira Mokomoko claim by the sixWhakatōhea hapū, it seems likely that an agreement can be reached that would achievethe outcome sought by Whakatōhea Rangatira Mokomoko.Kutarere Marae[421] Kutarere Marae participated in the hearing as an interested party on the basisthat they had applied for direct engagement with the Crown and the area of their claimoverlapped the Whakatōhea claim.[422] Barry Kiwara gave evidence on behalf of Kutarere Marae. He explained thatthe marae was founded by his grandfather, Hurae Ihaia, and his grandmother,Mere Rakai, both of whom were of Ngāi Tūhoe descent.[423] His evidence was that Hurae Ihaia established a Kainga at Kutarere in the1930s and that the first Wharenui was opened in 1943. Mr Kiwara rejected asuggestion that Kutarere Marae was an Ūpokorehe marae and expressed anunderstanding that Ūpokorehe was a hapū of Whakatōhea and said that Kutarere"aspires" to be a hapū of Whakatōhea. He noted that his grandfather had been afoundation trustee of the Whakatōhea Māori Trust Board.[424] On its own evidence, Kutarere Marae is not a whānau, hapū or iwi. It was notin existence until the 1930s. It therefore cannot meet the statutory test in s 58 of theAct as having exclusivity held and occupied a specified area of the takutai moana from1840 to the present day.Hiwarau C[425] Dean Flavell, on behalf of Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa ofWhakatōhea, sought a grant of CMT.[426] Several of the witnesses called in support of the application213 identified asbeing members of the Ūpokorehe Hapū of Whakatōhea iwi.[427] The Hiwarau C Block is situated near Kutarere adjacent to Ōhiwa Harbour.The land is administered as an ahu whenua trust called Hiwarau Lands Trust. TheCourt received two different accounts as to exactly how the block came into existence.The evidence of Ms Josephine Hinehou Mortenson was that it contained some375 hectares and came into existence as a result of confiscation of the 448,000 acresof western Bay of Plenty land in 1866 pursuant to the New Zealand Settlements Act.Referring to this evidence, counsel for Hiwarau C stated, in their closing submissions,that the block was granted by the Crown to some 30 women with whakapapa linkspredominantly to Whakatōhea, but also to Te Whānau-a-Apanui and Tūhoe.[428] A slightly different account was given in the evidence of Mr Tony Walzl, ahistorian engaged by WKW, who stated that the Hiwarau C Block was granted to66 members of the "Ūpokorehe tribe" pursuant to ss 4 and 6 of the Confiscated LandsAct 1867 and that the block then contained 1073 acres. Mr Walzl also stated that theCrown grant was not completed until 1886.[429] No citations were given by Ms Mortenson in support of her account and ittherefore seems more likely that the detail set out in the evidence of Tony Walzl iscorrect. In any event, it is not necessary for the Court to determine the exact legislationunder which the block was established, the precise number of original owners or exactamount of land involved. What is undisputed is that the establishment of the blockoccurred in the second half of the 19th century as a result of colonial land confiscation.213 Josephine Hinehou Mortenson, Josephine Takamore, Keita Hudson, and Bruce Pukepuke.It is therefore not possible for Hiwarau C to meet the statutory test set out in s 58(1)(b)as it did not exist as an entity at 1840.[430] While some who gave evidence on behalf of the Hiwarau C applicationexpressed the "aspiration" to be recognised as a hapū of Whakatōhea, there was noevidence of widespread support of their claim to hapū status from witnesses for otherhapū.Pākōwhai[431] Although this claim for CMT was advanced on the basis that Pākōwhai were ahapū, it was acknowledged that it had a number of unusual features.[432] Dr Kahotea, in support of the application, stated:214The Whakatōhea Pākōwhai hapū claim for the Takutai Moana is a claim of aspecial community that emerged at Pākōwhai from the late 1830s to thedismantling of this community by the military action taken againstWhakatōhea in Ōpōtiki in response to the death of Rev. Volkner in 1865.[433] He also said:215Speaking with Larry Delamere and others of the Whakatōhea Pākōwhai hapūthey all have a passion for a Māori community where they were raised, whichwas based in the township of Ōpōtiki. They have a specific identity of placewithin the Ōpōtiki township, which had a strong sense of history which wascommunicated and passed on orally by memory, this was Pākōwhai. For thePākōwhai hapū this came from residence with the same as the Te Whakatōheahapū communities of Kahikatea, Kutarere, Hiwarau, Waiōweka, Ōmarumutu,Ōpape, Maromahue, and Waiaua. The difference between Pākōwhai and theother hapū of Te Whakatōhea, it was not hapū specific such as Ngāti Rua [or]Ngai Tama but "Whakatōhea whanui" that is it was a locality which includedall of the Whakatōhea hapū.[434] Counsel for Pākōwhai, in their closing submissions, acknowledged that oneway of proving hapū status is that a hapū has its own marae. Counsel set out aquotation from Hirini Moko Mead where he said:216214 Desmond Kahotea Whakatōhea Pākōwhai Hapū and the Common Marine and Coastal AreaKotahitanga Claims (January 2020) at 1.0.215 At 2.0.216 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised Edition) (Huia Publishing,2016) at 168-169.Every well-established hapū has at least one marae which it has managed fora very long time. For an urban hapū the marae is much more recent. Themeeting house at the marae is a point of focus for all members. A hapūwithout a marae is not recognised by others as being real. Tikanga demandsthat a hapū must have a marae, or some building that substitutes for a maraesuch as a cultural centre.[435] Counsel then submitted that the Pākōwhai Memorial Hall:substituted for a marae in more recent times and that it may be inferred thatthe larger pā at Ōpōtiki and/or at least six other pā sites served as marae forPākōwhai hapū in earlier times.[436] There is no doubt that from the 1830s until the 1860s there was a large pā atPākōwhai which was situated at the northern end of what is now the Ōpōtiki township.That pā was a focus of interaction between Māori and early Pākehā colonists, bothmissionaries and traders. The people who lived at the pā were drawn from allWhakatōhea hapū and from other iwi.[437] The evidence was also clear that the pā that once existed there disappearedafter the 1860s. The construction of the Pākōwhai Memorial Community Centre didnot start until 4 January 1956 and its purpose was as a memorial to Māori andEuropean soldiers who fell in both world wars.[438] Absent from the evidence tendered in support of the Pākōwhai claim was anydetailed whakapapa evidence. This distinguished the claim from those of the six hapūof Whakatōhea who were identified by the pukenga as having held a specified area inaccordance with tikanga. There was also no widespread recognition of a separatePākōwhai hapū by the Whakatōhea hapū. This claim therefore does not meet therequirements of s 58 of the Act.Ngāti Muriwai[439] A claim for CMT was advanced on behalf of Ngāti Muriwai on the basis thatthey were currently a hapū of Whakatōhea and had continuously been so since 1840,and that they had exclusively and continuously held a specified area from the mouthof the Waiaua River east to Tarakeha and that "as part of the iwi they are able toexclude other groups using the area".[440] In support of these contentions, it was asserted that Ngāti Muriwai:were a group of people sharing common descent. Like Whakatōhea hapūthey claim descent through the coming together of the Mātaatua and Nukuterewaka through the marriage of Muriwai's son, Repanga, to Ngapouperata and of Muriwai's daughter Hineikauia to Tutamure with these lines comingtogether in the Panenehu tribe from which the Whakatōhea hapū evolved.[441] It was asserted they were independent of Ngāti Rua although conceded that:they had a close association and lived with that hapū for a long period andduring that time were collectively known as "Ngāti Muriwai-A-Rua" beforethe two hapū split and went their own way following the raupatu.[442] It was alleged that they shared Ōmarumutu Marae with Ngāti Rua.[443] They referred to evidence that, at an unspecified time prior to 1840, a groupknown as Ngāti Muriwai had gone from within the Whakatōhea rohe to Te Kahawithin the Whānau-a-Apanui rohe to assist Whānau-a-Apanui but had returned atsome unspecified time in the early 19th century to live in the Waiaua area.[444] In closing submissions, counsel for Ngāti Muriwai submitted:There is not a great deal of evidence of how Ngāti Muriwai lived immediatelyafter they returned to the Waiaua area in the early 19th century.[445] There was in fact no evidence relating to Ngāti Muriwai at Waiaua orelsewhere in the Whakatōhea rohe between 1840 and the 1870s.[446] Considerable emphasis was placed on the fact that Ngāti Muriwai wereallocated a block of land at the Ōpape Reservation in the processes that followed theraupatu confiscation.[447] A historian called in support of the Ngāti Muriwai case, Tony Walzl, hadexplained that the initial list of Whakatōhea hapū produced by Land CommissionerWilson in 1870 for the purposes of allocating portions of the confiscated land back tothe Whakatōhea hapū, did not include Ngāti Muriwai but the list prepared by NativeLands Commissioner Brabant in 1881, had allocated Lot 3A in the Ōpape Reservationto Ngāti Muriwai.[448] The evidence also noted that the creation of the 3A Block from the larger3 Block which had been allocated to Ngāti Rua, occurred after a dispute betweenPaku Eruera and Ngāti Rua about the grazing of his sheep on the Ōpape 3 Block anda subsequent agreement that "Paku's people" should be allocated a separate block.The evidence noted that the 3A Block was allocated to 22 individuals made up ofPaku Eruera and his immediate family.[449] In terms of the existence of a Ngāti Muriwai Marae, the witnesses forNgāti Muriwai claimed that for much of the period since the 1870s, they had sharedNgāti Rua's marae at Ōmarumutu.[450] In closing submissions, counsel for Ngāti Muriwai noted the outcome of the1976 Māori Land Court hearing which supported the conclusion that Ōmarumutu wasa Ngāti Rua marae. It was submitted by counsel that:As a result of this, Ngāti Muriwai have in effect been isolated from their ownmarae even though they are part of the ownership of the reserve.[451] It was submitted that what was described as the "practical exclusion" ofNgāti Muriwai in "recent times" from the Ōmarumutu Marae did not mean that theywere not a hapū.[452] Reference was also made to the Whakatōhea Mandate Waitangi Tribunalhearings where the Tribunal had recommended that Ngāti Muriwai be allowed to voteon mandate together with the other six Whakatōhea Trust Board hapū.[453] In closing submissions, counsel submitted that Ngāti Muriwai had: been a separate hapū from the very least since the split of Ngāti Muriwai-a-Rua in the 1870s.[454] Counsel also sought to invoke s 58(3) of the Act which refers to the transfer ofa customary interest between or among members of an applicant group or to anapplicant group if the transfer was in accordance with tikanga.[455] The requirement under s 58(3) is that the group making the transfer has heldthe specified area in accordance with tikanga and exclusively used and occupied itfrom 1840 without substantial interruption, and further that the group or somemembers of the group to whom the transfer was made had:(i) held the specified area in accordance with tikanga; and(ii) exclusively used and occupied the specified area from the time of thetransfer to the present day without substantial interruption.[456] In this regard, counsel submitted:It is unclear if Ngāti Muriwai-a-Rua was a combined or single hapū. But forthe present purposes it is submitted it is irrelevant if in fact the two hapū didcombine into one hapū pre-1840 and later split. If that did occur, then furtherto s 58(3) of the Act any takutai moana rights held by the combined hapū at1840 would be the division (sic) of the group (sic) be transferred in accordancewith tikanga between the two new groups.[457] However, no evidence of any such transfer between Ngāti Rua andNgāti Muriwai was provided to the Court and the submission is also contradicted bycounsel's submission that they shared the rohe (including the marae) with Ngāti Ruarather than used it exclusively.[458] Counsel also asserted that the claim that Ngāti Muriwai is a hapū is "notinconsistent with" the advice of the pukenga. What is relied on is the reference in thepukenga report to Ngāti Muriwai having the potential to achieve recognition at someunspecified future time through an appropriate Whakatōhea process.[459] Implicit in this finding by the pukenga is that Ngāti Muriwai does not presentlyhave the status of a hapū of Whakatōhea.[460] Notwithstanding the evidence relied upon by Ngāti Muriwai, it is clear that theother hapū of Whakatōhea do not accept their claimed status.[461] Witnesses from three hapū: Ngāti Rua, Ngāti Ira and Ngāti Patumoana, gaveevidence of the reasons why they did not accept Ngāti Muriwai's claim. By way ofexample, Te Riaki Amoamo considered that Ngāti Muriwai were a subdivision ofNgāti Rua, noting that their whakapapa was Ngāti Rua whakapapa and that thewitnesses for Ngāti Muriwai did not know their historical traditions.[462] Evidence that was clearly incorrect was also pointed out includingNepia Tipene's evidence that Ngāti Muriwai lived at Ōmarumutu Pā and invitedNgāti Rua to come and live with them after the Ngāti Rua marae burnt down. Te RiakiAmoamo's evidence was that the pā that burnt down was at Puketapu. It wasPuketapu Pā at Ōpape, not a marae at Whitikau as claimed by Mr Tipene. It was alsonoted that the wharenui prior to the current wharenui of Tūtāmure, which had beenopened in 1901, had been called Ruatakenga and that it would clearly not have beencalled that if it was a Ngāti Muriwai wharenui.[463] Reference was also made to the evidence of Tony Walzl under cross-examination conceding that, without whakapapa evidence connecting the two groups,there was no way of knowing whether the Ngāti Muriwai group that had been atTe Kaha had any connection with the Ngāti Muriwai group recognised in the 1870s,and that there was more than one Ngāti Muriwai group (another being in the Tūhoerohe) because of the fame of the ancestress Muriwai.[464] In closing submissions, counsel for Ngāti Rua referred to evidence thatsupported the proposition that the Ngāti Muriwai identity fell into abeyance and hadonly recently been revived, and reference was made to Dr Ranginui Walker in Ōpōtiki-Mai-Tawhiti as to Claude Edwards reviving the "moribund Ngāti Muriwai hapū as thetūrangawaewae for himself and his followers" in the 1990s after the failure of theTreaty settlement process which saw him losing his Whakatōhea Māori Trust Boardseat as the Ngāti Patumoana representative.217Conclusion[465] For the reasons discussed above, I share the conclusions reached by thepukenga that the claimants Whakatōhea Rangatira Mokomoko, Hiwarau C, Pākōwhaiand Ngāti Muriwai have not established that they, along with the six hapū ofWhakatōhea, held a specified area in accordance with the requirements of s 58(1)(a).I also agree with and adopt the pukenga's conclusions discussed at [311]-[331] abovethat the six entities who hold the specified area in accordance with tikanga are217 Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 2, at 276.Ngai Tamahaua, Ngāti Ruatakenga, Ngāti Ira, Ngāti Ngāhere, Ngāti Patumoana andŪpokorehe.Whakaari and Te Paepae o Aotea[466] The pukenga report identified customary interests in the takutai moana aroundWhakaari and Te Paepae o Aotea of the six hapū making up the poutarāwhare as wellas Ngāi Tai, Ngāti Awa and Te Whānau-a-Apanui.[467] Ngāti Awa and Te Whānau-a-Apanui are not applicants in these proceedingsand did not invite the Court to make any orders in respect of their claims to CMT inthis area. However, the Court does need to consider whether a case has been made outfor the Whakatōhea applicants and Ngāi Tai in relation to an order for CMT.[468] The starting point is to consider the original applications. This is particularlyrelevant in light of the decision in Re Ngāti Pāhauwera which indicates that materialamendments which fundamentally extend the nature or extent of an application afterthe limitation period has expired are not appropriate.218[469] In their original applications, only two of the hapū in the pukenga'spoutarāwhare (Ngai Tamahaua and Te Ūpokorehe) clearly identified a claim for CMTin the takutai moana around Whakaari and Te Paepae o Aotea.[470] Ngāti Ruatakenga originally identified their claim area as being in the form ofa triangle with Whakaari at its apex. However, on 4 August 2020, an amended mapwas filed to include a much broader claim around Whakaari and Te Paepae o Aotea.[471] Ngāti Ira did not originally claim CMT in this area but amended theirapplication on 5 August 2020.[472] Ngāi Tai (and Ririwhenua) originally sought PCR in respect of Whakaari andTe Paepae o Aotea and this continued to be their position even as at 30 September2020 in relation to a map filed on that date. However, in closing submissions, counsel218 Re Pāhauwera [2020] NZHC 1139.appeared to extend the application to one for CMT. Ngāti Patumoana did not at anystage make a claim for CMT around Whakaari and Te Paepae o Aotea, and there wasno evidence in support of such a claim for Ngāti Ngāhere.[473] No doubt encouraged by the observations of the pukenga, several of theapplicants made late amendments to their applications. I am satisfied that theamendments made which are detailed above amount to a substantial extension of theclaims and a fundamental change to their nature. Applying the decision of Re NgātiPāhauwera, it is too late for such amendments to be made.[474] It also appears, from the additional information provided by the pukengaduring the course of cross-examination that the rights they had identified in their reportheld by these applicants were in the nature of resource rights. Resource rights aremore appropriately dealt with by way of PCR. The resource rights that were supportedby the evidence were rights in relation to the gathering of tītī at Whakaari and fishingin the sea around Whakaari and Te Paepae o Aotea.[475] For the reasons already explained, these could not support an order of PCR.The only other basis for PCR was the reading of the tohu of Whakaari from variousplaces on the mainland. For the reasons set out at [648], such activity is precludedfrom justifying the grant of PCR by s 51(2)(e).[476] Another difficulty in implementing the pukenga's suggestion in relation toCMT, is that it would involve a finding of joint exclusivity in circumstances wherethere was no agreement among all relevant parties as to its existence. Te Whānau-a-Apanui and Ngāti Awa both asserted primary rights. There was an acknowledgementthat Whakatōhea hapū gathered resources from the area but no acknowledgement of ajoint holding of mana moana. For the reasons discussed at [166]-[167] above, theCourt would not have been able to find joint exclusivity in these circumstances.[477] The situation is different to that at west Ōhiwa Harbour where counsel forNgāti Awa, in closing submissions, expressly accepted that customary interests therehad, since 1840, been shared with Whakatōhea and Ūpokorehe and that mana was heldcollectively. Counsel for Te Whānau-a-Apanui made no such concession in respect ofWhakaari and Te Paepae o Aotea and counsel for Ngāti Awa also rejected anypossibility of joint exclusivity if it involved Ngāi Tai.[478] Because neither Te Whānau-a-Apanui (including its hapū) or Ngāti Awainvited the Court to rule on their claims in respect of Whakaari and Te Paepae o Aotea,nothing in this decision inhibits them from continuing to advance those claims as theysee fit.Ngāi Tai[479] Ngāi Tai sought CMT in respect of the area between Tarakeha and Te Rangi.The pukenga's report supported that claim. Ultimately, it was only Ngai Tamahauawho did not accept that the boundary between the Whakatōhea Hapū and Ngāi Taishould be of Tarakeha rather than Te Rangi. For the reasons discussed at [578]-[588]below, I do not accept Ngai Tamahaua's contention. I have concluded that Ngāi Taihave satisfied the tests in s 58 that they hold that area in accordance with tikanga andhave exclusively used and occupied it from 1840 to the present day without substantialinterruption.[480] As acknowledged by counsel for Ngāi Tai in submissions, there was a periodof disruption in the early 1840s where Whakatōhea hapū encroached east of Tarakehabut I conclude that did not amount to substantial interruption nor was it sufficient toextinguish Ngāi Tai's ahi kā.[481] In relation to the question of whether Ngāi Tai use and occupy the area betweenTarakeha and Te Rangi, there was evidence that the abutting land was owned by NgāiTai. They had been granted 2,411 acres at Awaawakino in 1867 under the ConfiscatedLands Act. This block runs along the coastline from Tarakeha to just before Te Rangipoint. Subsequently, that block was consolidated into the Torere Block and is nowknown as Torere 41 and Torere 42. These blocks are still in Ngāi Tai ownership.[482] Subject to the final resolution of overlapping boundaries out at sea, the CMTextends out to the 12 nautical mile limit.PCR[483] I will now address each of applications for PCR separately and indicatewhether or not PCR is available for the type of activities in respect of which it is soughtand, if it is, whether the application has met the statutory tests.[484] In order to avoid repetition, where I have set out why an activity that oneapplicant has applied for cannot support an order for PCR, I will not repeat thosecomments in relation to other applications in respect of the same activity.CIV-2011-485-817 – Edwards priority application[485] The third amended application filed on 31 July 2020 sought PCR in an areafrom Maraetōtara to Tarakeha including Ōhiwa Harbour and the Nukuhou, Waiōtahe,Waiōweka, Otara and Waiaua Rivers extending one kilometre upstream from theapplicable river mouth and extending out to the 12 nautical mile territorial limit.[486] They sought a PCR for two activities: the harvesting of kaimoana and fishingfor various named species of fish, as well as collecting feathers from tītī (mutton birds)and toroa (albatross).[487] All of the kaimoana listed are regulated species under the Fisheries Act 1996and, cannot be recognised by the grant of a PCR. The tītī and toroa fall within thedefinition of "wildlife" under the Wildlife Act 1952, and therefore activities connectedwith them can also not be recognised by PCR orders. That does not mean thatmembers of the applicant group cannot continue their non-commercial/harvesting/fishing activities in respect of the kaimoana or continue togather bird feathers, it just means that the Court is not able to grant a PCR in respectof them.CIV-2011-485-264 – Application by Larry Delamere on behalf of Pākōwhai[488] Larry Delamere sought PCR orders for fishing and kaimoana gathering,transport, rongoā collecting, communicating hapū mātauranga, bird snaring, andcollecting firewood stones and aquatic plants. The application was made on behalf ofwhat was described as the Pākōwhai hapū. The application area was from the left bankof the Ōpōtiki estuary to a point two kilometres east.[489] As set out above, the pukenga concluded that Pākōwhai were not a hapū.Section 51(1)(b) of the Act refers to a PCR being exercised by an "applicant group".Section 9 defines applicant group as being an iwi, whānau or hapū. Pākōwhai do notmeet that definition.[490] Some of the activities in respect of which Pākōwhai sought PCR orders couldhave been the subject of such orders. For example, the catching of whitebait is not anactivity regulated by the Fisheries Act 1996.[491] However, the places where the whitebait were said to be caught was ŌpōtikiHarbour, the lower Waiōweka and Otara Rivers and Huntress Creek. For the reasonsdetailed above, the takutai moana ends at the mouth of the Ōpōtiki River therefore theareas where the whitebaiting was said to take place do not fall within it.[492] Section 51(1)(b) requires that activities in respect of which PCR is sought areactivities which continue to be exercised in a particular part of the common marineand coastal area in accordance with tikanga. Although there was some evidence of thetakutai moana being used for transport purposes particularly in the 19th century, therewas no evidence of how that activity currently takes place or what aspects of tikangaare involved with it.[493] In this case, there was no evidence of a natural or physical resource being usedin relation to communicating mātauranga. Rongoā collecting could potentially formthe basis for a grant of PCR but here there was a lack of evidence as to exactly whatmaterial was currently being collected for the purposes of rongoā and which particularpart of the common marine and coastal area was involved.[494] The activity of communicating hapū mātauranga can potentially be the subjectof a PCR provided it complies with the requirements of s 51(2)(e) which, as discussedabove at [378]-[381] says that a PCR does not include an activity:that is based on a spiritual or cultural association, unless that association ismanifested by the relevant group in a physical activity or use related to anatural or physical resource.[495] Bird snaring and hunting for tītī would involve wildlife as defined by theWildlife Act 1953 and would therefore be excluded.[496] In relation to the collecting of firewood, stones and aquatic plants, thesepotentially could perform the basis of an application for PCR, but there was a lack ofevidence as to the particular part of the common marine and coastal area where theactivity of collecting firewood occurred, what tikanga was involved and whether theactivity was still being carried out. There was no evidence of the collection of stonesand aquatic plants.CIV-2017-485-269 – Application of Christina Davies on behalf of Ngāti MuriwaiHapū[497] The application area was amended during closing submissions to extend fromthe mouth of the Maraetōtara Stream to Tarakeha including Ōhiwa Harbour and thetidal aspects of rivers, streams, estuaries, as well as the islands in Ōhiwa Harbour. Tothe extent that an island is beyond mean high-waters springs, it is not the marine andcoastal area, and therefore cannot be subject to a recognition order.[498] The activities in respect of which an order of PCR was sought were identicalto the activities specified in the Pākōwhai application.[499] Although the pukenga found that Ngāti Muriwai were not a hapū and could notbe said to have exclusively used and occupied the specified area from 1840 to thepresent day, which precluded them from being granted CMT, s 51 does not require anapplicant group to have exclusively used and occupied the relevant area from 1840without substantial interruption.[500] It is possible that Ngāti Muriwai are a whānau group even though that is nothow they identify themselves. A whānau group can be an applicant group for an orderof PCR.[501] I will not repeat the comments made in relation to the Pākōwhai application asto those parts which cannot be the subject of an order for PCR but focus on whetherthere is evidence to support the claims in respect of other activities.[502] One problem is that there is relatively little evidence about the particular partof the common marine and coastal area the activities took place, what tikanga wasinvolved or whether the activities were continuous. The Court is effectively beingasked to draw inferences from the available relevant evidence. I approach this taskbearing in mind that the burden of proof is on the balance of probabilities. In otherwords, does the evidence satisfy me that it is more probable than not that the activitytook place in a particular part of the common marine and coastal area in accordancewith tikanga, has been exercised since 1840 and has not been extinguished.[503] In relation to the collection of firewood, stones, shells and aquatic plants, thereis little evidence of particular tikanga associated with these activities but there wasevidence of tikanga followed generally when venturing into the takutai moana. Thisincluded the saying of karakia before and after activities, the exercise of manaakitangaby way of sharing resources with others in the groups and not taking more of a resourcethan was required to meet immediate needs.[504] The evidence in support of the collection of driftwood, stones and shells, issummarised in the evidence of Tony Walzl.219 He refers in particular to the evidenceof Ms Julie Lux and to evidence given by the late Claude Edwards in 2005. Thatevidence confirms that stones were collected for hangi, pumice was collected forrongoā (used in respect of bruises or rubbing cracked feet), driftwood was collectedfor use as firewood, and shells collected for use on driveways and paths, as well asbeing used as fill for gardens.[505] Although the specific locations at which these activities took place is not given,within the context of the evidence overall, I am able to infer that they took place withinthe application area. I note that a number of the activities referred to took place at the219 Tony Walzl Ngāti Muriwai and the Common Marine and Coastal Area 1865-2019 (23 January2020) at 62-63.Motu River, which is not within the application area, but these activities refer to fishingrather than the collection of firewood, stones and shells.[506] There was evidence of whitebaiting. Julie Lux, in her affidavit of 15 November2019, referred to whitebaiting in the application area. Marcia Tutbury, in her evidenceconfirmed that her whānau had always whitebaited on the Waiaua River. The otherevidence referring to whitebait was the 2005 statements of the late Claude Edwards ofcatching whitebait in the Waiōtahe estuary. I am prepared to infer that the tikangapractices relating to the gathering of kaimoana generally also applied in relation tocatching whitebait, and that the catching of whitebait at the particular places of theWaiaua River and the Waiōtahe estuary had been exercised since 1840. Nepia Tipene,in his affidavit, referred to catching whitebait at the Otara River bridge. However, thisactivity did not appear to be happening currently and in any event the Otara River isoutside the coastal marine area.[507] In relation to aquatic plants, Julie Lux gave evidence that harakeke (flax) usedfor raranga (weaving) and as rongoā (medicine) was grown along the coast as waspingao (a strong grass that grows in sand dunes). There was no direct evidence thatthe practice of growing harakeke continued. The evidence in relation to the pingaowas that it had disappeared over years although some efforts were being made to re-establish its presence. On this evidence, I cannot infer that these activities continue tobe exercised presently.[508] The affidavit evidence of Nepia Tipene and Carol Anne Stevens referred togathering and drying a type of seaweed called karengo which was used as food.[509] Nepia Tipene gave evidence of collecting karengo. This is something thatseemed to have happened in the past. There was also no evidence about whatparticular part of the common marine and coastal area this occurred in. There did notseem to be any evidence that the collecting and drying of karengo continued currently.[510] Carol Anne Stevens also gave evidence about karengo but it was limited tosaying "Karengo [seaweed] was gathered for food". On this evidence, I cannotconclude that this activity continues to occur.[511] In relation to communicating hapū mātauranga, this is a spiritual or culturalassociation and s 51(2)(e) requires that the association be manifested by a physicalactivity or use related to natural or physical resource. There was evidence ofcommunication of hapū mātauranga but no evidence of how that was connected to anatural or physical resource.[512] For the reasons, I find that Ngāti Muriwai whānau have established anentitlement to PCR in respect of collecting firewood, stones and shells, as well asfishing for whitebait at the Waiaua River and Waiōtahe estuary. Because there was nolimitation placed on where they collected firewood, stones and shells, I infer it tookplace on the foreshore of the whole area claimed.[513] There is insufficient evidence to establish an entitlement to PCR in respect ofthe other matters discussed above, and also the collection of material for rongoā andtransport.CIV-2017-485-375 – Dean Flavell on behalf of Hiwarau C, Turangapikitoi, Waiōtaheand Ōhiwa o Whakatōhea[514] The application area sought was from Maraetōtara Stream to Haurere Point(amended to be Tarakeha) including Ōhiwa Harbour. The activities in respect of whichPCR was sought were identical to the activities in the Pākōwhai and Ngāti Muriwaiapplications. This application also suffered from a lack of detail.[515] The affidavit of Josephine Takamore of 21 February 2020 provided someevidence about the gathering of wood from the beach to burn, getting seaweed, andgetting mud from the mudflat to dye piupiu. The relevant paragraph of her evidencesaid:A lot of people gather the wood off the beach. There was wood they couldutilise for burning. The [sic] got the seaweed too. If [sic] go back to KutarereI recall my kuia and them using the mud when they did piupiu [grass skirts].It's part of the mud flat, they'd use a harakeke [flax] they'd do it for theirpiupiu. I think it stained it when they do piupiu.[516] The affidavit also talked about using harakeke for the making of kete but it wasnot clear where the harakeke was located or whether this practice still continued.[517] Although Ms Takamore did not specify the particular part of the commonmarine and coastal area where these activities took place, the rest of her affidavit refersto having returned to live at Hiwarau near Kutarere. She also talked of gatheringcockles from near Hokianga Island in Ōhiwa Harbour.[518] I draw the inference that the activities Ms Takamore is referring to took placeat the southern end of Ōhiwa Harbour. Trying to establish whether the activitiescontinue to be carried out is more difficult. The reference to gathering firewood offthe beach to be burnt is phrased in the present tense. So, I am able to infer it continuestoday. However, the other activities seem to be referred to only in the past tense.[519] There did not appear to be any evidence specifically referring to use of thecommon marine and coastal area in relation to transport, the collection of stones andcollection of rongoā.[520] The issue also arises as to whether an applicant group engaging in collectingfirewood was an iwi, hapū or whānau. An ahu whenua trust or a marae does not meetthe definition of an applicant group. In the absence of any qualifying applicant groupbeing identified, I am unable to make an award of PCR.CIV-2017-485-253 – Application by John Hata on behalf of Ngāti Patumoana[521] The application area was from Maraetōtara to the western side of NgawaikuiStream including the Ōhiwa Harbour. The Ngawaikui Stream is to the east ofTarakeha. However, in her affidavit of 29 January, Te Ringahuia Hata described theapplication area as being from Maraetōtara to Tarakeha rather than Ngawaikui. I willtherefore treat the eastern boundary as being Tarakeha.[522] The application lists seven separate activities in respect of which an order forPCR is granted:(a) taking of kaimoana;(b) taking of aquatic plants and seabirds;(c) navigation and passage, and the landing of waka along the coastline;(d) recreational use;(e) collection of sand, stones, shingle and detritus;(f) designation of wāhi tapu in the takutai moana;(g) rāhui;(h) allowing others to undertake activities in the takutai moana; and(i) all ways of life and cultural practices associated with the above takingsand uses including cultural practices founded in spiritual beliefsincluding the saying of karakia tawhito, karanga, imposition of rāhui,exercise of kaitiakitanga and mana, naming of places in the sea andforeshore to specify fishing areas, reefs and people who had authorityover them by Ngāti Patumoana.[523] However, it is not clear from the affidavits and submissions presented byNgāti Patumoana that there is evidence of karanga being practised in relation to thetakutai moana. It is not discussed in closing submissions, and the only reference tokaranga by the Ngāti Patumoana applicants is by Mr John Hata, who in setting out alist of uses of the takutai moana by Ngāti Patumoana, includes "use of karakia andkaranga in relation to our rohe moana and other customary practices".[524] There is little evidence of the specific naming of places by Ngāti Patumoanathemselves. In closing submissions, Mr Bennion does note there are many placenames within the application area that are centuries old, but still in daily use, and thesenames "relate to historic and/or mythical individuals and events that can be explainedby persons living now, based on oral traditions passed to them". The applicants alsodiscussed the origin of the name of Ngāti Patumoana and certain sites around the rohebut did not articulate in detail the process of naming and/or how that might apply as aPCR.[525] However, Ms Te Ringahuia Hata did briefly refer to the process of karakia,noting that:Ancient karakia rituals before the taking of resources to make rongoā werenormal practice. We continue these rituals today. The ill or sick would be ledto the water to bathe their wounds and karakia recited to assist them.[526] Kaitiakitanga, namely in the context of rāhui, was also discussed. Ms Hatanoted:Ngāti Patu tohunga would place Rāhui on the sea (or rivers) concernedwhenever a drowning would occur. They would discuss the Rāhui with otherhapū affected and neighboring iwi who are involved and their Kaitiakitangawould be supported in the placing and removal of a Rāhui.[527] Ms Hata's affidavit also gave evidence of fishing for whitebait in the WaiōwekaRiver but, as explained above, that river is not part of the takutai moana. There didnot appear to any evidence of specific types of seaweed being collected. I am thereforeunable to determine if it was seaweed of the type that may support a grant of PCR.The only seabird referred to in the evidence was the tītī which cannot be the subjectof PCRs.[528] As to the use of the common marine and coastal area for navigation, passageand the landing of waka, the evidence of Ms Hata was:Our Rohe Moana also acted as a mode of transport, landing places for thewaka, sea vessels also landed along the coastline, and kaitiaki or taniwha alsodwell in areas to protect the sea. When vessels are stranded, washed ashoreor damaged in the weather they are all warning signs.[529] There was no evidence relating to how those activities might continue to beexercised at present. Had there been, such activities could potentially have supporteda PCR.[530] In relation to the request for PCR in connection with designation of wāhi tapu,as discussed above, this is a matter to be dealt with in relation to CMT rather thanPCR. Section 79 of the Act stipulates the conditions in relation to wāhi tapu, it mustbe set out in a CMT order or agreement.[531] It is possible that kaitiaki activities relating to a wāhi tapu such as an urupā(caretaking or conservation activities) could be the subject of PCR. Although therewas evidence of an urupā at Onekawa, there was no evidence of any activities inrelation to this particular wāhi tapu.[532] The implementation of rāhui is, for the reasons discussed above, a matterappropriately dealt with by way of CMT rather than PCR.[533] As Ngāti Patumoana are one of the six hapū in the poutarāwhare identified bythe pukenga issues such as designation of wāhi tapu and/or rāhui can be dealt withwhen the terms of the CMT are finalised.[534] Although Ngāti Patumoana sought PCRs in respect of recreational use and thecollection of sand, stones, shingle and detritus, no evidence of the particularrecreational activities in question was provided, nor was there evidence about thecollections of stones, sand, shingle and detritus. I am therefore not able to grant anorder for PCR.CIV-2017-485-299 – Application by Te Rua Rakuraku on behalf of Ngāti Ira oWaiōweka[535] The application area is from Maraetōtara to Tarakeha. It includes ŌhiwaHarbour and Ōpōtiki Harbour including the lower Waiōweka and Otara Rivers, andthe estuaries of the Waiōtahe, Tirohanga and Waiaua Rivers. The six activities referredto are:(a) hapū fishing (including gathering shellfish);(b) collecting traditional material for cultural practices including mud,plants, perished mammals, seabirds, rocks, shells and other materialsfrom wetlands, estuarine margins and the sea;(c) diving (free and bottle);(d) hunting for eels, birds;(e) landing vessels and making sea passage to the islands and fishinggrounds;(f) hunting for edible aquatics and plants; and(g) accessing marine areas that have a cultural connection to Ngāti Ira.[536] Evidence as to whitebaiting was provided by Hemaima Hughes andCarlo Gage. Hemaima Hughes said that whitebait were gathered mainly from theWaiōweka, Otara and Waiaua Rivers. Carol Gage also gave evidence that whitebaitwere gathered at Waiaua, Otara, Waiōtahe and Waiōweka Rivers. He also gaveevidence that the seaweed karengo was gathered for use as fertiliser in the maara kai(gardens) and would be dried for eating. In cross-examination, Carlo Gage said thatkarengo was also collected from around Ōpape.[537] As to collecting traditional material for cultural practices, I accept thatdriftwood was gathered and used for firewood including for hangi; sand was gatheredfor a variety of purposes including to assist with gardening and food storage, as wellas, in more recent years, to make concrete; and flax was gathered to make things likebowls and baskets for hangi.[538] The evidence confirmed that these activities still took place and, so far as thegathering of sand was concerned, the place was identified, during answers given byCarlo Gage while being cross-examined, as being from the left side of the mouth ofthe Waiōweka River out into the takutai moana and also at Waiōtahe.[539] Mud, rocks, shells and other materials were said to still be gathered fromwetlands, estuarine margins and the sea. The remains of mammals and seabirds cannotbe the subject of PCR but the other materials just mentioned can be.[540] There was no direct evidence in support of the claim for a PCR in respect ofdiving (free and bottle). Presumably this is a reference to recreational diving asopposed to diving for kaimoana. The lack of detail provided means that the Courtcannot be satisfied that the tests for PCR have been met in respect of this part of theapplication.[541] Indeed, beyond the gathering of kaimoana and other resources, there was noevidence in relation to the recreational use of the common marine and coastal area.[542] In relation to landing vessels and making sea passage to the islands and fishinggrounds, there was evidence that this practice continues. There was also evidence(particularly from Te Rua Rakuraku) as to the tikanga involved including theimportance of reading the tohu (signs) from Whakaari before venturing out to sea.[543] The evidence as to the particular parts of the common marine and coastal areathat were used was vague. For example, in relation to the use of the takutai moana forcultural purposes, Te Rua Rakuraku simply stated that that the moana and foreshorewere where the Ngāti Ira people watched and studied the stars and the sea. Hisevidence was also similarly vague about using the takutai moana as a place of prayer,a place to conduct rituals or a place where people would go to if they were in need ofpurification.[544] Reading the evidence as a whole, it seems that Ngāti Ira regarded all of thearea within the boundaries of their application area as being available to them for theactivities they mentioned.[545] I conclude that Ngāti Ira have met the tests in s 51 in respect of whitebaiting atthe Waiaua and Waiōtahe Rivers; gathering driftwood throughout their claims area;gathering sand off the mouth of the Waiōweka River, gathering mud, rocks and shellsfrom wetlands estuarine margins and the sea throughout their claimed area, andlanding vessels and making passage throughout the claimed area.CIV-2017-483-355 – Application by Te Uri o Whakatōhea Rangatira Mokomoko[546] The application area is from the mouth of the Maraetōtara Stream to the mouthof Ngawaikui Stream out to the territorial sea including the entirety of the Ōhiwa andŌpōtiki Harbours and to Moutohorā (Whale Island) and Whakaari.[547] PCR is sought in respect of 13 different activities:(a) fishing and kaimoana gathering;(b) collection and gathering of natural resources including rongoācollecting;(c) bird snaring;(d) transport;(e) transfer of knowledge of mātauranga Māori about hapū, marine culture,trade, communications such as waiata, weaving practices andwhakanoa;(f) seasonal kaimoana exchange;(g) access to gardens on land;(h) tangihanga, social interaction, manaakitanga and ope mara;(i) use of certain areas for various types of traditional practices such aswānanga, hui and tangihanga;(j) exercising kaitiakitanga;(k) protectors of the western boundary of Whakatōhea and protectors ofthe natural resources and wāhi tapu;(l) launching waka; and(m) exercising rangatiratanga and the right to control and have a voice.[548] Other than for whitebait, fishing and gathering kaimoana cannot be the subjectof PCRs.[549] Karen Mokomoko gave evidence of being taught how to whitebait at Waiauaand of gathering inanga (whitebait) "within our coastal takiwā". Much of the evidencerelating to this application referred to things that happened in and around Te Moana oTairongo (Ōhiwa Harbour). I therefore conclude that whitebaiting occurred at Waiauaand in and around the Ōhiwa Harbour.[550] In relation to collecting traditional material and rongoā, Raiha Ruwhiu'sevidence was that wai tai (sea water) was used for "many medicinal, health, protection,blessings and wellness properties and uses". She recorded going to the moana andputting wai tai on her head to protect herself on a journey. She noted that when waitai was used as an internal or external medicine, there was a ritual that had to befollowed including karakia and collecting the wai tai from behind the fifth wave andalso explained the reason for that practice.[551] In her affidavit evidence, she did not refer to any particular location at whichwai tai for human consumption was collected but during cross-examination she saidthat the use of wai tai at Hokianga Island and Onekawa for bathing and healingcontinued today. There was no evidence of use of wai tai for such purposes aroundMoutohorā or Whakaari.[552] Evidence of the use of resources in the takutai moana for rongoā purposesseemed to be limited to wai tai. I find that this applicant has meet the test in s 51 inrelation to the taking of wai tai for rongoā throughout their application area to 100 mfrom mean high-water springs, and its use for bathing and healing purposes withinŌhiwa Harbour.[553] In relation to the use of the takutai moana for transport, there was evidenceabout the historical use of waka and the more recent activities of members of theMokomoko Whānau in relation to Ōpōtiki Harbour and Whakaari. The submissionson behalf of the Attorney-General suggest that there was no evidence that use of thetakutai moana for transport purposes was "done in accordance with tikanga".[554] Raiha Ruwhiu addressed this issue directly in her written evidence. She said:[32] I understand that the Marine and Coastal Area (Takutai Moana) Act2011 does not provide for protected customary rights to be granted in relationto a spiritual and cultural associations specifically. I am aware that theprotected customary rights must relate instead to the physical manifestation ofthose spiritual and cultural associations through physical activities.[33] For me, and for our whānau, understanding the whakapapa and thespiritual basis upon which are tūpuna and the uri of the rangatira, Mokomoko,carried out various activities within the takutai moana, is central tounderstanding the significance of those practices for us.[555] In her affidavit of evidence, Karen Mokomoko referred to traditionalknowledge or mātauranga relating to the moana including knowledge of tide patternsbeing "passed down from the old kōrero of our tūpuna". She also referred to utilisingother tohu (signs) and what she described as "traditional talisman". I am satisfied thatin using the takutai moana for the purposes of navigation that tikanga was applied andthat in respect of this activity, the requirements of s 51 have been met.[556] Karen Mokomoko also referred to the continuing practice of maramataka. Shedescribed this as "the knowledge of the stars, moon phases, weather patterns andanimal behaviour." She said that this knowledge was utilised in relation to navigationincluding the stars providing bearings at night to navigate the way home.[557] In relation to the transfer of mātauranga Māori, the same approach for karakiawould apply. If the transfer of mātauranga Māori is manifested in a physical activityor use relating to a natural or physical resource, it will fall within the ambit of s 51. Ifmembers of the applicant group travel to the takutai moana and use the foreshore orthe sea as part of the process of transferring mātauranga Māori to younger generations,the Court needs to be satisfied that this activity continues to be exercised "in aparticular part of the common marine and coastal area".[558] Karen Mokomoko referred in her affidavit evidence to trips to Hokianga Islandfor wānanga to teach and pass knowledge to the new generation. That activity fallswithin s 51 and can be included in a grant of PCR. However, no other specificlocations seem to have been mentioned.[559] In relation to seasonal kaimoana exchange, it is clear that this is a culturalpractice that has been exercised since 1840 and continues to be exercised today.However, there was no evidence that it took place in a particular part of the marineand coastal area. Indeed, it appears that kaimoana is taken and exchanged with hapūwho reside in inland areas and have no access to the takutai moana. Accordingly, itdoes not meet the requirements of s 51.[560] In relation to access to gardens on land, bird snaring, tangihanga, socialinteraction, manaakitanga and ope mara, beyond the reference to trips to HokiangaIsland for wānanga, there is no specific evidence about activities which take place ina particular part of the marine and coastal area.[561] In relation to using areas for various types of traditional practices such aswānanga, hui and tangihanga, there was clear evidence (particularly fromRaiha Ruwhiu) of returning whenua (placenta) to the foreshore at Taiharuru andplacing the umbilical cord in crevices of the rocks on the seashore. Ms Ruwhiuconfirmed that these practices have been carried out since 1840 and were ongoing. Noparticular site other than Taiharuru was mentioned. The applicant group is entitled toa PCR in respect of this practice at Taiharuru.[562] In relation to exercising kaitiakitanga by protecting the western boundary ofWhakatōhea and the natural resources of the takutai moana as well as wāhi tapu, actingas a kaitiaki or exercising kaitiakitanga is clearly an important cultural activity. Theissue is whether, in this case, it is manifested in a physical activity or use relating to anatural and physical resource.[563] Although it is clear that kaitiakitanga has been exercised in relation to fishingand the gathering of shellfish, PCR is not available because of the provisions ofs 51(2)(c)(ii) which excludes activities that involve the exercise of "any non-commercial Māori fishing right or interest".[564] In her affidavit of 19 April 2018 at [56], Karen Mokomoko said:Our tūpuna planted (which we continue to do) pohutukawa, harakeke, pingao,spinifex and toitoi. These plants were utilised for both weaving and rongoāas well as a method of protecting the dunes and the takutai moana generally.We continue to plant pingao and spinifex to preserve the health of our sanddunes. The planting and regeneration of ngāhere for the health and wellbeingof the wai (water) has been a current activity of importance.[565] This is a kaitiakitanga activity that meets the requirements of s 51. It appearsto occur at various locations in the claimed area of the takutai moana. It thereforemeets the test in s 51 for an order of PCR throughout the claimed takutai moana area.There was no other specific evidence about a physical activity or use of a natural orphysical resource in relation to the discharging of the obligations of kaitiakitanga.[566] In relation to the claimed exercise of kaitiakitanga as the protector of thewestern boundary of the Whakatōhea rohe, there is evidence that this was an activityundertaken by Mokomoko in the 19th century. It is also obvious that the Mokomokowhānau see that they have inherited this legacy. However, there was no evidence asto how they might go about this by way of physical activity or use of a natural orphysical resource. It therefore cannot fall within s 51.[567] Exercising kaitiakitanga over wāhi tapu located in the takutai moana couldsupport an order for PCR under s 51 if there was some physical activity associatedwith it. For example, if an urupā was located in the takutai moana and an applicantgroup demonstrated that they took steps to physically protect the area or to arrange forarchaeological conservation.[568] Karen Mokomoko in her affidavit of 30 January 2020 at [46], stated that Kōiwi(human remains) that had been buried at a place called Akeake had recently begun tobe revealed as a result of a housing development in the area.[569] The housing development will not be in the takutai moana but above meanhigh-water springs. Therefore, the Court cannot make an order of PCR in relation toit.[570] In relation to the launching of waka, the main evidence came during the cross-examination of Karen Mokomoko who confirmed that the applicants launch boatsfrom Ōpōtiki and Ōhiwa. For the reasons discussed above, Ōpōtiki is not within thetakutai moana but Ōhiwa Harbour is. It is clear that the launching of boats in ŌhiwaHarbour was occurring at 1840 and continues today.[571] Section 51(1)(b) provides that it does not matter whether the activity occurs inexactly the same way or evolves over time. The boats launched today will not be wakabut it is the activity of launching that is important. The applicant group is entitled toan order of PCR relating to the launching of boats in the Ōhiwa Harbour.[572] The final activity in respect of which the Mokomoko Whānau sought a PCRwas "exercising rangatiratanga and the right to control and have a voice". The exerciseof rangatiratanga is an important cultural concept. Whether or not it falls within theambit of s 51 does not stop an applicant group from continuing to exerciserangatiratanga (or mana motuhake). Neither does the unavailability of a PCR restrictan applicant group from expressing their voice.[573] There was no evidence addressing the question of how a PCR regulating theexercise of rangatiratanga or providing a voice would actually operate or what sectionin the Act might address these issues.[574] In relation to the right to control, it is assumed that this is a reference to theright to control the activities of third parties in a particular part of the takutai moana.In terms of a right to exercise control by excluding third parties, the only provisionsin the Act which come close to this are those set out in ss 78 and 79 in relation toprohibitions and restrictions regarding a wāhi tapu area. It is clear that wāhi tapuprotection rights are something that flow from CMT rather than PCR.[575] Other than in that limited context, the Act does not give a "right to control".That is unsurprising given that one of the purposes of the Act is to "establish adurable scheme to ensure the protection of the legitimate interests of allNew Zealanders in the marine and coastal area of New Zealand ".220[576] PCR is therefore not available for "exercising rangatiratanga and the right tocontrol and have a voice".220 Section 4(1)(a).CIV-2017-485-253 – Application by Tracy Francis Hillier on behalf ofNgai Tamahaua Hapū; andCIV-2017-485-262 – Application by Tracy Francis Hillier on behalf ofTe Hapū Titoko o Ngai Tama and Te Uri o Te Hapū o Titoko Ngai Tama[577] The two applications by Tracy Hillier were essentially presented to the Courtas one with all of the evidence being relevant to both applications.[578] The application area in CIV-2017-485-262 was from Maraetōtara to Te Rangi,out to 12 nautical miles including Moutohorā,221 Te Paepae o Aotea, Ōpōtiki andWhakaari. Te Rangi is a point further east than Tarakeha. Ngai Tamahaua wereultimately, the only Whakatōhea applicant group that did not accept Tarakeha as theeastern boundary for the purposes of the recognition applications. It is appropriate toaddress this point now.[579] The pukenga in their report concluded that, "based on Tikanga, our view isthat Ngāi Tai have mana whenua from Tarakeha in the west to Taumata o Apanui".[580] In her oral closing submissions on behalf of Ngai Tamahaua, Ms Linstead-Panoho said that Ngai Tamahaua maintained that their eastern boundary was Te Rangirather than Tarakeha because this was the boundary for their rohe moana cited byTe Hoeroa Horokai in the 1920s. She also referred to Ngai Tamahaua as the eastern-most hapū of Whakatōhea who had a duty to protect Whakatōhea's interests on theeastern border.[581] Ms Linstead-Panoho also noted that the "buffer zone from Tarakeha toTe Rangi" that John Wilson had negotiated in 1844 to separate the tribes of Ngāi Taiand Whakatōhea was not consented to by Whakatōhea.[582] In respect of the dispute as to the area between Tarakeha and Te Rangi,Ms Linstead-Panoho's oral submission was:The fact that it was and continues to be a disputed area of land means intikanga terms, that is a matter which either needs to be agreed to between thetwo hapū and iwi groups or if a determination is to be made in the absence of221 In closing submissions counsel for Ngai Tamahaua indicated they were no longer seeking CMT atMoutohorā.agreement, the only reasonable outcome must be for the area to be shared inorder to uphold each group's mana and relationship to the area.[583] In respect of an application for CMT, there is nothing before the Court in thenature of a joint application by the Whakatōhea hapū and Ngāi Tai for shared CMT inrespect of the area between Tarakeha and Te Rangi.[584] As noted earlier in this decision, the awarding of shared recognition orders isnot a default option where the Court can make such an order if it believes the area wasshared, notwithstanding that the parties involved have not all sought a shared order.[585] The issue is slightly different in relation to PCR orders as there is norequirement as to exclusivity and, if established on the facts, there can be more thanone PCR order relating to the same area.[586] In rejecting Ngai Tamahaua's claim that they shared mana moana withNgāi Tai for the area between Tarakeha and Te Rangi, the Court is influenced by theposition taken by the other Whakatōhea hapū who have accepted Tarakeha as theboundary.[587] The Court (and the pukenga) are also influenced by the evidence of Te RiakiAmoamo who referred to seeking Ngāi Tai permission for a visit to Te Rangi. WhileNgai Tamahaua are able to say that they were not involved in that request byMr Amoamo, the Court is entitled to take into account his views as a senior andrespected kaumatua of Whakatōhea.[588] I therefore do not accept Ngai Tamahaua's argument that, as at the present day,it has mana moana east of Tarakeha.[589] Ngai Tamahaua applied for PCR in respect of some 26 different activities. Aswith a number of the other applications, PCR is not available for many of thenominated activities, and in respect of some of the other activities there was a verylittle, if any, evidence to support the claim. The list of activities is:(a) full undisturbed access to walk, play and enjoy the land and coastalareas and waterways;(b) hunting and fishing on the land or in the waterways;(c) customary fishing rights, including the gathering of kaimoana andmanu (birds) to sustain the whānau and hapū, for cultural activitiesincluding, but not limited to, social events, hui and tangihanga, fishingat traditional taunga ika (fishing grounds);(d) protecting traditional maara (cultivation or garden) sites;(e) customary rights in respect of flora and fauna and other resourcesincluding for traditional rongoā and other tikanga practices;(f) gathering of natural resources from the land and waters includingdigging and using minerals and quarry materials such as flints, clays,soil, sand, gravel, rock, stones, shells, wood, bone, stone, sand, seaweedand sulphur;(g) the taking, collecting and using rākau (trees) for whakairo (carving),creation of structures and building waka;(h) living on the land including building and/or erecting dwellings(temporary or permanent);(i) navigating the land and waterways including protection of wakalaunching sites;(j) swimming, sailing, boating, launching and other associated activities;(k) applying or reinstating traditional place names;(l) establishing kaitiaki pou;(m) appointing kaitiaki in accordance with tikanga to oversee themanagement and protection of the rohe moana and waterways;(n) utilising resources and locations for educational purposes includingundertaking training activities about the proper use and protection ofresources, environmental benefits and protection and research intospecies;(o) rights to derive commercial benefits;(p) disposing of, trading or exchanging natural and other resources;(q) imposition of customary practices such as Toitū te Mana Motuhake,Toitū te Mana Whenua, Toitū te Mana Tangata and Toitū te Tiriti oWaitangi;(r) all things instrumental to and involving the performance of kaitiakiroles within the common marine and coastal area according to NgaiTamahaua tikanga including management of fisheries, theenvironment, planning, access, use and occupation, and health andsafety;(s) protecting wāhi tapu sites (including caves, urupā and pito/whenuaburial sites) and performing karakia and other rituals at those sites;(t) performing karakia at whale strandings and sites of historicalsignificance;(u) protecting the mauri of the waterways;(v) imposition and relief of rāhui;(w) preserving tauranga waka (landing sites);(x) protecting and preserving any taonga of Ngai Tamahaua includingartefacts found through archaeological digs;(y) carrying out other customary practices such as the practice of placingand burying pito at Ōpape; and(z) prohibiting vehicle access to Ōpape Beach to prevent the degradationof the mauri of the beach and taonga.[590] As is immediately obvious, many of the activities are not capable of beingrecognised by way of an order for PCR because they either are not activities that takeplace in the takutai moana, they do not meet the requirements of s 51 of the Act, orthey are matters more appropriately dealt with in relation to an order for CMT.[591] Rights of access to the takutai moana (including walking, playing and enjoyingthe takutai moana) are preserved by the Act for all New Zealanders along with rightsof fishing and navigation. It is not clear what the use of the word "undisturbed" in thePCR application was meant to convey. If it was intended to suggest that, by means ofa PCR, Ngai Tamahaua would be able to exclude others from accessing the takutaimoana for activities such as walking or engaging in other recreational activities eitherin the area of the beach below mean high-water springs or in the moana itself, thenthat is clearly contrary to the provisions of the Act.[592] In relation to fishing, there was evidence that members of the applicant groupwent whitebaiting in the Otara, Waiōweka and Ōpape Rivers and at Waiōweka, Pakihi,Kutarere, Waiōtahe and Wainui. To the extent that those activities take place in thetakutai moana (and that would exclude activities in the Waiōweka and Otara Rivers),Ngai Tamahaua meet the requirements of s 51 and are entitled to a PCR.[593] There was no evidence that "traditional maara" were located in the takutaimoana as opposed to on land near the takutai moana.[594] In relation to the use of flora and fauna in the takutai moana, in her affidavit of20 February 2020, Tracy Hillier stated that right along the coast from Maraetōtara toTe Rangi, there were many indigenous plants which were used for a number ofdifferent practices including weaving and tukutuku panels. She said that Te Roto wasone of the main areas to grow and gather pingao.[595] Other than pingao and spinifex, no other flora or fauna were specificallyidentified as being gathered. There was no challenge to Ms Hillier's evidence as tothe use of indigenous plants or to the fact that that practice occurred at 1840 andcontinues today. I accept that Ngai Tamahaua are entitled to an order for PCR entitlingthem to continue the practice of gathering indigenous plants from the takutai moanafor use in cultural activities and traditional cultural activities in the areas betweenMaraetōtara and Tarakeha. The order will also cover shells given the evidence thatshells were collected for a variety of purposes.[596] In relation to the gathering of natural resources such as flints, clays, soil, sand,gravel, rock, stones, wood, bone, seaweed and sulphur, other than the gathering ofdriftwood between Ōpape and Ōmarumutu and driftwood for artwork at Ruatuna,Waiōtahe, Tawhitinui, Hukuwai, Tirohanga and Waiaua, there was no evidenceidentifying such activities as having been exercised since 1840, in a particular part ofthe marine and coastal area in accordance with tikanga.[597] Ngai Tamahaua are entitled to an order for PCR in respect of gatheringfirewood between Ōpape and Ōmarumutu and collecting wood for artwork from theplaces identified above.[598] There was no evidence relating to the use of rākau (trees) in relation to carving,the creation of structures or the building of waka. It seems unlikely that any treesuseful for these purposes would have been growing below mean high-water springs.[599] The claim relating to "living on the land" including erecting dwellings, clearlydoes not relate to the takutai moana below high-water springs.[600] In relation to navigating waterways including protection of waka launchingsites, there was no evidence that explained exactly where the launching sites were.Toni Ngoungou-Martin, in her affidavit of 20 February 2020, referred to a group called"Te Toi o Mātaatua Waka Group" which had built waka and re-enacted ancient wakajourneys using old techniques and methods. It appears this group was still active butthere was no information about where it launched waka from. This absence of detailprecludes a finding of PCR.[601] The application seeking PCR in respect of "applying or reinstating traditionalplace names" is not something that falls within s 51(1) in that it is a right that has beenexercised since 1840 and continues to be exercised today. There is nothing stoppingNgai Tamahaua or any other hapū or iwi to call locations by their traditional placenames. However, the Act does not provide a mechanism that would compel others(whether they are other hapū/iwi or non-Māori) to use such names.[602] There was no direct evidence of Ngai Tamahaua "establishing kaitiaki pou".Hetaraka Biddle, in his affidavit of 20 February 2020, after referring to six wāhi tapualong the coast said:Today, many of these sites are considered to be important sites to conductkawa (protocols) such as karakia. The sites are also used as tohu (signs) andpou (markers) for fishing spots, gathering kaimoana.[603] There is no information in the evidence as to what the intended meaning of thewords "establishing kaitiaki pou" is. It is unclear whether this is intended to refer tothe erection of posts or poles which would act as "pou". Given the lack of certaintyabout what this claim relates to, it is not possible to grant PCR in respect of it.[604] In relation to the application for PCR for "appointing kaitiaki in accordancewith tikanga to oversee the management and protection of the rohe moana andwaterways", relevant evidence came from both Tracy Hillier and Toni Ngoungou-Martin. This evidence included the monitoring of the activities of other users of thetakutai moana, rubbish collection, environmental projects such as those for plantingof pingao and spinifex in the marine and coastal area.[605] There was also evidence that such activities constituted the exercise ofkaitiakitanga and of its cultural significance. These types of activities are clearlyphysical activities relating to the use of a natural or physical resource as contemplatedby s 51(2)(e).[606] Ngai Tamahaua are therefore entitled to an order of PCR authorising them tocontinue to undertake the sorts of kaitiaki activities referred to in the evidence ofTracy Hillier and Toni Ngoungou-Martin. However, such rights are not exclusive.There is evidence of other hapū undertaking similar physical activities throughout thespecified area and the grant of this PCR to Ngai Tamahaua does not restrict or curtailthe activities of others. Should there be a conflict between different hapū as to theappropriate kaitiaki activity to be carried out in a particular location, then resolutionof that would be a matter for the entity holding CMT in respect of that area.[607] There was no specific evidence relating to the request for PCR for "utilisingresources and locations for educational purposes".[608] There was also no specific evidence relating to the claim for an order of PCRfor "rights to derive commercial benefits". There was no evidence that commercialbenefits had been obtained from an activity since 1840 and continued to be so derived.Section 51(2)(c) specifically excluded from a grant of PCR the exercise of "anycommercial Māori fishing right or interest". Section 60(2) of the Act seems to placederiving a commercial benefit as something consequent upon a grant of CMT ratherthan PCR.[609] There was no evidence that would support a PCR in relation to "disposing of,trading or exchanging natural or other resources".[610] Similar comments apply in relation to the request for PCR for:all things instrumental to and involve in the performance of kaitiaki roleswithin the common marine and coastal area according to Ngai Tamahauatikanga including management of fisheries, the environment, planning, access,use and occupation, and health and safety.[611] Ngai Tamahaua do not currently have legal rights to manage fisheries or theenvironment. Nor do they have rights in relation to planning, use and occupation orhealth and safety. To the extent that the Act grants rights in relation to involvement inconservation processes, such rights are governed by ss 46-50 and not subpart 2 ofPart 3 of the Act.[612] Section 55 of the Act also specifies the rights of PCR holders in respect ofresource consent applications by third parties. There is nothing in these provisionsthat anticipates the sort of very broad controls sought by the applicant.[613] In relation to the environmental and planning rights sought, s 62 of the Actindicates such rights are consequence of being awarded CMT not PCR.[614] As discussed above, the protection of wāhi tapu sites is something that s 78 ofthe Act specifies follows from a grant of CMT not PCR.[615] The Act also has a separate provision (s 50) in relation stranded marinemammals. There is nothing to stop the applicant performing karakia at whalestrandings or at sites of historical significance, but such activities cannot be recognisedby way of PCR.[616] There was no evidence explaining what the request for PCR for the purpose of"protecting the mauri of the waterways" might involve. In order for such an activityto avoid the exclusion in s 51(2)(e), it would need to relate to a physical activity or useinvolving a natural or physical resource. In the absence of evidence, the Court cannotconclude that such a practice meets the test for the grant of PCR.[617] To the extent that the "imposition and relief of rāhui" might anticipate a powerto exclude third parties from parts of the takutai moana, as already explained, thiswould be governed by s 79 of the Act and be a right to exercise by holders of CMT.Again, that does not mean that Ngai Tamahaua is restricted from imposing and liftingrāhui as they have historically done, it just means that an order for PCR is not availablein respect of such an activity.CIV-2017-485-201 – Application by Te Ūpokorehe Treaty Claims Trust on behalf ofTe Ūpokorehe[618] Ūpokorehe sought PCR in respect of six specified activities. These were:harvesting kaimoana, fishing, exercising kaitiakitanga, exercising mana motuhake andtino rangatiratanga, using resources for medicinal and healing purposes, and resourceextraction and recovery. The eastern extremity of their claim was the mid-point of theWaiōweka river mouth and the western extremity, the mid-point of the Maraetōtarastream mouth.[619] The seaward boundary of the claimed order was "to the 200 nautical mileexclusive economic zone". The landward boundaries seemed to encroach inlandup river valleys some distance.[620] The Act defines the area within which the Court grant recognition rights.[621] The seaward boundary of the marine and coastal area is defined in the Act asbeing "the outer limits of the territorial sea".222[622] The same section defines territorial sea as "territorial sea of New Zealand asdefined by s 3 of the Territorial Sea, Contiguous Zone and Exclusive Economic ZoneAct 1977". Section 3 of that Act defines the seaward boundary of the territorial sea asbeing "every point of which line is distant 12 nautical miles from the nearest pointof the baseline".[623] Section 5 of Territorial Sea, Contiguous Zone and Exclusive Economic ZoneAct provides that the baseline of the territorial sea "shall be the low watermark alongthe coast of New Zealand, including the coast of all islands". The Act therefore doesnot permit the Court to grant recognition orders in respect of areas out to 200 nauticalmiles.[624] There was evidence of Ūpokorehe catching whitebait. However, the onlyparticular location identified was in Ōhiwa Harbour, specifically at the AwaawaroaRiver. Given that the focus of much of the Ūpokorehe evidence was on ŌhiwaHarbour, I am prepared to infer that whitebait were, and are, caught at variouslocations around the Ōhiwa Harbour, and to grant an order of PCR in respect of thatactivity at that particular location. For the reasons discussed above in this judgment,Ūpokorehe are precluded from being granted a PCR over gathering kaimoana orfishing species other than whitebait.222 Section 9(1).[625] The exercise of kaitiakitanga is something based on a cultural association.There was significant evidence given on the part of Ūpokorehe witnesses that detailedphysical activities that related to the exercise of kaitiakitanga. Examples of suchphysical activities include:(a) engaging with the Department of Conservation and Bay of PlentyRegional Council regarding conservation initiatives (includingpreservation of archaeological sites);(b) actively undertaking the control of mangroves in Ōhiwa Harbourincluding obtaining a resource consent;(c) establishing a Resource Management Team which liaised with centraland local government and also undertook its own conservationinitiatives;(d) participating in a number of Regional and District Councilenvironmental initiatives including participation in the Ōhiwa HarbourImplementation Forum and the Ōhiwa Harbour Strategy Co-ordinationGroup; and(e) undertaking regular site visits including checking on wastemanagement issues and interference with wāhi tapu as well as activitiesin relation to stranded whales.[626] The majority of the evidence relating to conservation activities engaged in byŪpokorehe involved the Ōhiwa Harbour but there was also some evidence of activitiesrelating to the wider takutai moana including the Waiōtahe estuary.[627] I am satisfied that the Ūpokorehe have and continued to discharge theirobligations as kaitiaki by engaging in physical activities in the takutai moana andrelating to the use of natural and physical resources (including such activities asweaving cages from traditional resources to attempt to protect mussels from predatingstarfish).[628] Ūpokorehe are entitled to an order for PCR relating to these physical activitiesthroughout those parts of their claimed rohe moana that falls within the takutai moanaas defined in the Act. The rights recognised by the PCR are not exclusive toŪpokorehe and other hapū/whānau may also exercise such rights in the same area.[629] In relation to the claim for a PCR for "exercising mana motuhake andtino rangtiratanga", other than where physical activities are involved or natural andphysical resources used, s 51(2)(e) precludes the making of an order for PCR.[630] It is not clear from either the opening or closing submissions on behalf ofŪpokorehe what exactly is meant in relation to the claim for a PCR for the exercise ofmana motuhake and tino rangatiratanga. As abstract concepts, they would not meetthe requirements of s 51(2)(e). The Court is therefore unable to make a recognitionorder.[631] Ūpokorehe seek an order for PCR in respect of "using resources for medicinaland healing purposes". There was evidence that kaimoana and various plants wereused for rongoā. The use of fish like stingray and shark to address winter colds or tohelp people who were ill to breathe better (as referred to in the evidence ofWallace Aramoana) cannot be the subject of an order for PCR because they relate tofishing. There was also evidence of collecting plants such as harakeke, the root of thefern and parts of some varieties of trees for medicinal purposes. It seems unlikely that,other than harakeke, these plants grow in the takutai moana.[632] To the extent that Ūpokorehe gather flora and fauna from the takutai moanathat is not otherwise excluded from being the subject of an order for PCR, they areentitled to an order for PCR within that part of their claimed specified area that fallswithin the jurisdiction of the Court. A draft order would have to specify what of thevarious flora and fauna covered in their evidence is actually found in the takutai moanaas opposed to in adjacent areas of land.[633] In relation to resource extraction and recovery, in her affidavit of 3 April 2017at [73]-[98], Ms Felicity Kahukore Baker gave relatively detailed evidence on theactivity of resource extraction and recovery within the application area. This activityincluded gathering of the following resources:(a) Whales (alongside DOC), orca, seal and similar species, shark, bonesof marine animals, teeth of marine animals, shells, wood, seaweed,sulphur, paru, stones, sand, gravel shellfish and fossils (where and ifpossible for research purposes both scientific and per mātaurangaMaori principles).[634] Ms Baker said that the scale of the activity depended on the sustainablerequirements set by Ūpokorehe, as well as its tikanga and traditional practices.[635] Ms Baker discussed the recovery of tohorā/whales (precluded unders 51(2)(d)(ii) of the Act), and then recovery of resources more generally. She firstlydiscussed the recovery of a number of types of wood from the takutai moana, includingPohutukawa, Matai, Rata, Kahikatea and Nikau, used for purposes such as carving,dye, cooking, and rope-making.[636] Teeth and bones of deceased marine mammals (precluded under the Act) wererecovered for cultural purposes, while shells were collected for use as jewellery andornaments, as well as practical purposes (for example mussel shells were used forscraping harakeke).[637] Sulphur and other mineral deposits were used as fertilizer, with seaweedsimilarly being harvested for garden purposes. Stones were used as a source of fire,as well as for adzes, ornamental purposes, hangi stones and as foundation support forcontemporary and traditional building.[638] Paru (mud) was gathered and used as a staining and preserving agent forcarving and weaponry, while fossils were recovered for research, mātauranga Māorior to protect the taonga from destruction.[639] According to Ms Baker, this activity of resource extraction and recoveryoccurred in "all river mouths from Maraetōtara in the West to Waiōweka River in theEast and all those within the Ōhiwa Harbour and Te Ahi Aua Estuary".[640] In terms of frequency, Ms Baker deposed that resource extraction and recoverycan take place on a daily basis provided that stocks are maintained and the activity issustainable, but could also be a weekly or monthly activity, or less regularly, such asafter a storm has unearthed taonga such as wood, bones and stones, yearly orseasonally, or not for several years.[641] Ms Baker stressed that the tradition of extracting or recovering naturalresources had been uninterrupted since 1840 and had been handed down fromgeneration to generation, and was an active part of Ūpokorehe society.[642] Other than Ms Baker's affidavit, there was little evidence of resourceextraction and/or recovery by the Ūpokorehe witnesses. However, such evidence aswas presented to the Court does seem to indicate that certain activities do appear tocontinue today (and also are not precluded under the Act), including the collection anduse of shells, mud, wood on the foreshore, and stones. Other activities (such as anyactivities relating to marine mammals) are precluded under the Act. I conclude thatŪpokorehe are entitled to a PCR for the collection shells, mud, wood on the foreshore,and stones within the application area.CIV-2017-485-270 – Application by Muriwai Maggie Jones on behalf of Ngāi TaiIwi and Te Uri o Ngāi Tai; andCIV-2017-485-272 – Application by Muriwai Maggie Jones on behalf of RiriwhenuaHapū[643] These two applications were progressed jointly with the same evidence andsubmissions being relied upon for both.[644] As discussed at [579]-[588] above, the pukenga, in their report, determinedthat the boundary between Whakatōhea and Ngāi Tai was Tarakeha. In response toquestions, the pukenga acknowledged that Te Rangi was a place of significance forWhakatōhea hapū given that the Nukutere waka landed there but were also of the viewthat this did not mean that the Whakatōhea hapū had mana moana over the areabetween Tarakeha and Te Rangi. They indicated that they believed there were othertikanga ways of acknowledging the significance of Te Rangi to the Whakatōhea hapū.[645] From counsel's closing submissions, it is not clear exactly what customarypractices Ngāi Tai want recognised by way of PCR in relation to their amendedapplication for the area between Tarakeha and Te Rangi. The closing submissionsfocused on mana moana. This is dealt with by way of the grant of CMT in respect ofthis area.[646] In their amended application, Ngāi Tai (and their hapū Ririwhenua) continuedto seek PCR recognition orders around Whakaari and Te Paepae o Aotea. Theactivities referred to in counsel's closing submissions as supporting such a recognitionorder were "signs, harvesting tītī birds, deep-sea fishing and collecting resources forgardening and rongoā".[647] Counsel conceded that activities such as harvesting tītī and collecting resourcesfor gardening and rongoā had not occurred for some time. Section 51(1)(b) requiresactivities in respect of which an order for PCR is sought to currently be continuing tobe exercised. That leaves the activities of deep-sea fishing, collecting resources forgardening and rongoā, and the use of Whakaari in providing tohu, as the remainingclaimed customary rights.[648] However, I am not able to grant PCR in respect of fishing, and there was noevidence of collecting resources from within the takutai moana. That leaves thereading of the tohu (signs) from Whakaari by Ngāi Tai as the remaining customaryright for consideration. The evidence in respect of this was that the cloud patterns andother tohu generated by Whakaari would be observed from land. Section 51 requiresthat a customary activity needs to be exercised in a particular part of the marine andcoastal area. Observing signs from the land and then engaging in a physical activityor use of a natural or physical resource would not seem to meet the requirements ofs 51.CIV-2017-485-292 – Application by the Whakatōhea Māori Trust Board on behalf ofWhakatōhea[649] The amended application area showed the eastern boundary as being Te Rangibut counsel appeared to accept that it should be Tarakeha. The western boundary wasMaraetōtara.[650] The application was said to be bought on behalf of all of the hapū ofWhakatōhea and in particular Ngāti Ngāhere, Ngāti Patumoana and Ngāti Ruatakenga.Ngāti Patumoana and Ngāti Ruatakenga were separately represented and counsel forthe Trust Board adopted the submissions of their counsel. Ngāti Ngāhere were notseparately represented and did not call their own witnesses. The Trust Board relied onand adopted the evidence given by witnesses for other Whakatōhea hapū.[651] The amended application for PCRs sought recognition orders in respect ofeight matters:(a) collection of rongoā material;(b) bird snaring;(c) transport;(d) transfer of knowledge of hapū marine culture;(e) seasonal kaimoana exchange;(f) access to gardens on land;(g) customary rituals such as tangihanga; and(h) manaakitanga and ope mara (labour movement).[652] I have already separately addressed Ngāti Patumoana's claim for PCR and willnot further discuss it.[653] As there was no specific evidence presented on behalf of Ngāti Ngāhere as totheir exercise of PCRs in a particular part of the marine and coastal area, I am not ableto consider their claim for PCR further. That leaves Ngāti Ruatakenga.[654] In relation to the claim for PCR for collecting rongoā materials, the evidenceof Te Riaki Amoamo was that sea water was gathered and used (accompanied bykarakia) to cure physical ailments. Mr Amoamo also referred to performing baptismsin the sea. As these activities, in addition to their spiritual association, are manifestedby a physical activity and the use of the natural resource of sea water, they are notexcluded by s 51(2)(e) of the Act from being the subject of an order for PCR. I amsatisfied that these activities were being undertaken in 1840 and continue to beexercised today.[655] Ngāti Ruatakenga is entitled to an order for PCR in respect of these activities.In accordance with the boundaries set out in the map that was Appendix A to theamended application of 4 August 2020, the western boundary of the particular part ofthe marine and coastal area is Pakihikura (east bank) and the amended easternboundary is Tarakeha. This is the area to which the PCR relates.[656] There was no evidence in the relation to the claimed activities of using thetakutai moana for transport, seasonal kaimoana exchange, access to gardens on landor labour movement. Accordingly, there is no basis to grant orders of PCR in respectof these activities.[657] There was evidence about matters such as transfer of knowledge of hapū andmarine culture and customary rituals such as tangihanga. Mandy Hata gave evidenceof involving the Ōmarumutu School and Nukutere Kōhanga Reo in the WaiauaEstuarine Restoration Project restoring the coastal sand dunes. The activities takeplace on the Ōmaramutu Marae Papakainga and around the wetlands beside TeRangimatanui urupā. There was also evidence of a map of customary fishing spots inthe moana. The map was created by traditional methods of using landmarks. Thecreation of a map of such sites is not necessarily limited to commercial or non-commercial fishing but is relevant to kaitiaki or conservation activities. It is also aphysical activity and therefore not caught by s 51(2)(e).[658] Ngāti Ruatakenga are therefore entitled to an order for PCR in respect of theirconservation activities in the area around the Ōmaramutu Marae Papakainga andWaiaua estuary, as well as their kaitiaki activities such as the creation of a mapdetailing the resources of the takutai moana in their claimed application area.[659] The evidence in relation to the conducting of customary rituals such astangihanga in the coastal marine area was sparse but, as noted, there was evidence ofNgāti Ruatakenga's tohunga and kaumatua conducting customary rituals such asbaptisms in the takutai moana. To the extent that tangihanga also occur in part of thetakutai moana, they would also support a grant of PCR on the basis that the physicalactivity is involved (going into the takutai moana) and/or a natural or physical resource(sea water) is used as part of the ritual. Accordingly, a recognition of PCR is grantedfor these activities between Pakihikura and Tarakeha.PART VII – CONCLUSIONS AND SUMMARYCMT[660] There are three different areas of CMT where the applicants have met the testsset out in s 58 of the Act. These are:(a) a jointly held order for Ngāti Ira, Ngāti Patumoana, Ngāti Ruatakenga,Ngai Tamahaua, Ngāti Ngāhere and Ūpokorehe from Maraetōtara inthe west to Tarakeha in the east and out to the 12 nautical mile limit;(b) in relation to the western part of Ōhiwa Harbour, a jointly held CMTbetween the six Whakatōhea hapū and Ngāti Awa; and(c) between Tarakeha and Te Rangi and out to the 12 nautical mile limit anorder of CMT for Ngāi Tai.[661] The area where the applicants have not met the tests for CMT is in the takutaimoana around Whakaari and Te Paepae o Aotea.[662] The exact boundaries of the area subject to the CMT orders will be determinedfollowing the next hearing, which currently is set down for 14 February 2022. Anumber of applicants in these proceedings provided maps of their application areaswith boundary lines running perpendicular from the coast. Some provided triangularshaped maps. However, Ngāti Rua produced an application area map with curvedboundary lines between Pākihikura and Te Rangi running parallel from each other outto sea.[663] When cross-examined on why the Ngāti Rua application contained curvedboundary lines, Mr Amoamo described the application area as curving "like the wavesof the ocean", and appeared to concede to Mr Mahuika, counsel for Te Rūnanga o TeWhānau, that the application area curved in order to avoid overlap with the rohe of theneighbouring iwi of Ngāi Tai and Te Whānau-a-Apanui.[664] Therefore, one factor that the Court will need to take into consideration duringthe next hearing is the exact direction and extent of the boundary lines on each side ofthe CMT area. I draw counsel's attention to s 109 of the Act. An applicant group inwhose favour the Court grants recognition of a PCR or CMT must submit a draft orderfor approval by the Registrar of the Court.[665] I direct that counsel file and exchange proposed draft orders no later than30 August 2021. Where there are issues of disagreement between parties as to thecontents of proposed draft orders, I expect the parties to engage in a tikanga-basedprocess of kōrero prior to the second part of the hearing in this matter in an attempt toresolve such differences.[666] The Court has reserved leave for those parties potentially affected by the grantof recognition orders to participate in such a hearing. This includes the variousinterested parties such as the Bay of Plenty Regional Council and the Whakatāne andŌpōtiki District Councils, as well as those interested parties who have structures in thetakutai moana or conduct activities in the takutai moana that are potentially affected.[667] This hearing will also need to address the nature of the joint CMT proposedfor the western part of Ōhiwa Harbour. It is to be hoped that prior to the secondhearing, the parties with shared interests in the western part of Ōhiwa Harbour willhave engaged with each other in accordance with tikanga to see if agreement can bereached on the terms of that proposed CMT.PCR[668] As detailed in Part VI of this decision, a number of the applicants have alsobeen successful in advancing claims for recognition by way of PCR.[669] In summary, the following claims for PCRs have been successful:(a) Ngāti Muriwai:(i) collecting firewood, stones and shells in their claimed area; and(ii) fishing for whitebait at the Waiaua River and Waiōtahe estuary.(b) Ngāti Ira o Waiōweka:(i) whitebaiting at the Waiaua and Waiōtahe Rivers;(ii) gathering driftwood throughout their claimed area;(iii) gathering sand off the mouth of the Waiōweka River and atWaiōtahe;(iv) gathering mud, rocks, and shells from wetlands, estuarinemargins and the sea throughout their claimed area; and(v) landing vessels and making passage throughout their claimedarea.(c) Te Uri o Whakatōhea Rangatira Mokomoko:(i) whitebaiting at Waiaua and in and around the Ōhiwa Harbour;(ii) taking of wai tai for rongoā purposes in the claimed area, andusing wai tai for bathing and healing purposes within ŌhiwaHarbour;(iii) using the takutai moana within the claimed area for transportand purposes of navigation;(iv) travelling to Hokianga Island for wānanga to pass downmātauranga to future generations;(v) traditional practices such as wānanga, hui, tangihanga andburying of whenua at Taiharuru;(vi) planting of pohutukawa, harakeke, pingao, spinifex and toitoiwithin the claimed takutai moana area as an exercise ofkaitiakitanga; and(vii) launching of boats and waka at the Ōhiwa Harbour.(d) Ngai Tamahaua:(i) whitebaiting in the Ōpape River and at Waiōweka, Pakihi,Kutarere, Waiōtahe and Wainui, to the extent that thoseactivities take place in the takutai moana;(ii) gathering of indigenous plants and shells between Maraetōtaraand Tarakeha;(iii) gathering firewood between Ōpape and Ōmarumutu;(iv) collecting wood for artwork from Ruatuna, Waiōtahe,Tawhitinui, Hukuwai, Tirohanga and Waiaua; and(v) exercising kaitiakitanga activities in the takutai moanaincluding the monitoring of the activities of other users of thetakutai moana, rubbish collection, and environmental projectssuch as those for planting of pingao and spinifex.(e) Te Ūpokorehe:(i) catching whitebait in the Ōhiwa Harbour;(ii) exercising kaitiakitanga within the takutai moana in relation tothe activities set out at [625]-[627]; and(iii) gathering flora and fauna that is not otherwise excluded frombeing the subject of an order for PCR within their claimed area.(f) Whakatōhea Māori Trust Board (specifically Ngāti Ruatakenga):(i) collection of rongoā materials within the claimed area;(ii) performing baptisms within the claimed area;(iii) conservation activities in the area around the Ōmaramutu MaraePapakainga and Waiaua estuary;(iv) kaitiaki activities such as the creation of maps for sites in thetakutai moana using customary methods; and(v) customary rituals, as well as tangihanga, within the claimedarea.[670] All successful applicants (whether for CMT or PCR) should prepare draftrecognition orders and circulate those to all other parties. Again, the applicants areencouraged to engage in kōrero with each other, in accordance with tikanga, prior tofiling and serving draft orders.[671] Leave is reserved to all applicants and interested parties to make suchinterlocutory applications as may be required for directions regarding matters arisingfrom this decision.Churchman JSolicitors:Legal Hub Lawyers, Auckland for the late Claude Edwards (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 (CIV-2017-485-278)Wackrow Williams & Davies Ltd, Auckland for Ngai Tamahaua Hapū (CIV-2017-485-262) andTe Hapū Titoko o Ngai Tama (CIV-2017-485-377)Kāhui Legal, Wellington for Te Rūnanga o te Whānau-a-Apanui (CIV-2017-485-318)Oranganui Legal, Paraparaumu for Ngāi Tai (CIV-2017-485-27) andRiriwhenua Hapū (CIV-2017-485-272)Te Mata Law Ltd for Te Whānau a Harawaka (CIV-2017-485-272)Lyall & Thornton, Auckland for Te Ūpokorehe Trust (CIV-2017-485-201)Te Haa Legal, Otaki for Ngāti Muriwai (CIV-2017-485-269)McCaw Lewis, Hamilton for Te Uri o Whakatōhea Rangatira Mokomoko (CIV-2017-485-355)Whāia Legal, Wellington for Te Rūnanga o Ngāti Awa (CIV-2017-485-196)Annette Sykes & Co, Rotorua for Ngāti Ira o Waiōweka Rohe (CIV-2017-485-299) andNgāti Ruatakenga (CIV-2017-485-292)Bennion Law, Wellington for Ngāti Patumoana (CIV2017-485-253)Tu Pono Legal Limited, Rotorua for Whakatōhea Māori Board Trust (CIV-2017-485-292)Ranfurly Chambers Ltd, Auckland for Ngāti Huarere ki Whangapoua (CIV-2017-404-482)Greig Gallagher & Co, Wellington for Ngāi Taiwhakaea (CIV-2017-485-185)Franks Ogilvie, Wellington for Landowners Coalition IncorporatedCooney Lees Morgan, Tauranga for Bay of Plenty Regional Council and Ōpōtiki District CouncilChapman Tripp, Wellington for Seafood Industry RepresentativesCrown Law, Wellington for Attorney-GeneralCounsel:C Finlayson QCK Feint QCR RoffM SharpB TuparaC HirschfeldT CastleAPPENDIX A – PUKENGA REPORTBEFORE THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA OAOTEAROA TE WHANGANUI-A-TARA ROHECIV-2011-485-817IN THE MATTER OF the Marine and Coastal Area (Takutai Moana)Act 2011AND IN THE MATTER OF an application for an order recognisingCustomary Marine Title and ProtectedCustomary Rights by the LATE CLAUDEAUGUSTIN EDWARDS (DECEASED),ADRIANA EDWARDS AND OTHERS onbehalf of Te WhakatōheaThe ApplicantsPUKENGA REPORT ON THE TIKANGA PROCESSHe Whakatauāki"Whakahokia mai te mana o te iwi ki te iwi, o te hapū ki te hapū,o te whānau ki te whānau, o te tangata ki te tangata, me tana rau kotahi""Return the authority of the tribes to the tribes, of the hapū to the hapū,of the whānau to the whānau, of the individuals to the individuals representingas they do, the generations of the past and the present"[W. Tibble, Submission 58, Hui Taumata, 1984]He WhakamāramaWe have chosen this whakatauāki as a lead statement to this report because itproposes several matters of tikanga significance. The first is that it can applyto any iwi at any point in time. As such, and despite the "ao hurihuri" we livein at present, it is a challenge and reminder of where we are from and ourDNA being philosophically more oriental rather than, occidental.Secondly it denotes our basic conviction that all applicants can resolve theissues on a truly tikanga basis and encourage you all to do so. You have theappropriate tikanga Māori resources to achieve a win – win outcome in the mostappropriate way. Koina te wero kia koutou katoa – [that is the challenge weleave with you]. We propose it as a way ahead which basically says this currentHigh Court process could have been resolved differently had a te ao Māori lensbeen applied. We go as far as to say that it can still work, going forward.Thirdly, the whakatauāki readily guided us to making a very simple decision ontikanga. We have used the tikanga, experiences and processes of all theapplicant groups involved in this High Court process as the basis for ourrecommendations. This we considered most important. However, and havingmade that decision, we also acknowledge referring to the works of outstandingscholars and tohunga tikanga such as Hirini Moko Mead1 [Tikanga Māori – Living by Māori Values, 2016], Ranginui Walker [Ōpōtiki-mai-tawhiti – The Story of Whakatōhea's Struggle, 2007], Sir Peter Buck, [TheComing of the Māori, 1949], Ewan Johnston, Wai 203/339 – Scoping Reportfor the Waitangi Tribunal, 2001], and Jeffrey Sissons – [The Post –assimilationist Thought of Sir Apirana Ngata, 2000]. In this context we alsoacknowledge the expert and historians who both filed and spoke to theiraffidavits. There are also numerous other references available for considerationand are listed in the references section.1 Hirini Moko Mead is a kaumātua from Ngāti Awa and Tūhoe descent. Professor Sir Hirini MokoMead had a very successful career as an Academic for some of the lead universities in the world,a distinguished gentleman that master minded an education institution for Higher Education.Te Whare Wānanga o Awanuiārangi has a main campus at Whakatane with other campuses aroundthe country, Whangarei, Manukau, Heretaunga, Wellington, Taranaki. The wānanga offers a widerange of tikanga Maori programmes from certificates through to Undergraduate and Post Graduatestudies.Fourthly, the whakatauāki further indicates what is in fact tikanga that arecommon to all iwi. There are also nuances particular to iwi rohe and as suchcannot be used to resolve tikanga issues in another tribal area unless there arepossible whakapapa and waka origins. That does not mean that no inter- hapūor inter-iwi adaptation, occurs.Finally, the whakatauāki espouses the principles of I as meaning WE / US andthat the focus should be on the WE as in whānau, hapū and when required, iwi.Despite what was espoused several times during the tikanga hui, this elementwas not fulfilled. This is not a criticism but a basic observation of what is nottikanga. Whakamahia ngā tikanga – extol the opportunities that tikanga, offers.Furthermore, and to illustrate this point, we use one of two quotations made byRobert Tuahuru Edwards. One at paragraph 58 of his affidavit of 15 November2019 and this one from his affidavit of 7 September 2020, "what we do todaywill define the future and so it is that we must learn to stand united, one voice,one mind and one people under Whakatohea. Can I say that it is possibleto reclaim your future to build a happy fulfilling life despite an imperfect past.If we are unable to agree and unite about the past and the present, we shallfind ultimately that we are in danger of losing the future".1. Introduction:a. While we could have used other and appropriate whakatauāki,this one serves as a very good indicator of the essence oftikanga. One based on whakapapa and how it is referenced atthe respective levels of our social system. That is iwi, hapū,whānau2 and individual[s].b. The whakatauāki3 also clearly shows that one can traverse alllevels either individually or across all simultaneously. This isexactly what we have experienced in the evidence presented plusour combined observations both in and outside the formal courtsitting.c. However, we have nevertheless gleaned sufficient evidence torespond to the following questions posed of us:i. What tikanga does the evidence establish applies in theapplication area?ii. Which aspects of tikanga should influence theassessment of whether or not the area in question isheld in accordance with tikanga?iii. Which applicant group or groups hold the applicationarea or any part of it in accordance with tikanga? Andiv. Who, in fact, are the iwi4, hapū or whānau groups thatcomprise the applicant groups?d. From the beginning of this High Court case and through thevisits of observation there was a key resource available to usand no doubt for all applicants. I n our case it helped us not onlyput into perspective the history of Te Whakatōhea and its tragichistory it provided us with a tool to paint a picture of whathappened and when. It knitted together those kōrero andhistories that were relayed to us, verbally. It is titledChronology 21 August 2020.e. Finally, and although this report promotes a notion ofsimplicity, the reality is that this High Court process was verycomplicated. This is acknowledged by us and remained achallenge throughout this hearing. This however furthersubstantiates why we have used our lead whakatauāki. This isalso done with the knowledge that what we report will not bereceptive to everyone and that is the downside of it being our2 Ann Salmond (1975) HUI: A Study of Maori Ceremonial Gatherings, has a wide reference onwhānau, hapū and iwi.3 Mead, H.M. (2003). Tikanga Māori: Living by Māori Values, Wellington Huia & Te WhareWānanga.4 MACA, claimant groups all mentioned whakapapa linking them to whānau, hapū and iwi.report, even though it is based on the tikanga of all theapplicants.2. Our Tikanga Based Solutiona. As Pukenga5, we see a simple solution to the applicant iwi,hapū, whānau groups, marae and individuals. More importantly,it is still available to them although time may be the onlyrestraint on it being applied. However, the solution is availablefor the consideration of any other hapū and iwi who are in asimilar position, as a way forward.b. Our simple solution is to go to a tikanga based poutarāwhare6comprising Te Whakatōhea and Ūpokorehe for the rohe fromMaraetōtara in the west to Tarakeha in the east. In choosing thatpoutarāwhare, we do not designate or deem it appropriate for usto determine who is an iwi. Our poutarāwhare in our opinion,already exists and is supported by whakapapa, mana whenua,mana moana, ahikāroa, taunga ika, toka kaimoana, tapu, rāhui,tohu moana, tohu whenua, practices, experiences and incidentsand the like. E hika ma, ngā momo tikanga katoa. Accordingly,the base references for our poutarāwhare are Te RiakiAmoamo's Te Whakapapa o te Whakatōhea filed in the HighCourt as Exhibit 26 on 23 September 2020 and endorsed by thatproduced in the High Court on 29 September 2020 by WallaceAramoana and titled Te Whakapapa o Te Ūpokorehe. The latterintroduced the origin of Te Ūpokorehe from the Oturereaowaka.c. The similar basis applied to Te Whānau-a-Apanui, Ngāi Tai andNgāti Awa and the Te Whakatōhea – Ūpokorehe poutarāwhare.While this is the case, there is also reality that there areoverlapping interests as encapsulated by R. Cage on 5 October2020 in his illustration of the manaakitanga accordedneighbouring iwi with regards access to kahawai and moki. Theformer at the Motu River and the latter at Whangaparaoa. Theyare welcomed to the resource that is available but they have nomana whenua and mana moana.d. The poutarāwhare we suggest comprises Ngai Tamahaua, NgātiRuatakenga, Ngāti Ira, Ngāti Ngāhere, Ngāti Patumoana andŪpokorehe. We go further to say that there should be one title[kākahu] issued and our reasoning for that is as follows:i. the Whakatohea Māori Trust Board, an existinggovernance structure, was established for a specific5 Pukenga are Maori cultural experts in all matters pertaining to Te Ao Māori.6 Poutarāwhare is our word for construct.purpose and its relevance into the future is for thecomponent parts of our poutarāwhare to determine.Furthermore, while elements of the Board are tikangabased, its legal status is legislated under the Māori TrustBoards Act 1955. Despite the main thrust of ourrecommendation, we nevertheless acknowledge theintention of the original application and that was that noone from Maraetotara to Tarakeha would be excluded.And although the motivation may have been different atthe time of the application, our recommendation fulfilsthe original intention. – kāore e koa atu, kāore e ko mai –no further, no less.ii. our poutarāwhare can also in the future, determine howbest to address the position where there were once up totwenty-two hapū within the previously mentioned rohe.For example, Ūpokorehe have five existing hapū andthat is to say that there are others who were referred toas no longer existing. The position we take is that theyshould not be written off unless there is total agreementbetween all parties motivated to consider this matter.We clarify this by saying that a decision at this time todiscontinue the recognition of such hapū predeterminesa pathway ahead for future uri who may discover theirwaka, tīpuna and whakapapa birth rights. Perhaps agood opportunity for some further, appropriate and in-depth research. We hasten to mention the facilities toaccommodate this position as contained at paragraph 5.7and titled The Process for Recognising Additional Hapū– [The Whakatōhea Mandate Inquiry Reportwww.waitangitribunal.govt.nz, pages 46-47].iii. our poutarāwhare also does not determine who is awhānau, a hapū or an iwi. For us that is a tikanga thathas been in place mai rāno – for ever and a day andfulfils certain criteria of tikanga. Some are these arewhakapapa, whenua and ahikāroa status as well as manawhenua, mana moana, marae and tikanga around the fullgambit of kaimoana gathering across all rohe andtakutai-moana under discussion.iv. our poutarāwhare also addresses the position regardingthe Mokomoko whānau, the Hiwarau C Block, KūtarereMarae the Pākowhai and other similar applicants. Thatis, their interests can be accommodated by thecomponent part or parts of our poutarāwhare. That is forexample, by their relationship to one or more parts of thepoutarāwhare or their inclusion within existing ones.v. our poutarāwhare have a long history of occupation inand proximity to Ngāti Awa to the west, Ngai Tūhoe, TeAitanga-ā-Mahaki and other eastern iwi to the south andNgāi Tai to the east. Our recommendations for a singletitle with governance at the poutarāwhare level whileacknowledging their rangatiratanga, may not solve allissues. It does however mandate their mana whenua andmana moana and allows it to make meaningful decisionsin respect their interactions with regard the previouslymentioned iwi or hapū. While there is a great measure oftino rangatiratanga in such a decision there is still a needto work through matters of definite and shared boundariesas well as mandated access and the appropriate exchangeof kai and other resources. Further hui are encouragedand should not be curtailed by the issue of the HighCourt's decisions.e. The rationale for these recommendations, are also simple. Ourpoutarāwhare can then decide how it addresses the interests of allother applicant groups as well as each hapū's affairs goingforward. At the same time, our poutarāwhare can decide how, ifdeemed appropriate, to unite to conduct business at any level.Whatever the nature of that level and whether it is in one or twoparts, me hui kanohi ki te kanohi.f. We also acknowledge the contributions made by all applicantsas well as those who completed and spoke to their affidavits.There was a wealth of information proffered and we are moreenriched by attending all sittings of the High Court, separatehui, reading affidavits and exhibits as well as map books thatwere filed. While our focus has been on the tikanga,experiences and incidents we acknowledge all expert witnessesengaged and their reports filed.g. Finally, and with regards all applicants, there were repeatedsuggestions and requests for all applicant interests to work as anIWI. What we witnessed was a strong focus on Iwi and notiWI. This observation motivated our use of the lead whakatauākiused to open this report.h. The rest of this report focusses on a commentary about theTikanga base for this assignment, the full responses to thequestions posed in paragraph 3.1-4 above as well as the detailsand examples of tikanga applied to this report.3. The Tikanga Base:a. There was no lack of evidence that tikanga drove everything indays gone by as there is still a lot of evidence that those tikangasurvive and are vibrant today. Glaringly so from ourperspective, and in this ever challenging and changing world.There were many examples available throughout the sitting andsome we identified as being classic illustrations of tikanga. Infact, exceptional, with their affidavits being greatly enhancedby the personal delivery and is something that we totallyadmired and encourage. In the same way, we extoll a moreexpansive use of te reo Māori as translating and asking peopleto speak in English or have things translated, greatly detractsfrom the impact of the presentation.b. To properly identify the elements of tikanga, we rely on theframework developed by the Late John RangiāniwaniwaRangihau and titled He Whakaaturanga Tikanga Māori –Appendix I. It has not yet been rejected by any of the applicantsand appears to form a common area of agreement. We haveelaborated on that framework with some brief explanations andthese are included as Appendix II: He Whakamāramatanga ITe Whakaaturanga Tikanga Māori. Furthermore, and althoughour intention is to leave any detail of the elements of tikanga tothe practitioners, there will be some instances where we will drilldown in order to illustrate certain aspects.c. More importantly we have adapted the He WhakaaturangaTikanga Māori – Appendix I and portray how these and thetikanga moana, originated. These are contained in Appendix IIItitled Tikanga Relevance.d. Also in Appendix III Tikanga Relevance, we trace the origins ofour tīpuna from "te Hononga o Wairua, Hawaiki pāmamao,Hawaiki roa, Hawaiki nui, to Aotearoa. This was achieved bywaka and heightens the relevance of tikanga inclusive ofwhakapapa and the place reconnecting to land played.Consequently, elements like sighting clouds being formed as theresult of convection, noticing the presence of different andcertain birds and the distance they were from the clouds wereindications of the presence of land. Consequently, the landingand exploring of the whenua and subsequent naming ofoutstanding geographical features, the establishment of pātūwatawata, kaenga and marae once landfall was made, weretikanga based. This also included the various types of eventswhich initiated the journeys being continued through the variousidentified Hawaiki. Events such as war, famine, over populationand natural disasters and perhaps creativity and adventure.e. Furthermore, and for the major part of that migration, the seawas their world. A world which initiated all of the disciplinesrequired for our people to survive. A factor which JohnRangihau used to "refute the professionslism of an academicqualification as being three years of study as opposed to theMāori survival ethic which was instilled long before anindividual was born and was passed down from generation togeneration to generation". We describe this as the future,behind. Moreover, it was an intellectual ability that Sir ApiranaNgata describes as "originating on the basis that our Māoritangais and was not just a passing phase. It is ancient and is aphenomenon that was handed down by our ancestors andthrough the numerous generations. It comprised the language,the traditions, the unifications of the people, the thoughts, therecollections of the power of the memory – these are thequalities they left to us. Qualities that were imbued in each ofthe iwi by the mighty creator".f. That is why, and again in Appendix III, a great deal ofsignificance is accorded the moana. It is, we profer, the origin ofa lot of tikanga around karakia, wairua, mauri, whakapapa,whanaungatanga, mauri tangata, tangihanga, manaaki, awhi,tapu, noa, as well as things like the use of mimi and also the useof waitai as a means of safeguarding and cleansing, respectively.Finally, we have for reasons of simplicity, identitied that thereare three main spheres, physical applications or basis of originfor tikanga. They are waka, whanaungatanga and whakapapaand whenua. The latter includes other tikanga elements oftūrangawaewaea and marae. All of the elements of tikangaapply equally across all those spheres and according toappropriate circumstances with there also being a lot ofinteractions and at the same time.g. Mātauranga Māori (Māori knowledge) is the overarchingframework that explains tikanga in a broader Māori world view.Within mātauranga Māori are the knowledge, culture andcustoms, rituals and incantations which are embodied through tereo Māori and tikanga Māori. Tikanga Māori brings manyconcepts, that may be unique and have authenticity only to all ofthe tribal peoples of the Mataatua region, like whakapapa,traditional food gathering, traditional preservation of food,traditional times and seasons for going out to sea, and rāhui toprotect the living.h. The tikanga also relates to the belief systems of Māori wherethey have genealogical ties dating back to Ranginui [Father sky]and Papatuanuku [Mother earth] and also the belief system ofbelonging to an ancestor that was already living here inAotearoa way before the Greet Fleet (the canoes) landed .Mātauranga Māori includes a dynamic and evolving range andknowledge base. It is not limited to Te Ao Tawhito and includeseverything in Te Ao Māori and sometimes referred to as "te aohurihuri" or something we refer to as "what we do today, is atikanga for tomorrow".4. The High Court Questions:a. As an openning statement, our observation is that there is aflexibility and fluidity regarding the tikanga that exists "mai i aNgā Kuri-ā-Whārei ki Tihirau". A Mātaatua waka widesharing of various types of kaimoana according to seasons andtypes of kaimoana that are available. There is no exceptionwithin the rohe from Maraetotara [in the west] ki Tarakeha [inthe east].b. Our further impression is that there is a similar flexibility andfluidity within that traditional boundary as it appears thatpeople went wherever kai was available or an event of socialsignificance was to happen and a lot of this had to do withwhakapapa. Most people affiliated to more that oneWhakatōhea hapū and also more that one waka and iwi.Similarly, there were also tikanga around working with yourneighboring hapū and iwi on the exchange of and access to thedifferent food resources and also appropriate overlaps inaccess.c. The other introductory statement we make is that all tikanga asidentified in APPENDIX I: He Whakaaturanga Tikanga Māori,applies and exists across Te Whānau-a-Apanui, Ngāi Tai,Tūhoe, Ngāti Awa and the rohe occupied by our poutarāwhareof Te Whakatōhea and Ūpokorehe. The differences, althoughminor, are in the practical application and the detail of howthey are implemented. An example of the flexibilty andfluidity we observed is the access to Whakaari for fishing andtiti or kuia hunting as well as other physical resources. Thereis an unwritten acknowledgement of the order of access to thatresource and it appears that is a practice that was commonknowledge to all applicants. Nevertheless, the responses to thefour questions posed are and the principal tikanga we detail, isas follows:i. What tikanga does the evidence established applies in theapplication area?ii. Which aspects of tikanga should influence theassessment of whether or not the area in question isheld in accordance with tikanga?1. As an overall introduction, all tikangaincluded in APPENDIX I:HE WHAKAATURANGA TIKANGAMĀORI and their detailed manifestationsapply either as a basic necessity or as amotivator or both, at the same time. That isyou cannot consider any element of tikangaas a straight line concept but as a kākahurāranga, a blending of numerous elementsinteracting. In terms of these two questionsposed, an appropriate and example only,follows:a. Mana as described in APPENDIX II:HE WHAKAMĀRAMA I TEWHAKAATURANGA TIKANGAMĀORI [Paragraph 1. d. i] with an exampleof the detail being as follows. However, thefull detail will be as covered in paragraph 5,The Details and Examples of TikangaApplied to this Report.b. Mana thereforei. Tino rangatiratanga isguaranteed to Māori under articletwo of Te Tiriti o Waitangi, as ameans of inherent sovereignty overour land, freshwater and marineand in accordance with tikangaMāori, striving wherever possibleto ensure that those resources areprotected for the use of futuregenerations. The protection of allof our traditional resources.ii. Kaitiakitanga is guardianship andprotection. It is managing theenvironment, based on tikangaMāori. Hapū communitieslooking after, managing thecleaning and caring for the takutaimoana, and creating awareness incommunities to stop polluting therivers and streams that flowstraight into our beaches andseabeds. The sea is the foodbasket for all people and managingthe risk of development andpollution has created kaitiakigroups from hapū and the ahikaa.iii. Utu in accordance to tikangaMāori, are disputes that arise froma breach of tikanga Māori thatrequire some form of utu to be paidto a wronged party. The utu itselfcan take many forms depending onthe circumstances; however, "utu"has a compensatory role inrestoring a breach of tikangaMaori. Professor Hirini MokoMead describes "utu" as part of athree-stage process of take (issue),utu (cost) and ea (resolution),which aims to restore therelationship between a wrongedparty and an offender.iv. Tapu relates to the sacredness ofthe person, land or te takutaimoana. We must consider if thereis a breach of tapu, and if there is,to ascertain what the gain oroutcome is. Māori had no conceptof Christian 'sin' as Māori 'hara'can be the infringement of tapu.Tapu is binding as well as bondingwith repercussions for the future iftransgressed with 'hara'.v. Take-utu-ea as a three-wayapproach that requires resolution.Identify the issue, mutually agreeupon cost or action to reach anagreed resolution by all partiesinvolved.iii. Which applicant group or groups hold theapplication area or any part of it in accordancewith tikanga?1. All groups consider their right according to thetikanga they feel applies. However, and withmore hui between them being essential todetermine and agree on tikanga, it is onlysufficient of us to make a commentary on thisquestion. Furthermore, with numerous positivehui still taking place, this aspect may be resolvedin a positive and appropriate way. However, andfrom the papers available to us the followingapplies:a. Ngāti Awai. Whakaari, Maraetōtara west,Tauwhare Pā, West ŌhiwaHarbour;ii. Ngāti Awa holds thecustomary interests forMoutohorā (Whale Island),Te Raurima, Turuturu roimata(Wairaka rock);iii. Opihi Whanaungakore (cemetaryof the unnamed relatives), te angao Muriwai cave of Muriwai),Kapu Te Rangi (Toikairakau Pa).b. Ūpokorehei. Customary interests in MaraetōtaraEast, Cheddar Valley, ŌhiwaHarbour, Waiōtahe, Hokianga,Hiwarau C, Waiōweka, Paerāta,Ōpōtiki mai tawhiti.c. Te Whānau-a-Apanuii. Whakaari, Hawai, Motu river.d. Nga Kāhui Hapū o Te Whakatōheai. One customary and sharedcustomary orders with all hapū inTe Whakatōhea. The Kāhui ismade up of nominated hapūmembers from each respective 6hapū of Te Whakatōhea that wasoriginally recognised as hapū)Ngāti Ira, Ngāti Patu,Ngāti Ruatakenga, NgaiTamahaua, Ngāti Ngāhere,Ūpokorehe.ii. Hiwarau C, Turangapikitoi,Waiōtahe, Ōhiwa, Pākōwhai,Whānau-a-Apanui, ŌpapeNative Reserve, Whakaari,Moutohorā, Te Paepae Atea,Kermedics.e. Ngāi Tai Shared customary interestswithTe Kāhui o nga hapū oTe Whakatōhea out to the fishing rocksover to Whakaari and Te Paepae Atea.However, and based on Tikanga, ourview is that Ngāi Tai have mana whenuafrom Tarakeha in the west to Taumata oApanui.iv. Who, in fact are the iwi, hapū and whānau groupsthat comprise the applicant group?1. Again this is a response compiled from thepapers where again the the main applicant iwi,hapū, whānau and groups are:a. Te Whakatōhea (CIV-2011-485-817);Hiwarau C, Turangapikitoi, Waiōtahe,and Ōhiwa of Whakatōhea (CIV-2017-485-375); Pākōwhai Hapū; andWhānau-a-Apanui (CIV-2017-485-278)– T Sinclair and B Cunningham:b. Ngāti Muriwai Hapū (CIV-2017-485-269) – M Sinclair, M Sharp and J Waaka:c. Ngai Tamahaua (CIV-2017-485-262)and; Te Hapū Titoko o Ngai Tamahaua(CIV-2017-485-377) – C Linstead-Panoho and T K Williams:d. Te Whānau-a-Apanui(CIV-2017-485-318) – M Mahuikaand N Coates:e. Ngāi Tai (CIV-2017-485-270) andRiriwhenua Hapū(CIV-2017-485-272) – E Rongo:f. Whānau a Te Harawaka (CIV-2017-485-238)– C Leauga:g. Te Ūpokorehe Trust (CIV-2017-485-201) –B Lyall:h. Whānau a Mokomoko (CIV-2017-485-355) –R Siciliano and K Ketu:i. Te Rūnanga o Ngāti Awa(CIV-2017-485-196) – H Irwin-Easthope:j. Ngāti Ira o Waiōweka Rohe(CIV-2017-485-299) – A Sykes andJ Chaney:k. Ngāti Patumoana (CIV-2017-485-253) –T Bennion:l. Whakatōhea Māori Trust Board(CIV-2017-485-292) – J Pou:m. Ngāti Ruatakenga (they don't have a CIV asthey don't have another application before theHigh Court but come under the gambit of theapplication by the Whakatōhea Māori TrustBoard) – K Feint QC:2. Summarised, these are as follows:a. Ngāti Awa-Whakaarib. Whakatōhea-Maraetōtara [West] to Tarakeha[East]c. Ngāi Tai-Te Rangi [East] to Tarakeha [West]d. Te Whānau-a-Apanui [Te Whānau a Ehutu]-Whakaari5. The Details and Examples of Tikanga Applied to this Report:a. As an opening statement we are convinced that the applicant iwiin particular and at that level, could have provided the Pukengafor this hearing. And but for the requirements of "conflicts ofinterest" this may not have been acceptable. But as things haveprogressed and our making a basic decision to use the tikanga ofthe iwi involved, we are not bringing anything new to the tablerather than returning their tikanga koha, to them. It is hoped thatthey receive it on the basis offered by us.b. Having said that we acknowledge the ilk of tohunga andkaumatua that we met and spent some time with. In most casesthey would readily acknowledge their whānau and hapū membersfor everything, there is an ilk of Rangatira seldom assembled ona single kaupapa. Furthermore and as we greatly appreciatedthem we are motivated to use a tikanga based description asfollows "whakakau he tipua, hi, whakakau he tanwha, hi". Thiswas mainly on our visits of observation and accordinglyappreciate the high esteem we rekindled, enhanced or developedas a result of our tikanga interactions with Dr Te Kei O Te WakaMerito [Ngāti Awa], Wallace Aramoana [Te Ūpokorehe],Te Riaki Amoamo [Ngāti Ruatakenga, Te Whakatōhea], Te RuaRakuraku [Ngāti Ira], Arapeta Mio [Ngāi Tai] and Danny Poihipi[Te Whānau-a-Apanui].Kōia nei te hiahia ki te whakaara ake i te puna whakatō, ekomingō ai ngā mahara ki te katoa i tuku kōrero ki roto i ēneihuihuingā. Ka maia ka pakari ake ngā whakairo i ngā huarahimaha e tutuki ai ngā uimākihoe kia rapua te ia o te kōrero, hehuarahi wātea mo te taha ki ēnei taongā tuku iho. Ka tangi akemo te kaupapa i whakakao mai ai tātou ki tēnei whare nui tetawhiti mai i ō tātou marae, ka tuku i ngā kōrero tapu, i ngākōrero tukuiho, mai i ngā pūkōrero, ngā whare pūkenga o iawhānau, hapū me ngā iwi, inā rā, te kore e tāea e teKaiwhakapākeha te kapo ake i te ia o te kōrero me te nako o tauakōrero.c. This is the part of our report that displays the diversity andholistic existence of tikanga and its many composite parts andhow these interact all at the same time and how they are triggeredand released both into and out of existence, in response tonumerous stimuli. If you cannot appreciate this dynamic then donot read on as any attempt to require a straight line interpretationof an element, immediately detracts from te ao Māori.d. What follows is our attempt to encapsulate thousands of years ofmigrations and tikanga development and adaptation to survive inthe various Hawaiki and how what was an idyllic set of rules hasbeen manipulated and in some cases totally compromised by therequirements of a foreign administration and despite Te Tiriti OWaitangi. We also say this and at the same time acknowledgethe previously mentioned Pukenga [Kaumātua, Tohunga]. Thekorowai tikanga is reflected in the following ways:i. Wairua –1. traverses all iwi and takutai moana activitesand varies according to keeping one safe, topreservation of resources to a rāhui2. tapu – rāhui re Muriwai who imposed one fromNgā Kuri-ā-Whārei ki Tihirau. Followed onfrom the drowning of Johnny Hayes and morerecently the Whakaari eruption. It is a practiceof all of the people from Whakatane through toTe Whānau-a-Apanui and other iwi.ii. Fishing grounds TWAA / page 10 with the link to utabeing in terms of geographic proximity and also thelocation of pouwhenua [Te Kāhui Takutai Moana O NgaWhānau Me Ngā hapū O Te Whakatōhea Mapbook andour understanding that most of the fishing grounds arenamed after mountains and significant peaks and or wāhitapu. This map appears to be based on traditionalinformation and as well as naming the rocks it also detailsthe types of fish caught there. Just as important are thepouwhenua detailed for the location of the fishingground, or pouwhenua. A more up-to-date map is locatedat page 11. There is also a map of the resources locatedin Ōhiwa Harbour including traditional place names atmaps at pages 12-13. All these maps are significant inthat the traditional names are used and this intimately alsoencapsulates the real meaning of that place. That istikanga proper as a lot of recent names do not reflect anyhistory and in most cases is colonialization all over again.The marae are also named and these are the real keepersof tikanga – kāore e koa atu, kāore e ko mai".iii. Te Whānau-a-Apanui also filed their map of traditionalfishing grounds on 5 October 2020. Titled Ngā KaitiakaO Te Rohe Te Whānau-a-Apanui. More importantly andunder cross examination, respected tohunga andkaumātua Danny Poihipi mentioned the significance ofWhakaari beyond the resources available there. It is thebeacon light for Te Whānau-a-Apanui and this is by wayof the plume of smoke that it exudes. Winds from thenorth and west signalled poor fishing. The matter of theownership and the transfer of Whakaari has reminedunanswered for over a hundred years.iv. Te Whānau-a-Apanui also filed their map of theirrohe and hapū and the boundaries were as presentedin Ms D Takitimu's presentation also on 5 October2020; AFFIDAVIT OF DAYLE LIANNETAKITIMU 24 FEBRUARY 2020 where theboundary is from Te Taumata O Apanui to Potikirua.v. Tapū – finally and as part of establishing tikanga basedapplications is the location of pa, midden ovens andother traditional sites. Located at pages 28 and 29. Andcovers Whakatōhea and Ōhiwa Harbour. Those on pages30-33 provides more detail information from Whakatāneeast to Tarakeha.vi. An agreed determination of the boundaries betweenNgāti Awa and Te Whakatōhea was signed on 4 April1991 between Charlie Aramoana and Hirini Moko Meadin a motion as "begins at Te Rae o Kanawa and proceedsto the mouth of the Nukuhou River, follows the river toMatekerepu, crosses to Tirotirowhetu and thence toTe Roto O Matamoe thence follows the confiscation lineto Maunga Whakamanawa. That this line determinesMana Whenua and Mana Moana of Whakatōhea whichlies to the east of the line and the mana whenua and manamoana of Ngāti Awa which lies west of the line.vii. A similar motion as follows was passed as to"Whakatōhea, Tūhoe and Ngāti Awa agreeing to shareequally in the protection and management of the fish,shellfish and all marine life within Ōhiwa. That motionwas signed by representatives from Tūhoe, Whakatōheaand Ngāti Awa.viii. Ko Te Ipu O Te Mauri – by Charles Aramoana onthe boundaries of Te Ūpokorehe.ix. The matter of land occupation as well as mana,whakapapa descent, by conquest or gift as well as therange of tikanga as is described at pages 784-786 andthroughout the article by Professor Evelyn Stokes,A Review of the Evidence in the Muriwhenua LandsClaims, Volume II, Waitangi Tribunal Review Series1997, No.1.x. Where the oneness of whenua with moana and describedby Te Whakatōhea hapū Ngāti Rua Takenga as "NgātiRua ki uta, Ngāti Rua ki tai" which is supported by anunrelated and similar case as contained at pages 127-128of the Muriwhenua Fishing Report, Waitangi Tribunal 1,1988.xi. In the www.waitangi-tribunal.govt.nz article, pages 5-13the definition of tikanga from a Te Ao Māori lensgreatly enhances our understanding of the origins oftikanga, their dynamism, reach and the linking of all ofthe elements is a phenomenon where the interaction ofthe wairua, practical and spiritual elements co-exist.xii. The original and main hapū of Te Whakatōhea ascontained in A.C. Lyall, 1979, pages 94-95 and themap with their location.xiii. Te Ehutu claim to Whakāri which was a matter of an utuwas sold by Ngāti Awa chiefs Apanui and Te KeepaToihau was a travesty. Page 2, A Report to the WaitangiTribunal on Behalf of Te Whānau ā Ēhutu on theWhakaari Claim [Wai-225], Lawrence Tūkaki-Millanta,May 1995.xiv. Whakatōhea boundaries as contained in the articleMandated iwi organizations in the Māori Fisheries Act2004 both by description ad maps.xv. Evidence on the origins of Ngāti Muriwai as endorsedby Riki Gage's affidavit [Affidavit of Te Kou RikirangiGage on behalf of Te Runanga o Te Whānau dated21 February 2020].xvi. A rejection of the notion of a Ngāti Muriwai byNgāi Rua memo dated 13 August 2018 fromMereaira Hata and Linda Grave.xvii. The map of the allocation of lands after confiscation andused by Te Riaki Amoamo illustrates his comment thattrue Whakatōhea hapū had two pieces of land allocated tothem. One development block and one hill block. If youhad two blocks you could stand on two legs.Ngāti Muriwai couldn't as it only had one block andtherefore only one leg.xviii. Ūpokorehe origins and Tūhoe boundary at pages 31 andpages 13-16 respectively from Statement of Evidence ofTamaroa Raymond Nikora – Ko Wai A Tūhoe? 2003,Wai 894#B11 and WAI 36#A30.6. ReferencesBest, E (1972) Tūhoe, The Children of the Mist, Vol. 1. A.H. & A.W. Reed,WellingtonBinney, J (1995) Redemption Songs, Auckland,AUP /Bridget Williams Books, WellingtonBinney, J & Chaplin, G, & Wallace, C (1979) Mīhaia, The Prophet RuaKēnana and His Community at Maungapōhatu, Bridget Williams Books,WellingtonBuck, P.H. (1949) The Coming of The Maori Te Whare Wānanga oAwanuiārangi Whitcombe and Tombs Ltd, WellingtonKaretu, T (1993) Haka – Te Tohu o Te Whenua Rangatira, The Dance ofNoble People, Reed, AucklandLyall, A.C. (1979) Whakatōhea of Ōpōtiki A.H. & A.W. Reed, AucklandMead, H.M. (2003) Tikanga Māori: Living by Māori Values,Wellington Huia & Te Whare WānangaSalmond, A & Stirling, E (1980) Eruera, The Teachings of a MāoriElder Oxford University Press, AucklandSpoonley, P (2009) Mata Toa – The Life and Times of Ranginui WalkerAuckland Penguin BooksStokes, E.J., Wharehuia Milroy, & Melbourne, H (1986) Te Urewerangā Iwi te whenua te ngāhere: People, land, and forest of Te Urewera,Hamilton, University of WaikatoTawhai, W (2013) Living by the Moon Wellington:HuiaWalker, R (1987) Ngā Tau Tohetohe: Years of Anger Auckland,Penguin BooksWalker, R (1990) Ka Whawhai Tonu Mātou: Struggle Without End Auckland,Penguin BooksWalker, R (1996) Ngā Pepa a Ranginui – The Walker Papers Auckland,Penguin BooksAPPENDIX B – WHAKAPAPAIntroduction[1] Whakapapa is the most important tikanga value in establishing which applicantgroup holds a specified part of the takutai moana. The various applicant groups gavedetailed evidence as to the whakapapa which they each said justified their claim thatthey held the specified areas of the takutai moana.[2] In an attempt to reduce the length of the judgment, I have summarised thatevidence in the judgment itself. However, recognising the importance of this evidenceto the parties and the need for them to understand the basis upon which the summaryset out in the judgment was arrived at, I now set out a more detailed analysis of thewhakapapa evidence upon which I have relied.[3] This evidence focuses on the whakapapa of the applicants, specifically thosewho were identified by the pūkenga in the poutarāwhare, namely:(a) Ngāti Ira o Waiōweka;(b) Ngāti Ruatakenga;(c) Ngāti Patumoana;(d) Ngai Tamahaua;(e) Ngāti Ngāhere; and(f) Te Ūpokorehe.[4] This appendix will consequently be split into three parts. Firstly, I will providea summary of certain important tūpuna in the Whakatōhea whakapapa. Secondly, Iwill discuss of the early development and evolution of the different entities withinWhakatōhea. Finally, I will provide a brief summary of the whakapapa of theindividual hapū referred to above.The tūpuna of Whakatōhea[5] This section is designed to give a general but not authoritative summary ofWhakatōhea. It is important to reiterate that warning at this point, because a numberof the sources referred to below are dependent on Native Land Court minutes, and inparticular, the whakapapa presented to that Court by Tuakana Te Aporotanga, aRangatira of Whakatōhea. Descendants of other iwi and hapū may have slightlydifferent variations as to the whakapapa of these tūpuna. A separate, but interrelatedissue was discussed several times in the hearing: caution should be taken to not relytoo heavily on the Native Land Court minutes, as, while they provide usefulinformation about the whakapapa of individuals and their hapū, the Native Land Courtprocess sometimes encouraged the individuals involved to emphasise certain ancestorsand not discuss others. Ballara summarises this point as follows:1The format of evidence suggests that witnesses were usually asked to identifythe 'large tribe' to which the descent groups they were discussing belonged.Failure to do so, perhaps because the hapū in question belonged genealogicallyto more than one iwi, or had split in sections living in different communitiesand localities, damaged their credibility.[6] A similar point is made by Parsonson:2There were many [claimants] who might have claimed through more than oneline of descent, depending on how they chose to explain the derivation of theirrights, and their choice might also be influenced by the way in which otherclaimants were shaping their cases.[7] With this in mind, I turn to some of the significant early tūpuna who werediscussed during the hearing.Tārawa[8] One of Whakatōhea's early ancestors was Tārawa. Lyall and Kahotea (bothreferring to Tauha Nikora's statements in the Native Land Court, recorded in ŌpōtikiMinute Book Five 1889) describes him as one of the most important ancestors for1 Iwi: The Dynamics of Māori tribal organisation from c.1769 to c.1945 (Victoria University Press,Wellington, 1998) at 90. (Footnote omitted).2 Ann Parsonson Stories of land: Oral narratives in the Maori Land Court in B Attwood andF Magowan, (eds) Telling Stories: Indigenous history and memory in Australia and New Zealand(Allen & Unwin, Sydney, 2001) at 26.Whakatōhea, as Ngāti Ruatakenga, Ngāti Patumoana, Ngai Tamahaua andNgāti Ngāhere can all show descent from him,3 while Walker describes him as the"earliest recognised ancestor of Whakatōhea".4Tautūrangi[9] Another significant waka of the Whakatōhea hapū/iwi is the Nukutere. Thiswas either commanded by Whiro or, as described by Te Riaki Amoamo (ofNgāti Ruatakenga),5 Te Whironui, an ocean-going navigator. According toRanginui Walker, the Nukutere landed at Awaawakino, east of Ōpape, circa 1250 CE:6The Nukutere made landfall at Awaawakino, east of Ōpape, circa 1250 CE.The vessel threaded its way carefully between rocks into an isolated covenamed Te Rangi after the white rock to which the Nukutere was moored.[10] Mr Amoamo also describes the journey of the Nukutere when it reached itsdestination, and the significance of its landing place, as follows:When it arrived in Aotearoa it landed at Te Rangi, a rocky cove four to fivechains wide on the eastern side of Awaawakino Bay. The Nukutere anchoredat a good depth from the shore, such was the size of the Nukutere. A karakiawas performed to give thanks to the Atua for the safe arrival of the Nukuterewaka and its passengers. Their offering was so sacred that the little beachbecame tapu, and they had to walk in the footsteps of those in front of themso there was only one set of footsteps on the beach. Tautūrangi named thecove Te Rangi, after his wife Tauaterangi.The anchor was turned into a white stone, and thrown into the bay when theNukutere departed. It is said that a white rock is still there under the watertoday.The Nukutere then sailed west around the headland to Ōpape and Tautūrangidisembarked at Kotukutuku, at the then-mouth of the Waiaua River (the rivermouth has moved since then). Tautūrangi and his followers stayed and livedat Ōpape and Ōmarumutu3 AC Lyall Whakatōhea of Ōpōtiki (Reed Publishing, Auckland, 1979), at 1; and Desmond KahoteaWhakatōhea and the Common Marine and Coastal Area in relation to CIV-2011-485-817(October 2019) at 65. This whakapapa line was also confirmed in the affidavits of Te RingahuiaHata of Ngāti Patu and Ms Hetaraka Biddle of Ngai Tamahaua.4 Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea (Penguin Books, Auckland,2007)at 11.5 In his affidavit at 1.2, Mr Amoamo also signalled that he had whakapapa connections toNgai Tamahaua and Ngāti Patumoana.6 Whakatōhea of Ōpōtiki, above n 3, at 14. Lyall, at 21, also states that the arrival of the Nukutereoccurred around the mid-13th century.[11] A significant tūpuna of Whakatōhea, Tautūrangi, was on board the Nukuterewaka. Some accounts indicate that it was Tautūrangi, rather than Whiro, whocaptained the Nukutere waka.7 Tautūrangi settled at Ōpape, developing a kāingaoverlooking the beach. His descendants, down until Tūtāmure, were known asTe Wakanui, an early iwi from which Whakatōhea descend.8 Their tribal rohe wasdescribed by Walker as follows:9Their territory extended inland from Waiaua to the mountain forests at Toatoa,Takapūtahi and Whitikau. The route inland to these places crossed over fromthe Waiaua River to the Rāhui Valley and up the steep confines of theMeremere Gorge.Tūnamu[12] Tūnamu is described by Walker as "generations down" Tautūrangi.10 Takinginto account Mr Amoamo's evidence, and Lyall, Walker and Kahotea's texts, Tūnamuseems to be between five and ten generations after Tautūrangi (the texts all appear tobe based off the Ōpōtiki Minute Books of the Native Land Court in 1895, particularlythe statements made by Tuakana Te Āporotanga).11 As discussed above, the peoplesresiding in the area were then known as Te Wakanui, and by Tūnamu's time, theirpopulation had increased significantly for them to claim the use of the land and itsresources in defined localities against other competing groups.12 Although Walkeruses the term Panenehu to describe the peoples living in this area during Tūnamu'stime, Lyall states that "traditions of Tūtāmure himself indicated that the latter title[Panenehu] pertains "to the descendants of Te Wakanui from Tūtāmure down".13[13] It appears that the dispute between the neighbouring iwi to the east of themodern-day rohe of Whakatōhea, began during Tūnamu's time, which led to theoccupation of the Waiaua area (including the pā at Ōmarumutu, Ōtānemutu and7 Whakatōhea of Ōpōtiki, above n 3, at 21.8 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 15.9 At 15.10 At 16-17.11 Whakatōhea of Ōpōtiki, above n 3, at 21; Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4,at 19; Whakatōhea and the Common Marine and Coastal Area in relation to CIV-2011-485-817,above n 3, at 64.12 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 16.13 Whakatōhea of Ōpōtiki, above n 3, at 20.Puketaro) by Ngāi Tai, who in turn were then driven out of the area by Tūnamu andthe Te Wakanui/Panenehu people, causing them to retreat back to Tōrere.14Muriwai and Toroa[14] Muriwai and Toroa are important tūpuna for the iwi and hapū of the Bay ofPlenty. They arrived on the Mātaatua waka, some nine generations after the Nukuterewaka, according to Walker,15 possibly at some point during the 14th century, accordingto Lyall.16 The iwi of Whakatōhea, Ngāti Awa and Ngāi Tūhoe all have whakapapalinks back to the Mātaatua waka. It was commanded by Toroa and made landfall atWhakatāne. Walker describes the story of the landing of the Mātaatua, and thesubsequent naming of Whakatāne, as follows:17Toroa and his crew entered the Whakatāne River and moored their vessel toTe Mānukatūtahi, a lone manuka tree on the foreshore of the present townshipof Whakatāne. In doing so, they had no idea of the high rise and fall of thetide in this new land compared to Hawaiki. The men left their women behindwhile they went inland to explore the country. With the rising tide theMātaatua slipped its mooring and started drifting downstream as the tide wentout. Seeing the danger to the vessel, Toroa's sister, Muriwai, decided shewould have to secure the Mātaatua. Although Muriwai was the tuakana(senior member) of her family, she approached the task with some trepidation,because all matters pertaining to the navigation and management of ocean-going vessels belonged to the domain of men. Although she knew theappropriate karakia for the occasion, Muriwai fortified her courage byexclaiming, Me whakatāne au i ahau'. (I must acquit myself like a man).[15] Walker also notes the drowning of Muriwai's son, and the rāhui imposed onthe coast after his death:18Muriwai took up residence in Te Ana-o-Muriwai, a rock cave at Whakatāne,where she became reclusive in old age after her son Tānewhirinaki drowned.The tribes in the Whakatāne district placed a rāhui on the sea, a restriction ontaking seafood for the period of mourning for Tānewhirinaki. As the newsspread along the coast to the tribes east and west of Whakatāne, they extendedthe rāhui to take in their shoreline as well. Eventually the boundaries of therāhui extended 'Mai i Ngā Kurī-a-Whārei ki Tihirau (from the [petrified] dogsof Whārei [near Katikati] to Tihirau). The latter is a distinctive cone-shapedhill near Cape Runaway. This rāhui, taking in most of Te Moana-a-Toi (Bay ofPlenty) was a tribute to Muriwai's mana from the tribes that claim descent14 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 18.15 At 23.16 Whakatōhea of Ōpōtiki, above n 3, at 5-6.17 At 23-24.18 At 24.from the Mātaatua. Consequently the extent of the rāhui is synonymous withthe boundaries of the tribes of the Mātaatua waka.[16] It should be noted that other iwi consider that it was Waiaraka, Toroa'sdaughter, who made the utterance while saving the Mātaatua.19 As noted in theWaitangi Tribunal's Ngāti Awa Raupatu Report:20Kakahoroa (the Whakatane township) is important in Mataatua tradition as thelanding place of the Mataatua canoe. In fact, the town is named for Wairaka,the daughter of the captain Toroa, in memory of her famous effort in savingthe waka from being washed out in the tide, and derives from her plea 'Kiawhakatane ake au i ahau' (Let me act the part of a man). She is commemoratedin a monument on the rock Turuturu-Roimata, near the landing place, and atWairaka Marae.[17] Two of Muriwai's children have an important connection to Whakatōhea.Muriwai's eldest son, Rēpenga, journeyed from Whakatāne to Ōpōtiki, where hemarried Ngāpoupereta, from whom descended Ruatakena – the founding tūpuna ofNgāti Rua.21 Muriwai's daughter Hineīkauīa followed her brother Rēpenga to Ōpōtiki.[18] The dual whakapapa of a number of Whakatōhea hapū to both the waka ofNukutere and Mātaatua is described in a tauparapara that was recited by Mr Amoamoas a witness before the Court,22 and separately discussed and translated in the affidavitof Ms Anna-Marei Kurei, who gave evidence for Ngāti Ira. It was described byMs Kurei as originally being a waiata with the name Te Tapu o Muriwai, which wasadapted by Te Kahautu Maxwell into a tauparapara. In his affidavit, Mr Amoamodeposed that the tauparapara was known as Maruhia Atu, and that it was used todescribe the rohe and whakapapa of Whakatōhea, as well as the rāhui imposed on thearea by Muriwai. Importantly, it quite distinctly sets out the connection ofWhakatōhea to the Nukutere waka and its landing place at Te Rangi, to Muriwai, andto a number of important locations within the Whakatōhea rohe, including Ōhiwa,Waiōtahe and Waiaua.19 Whakatōhea of Ōpōtiki, above n 3, at 7.20 Waitangi Tribunal The Ngāti Awa Raupatu Report (WAI 46, 1999) at 9.10.3.21 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 25.22 A tauparapa is an opening utterance, chant or incantation that often contains references towhakapapa.[19] Because the tauparapara contains ancient and tapu mātauranga Māori whichgives it its own mana, I will not attempt to replicate it but acknowledge its importance.Tūtāmure and Hine-i-Kauia[20] Tūtāmure is acknowledged as one of the predominant ancestors ofWhakatōhea; Walker describes him as the "most illustrious chief of the Te Wakanuipeople",23 while Lyall notes:24Every tribal group has its historical giants, those whose feats and personalitieswere such that their light still blazes while others, have failed. In theWhakatōhea story, such a man was Tutamure, of whom it could probably besaid that he was the last of Te Wakanui, the almost mystical ancestors ofWhakatōhea.[21] Tūtāmure was between six and twelve generations removed from Tautūrangiand was the grandson of Tūnamu.25 He was born at some point in the 14th century,before the arrival of the Mātaatua waka. His life is considered to have signalled thebeginning of the Panenehu people, from the earlier Te Wakanui people. Walker andKahotea noted that Tūtāmure was responsible for establishing the eastern boundariesof the Te Wakanui/Panenehu people, described by Walker as follows:26The eastern boundary laid down by Tūtāmure commenced on the coast atTe Rangi and ran inland south to Ōroi, on to Opikoki, to Ngāūpokotangata(Kapuārangi) on to Opiti, to Peketūtū, then to the Mōtū River. The boundaryfollowed the upper Mōtū River to Taunga Kākāriki, then to Kaitaura. There,the boundary left the river and doubled back towards the coat to Terewa, toKorakōnui, to Hanaia, and rejoined the coast at Tirohanga and back east alongthe coast to Te Rangi.[22] Tūtāmure gained fame and prominence through his battle with Kahungunguand his iwi at Maunga-a-kāhia in Māhia, in order to avenge the death of his sisterTaneroa. The name "Panenehu" is alleged to have its origins in this battle, articulatedin more detail in the section discussing Te Panenehu below.23 At 19.24 At 36.25 Whakatōhea of Ōpōtiki, above n 3, at 36; Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4,at 19.26 At 21.[23] Following his victory over Kahungungu, Tūtāmure returned to Whitikau, andsecured the area with a number of strongholds, including on Mākeo mountain,overlooking Ōmarumutu Marae.27[24] Tūtāmure married Hine-ī-kauia, the daughter of Muriwai, and their union laidthe foundation for the iwi of Whakatōhea on the mana whenua of Te Panenehu and themana ariki of the Mātaatua waka.28 According to Walker, over the succeedinggenerations the names Te Wakanui and Te Panenehu were subsumed by the new iwiof Whakatōhea.29[25] The union of Tūtāmure and Hine-ī-kauia also signified the union of twoseparate lines of whakapapa: that of the Nukutere waka and that of the Mataatua waka.As noted by Mr Amoamo, this is signified at Ōmarumutu Marae (a marae principallyconnected to Ngāti Ruatakenga), where the wharenui is named Tūtāmure, and thewhare kai is named Hine-ī-kauia.The early entities of Whakatōhea[26] In this part, I describe the evolution of the early entities which eventuallyevolved into Whakatōhea and Te Ūpokorehe. The evidence discussed below,concerning the iwi/hapū groupings from which Whakatōhea descend, leads to theconclusion that arguably, from at least the 13th century onwards, there was occupationof the Whakatōhea rohe by early peoples from waka such as Nukutere, Tauira,Rangimatoru, and (later) Mātaatua, with those early peoples and ancestors eventuallyevolving into the confederation of hapū and groups known today as Te Whakatōhea.Ngariki[27] The Ngariki people were identified by Lyall as early peoples dwelling aroundŌhiwa, Ōpōtiki, Tunapahore/Hawai and Poverty Bay.30 They are also referred to as"Ngā Ariki, Ngariki-Tahaehae, Ngariki Rotoawa, Ngariki-a-Pō, Ngariki-kai-Putahi".3127 At 23.28 At 25.29 At 25.30 Whakatōhea of Ōpōtiki, above n 3, at 12.31 At 12.They contribute to several branches of Whakatōhea hapū whakapapa although Lyallnotes that whether they maintained a strong and separate identity for a significantperiod is a matter for conjecture.32 Lyall's discussion on these peoples appears to bederived from notes written by Native Land Court Judge Wilson and his father(Ōpōtiki's first Anglican missionary), who believed they arrived from Hawaiki on thePakihikura waka, landing at Ōpōtiki but being driven away eastwards by local peoplealready residing in the area.Hapūoneone[28] Hapūoneone are described by Lyall, quoting Best, as early inhabitants of theterritory from Ōpōtiki to Whakatāne. It appears that Lyall's information onHapūoneone and Te Tini-o-Toi is derived from the writing of Elsdon Best, whichshould be approached with some caution as to its accuracy.33 A useful resource tocounteract the possible inaccuracy of Best's writing for this purpose is a scoping reportwritten in 2007 by a Waitangi Tribunal researcher on the Te Hapū Oneone Claims inthe East Coast District Inquiry.34 Ivory does note however, that more recentresearchers, including Rongowhakaata Halbert (who authored an influential text onthe Horouta waka) have "agreed with one of Best's main claims regarding Te HapūOneone; that they were a group with early origins who were active in Waimana andRuatoki in Te Urewera, and Ōhiwa in the Eastern Bay of Plenty".35[29] According to the scoping report, Best and Halbert disagree on the origins ofHapūoneone, particularly whether they descended from a tūpuna known as Hape, andtheir relationship with Te-Tini-o-Toi (discussed further below).36 However, bothappear to agree that Hapūoneone had some connection to the Rangimatoru waka,which Halbert considered to have landed at Ōhiwa in the 1300s.3732 At 12.33 See for example, Angela Ballara's comments in Iwi: The Dynamics of Māori tribal organisationfrom c.1769 to c.1945, where she states that early researchers such as Best were driven bytheories that led them to distort "Māori history and custom in ways which fitted what they sawas the inner structure or grand design of Māori and Pacific history and the tribal system",above n 1, at 103.34 Andrew Ivory Te Hapū Oneone: A Scoping Report on the Te Hapū Oneone Claims (Wai 1020,1282) in the East Coast (Wai 900) District Inquiry (Wai 900, A12, 2007).35 At 9.36 At 12-13.37 At 21.Te Tini-o-Toi[30] As discussed above in respect of Hapūoneone, the origin and scope of Te Tini-o-Toi peoples is disputed and unclear, given the reliance of Lyall and Kahotea on theevidence of Best. Best considers Te Tini-o-Toi and Hapūoneone to be "separate anddistinct" peoples, with Toi being a single ancestor living between Whakatāne andŌhope as the "progenitor of many tribes in the region collectively known as theTini-o-Toi".38 Conversely, Halbert considers that the name "Toi" referred to a numberof ancestors, and that Hapūoneone descended from a "Toi" known as Toirangarangawho should not be confused with other individuals such as Toikairakau andToitehuatahi (the two names Dr Kahotea uses to refer to "Toi").39Te Wakanui[31] As discussed above, the term Te Wakanui was used to describe the peoplesresiding in the Whakatōhea area, specifically around Waiaua and Ōpape, between thetime of Tautūrangi and the time of Tūnamu. Lyall provides the following discussionof the Te Wakanui peoples:40Volume 59 (p 339) of the Journal of the Polynesian Society contain someinteresting comments by the late Sir A.P. Ngata on the gathering of the peoplesin the East Coast area from Ōpōtiki to Gisborne. He states that the mostconsiderable element in the settlement of this area came from the Cook group;a secondary Hawaiki he calls it. The canoes which brought them were Tauiraand Mangarara, and when later canoes came, like Nukutere under Whironui,their occupants knew who the local people were. They had related ancestors.From Nukutere canoe, sprang Te Wakanui, one of the very early tribal entitiesfrom whom Whakatōhea descend. The limited existing references to thesepeople cover a period of eight generations to Tūtāmure. Although the peopleof this era have often been referred to as Panenehu, traditions of Tūtāmurehimself indicate that the latter title pertains from the descendants ofTe Wakanui from Tūtāmure down. Despite the much publicised descent fromMuriwai of Mātaatua, Whakatōhea origins are clearly more ancient on theNukutere line38 Kahotea Whakatōhea and the Common Marine and Coastal Area in relation toCIV-2011-485-817, above n 3, at 67.39 Te Hapū Oneone: A Scoping Report on the Te Hapū Oneone Claims (Wai 1020, 1282) in theEast Coast (Wai 900) District Inquiry, above n 34, at 14.40 At 20.[32] A key aspect of the relevance of the Te Wakanui peoples is that they appear tobe a critical whakapapa link between Whakatōhea and the Nukutere waka, whichpredated Muriwai and the Mātaatua waka (at least according to Lyall and Walker). Itappears that, according to Lyall and Mr Te Amoamo, after the landing of the Nukuterewaka, the Te Wakanui people settled and continued to expand from the time ofTautūrangi down to Tūtāmure.41 Mr Amoamo deposed that Tautūrangi and the peoplethat landed ashore with him (and settled the area) became known as Te Wakanuibecause of the ocean-going waka they used, which would have been much larger thanthe waka used for coastal fishing or war.Te Panenehu[33] The origins Te Panenehu are disputed, but as noted by Lyall, "[i]n any attemptto define the origins of Whakatōhea, research leads back to the people named Pane-Nehu".42 Some sources including Mr Amoamo, consider that the name "Te Panenehu"appears to have been derived from Tūtāmure's battle with Kahungungu at Maunga-a-Kāhia. Walker describes the origin as follows:43Undeterred by the formidable defences of Maunga-a-kāhia, Tūtāmuremounted a vigorous assault on the outer palisade. He used his taiaha to destroythe lashings of the palisade. But before a breach was made, the taiaha snappedin half. Tūtāmure then grasped a weapon made of whalebone to finish thebattle, saying, 'Slay the fish, the proverbial fish of Tū. Kāore nei tama kanehua.' (Eliminate the young men and bury them.) This exhortation to 'burythe enemy' at Maunga-a-kāhia, like the burying of Ngāi Tai at the battle ofTe Ruruārama, was thought to be the origin of the name Te Panenehu forTūtāmure's people. But this seems to be an a posteriori explanation for theorigin of the Panenehu name, since the descendants of Tūnamu who inhabitedWaiaua and Takapūtahi were referred to by that name before the time ofTūtāmure. Despite that contradiction, the name Te Wakanui was subsequentlyreplaced by Te Panenehu after the battle at Maunga-a-kāhia.[34] Lyall details the conflicting origins, suggesting that Te Panenehu may haveeither come from the Tauira waka or the Nukutere waka, potentially having someconnection to the early Ngariki people discussed earlier:4441 Although, as discussed above, Walker considers that the term "Te Panenehu" was used as early asthe time of Tūnamu.42 At 25.43 At 22.44 At 25-26.A clue to the origin of the Pane-Nehu is given by Gudgeon, who states thatone Marupapanui came to this land in Tauira canoe and that he was an ancestorof Pane-Nehu of Ōpōtiki district. In this area it is claimed that Marupapanuiwas the son of Tiki who came in NukutereThe foregoing makes it appear that Te Wakanui (mentioned elsewhere) andPane-Nehu had a common origin and could in fact have been the same people,for in another chapter Tūtāmure is seen as probably the last of Te Wakanui.After him, appeared the tribe Pane-Nehu whose name has been attributed toan expression of Tūtāmure at Maunga-a-KāhiaEven the conflicting opinions on Marupapanui are helpful. Tauira was thecanoe of Motatau mai Tawhiti, the Ngariki ancestor who occupiedTunapahore. So we have a picture of individual immigrants from either Tauiraor Nukutere, or both, moving into the hinterland and establishing a tribalidentity.[35] Both Walker and Lyall indicate that the era of the Te Panenehu people wascharacterised by continuing strife with Ngāi Tai. Lyall describes the boundaries of theTe Panenehu people at that time as follows:45Their territory was, in general, the Whitikau and Toa Toa, later Rahui andWaiaua with probably some ebbing and flowing over the generations. Thereis also some evidence they lived further west on the Otara River.[36] According to Lyall, the era of Te Panenehu and the beginning ofTe Whakatōhea occurred during the time of Ūpokohapa (some five generations downfrom Tūtāmure):46In connection with the coastal Waiaua area, reference to Panenehu ceases inthe time of Ūpokohapa. From his time the people referred to becomeWhakatōhea.As a people in their own right they would seem to occupy the period fromTūtāmure, who is said to have named them, to Ūpokohapa. From Ūpokohapa,at which time they probably commenced their westward drift, they fused asremnants, either in the Whitikau hinterland or fusing with other branches ofthe now-evolving Whakatōhea.[37] Conversely, Walker considers the transition and evolution of Whakatōhea fromTe Panenehu to have occurred in the era of 'uneasy peace' between Ngāi Tai andTe Panenehu until the time of Kāwhata, some ten generations after Tūtāmure.4745 At 27.46 At 27 and 34.47 At 28.Around this period, according to Walker, a number of hapū, including Ngāti Rua,Ngāti Ira, Ngāti Ngāhere and Ngai Tama evolved out of the base population ofTe Panenehu into the iwi of Whakatōhea.48[38] During the hearing, Mr Amoamo emphasised Ngāti Ruatakenga's connectionto Te Panenehu, reciting his whakapapa from the time of Tūtāmure when the namePanenehu originated, down to Ruatakenga, down to himself.Whakapapa of Whakatōhea hapū/iwi[39] I now turn to the whakapapa of each of the separate entities included by thepukenga within the poutarāwhare – namely five Whakatōhea hapū and Te Ūpokorehe.The history of Te Whānau a Mokomoko is already discussed earlier in the judgment.Ngāti Ruatakenga[40] Ngāti Ruatakenga are a coastal-dwelling hapū located mainly on the easternside of the Whakatōhea rohe. The whakapapa of Ngāti Ruatakenga was set out in theevidence of Mr Te Riaki Amoamo and Ms Mandy Mereaira Hata. Reference was alsomade throughout the hearing to the Lyall and Walker texts.[41] Mr Amoamo's evidence was that the Ngāti Ruatakenga whakapapa 'mingles'with both the Nukutere and Mātaatua waka, stemming from both the union ofTūtāmure and Hine-ī-kauia, as well as Hine-ī-kauia's brother (and Muriwai's firstson), Rēpanga. Mr Amoamo described Rēpanga's journey from the Whakatānedistrict to the Ōpōtiki district, following the smoke coming from the fires in Ōpōtiki,eventually arriving at Kohipawa pā on the eastern bank of the Ōtara River whereRanginui-ā-te-Kohu gave his daughter, Ngāpoupereta, in marriage to Rēpanga.49 It isfrom their union that the eponymous ancestor of the hapū, Ruatakenga, is derived. Thewhakapapa provided by Mr Amoamo places Ruatakenga seven generations down fromNgāpoupereta and Rēpanga, while Walker, who gives a very similar version of events,48 At 28.49 At 4.12. Historian Bruce Stirling, commissioned by Ngāti Ira, states in his report thatNgapoupereta descends from the Rangimatoru waka. See Bruce Stirling Te Kāhui Takutai Moanao ngā whenua me ngā hapū o Te Whakatōhea: Historical Issues (January 2020) at [10].places Ruatakenga five generations down.50 Mr Amoamo was able to describe hisown whakapapa from Tautūrangi, down to the union of Hine-ī-kuia and Tūtāmure, toAporotanga, a tūpuna of Ngāti Ruatakenga who signed the Treaty of Waitangi, downto himself, as the thirtieth generation since Tautūrangi's arrival.[42] In her affidavit, Ms Hata emphasised the importance of understanding thewhakapapa of wai (water) stemming from Ranginui and Papatūānuku, in order toproperly understand the spiritual connection with the coast and whakapapa ofNgāti Ruatakenga themselves:The genesis of all forms of water, freshwater or saltwater is linked to thecreation story when Tane separated his parents Ranginui the sky father andPapatūāanuku the earth mother. When separated, the perpetual grief betweenthe two lovers is understood to be the first instances of water; rainfall isembodied as the tears of Ranginui for his wife, while the well springs and mistare the weeping of Papatūāanuku for her husband. It is this bond and spiritualconnection to Rangi and Papa that explains why iwi Māori have a closerelationship with the takutai moana.In the creation story of Rangi and Papa, the Sky Father and Earth Mother cametogether and begat over 70 children who eventually thrust their parents apartand populated the world. Each of the children became an atua or god in aparticular domain of the natural world. For example, Tangaroa, god of the sea,had a son called Punga. Punga then had two children: Ikatere, who becamethe ancestor of the fish of the sea, and Tūtewehiwehi, who became the ancestryof the fish and amphibians lizards of inland waterway. Māori are able to tracetheir ancestry back to Rangi and Papa and therefore there is an ancestralconnection. The responsibility to care, nurture and protect our primordialparents and their offspring (one of which is Tangaroa) is a tikanga orcustomary practice. Ngāti Rua can demonstrate how our customary practiceshave not only been exercised but also maintained since 1840 to the presentday.Ngāti Ira o Waiōweka[43] Ngāti Ira o Waiōweka, or Ngāti Irapuaia (known as Ngāti Ira for short) are ahapū that originally settled around the Waiōweka and Ōtara Rivers. Te Rua Rakuraku,a kaumatua and kaikōrero for Ngāti Ira, describes their tribal rohe moana as follows:5150 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 25.51 Alongside Mr Rakuraku, other witnesses who gave evidence of the Ngāti Ira whakapapa includedMs Hemaima Hughes, Mr Tama Hata, Ms Te Ringahuia Hata and Ms Anna-Marei Kurei. Othersgave useful evidence of the history and tikanga of Ngāti Ira.The Ngāti Ira rohe moana includes Te Moana a Tairongo, the Ōhiwa Harbour(and the islands within that Harbour) the Waiōtahe and Waiōweka river mouth,the Waiōtahe and Hikuwai Beaches and the eastern parts of Ōhope Beach.[44] In her affidavit, Ms Anna-Marei Kurei also summarised the tribal rohe ofNgāti Ira:Matiti is one of our many maunga within our rohe and stands on the westernside of our awa and marae. Our river, Waiōweka, which was originally calledte awa o Tamatea was named after our ancestor Tamatea Matangi whotravelled through it on his waka Tuwhenua giving names to landmarkssignificant to our rohe. Our awa begins at the conjoint of the Motu, Waiōwekaand Araroa river, runs through the Waiōweka gorge stretching out toPakihikura where it continues out to sea. Ōpeke is our marae where our wharetīpuna Irapuaia, and whare kai Kurapare continue to provide shelter andsustenance for our people and manuhiri. We are a hapū of Te Whakatōhea andMātaatua is one of our ancestral waka that carried our tīpuna Muriwai toAotearoa. Hira Te Popo is our Rangatira who was of great mana and influencein helping to build the economy and led our people into prosperity.Ngāti Ira presently occupy the area at the entrance to the Waiōweka gorge eastof Ōpōtiki, however, this was not always our primary area of occupation.Ngāti Ira were involved in battles that took place along the coastal area andalso occupied marae located on the western side of the Waiōweka river wherethe current bridge stands[45] Mr Rakuraku states that Ngāti Ira descend from four waka: Mātaatua,Nukutere, Rangimatoru, and Takitimu. In his amended application on behalf ofNgāti Ira, Mr Rakuraku also stated that Ngāti Ira descend from the Tuwhenua waka.52Mr Stirling (in his broader report for the Te Kāhui group of applicants) also observesthat the Tuwhenua waka descent line is through Tamatea Matangi, the husband ofMuriwai.53 The eponymous ancestor of Ngāti Ira is Irapuaia; the grandson ofTamatea Matangi and Muriwai.54[46] A number of the Ngāti Ira witnesses spoke of Hira Te Popo, an importanttūpuna and Rangatira for the hapū in the 19th century, and his involvement in the battleat Te Tarata. While giving evidence, Ms Hemaima Hughes noted that Hira Te Popowas the rangatira of Ngāti Ira during the time of the land confiscations at Ōhiwa andŌpōtiki between the 1840s and 1880s. Ms Hughes described how Ngāti Ira, as a hapū,52 Second Amended Application of Te Rua Rakuraku for Orders Recognising Customary Marine Titleand Protected Customary Rights CIV-2017-485-299, 5 August 2020 at [11].53 Te Kāhui Takutai Moana o ngā whenua me ngā hapū o Te Whakatōhea: Historical Issues,above n 49, at [10].54 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 166-167.were a thriving and self-sustaining community under his mana, occupying several pāall the way up Waiōweka river into the Tūranga District, but were severely displacedas a result of the Crown's actions in 1865.[47] Ms Anna-Marei Kurei described the battle at Te Tarata as follows:Our raupatu claim concerns the confiscation of approximately 165,247 acresof ancestral lands within the Ngāti Ira rohe following the Scorched EarthPolicy. Amongst that allegation are the assertion of the significant loss of lifeof Ngāti Ira men, women and children at the Battle of Te Tarata, October the4th 1865; the destruction of Te Tarata Pā at Orongoiti where the battle tookplace, the destruction of the Ngāti Ira flour mill in 1865, the loss of capital anddestruction of the economic base of rangatira Hira Te Popo and the peoples ofNgāti Ira following the hostilities inflicted on them. Actions of the Crown andits military force, the claimants allege, which were prompted by the killing ofReverend Volkner.[48] While giving evidence, Mr Rakuraku described from his own perspective theevents at Te Tarata:My mother is from Waiōweka. She was a direct descendant of Hira Te Popowho was the prominent rangatira for our people of Ngāti Ira during the 1800s.He fought courageously in the Battle of Te Tarata in October 1865 against theonly cavalry charge ever seen in the history of the New Zealand.I would like to just touch on that battle at Te Tarata. As far as we know,only 45 Ngāti Ira people were killed at Te Tarata. Yes, other hapū came in tohelp us. Ngāti Rua came in Ngāti Ngāhere came in. Ngai Tama came in tosupport Ngāti Ira. After a while they all went back to their – to their specificareas. Ngāti Ira was left there to fight Te Tarata. The sad thing aboutTe Tarata, the Crown and the Government already knew that Hira Te Popo andNgāti Ira had nothing to do with the killing of Reverend Volkner. But whenthey came in ka kite rātou i te momona o te whenua ā Ngāti Ira, when sawwhat was on the grounds of Ngāti Ira 'cos you would have heard by now howwe had market gardens, how we had animals, which Hira Te Popo used to taketo Auckland to the markets in Auckland. When they saw that by this time halfof them starving 'cos they had been sitting here on the coastal waters of – onthe mouth of our river. When they came in and saw what was on the land ofNgāti Ira of Hira Te Popo they thought they'd change. They wanted it, theytook it no matter what the cost was and that's the mamae here with the ō mātouō Ngāti Ira. [Interpreter: And that is the cause of the pain that Ngāti Ira feels.]Ngāti Patumoana[49] Ngāti Patumoana are a hapū of Whakatōhea that have strong links toNgāti Ngāhere,55 and derive their name from an incident that occurred at the mouth ofthe Waiōtahe River at or around 1830, where Hine-ī-ahua of Ngāti Ngāhere wascaptured by Ngāpuhi and killed at sea.[50] At the hearing, the whakapapa of this hapū was set out by Ms Te RingahuiaHata, who derived her evidence from a combination of sources, namely the researchof Ranginui Walker, and the whakapapa of her elder relative Tairongo Amoamo.Mr John Hata, kaumatua of Ngāti Patumoana, and Mr Tuariki John Delamere, formerrepresentative of the hapū on the Whakatōhea Māori Trust Board, also gave evidence.Ms Hata described the historical evolution of Ngāti Patumoana's rohe as follows:From the 1800s to the 1840s, Ngāti Patu had been operating separately fromNgāti Ngāhere during this period claiming Ruamoko as their tīpuna. By1850s, the hapū moved from Paerāta, Ahirau and Onekawa along the coast toOnehu, and along the Tutaetoko stream and the Otara river on the east withNgāti Ngāhere. They remained there up until the Hauhau disturbances in theearly 1860s.Ngāti Patu had exercised their customary rights over Ōhiwa since pre-1840due to Ruamoko. Ruamoko's territory from Waiōweka to Ōhope and ŌhiwaHarbour was the most valuable resource of kai in Ruamoko's rohe moana. Theboundary that Ruamoko established ran from Te Wana up the Kahūnui Streamto the Waiōweka river then followed the river northwards to the coastlinewhere the boundary ran west along Ōhope Beach then inland to Ōruakani.Key pā sites of significance are Onekawa pā, lrirangi pā and Paerāta. Therewere other areas and sites occupied by Ngāti Patu that were temporary sitesduring the fishing season in summer only. Then Ngāti Patu would moveinland back to their papakāinga along the Otara river in the off-seasons.Despite these movements, Ngāti Patu maintained our use and occupation ofour Rohe Moana from season to season and settlement to settlement.[51] Mr Hata noted that the original settlements of Ngāti Patumoana were atPaerāta, Ahirau, Waiōtahe, Onekawa and Ōpōtiki. The current rohe moana wasdescribed as aligning with other Whakatōhea hapū; being the area as defined by theland at Maraetōtara in Ōhope to Tarakeha in Ōpape.55 See Whakatōhea of Ōpōtiki, above n 3, at 87; Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea,above n 4, at 44.[52] Ngāti Patumoana descend from Tārawa, an early ancestor of Whakatōheadiscussed above, who came to the area on the Te Aratauta waka. Stirling also notesthat Ngāti Patumoana can claim descent from the Nukutere and Mātaatua wakathrough the union of Hine-ī-kauia and Tūtāmure.56 In her affidavit, Ms Hata discussedRuamoko, an important tūpuna for both Ngāti Ngāhere and Ngāti Patumoana.Ruamoko was the younger brother of Tahu (from whom Ngāti Ngāhere descend), bothof whom were the sons of Hau-o-Te-Rangi. Both Ruamoko and Tahu directlydescended from Tārawa. Walker observes that Ruamoko gained fame for his battleswith and victories over Te Whakatāne (who he describes as a hapū cohabiting the areaaround Paerāta, Waiōtahe and Ōhiwa at the time),57 which led to his control overterritory from Waiōweka to Ōhope, described as a "substantial estate rich inresources".58 Ruamoko was some four generations before Tiwai Pihama, who set outNgāti Patumoana and Whakatōhea's whakapapa in the Compensation Court, and wasgranted land at Ōhiwa spit, where Ōnekawa pā is located, as a result of an out-of-courtsettlement with Crown agent James Wilson.[53] All three witnesses also referred to Waiaua Marae as an importance locationfor Ngāti Patumoana. According to Mr Delamere, it was built in the late 1800s:The Ngāti Patumoana marae, Waiaua was established in the late 1800s afterthe atrocities of the war and raupatu.The brothers Apanui and Eria Tairua decided to build the marae forNgāti Patumoana. The land belonged to Te Ro-kī-ao of Ngāti Tama, the wifeof Mikaere of Ngāti Patumoana. Te Ro-kī-ao gave the land to her husband'shapū for the marae.The wharenui, Ruamoko, was completed in 1899 which sits at the base of themaunga Makeo.Ngāti Ngāhere[54] Although the hapū of Ngāti Ngāhere did not directly give evidence at thehearing, their whakapapa is discussed by Walker and Lyall. Lyall notes that Hau-o-Te-Rangi, a key ancestor for Ngāti Ngāhere was a descendant of both Tārawa and56 Te Kāhui Takutai Moana o ngā whenua me ngā hapū o Te Whakatōhea: Historical Issues,above n 59, at [11]. Lyall states that Hau-o-Te-Rangi, the father of Ruamoko, descended fromMuriwai.57 At 36-37.58 At 37.Muriwai,59 while Walker describes him as being seven generations removed fromTārawa, whose name, meaning divine wind was "highly evocative of the tapu, manaand prestige of a rangatira".60 According to Walker, Hau-o-Te-Rangi was regarded asthe founding ancestor of Ngāti Ngāhere, who succeeded the earlier Ngāi Tū hapū, aswell as having origins in Ngāti Kahu, a hapū that inhabited the forested interior ofWhakapau Pākihi.61[55] The origins of Ngāti Ngāhere's name appear to be somewhat contentious.Walker considers the name to have been derived from the fact that the hapū lived in aforested area:62A section of Ngāti Kahu took the name Ngāti Ngāhere after one of their chiefs,Te Ranituaiwa, died in the forest. Ngāti Ngāhere occupied the forested landsfrom the west of the Waiōweka River to the downlands of Paerāta so the name,meaning people of the forest, was highly appropriate for their territory.[56] Conversely, Lyall considers that the name arose from the death of Hau-o-Te-Rangi, who had been killed by Te Whakatāne, who suspended his body in a tree in aforest,63 with Ruamoko eventually avenging his father's death with his victory overTe Whakatāne, discussed at [52] above.Ngai Tamahaua[57] Ngai Tamahaua are a hapū located in and around Ōpape, east of the Ōpōtikitownship.64 At the hearing, a number of Ngai Tamahaua witnesses gave evidence,with Ms Tracy Hillier and Mr Hetaraka Biddle in particular focusing on the whakapapaof the hapū.[58] Mr Biddle deposed that Ngai Tamahaua have whakapapa back to Tārawa,being the earliest recognised ancestor from which the hapū descend. In his affidavit,he set out a pātere65 written by his brother placing Ngai Tamahaua within the area of59 At 77.60 At 34.61 At 34.62 At 34-35.63 At 79.64 Tracy Francis Hillier Amended application for order of recognition of customary marine title andfor protected customary rights of Ngai Tamahaua hapū (5 August 2020) at [5].65 A pātere is a rhythmic incantation.Ōpōtiki, and their whakapapa back to Tārawa. He noted that Ngai Tamahauaacknowledged Te Tapuwae ō Tārawa (The Footprint of Tārawa) as being part of therohe passed down to the hapū, which was set out in Mr Biddle's affidavit as follows:Beginning at Paerāta – along the Coast to Tawhitinui to the other side of theWaiōweka river to the township of Pa-Kowhai (Ōpōtiki) crossing to the otherside of Ōtarawa (Otara awa) to Oroi before heading inland to Motu, Motuhora,Pokaikai and Tapaona.[59] According to Mr Biddle, the early peoples of Ngai Tū were a descent group ofTārawa, from which Ngai Tamahaua eventually derived.66 Walker also notes that thepeople and descendants of Tārawa were known collectively as the Ngāi Tū hapū, downto the era of Hau-ō-Te-Rangi, ten generations down from Tārawa.[60] Ngai Tamahaua also have whakapapa to the Mataatua waka and Muriwai,through one of Muriwai's children, Rangikurukuru. According to Mr Biddle,Kura-a-whe-rangi, who married Tamahaua (the eponymous ancestor of the hapū) wasa direct descendant of Rangikurukuru. Mr Biddle noted that the whare tīpuna ofNgai Tamahaua's marae was named Muriwai in respect and acknowledgment of thisancestor.[61] A number of the Ngai Tamahaua witnesses referred to Tītoko as an importantRangatira and tūpuna in the whakapapa of the hapū, with Ngai Tamahua alsorepresenting Te Hapū Tītoko o Ngai Tama (the descendants of Tītoko) in theirapplication under the Act. Tītoko was famed for his leadership and ability in dealingwith inter-tribal conflict: he was able to procure firearms to negate the threat of raidsfrom Ngāpuhi and Ngāti Maru following the Musket Wars,67 and was responsible forencouraging the hapū of Whakatōhea to live together for greater security:68Once back at Ōpōtiki, Tītoko advised Whakatōhea to live together for greatersecurity. He built a pā name Te Papa on the west side of the Waiōweka Rivernot far from the location of the present bridge. Ngāti Ira, Ngāti Ngāhere,Ngāti Patu, Ngai Tama and Te Ūpokorehe helped with the construction ofTe Papa. Ngāti Rua also came from Tarakeha to strengthen their position66 During the hearing, Mr Te Amoamo also confirmed that Ngai Tamahaua, Ngāti Patumoana andNgāti Ngāhere all had whakapapa connections back to Ngāi Tū.67 Ōpōtiki-Mai-Tawhiti: Capital of Whakatōhea, above n 4, at 47-48.68 At 47.Te Ūpokorehe[62] Te Ūpokorehe are an iwi/hapū group based around the Ōhiwa Harbour. At thehearing, Mr Wallace Aramoana, a kaumatua of Te Ūpokorehe and Roimata Marae,presented a report authored by himself and Mr Lance Reha (also of Te Ūpokorehe).[63] Notably, Mr Aramoana's report (also emphasised in closing submissions forTe Ūpokorehe) focused on Te Ūpokorehe's connection to waka other than Mātaatua.Mr Aramoana noted:69By way of intermarriage, Te Ūpokorehe acknowledge our relationships to thedescendants of Mataatua and other waka. However these waka are notconsidered part of the principal descent lines of the whakapapa of theŪpokorehe peoples.[64] Instead, Mr Aramoana discussed three lines of descent for Ūpokorehe. Firstly,Ūpokorehe can show their descent back to Hapūoneone, the early peoples living in theWhakatōhea rohe, particularly the Ōhiwa Harbour area.70 According to Ūpokorehe,Hapūoneone are a distinct people from Te Tini-o-Toi, and were present in the area towelcome Toi when he arrived. Ūpokorehe consider 'Hapūoneone' to be representativeof a people, rather than a single tūpuna. Lyall also makes a similar comment as toTe Ūpokorehe's whakapapa and their connection back to the Mātaatua waka, notingthat "there is an element of Mātaatua origin", but also descent from Hapūoneone.71[65] Secondly, Ūpokorehe descend from the Rangimatoru waka, which wascaptained by Hape ki Tuarangi, and landed at Ōhiwa, with descendants of this wakaintermarrying with Hapūoneone.72 Hape was a famous navigator and was also knownas an accomplished carver of pounamu.[66] Finally, Mr Aramoana discussed the Oturereao waka, which arrived somegenerations after the Rangimatoru.73 The waka was captained by Tairongo, and landed69 Wallace Aramoana Ūpokorehe Iwi Marine and Customary Area: Traditional and CustomaryPractices and Sites of Significance (24 February 2020) at 5.70 At 5.71 Felicity Margaret Kahukore Baker, at 68. See also Mō āke tonu atu: Te Ūpokorehe Takutai MoanaOverview Report (17 February 2020) at 2.2.72 At 5.73 At 5.at Ōhiwa, with the harbour eventually being named Te Kete Kai a Tairongo (alsoknown as Te Moana a Tairongo).74 Over time, the descendants of Hapūoneone,Rangimatoru and Tairongo intermarried and became known as Te Whānau a Tairongo.[67] According to Mr Aramoana (and Ms Kahukore Baker, who gave evidence atthe hearing), Tairongo's daughter was Ani-i-Waho, an important tūpuna in theŪpokorehe whakapa, for whom the whare kai at Kutarere marae (one of the threemarae with Ūpokorehe whakapapa) is named.75 Ani-i-Waho appears to have marriedTuamutu, the son of Repanga and grandson of Tamatea and Muriwai. While beingquestioned by Ms Sykes during the hearing, although recording his concern as to theway the whakapapa presented to him was structured, Mr Aramoana acknowledged theconnection to Muriwai (and therefore Mataatua) through the marriage of Tuamutu andAni-i-Waho.[68] From Ani-i-Waho descended Raumoa, from whom the descendants ofTe Whānau a Tairongo, known as Ngāti Raumoa, were named (Ngāti Raumoa werelocated at Ōhiwa and Waiōtahe, as well as at Waimana).76 Mr Aramoana alsodiscussed Panekaha as a principal descendant and leading rangatira of Te Whānau aTairongo at Ōhiwa, setting out his whakapapa as follows:77Another principal descent line of Te Whanau-a-Tairongo is that of Panekaha,a leading Chief at Ōhiwa. His daughter Rangi-paroro married Rongopopoia,son of Rongowhakaata and Uetupuke. Kahuki, grandson of Panekaha and sonof Rongopopoia and Rangi-paroro grew to be a famed War Chief who soughtrevenge for the killing of his father Rongopopoia. In doing so, his Mana andactions cemented many historical place names in and around the Ūpokoreherohe, or tribal area.[69] Kahuki appeared to be a key leading/unifying figure for the people of Ōhiwaat the time. Walker states that after Kahuki returned from exacting revenge onTuamutu (who Walker names as the person responsible for killing Kahuki's fatherRongopopoia),78 he gathered the peoples living in the area under his mana:7974 At 5.75 At 40.76 At 5.77 At 5.78 At 33.79 At 34.Kahuki returned to Waiōtahe and built a strongly fortified pā close to theWaiōtahe River. He gathered all sections of Te Whakatāne and unified themunder his mana. His own hapū, Te Panekaha, moved to Waiōtahe from wherethey had been living on the other side of Ōhiwa. Kahuki defined the westernboundary of his territory at Ōhope. The boundary ran inland from Ōhopesouthwards along the ridgeline to Te Teko, then on to Paetawa, to Tuanui then,swinging back east, to Rangakapua, to Te Wana and ended at Kaharoa.[70] Lyall's view is that the name "Ūpokorehe" originated from the time ofKahuki.80 Mr Aramoana did not explicitly state that the name originated from thistime but noted that: "following the death of a man known as Taikurere, the descendantsof Ngāti Raumoa became known as "Te Ūpokorehe".81 From then on, those in theŌhiwa, Waiōtahe and surrounding lands and south to Te Kaharoa became known asTe Ūpokorehe". Walker describes the origin of the name as follows:82The name Ūpokorehe (wrinkled head) refers to a man named Taikūrere whosehead had been preserved by smoke-drying. A mistake was made in the processwhen the skin at the base of the neck was not kept taut while it was stitchedtogether. Consequently the skin on the head wrinkled up. In another versionof the name's origin, Taikūrere's head was dropped in the sea. By the time thehead was recovered the skin was found to be 'reherehe', torn and made raggedby crabs.[71] During the hearing, Mr Reha summarised the evolution of the name:So to sum that up, as I was told, the history of Ūpokorehe dates back toTe Hapūoneone. After time it shifted in to Te Whānau-a-Tairongo. Then itmorphed or transformed in the time of Tairongo's grandson to Ngāti Raumoa.It was only after an incident that occurred with the tīpuna Taikurere that thename changed from Ngāti Raumoa to Ūpokorehe. But we are the samepeople.Neighbouring iwi[72] Finally, I will briefly describe the neighbouring groups of Whakatōhea andTe Ūpokorehe who appeared in this hearing, and their relationship to Whakatōhea.These groups are:(a) Te Whānau-a-Apanui;80 At 5. Mr Reha took a similar view in his affidavit.81 At 68.82 At 168-169.(b) Ngāi Tai; and(c) Ngāti Awa.[73] Te Whānau-a-Apanui are a neighbouring iwi (or confederation of 12 hapū) ofWhakatōhea on the eastern boundary. They are an interested party in the Whakatōheaproceeding, with its main focus concerning its intention to protect what it considers tobe a primary customary interest in Whakaari. Mr Te Kou Rikirangi Gage, the ChiefExecutive Officer of Te Rūnanga o Te Whānau, provided affidavit evidence of theWhānau-a-Apanui whakapapa and rohe to the Court on behalf of his iwi.[74] While Te Whānau-a-Apanui have no overlapping boundaries withTe Whakatōhea (aside from the overlapping interests in Whakaari), they have somewhakapapa connections to the iwi. Mr Gage specifically noted the connection ofTe Whānau-a-Apanui to Toi, who he referred to as the "tāhuhu" or "backbone" thatlinks all the iwi from Whakatāne through to Ngāti Porou. Mr Gage also referred toToi as the "foundation" ancestor for the mana over the iwi's moana and whenua, andhis descendants being attributed as key primary ancestors, also being sources of manaof the iwi's tribal territories. Mr Gage also referred to Te Whānau-a-Apanui'sconnection to Ngariki, as well as to Mataatua and Muriwai through the marriage ofHinemahuru's (the grandmother of Apanui Ringamutu, the eponymous ancestor ofTe Whānau-a-Apanui) son Taikorekore to Kawe-kura-tawhiti (a descendant ofMuriwai) and Uhengaparaoa (also a descendant of Muriwai) to Rakaipikirarunga.[75] Te Whānau-a-Apanui assert primary customary interests in Whakaari due tocustomary transfer – Mr Gage described this as follows:Te Whānau a Te Ehutu, and Te Whānau a Tukāki owned Whakaari. They werethe last owners of the island according to Maori customary law. Whakaariwas originally owned by Ngāti Awa. The island was given to Te Whānau a TeEhutu and Te Whānau a Tukāki as "utu" or compensation for traveling toWhakatane at the behest of Purahokino a Ngāti Awa chief to avenge the deathof his beloved son Te Whakapakina.Te Whakapākina had been killed by a neighboring faction of that tribe. Insituations where intra-tribal killing took place, it was customary (andstrategic) to invite a third party, a party not too closely related to intercede aspart of "utu" process. This avoided the spiralling out of control of killings ifthe broader tribal network became involved in the utu.In the above situation, Te Ehutu and Te Whānau a Tukāki grouping met thebill - they were related but not too close. This also happened another timewhen two Ngāti Awa hapū (lkapuku and Taiwhakaea) travelled fromWhakatāne all the way to Hāwai in the Te Whānau a Apanui territory to settletheir scores. A saying is remembered by Te Whānau-a-Apanui as on thatoccasion, when the forces eventually shaped up to each other, the lkapukufaction who were joined by some Te Whānau-a-Apanui kin called out to theother side "Tera pahi roa ki tenei pahi poto" the appellation "Te Pahipoto"remains with the people of Kōkōhinau to this day.[76] Ngāi Tai are a neighbouring iwi of Whakatōhea, located to the east, fromTarakeha along the coast to Hāwai, the area in which they hold mana whenua.83[77] Mr Arapeta Mio was one of the witnesses that gave evidence for Ngāi Tai. Hedescribed the arrival of Tainui to New Zealand, captained by Hoturoa. Tōrere-nui-a-rua, a daughter of Hoturoa, also travelled to New Zealand on the Tainui waka, andmarried Manaakiao, who according to Mr Mio, descended from Te Tini-o-Toi(indicating Ngāi Tai's connection to these early people of the area).[78] Mr Mio described Tōrere's journey, marriage to Manaakiao and their setting ofthe traditional rohe for Ngāi Tai:When Tōrere Nui A Rua left the islands she gathered sands and stones fromhome and brought it with her. When she got here to Tōrere she sprinkled thesand and stones out here. That started a special connection to the rohe that herdescendants, the people of Ngāi Tai, continue to have today.Tōrere Nui A Rua then travelled inland following the Wainui River to her firstresting spot, Hawaiki. That is where some of her kumara and taro wereplanted. She travelled on from there coming to a track inland entering into thebush. That place is known as Maraetaha. There she performed karakia to hideher path and continued travelling up the river to a place where she decided tobathe. While she was doing that a person from that area came and saw her,his name was Manaakiao. Manaakiao was from Te Tini o Toi. He took herhome and she agreed to marry him.At that time Tōrere and Manaakiao laid down the boundary for our Ngāi Taipeople. The boundary extends from Tokoroa which is our rock in the sea downto the East, to Te Ana o Hinetekahu. Then you ascend to the top of a hill calledRakaukatihi. From Rakaukatihi you go to Ōtaitapu then to Pukehou. FromPukehouto Puketoitoi to Te Pāretu, these are all peaks. From Te Pāretu thereis a stream that goes towards the Motu River called Mangakirikiri. From thereyou follow the Motu River inland to a place called Te Paku. From Te Paku to83 See Application by Muriwai Jones on behalf of Ngāi Tai Iwi, Te Uri o Ngāi Tai(CIV-2017-485-270) and Ririwhenua (CIV-2017-485-272) (2 April 2017).Tawharenga and on to Tahinahina to te wahapu o Takaputahi. FromTakaputahi to Peketutu then onto Taungakakariki to Maramauku to Te Rere oKaitaura to Taumata Karete. Then you go on to Te Rewa Onukuroa,Tahunatoroa, Papamoa, Mangakakaho, Te Ropiha to Hanaia to Tirohanga.From Tirohanga to Tokangawekaweka to Turangaanui then returning alongthe coast to Tokaroa. Our tīpuna Wetini Taku gave this korero to the MāoriLand Court.[79] Ngāti Awa are a neighbouring iwi on the western boundary of Whakatōhea'srohe. It is also an interested party that seeks to address or oppose any overlappingclaims, specifically between Maraetotara and Ōhiwa Harbour, and Whakaari.84 A briefof evidence given by Sir Hirini Moko Mead, Hohepa Mason, and Te Kei Meritoprovided detailed evidence of Ngāti Awa's whakapapa and tribal rohe, particularlytheir interests in the three abovementioned overlapping areas.[80] In terms of Ngāti Awa's whakapapa, the brief stated that the Ngāti Awatraditions begin with Maui and Tiwakawaka, arriving on the Te Aratauwhāiti waka andestablishing a settlement at Kākahroa (Whakatāne). Ngāti Awa also descended fromToi (termed as Toi Te Huatahi), who formed the people of Te Tini-o-Toi, discussedabove.85 Toi's son, Awanuiārangi I, occupied territory from Whakatāne to Ōhiwa, andhis people became known as Te Tini o Te Awa, an early formation of Ngāti Awa.According to the brief, a number of other groups stemmed from Te Tini-o-Toi,including Hapūoneone, Te Wakanui, Panenehu and Ngariki.86 Ngāti Awa also has aconnection to the Mataatua waka.[81] In relation to Ōhiwa, Ngāti Awa assert a longstanding connection to theharbour, as asserted in the brief:The name Ōhiwa was given to the area by Awanuiārangi II. From Paparoa pā,he proclaimed that the land and sea before him was the "standing platform" ofAwanuiārangi. The full name is Te Ohiwa o Awanuiārangi in Ngāti Awatradition. The taniwha/guardian of Ōhiwa is Tutara Kauika who is physicallymanifested as a shark.Ngā Ariki would then become one of the principal groups occupying aroundŌhiwa. In time, Ngā Ariki became the Ngāti Awa hapū, Ngāti Hokopu andTe Wharepaia. They maintained prominence in the Ōhiwa and Ōhope regionsupported by Ngāti Awa whānui.84 See Te Rūnanga o Ngāti Awa on behalf of Ngāti Awa CIV 2017-485-196 (29 March 2017).85 At [41].86 At [45].[82] In relation to Whakaari, Ngāti Awa also assert strong connections to Whakaari,as discussed in the brief of evidence:Ngāti Awa hold strong connections to Whakaari (White Island). Whakaari washeld by Ngāti Awa Rangatira Wepiha Apanui and Te Keepa Toihau and wassubsequently awarded by the Native Land Court to Retireti Tapsell andKatherine Simpkins (his wife) following an examination in the Native LandCourt of purported ownership rights transferring to Tapsell. Our kōrero,supported by our research, confirms that this transaction was unlikely to havebeen one that took the form of a transfer of property but rather an allowanceto use the land. Whakaari remains in private ownership.