NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2022] NZHC 843

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2022] NZHC 843 [28 April 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-2033[2022] NZHC 843UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesBETWEEN NGĀTI WHĀTUA ŌRĀKEI TRUSTPlaintiffAND ATTORNEY-GENERALFirst DefendantHearing: 9 February–30 April 2021 (weekdays except 12, 15–19 February,1–5 March, 1–2, 5–6, 14–16, 19–20, 29 April 2021) withadditional submissions on 21 and 24 May, 5, 12 and 17 November2021 and 21 and 28 January 2022Appearances: J E Hodder QC, J W J Graham and R M A Jones and E Kapa-Kingi for the plaintiff and for Te Runanga o Ngāti Whātua andNgāti Whātua o Kaipara, interested partiesD A Ward, G H Allan, Y Moinfar-Yong and N J Ellis for the firstdefendantP F Majurey for the second defendantA H C Warren, R A Siciliano, D T Ketu, K M Katipo for the NgāiTai ki Tāmaki Trust, interested partyN R Coates, L A V Underhill-Sem and A O Houia-Ashwell forTe Ākitai Waiohua Settlement Trust, interested partyM K Mahukia, T N Hauraki and C Conroy-Mosdell for the NgātiPāoa Iwi Trust, interested partyT D Smith and J M Te Rata for Ngāti Kuri Trust Board and NgāiTe Rangi Settlement Trust, intervenersJudgment: 28 April 2022JUDGMENT No 4 OF PALMER JThis judgment was delivered by me on Thursday 28 April 2022 at 10 am.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarAND MARUTŪĀHU RŌPŪ LIMITEDPARTNERSHIPSecond DefendantTE RŪNANGA O NGĀTI WHATUAInterested partyNGĀTI WHĀTUA O KAIPARAInterested partyNGĀTI PĀOA IWI TRUSTInterested partyNGĀI TAI KI TĀMAKI TRUSTInterested partyTE ĀKITAI WAIOHUA SETTLEMENTTRUSTInterested partyNGĀTI KURI TRUST BOARDIntervenerNGĀI TE RANGI SETTLEMENT TRUSTIntervenerContentsI Summary ........................................................... Error! Bookmark not defined.A The Ngāti Whātua Ōrākei claim 1B Responses to Ngāti Whātua Ōrākei 6C Tikanga 10D Mana whenua in Tāmaki Makaurau 15E Treaty Settlements and overlapping interests today 20F Tikanga obligations in settling Treaty claims 22G Result 28II The parties and issues .................................................................................. 30A These proceedings 30B The parties 32C The issues and hearing 34III Ko Ngāti Whātua Ōrākei tēnei ................................................................... 37A Origins 38B The great migration from Muriwhenua to Kaipara 40C Ngāti Whātua v Nga Iwi 40D The 18th century raupatu or conquest of Tāmaki 42E The connections established as a result of the raupatu 45F Ngāti Whātua and Ngāti Whātua Ōrākei 46G Ngāti Whātua Ōrākei until the 1820s 48H Strategic withdrawal in the 1820s 49I Ngāti Whātua Ōrākei and the Crown 54J Ngāti Whātua Ōrākei and the Native Land Court 61K Ngāti Whātua Ōrākei become landless 65L The Ngāti Whātua Ōrākei claim to mana whenua in Tāmaki Makaurau 66IV Responses to Ngāti Whātua Ōrākei ............................................................ 71A The Marutūāhu Rōpū response to Ngāti Whātua Ōrākei 71B The Ngāti Pāoa challenge to Marutūāhu 80C The response of Ngāi Tai ki Tāmaki 91D The response of Te Ākitai Waiohua 98E The Crown's comments 108F The position of Ngāti Kuri and Ngāi Te Rangi 110G Historical experts 111H Pūkenga 113V Tikanga........................................................................................................ 117A What is tikanga? 117B Tikanga across iwi 124C The legal status of tikanga 131D The Court's role regarding tikanga 148E How should the Court approach tikanga? 155F The standard of proof of tikanga 158VI Mana whenua in Tāmaki Makaurau........................................................ 163A Historical evidence 163B The historical basis of mana whenua at Ngāti Whātua Ōrākei tikanga 167C Mana whenua in Tāmaki Makaurau at tikanga Māori 176D Declarations about mana whenua 191VII Treaty settlements and overlapping interests today ............................. 198A Bastion Point and specific Treaty settlements of Ngāti Whātua Ōrākei 198B The 2006 Ngāti Whātua Ōrākei AIP and the Waitangi Tribunal 200C Collective and individual settlements in Tāmaki Makaurau 204D The Crown's policy on overlapping interests 214E Illustrative examples of the application of Crown policy 231VIII Tikanga obligations in settling Treaty claims in Tāmaki Makaurau .. 247A An overview of the submissions 247B Jurisdictional parameters 249C Tikanga and the Crown's prerogative or residual powers 251D Tikanga and the Treaty of Waitangi 253E The Treaty and the law 258F Tikanga obligations in Treaty settlements 261G Other sources of legal duties 265H Tikanga and the Crown's Overlapping Interests Policy 266I Tikanga and Treaty settlements in Tāmaki Makaurau 273J Declarations about Crown obligations regarding tikanga 276IX Result ................................................................. Error! Bookmark not defined.ANNEX OF SHORT FORM REFERENCE TAGS1I Summary[1] Ngāti Whātua Ōrākei seek a declaration from the Court that they have ahi kāand mana whenua in relation to specified land in central Tāmaki Makaurau (Auckland)at tikanga.1 They also seek declarations about how that means the Crown must act inrelation to that land when settling claims of other iwi of breaches of the Treaty ofWaitangi. Ngāti Whātua o Kaipara and Te Rūnanga o Ngāti Whātua support NgātiWhātua Ōrākei. Ngāti Pāoa, Ngāti Kuri and Ngāi Te Rangi support aspects of theNgāti Whātua Ōrākei case. Other iwi from the Marutūāhu Rōpū, Ngāi Tai ki Tāmakiand Te Ākitai Waiohua oppose the Ngāti Whātua Ōrākei claim to ahi kā and manawhenua. The Crown opposes the Ngāti Whātua Ōrākei claim altogether.[2] The 11-week hearing at the Auckland High Court involved oral evidence from35 pūkenga (experts in tikanga), experts in history, tribal witnesses and Crownofficials. Two successive Ministers of Treaty of Waitangi Negotiations providedaffidavits. The documentary evidence is also extensive. There was a hikoi fromŌrākei for the opening of the Ngāti Whātua Ōrākei case. Kiingi Tuuheitia andWaikato-Tainui attended for the opening of the Ngāi Tai ki Tāmaki case. The hearingwas live-streamed and I deliver this summary of the judgment orally. The issues areground-breaking and concern history, tikanga, the Treaty settlement process, and theextent to which the Court should intervene in all of those arenas.A The Ngāti Whātua Ōrākei claim[3] The claim of Ngāti Whātua Ōrākei is based on evidence by Te KurataiahoKapea, Taiaha (Lance) Hawke, Margaret Kawharu, Ngarimu Blair, Tāmati Kruger,Paul Meredith, Charlie Tawhiao, Dr Vincent O'Malley and Professor David Williams,and published and unpublished scholarly works, including those by Professor Sir HughKāwharu. I set out a lengthy summary of the story of Ngāti Whātua Ōrākei as theyexpress it, directed towards showing their mana whenua in the Tāmaki isthmus basedon their tribal history, traditions and tikanga. The tribal history, traditions and tikanga1 Ngāti Whātua Ōrākei is a collective entity, of course. But I prefer not to refer to Ngāti WhātuaŌrākei, or other iwi or hapū, as "it". I refer to an iwi or a hapū as a singular "they" in this judgment.2of Ngāti Whātua Ōrākei do not need approval or disapproval by the Court. Neither dothe tribal histories and traditions and tikanga of other iwi, aspects of which I outlinelater.[4] From the descendants of the waka Māhuhu and Kurahaupō at Muriwhenua,tūpuna of Ngāti Whātua Ōrākei migrated to the north of the Kaipara, acquiring thename Te Taoū in battle. Around the 1600s, they came into conflict with Ngā Iwi onthe south of the Kaipara Harbour. They were led by Haumoewārangi, who was killedwith his daughter Rangiteipu. Kāwharu then led the Raupatu Tīhore of Ngā Iwi (thestripping conquest) from the Kaipara to Tāmaki. Kāwharu was eventually killed. Ageneration on, Ngāti Whātua and Te Taoū conquered Ngāi Iwi and settled in SouthKaipara, with dominion from Maunganui Bluff to Kaipara Harbour.[5] Around 1740, Kiwi Tāmaki of Te Waiohua, based in Maungakiekie (One TreeHill), had undisputed mana over many people and several settlements in TāmakiMakaurau, including mana whenua in relation to the area over which Ngāti WhātuaŌrākei claim it today. Kiwi Tāmaki launched a surprise attack on Ngāti Whātua inKaipara. Te Taoū and other Ngāti Whātua hapū, led by Tuperiri, attacked Waiohua.Wahaakikai killed Kiwi Tāmaki at Paruroa (Big Muddy Creek). Later, Te Taoū tookpā in from the southern shores of Waitematā to Kohimarama, then Tokapurewha,Whakatakaka, Ōrākei, Taurarua, Maungakiekie and then in Māngere. Ngāti WhātuaŌrākei say this was a comprehensive raupatu that resulted in a total change to politicaldominance in Tāmaki Makaurau.[6] The name Ngāti Whātua, originally the name of one hapū, was adopted as aname for all hapū from Maunganui Bluff to Tāmaki in the 1800s. Te Taoū, Ngāohoand Te Uringutu are the three hapū comprising Ngāti Whātua Ōrākei.[7] A section of Te Taoū under Tuperiri stayed in Tāmaki occupying Maungakiekie(One Tree Hill), Onewa, Te Tō (Freeman's Bay), Onehunga, Ōrākei, the upperWaitematā, Māngere and Ihumātao. Ngāti Whātua Ōrākei say an integral part of theraupatu was establishing new links with those whom Te Taoū had conquered. Thechildren of Tuperiri married into Te Waiohua, in particular into Ngāti Te Ata. Theyhave connections through marriage with Ngāti Pāoa. Ngāti Whātua Ōrākei accepts3that some Waiohua people survived, stayed and intermarried with Ngāti WhātuaŌrākei but maintains they did so under the political influence of Ngāti Whātua Ōrākei.They say they held sway from Maunga-nui Bluff to the Manukau Heads and eastwardsto the Tāmaki River. By the beginning of the 19th century, their main residences wereat Ihumātao and Māngere but they had significant cultivations at Ōkahu Bay and alongthe shores of the Waitematā. Early European encounters attest to the dominance of TeKawau, as leader of Ngāti Whātua Ōrākei, in Tāmaki Makaurau west of the TāmakiRiver.[8] From 1821, Ngāpuhi attacked iwi in Tāmaki Makaurau, including Ngāti Pāoaand Ngāti Whātua, with many muskets. From 1826, Ngāti Whātua Ōrākei made astrategic withdrawal from the Tāmaki isthmus, as had other iwi. They relocated toWaikato but maintained their customary connections with the area over which theyclaim mana whenua. Ngāti Whātua Ōrākei began their permanent return to the Tāmakiisthmus in late 1835, protected by the long-standing alliance between Te Kawau andTe Wherowhero of Waikato.[9] By the spring of 1837, Ngāti Whātua Ōrākei were planting gardens at Horotiu(Queen Street) and Remuera. A chapel was built at Ōrākei and hui were held,including at Ōrākei and Ōkahu Bay, to coordinate defence and cultivations. Other iwialso returned to the Tāmaki isthmus but Ngāti Whātua Ōrākei say they did not returnnot to the area over which Ngāti Whātua Ōrākei claim mana whenua. Ngāti Pāoa werein the Hauraki Gulf. Ngāi Tai ki Tāmaki were to the east in Maraetai and had interestsin Clevedon and Papakura and some of the Hauraki Gulf islands. Ngāti Te Ata, NgātiTamaoho and Te Ākitai Waiohua ringed the southern shore of the Manukau Harbourup to the western Māngere peninsula. Te Kawerau ā Maki were to the west inWaitakere and had a pā at Onewa and claims to occupational rights on the North Shore,alongside Ngāti Pāoa and Ngāti Whātua Ōrākei. Ngāti Whātua Ōrākei say theycontinue to recognise the interests of these iwi in modern times.[10] By 1840, Ngāti Whātua Ōrākei say they had resumed the exercise of politicalauthority from their principal kāinga between Māngere and Onehunga throughMaungakiekie to the Waitematā, with Te Kawau permanently based at Ōrākei. TeKawau signed the Treaty of Waitangi in March 1840. He was eager to form an alliance4with the Crown including for protection and trade purposes. In April 1840 he sent adelegation to invite Lieutenant-Governor Hobson to relocate the capital to the shoresof the Waitematā, which was accepted. In September and October 1840, Ngāti WhātuaŌrākei transferred 3,500 modern acres of land to the Crown, starting from the riverMataharehare at what is now Hobson Bay, and continuing along the Waitematā to theriver Ōpoutūkeha (or modern Cox's Bay) and then from both points to the summit ofMaungawhau (Mt Eden). This transfer enabled the establishment of what is now theheart of Auckland city, which was formally established on 18 September 1840.[11] Ngāti Whātua Ōrākei transferred two further blocks to the Crown in 1841 and1842: 13,000 acres from Ōrākei, down what is now Manukau Rd, to Maungakiekiethen to Puketāpapa (Mt Roskill) to the portage at Te Whau in 1841; and 200 acres ofa triangle from Royal Oak, Three Kings to Maungakiekie. Ngāti Whātua Ōrākei saythese were all tuku whenua, requiring utu or reciprocity, the start of a mutuallybeneficial and enduring relationship with the Crown. Ngāti Whātua Ōrākei furthertransacted land directly with Pākehā settlers and transferred land at Pukapuka to Kati,Te Wherowhero's brother and at Remuera/Epsom to Wetere of Ngāti Maoho, NgātiTamaoho and Ngāti Te Ata.[12] By the 1850s, Ngāti Whātua Ōrākei had only 700 acres at Ōrākei. They saythey expressed loyalty to the Crown, supplied produce and worked on buildingprojects, formed an alliance with the Anglican Church, encouraged dispute resolutionthrough the courts, acted as an intermediary between the Crown and the Kiingitanga,and hosted the 1860 Kohimarama Conference. But the Crown failed to reciprocate.By the mid-1860s Ngāti Whātua Ōrākei and others were becoming disillusioned anddisheartened with any alliance with the Crown. In 1866, and again in a comprehensivejudgment in 1869, the Native Land Court confirmed the rights of Ngāti Whātua Ōrākeiover the Ōrākei Block and roundly rejected the claims of Heteraka Takapuna of NgāiTai ki Tāmaki. Ngāti Whātua Ōrākei did their best to stop the loss of land but itcontinued. By early 1950 they were virtually landless due to sustained compulsoryand sometimes unethical acquisitions by the Crown. In 1952, the Crown forciblyevicted the remaining Ngāti Whātua Ōrākei inhabitants from their homes and burnttheir village and meeting house at Ōrākei.5[13] On the basis of their tribal historical narrative and traditions, Ngāti WhātuaŌrākei claim mana whenua in Tāmaki Makaurau, in the area depicted in Map 1.Map 1: The area over which Ngāti Whātua Ōrākei claim mana whenua[14] Ngāti Whātua Ōrākei do not seek ownership of the land but a declaration oftheir mana whenua in terms of tikanga. Ngāti Whātua Ōrākei say this is their heartlandor core rohe, since Tuperiri's raupatu in 1740, where they have maintained their ahi kāand mana whenua to this day. The claim of Ngāti Whātua Ōrākei is based on severaltake, or rights and responsibilities to land: take raupatu from the raupatu and taketupuna from intermarriage, followed by ahi kā roa – keeping the fires lit, or inter-generational occupation, use and permanent control. Ngāti Whātua Ōrākei say theirmana whenua is not shared with other iwi. Ngāti Whātua Ōrākei recognise many6groups have important historical and customary interests in certain parts of the areaand acknowledge their obligations to acknowledge and look after those interests attikanga. But Ngāti Whātua Ōrākei say no other group have a credible basis for anequivalent claim to mana whenua in this area at tikanga. This, say Ngāti WhātuaŌrākei, is entirely consistent with the relevant general principles of tikanga Māori. MrHodder QC, for Ngāti Whātua Ōrākei, seeks a declaration accordingly.B Responses to Ngāti Whātua Ōrākei[15] The Marutūāhu Rōpū is a confederation of five closely related iwi of the Tainuiwaka: Ngāti Maru, Ngaati Whanaunga, Ngāti Tamaterā, Ngāti Pāoa and TePatukirikiri. They are independent iwi who cherish their mana motuhake. They aremobile maritime peoples, moving between settlements and cultivations connected bymoana (the sea or water). Marutūāhu Rōpū claim their iwi have customary interestsor mana in central Auckland.[16] Marutūāhu Rōpū do not challenge the identity of Ngāti Whātua Ōrākei beingcentred at Ōrākei. But they dispute a number of aspects of the historical narrative ofNgāti Whātua Ōrākei. For example, in their traditions, a wedding gift from Waiohuaaccounted for the arrival of Ngāti Pāoa on the isthmus and Ngāti Pāoa and Marutūāhuhad their own tradition of their raupatu of Waiohua. Ngāti Pāoa lived in many pā andkāinga in Tāmaki through the 18th and 19th centuries until the battles with Ngāpuhi.Ngāti Whātua was protected while sheltering in the Waikato in the 1820s byMarutūāhu, who returned first to the isthmus. Ngāti Whātua Ōrākei was givenpermission by Ngāti Pāoa to settle at Ōrākei. Marutūāhu Rōpū called as witnesses:Tipa Compain, Terrence McEnteer, Liane Ngamane, William Peters, David Taipari,Harry Mikaere, Hauāuru Rawiri, Walter (Wati) Ngamane, Dr Korohere Ngāpō,Morehu Wilson and Professor Michael Belgrave. I record with sadness that LianeNgamane and Morehu Wilson have passed away since the hearing.[17] Mr Majurey, for Marutūāhu Rōpū, acknowledges that the tikanga of NgātiWhātua Ōrākei does not admit of shared customary interests or mana in centralAuckland. But he submits this is not the tikanga of any other Tāmaki tribe in theproceeding. In Marutūāhu tikanga, even marae and urupā are often shared. He7submits the absence of recognition by any iwi of the mana whenua of Ngāti WhātuaŌrākei is significant in terms of tikanga. It is unsafe to rely on the decisions of theNative Land Court. He submits it is open to the Court to find that the Ngāti WhātuaŌrākei claim of exclusive ahi kā and mana whenua is not made out over every inch ofthe claim area.[18] Several of the issues with the historical narrative of Ngāti Whātua Ōrākei thatare raised by Marutūāhu Rōpū rely on the location of activities and settlements ofNgāti Pāoa as one of their constituent iwi. But Ngāti Pāoa Iwi Trust appears separatelyin these proceedings. While Ngāti Pāoa has close whakapapa connections toMarutūāhu, Pāoa himself was not a descendant of Marutūāhu. By the beginning ofthe 19th century, the largest settlements of Ngāti Pāoa were in Tāmaki but they weredriven out by the attacks by Ngāpuhi in the 1820s. On their return, Ngāti Pāoa madea peace pact with Ngāti Whātua Ōrākei, sealed by marriage settlements and gifts, atŌkahu Bay in the 1830s. They settled around the eastern coast from Mission Bay andSt Heliers to the Panmure Basin. In the 1860s, loyal to the Kiingitanga, they wererendered almost landless. Ngāti Pāoa called Ted Andrews, Glen (Joe) Tupuhi andHayden Solomon as witnesses.[19] Mr Mahuika, for Ngāti Pāoa, submits it is not the case that where one iwi ofMarutūāhu were, all were. He submits it is not correct as a matter of fact or tikangathat the Marutūāhu collective subsumes the interests of Ngāti Pāoa or can claimsignificant interests in Tāmaki independently of Ngāti Pāoa. Mr Mahuika submits itis solely or primarily through the interests of Ngāti Pāoa that the Marutūāhu Rōpūclaims an interest in the 1840 transfer lands and the land over which Ngāti WhātuaŌrākei claims mana whenua. Ngāti Pāoa oppose the position of Marutūāhu Rōpū.[20] Ngāti Pāoa support the rights declarations sought by Ngāti Whātua Ōrākei tothe extent they are consistent with the Kawenata Tapu and Conciliation Agreementwhich Ngāti Pāoa and Ngāti Whātua Ōrākei entered at Ōkahu Bay in January 2017, ina tikanga consistent process. Ngāti Whātua Ōrākei acknowledges that Ngāti Pāoa has"lead mana whenua interests" in the east of Auckland and on the North Shore. NgātiPāoa recognises that Ngāti Whātua Ōrākei has "lead mana whenua interests" in centralAuckland. No one disavows the Kawenata or questions its validity at tikanga. The8evidence is that Ngāti Pāoa and Ngāti Whātua Ōrākei have reached agreement attikanga over their respective mana whenua. Ngāti Pāoa does not deny that Ngāi Taiki Tāmaki and Te Ākitai Waiohua have interests that extend into the area over whichNgāti Whātua Ōrākei claim mana whenua but leaves that to them to address.[21] Ngāi Tai ki Tāmaki trace their ancestry from ancient pre-waka peoples knownas Patupaiarehe, among others, and welcomed the Tainui waka, some crew membersof which settled among them. They say the historical narrative is far from certain withconflicting evidence about several issues. They suggest the killing of Kiwi Tāmakiand raupatu was an intra-tribal fight between close relatives who both held theirinterests in Tāmaki through their Te Waiohua whakapapa. They question whetherNgāti Whātua Ōrākei maintained undisputed control over the Tāmaki isthmus after theattacks. They say the Ngāti Rau hapū remained on the isthmus throughout the periodof Ngāpuhi attacks. They say there is uncertainty about the significance of the returnof Ngāti Whātua Ōrākei to Tāmaki under the mana of Te Wherowhero. They say theycontinue to exercise kaitiaki responsibilities in the area at issue, which is the heartlandof Ngāi Tai ki Tāmaki based on whakapapa. Ngāi Tai ki Tāmaki called four witnesses:James Brown, Te Warena Taua, Dr Te Kahautu Maxwell and Peter McBurney.[22] Mr Warren (as he then was), for Ngāi Tai ki Tāmaki, submits the definition ofahi kā and mana whenua over every inch of whenua claimed by Ngāti Whātua Ōrākeicannot be sustained. If any tribe dominated following the death of Kiwi Tamaki, itwas the forebears of Heteraka Takapuna and his relatives who descended from Hua oKaiwaka and Ngāi Tai ki Tāmaki. Many tribes have and share mana whenua in thearea. The concept of ahi kā has naturally evolved over time to meet the changingcircumstances of Tāmaki Makaurau. Take tupuna and take whanaungatanga weremost important in Tāmaki Makaurau. In central Auckland, because of the geographyand whakapapa, application of the principles of tikanga have created shared manawhenua.[23] Te Ākitai Waiohua descend from Ngā Oho, Ngā Riki and Ngā Iwi. Theireponymous ancestor, Huakaiwaka lived at Maungakiekie in the 17th century with aprimary pā site at Maungawhau where his son, Kiwi Tāmaki was born. Te Ākitaiacknowledges Te Taoū defeated Kiwi Tāmaki around 1740 though there is dispute9over the date. The defeat was a skirmish between close cousins and did not extinguishTe Waiohua who survived and re-established themselves in South Auckland, in andaround Māngere in the 19th century. The return of Ngāti Whātua Ōrākei to Tāmaki inthe 1830s would not have been possible without the protection of Te Wherowhero.Initial purchase histories should be given little weight. Ms Coates, for Te ĀkitaiWaiohua, submits that because of Crown actions, they lost their voice and profile inTāmaki without clear rangatira representation, rendering the iwi virtually invisible tomany third parties. Te Ākitai called evidence from Moka Apiti, Nigel Denny, DavidWilson Takaanini, Karen Wilson and Mark Derby.[24] Ms Coates submits that, while subsequent intermarriage gave Ngāti WhātuaŌrākei a take in the whenua, Waiohua continued to have underlying mana through anancestral dimension, which allows them to have mana whenua. Te Ākitai Waiohuacontinues to maintain an ongoing relationship to the land and their customary interestsin Tāmaki, with mana and take tupuna and the equivalent of ahi kā roa within the areaover which Ngāti Whātua Ōrākei claim mana whenua. Ms Coates submits the effectof the declarations sought by Ngāti Whātua Ōrākei would be to expunge the manawhenua interests of all other iwi, including Te Ākitai, from the face of the Tāmakiisthmus.[25] Te Ākitai Waiohua says that rights and interests in Tāmaki are more complexthan one hapū being able to lay an impenetrable blanket with fixed and absoluteboundaries of mana whenua and ahi kā over a vast area that has the effect ofsubordinating and/or ousting the customary interests and Treaty settlementopportunities of other iwi and hapū. Te Ākitai Waiohua say that exclusivity is not anecessary corollary of mana and the evidence highlights that shared mana whenua notonly exists but is common in Māori society. Te Ākitai Waiohua see the world throughtheir connections and relationship to land and people; an inclusive way of being, bestexpressed through whakapapa, whanaungatanga and manaakitanga.[26] The Crown submits that Ngāti Whātua Ōrākei has not established the contentof their asserted tikanga rights, either in terms of defining the exact nature of thetikanga concepts, such as the inherently exclusive nature of mana whenua, or theirconsequences at tikanga. Dr Ward submits different iwi hold different perspectives on10tikanga and may describe interests in different ways. There is a lack of specificity asto what is meant by Ngāti Whātua Ōrākei tikanga. There is an absence of consensuson the nature and characteristics of mana whenua. The characteristics of ahi kā areunclear. Given the contested nature of these concepts, and the plaintiff's claim toexclusivity, the Crown submits it would not be appropriate or even possible, for theCourt to declare that Ngāti Whātua Ōrākei holds mana whenua and ahi kā in centralAuckland.[27] Ngāti Kuri and Ngāi Te Rangi intervene in this proceeding because of theimpact it will have on the Crown's approach to the potential recognition of their rightsand interests regarding other iwi in their respective rohe. They submit mana whenuais the ability to exercise authority over access to a territory and resources. As thehighest and most powerful form of interest that defines and governs all other interestsit is not divisible. But they do not take a position on tikanga as it applies in TāmakiMakaurau.[28] I outline in the judgment the positions on which the historian experts and thepūkenga, or tikanga experts were able to agree. I do not consider the agreed positionsof the historians materially impact the positions of the parties about the historicalnarrative, but I take them into account with added evidential weight. Each of thepūkenga was an impressive witness, making careful responses drawing on deepknowledge. I consider that, collectively, the expert evidence of the pūkenga abouttikanga is authoritative.C Tikanga[29] As Dr Te Kauhautu Maxwell says, "the fact that tikanga has its origins with thegods gives it validity and tapu sanctity".2 As Tāmati Kruger says, "tikanga Māori is aset of binding principles, beliefs and traditions practised collectively by Māoriwhānau, hapū and iwi since time immemorial".3 Margaret Kawharu quotes the Rt Rev2 Brief of evidence of Te Kahautu Maxwell, 13 October 2020 [Maxwell Brief] at [124]. The firstcitation of a source is a full citation. Subsequent citations are in short form. There is a fullbibliography at the end of the judgment.3 Brief of Evidence of Tāmati Kruger, 2 June 2020 [Kruger Brief] at [38]–[39].11Manuhuia Bennett as saying that "tikanga", or custom, was the "right person, doingthe right thing, in the right way".4 The judgment provides further explanations.[30] There are no differences between the parties as to the need to understandtikanga holistically as an interlocking set of reinforcing norms. Tikanga revolvesaround values and a value system. As the Waitangi Tribunal has said, "[t]ikanga isboth a consequence and a source of Māori identity."5 In a very real sense, then, tikangais fundamental to "constituting" an iwi or hapū. It is essential to their identity alongwith, for example, their tribal histories, traditions and places. Without their tikanga,an iwi or hapū are not who they are. It follows that tikanga is quintessentiallydeveloped by each iwi or hapū, in the exercise of their rangatiratanga. There aredifferent versions of which principles would be regarded as "core" to tikanga, as weheard in this case. Importantly, as circumstances change over time, norms evolve inresponse. Tikanga and its practice can change over time. None of the pūkengadisagreed with that. Tāmati Kruger describes tikanga as "ongoing and continuouslyupdating".6 And, as Dr Te Kahautu Maxwell says, "[t]ikanga is a way of life".7 AsTāmati Kruger says, "[i]t is difficult to commit an account of tikanga to writingbecause Māori traditions are predominantly aural and practical".8 Tikanga losessomething when reduced to writing. It even loses something when explained orally,in the abstract. Tikanga is performed, more than stated.[31] The parties disagree on the degree of difference between the tikanga ofdifferent iwi and the extent to which tikanga Māori is common across all iwi and hapūin Tāmaki Makaurau and elsewhere. The position agreed by the pūkenga determinesthe point. There were and are fundamental philosophical underpinnings, described astāhuhu he aratohu, that guide iwi approaches to tikanga and allow for some sharedunderstandings and mutual interactions. However, the tikanga of an iwi or hapū isshaped by the historical narrative of that iwi and hapū, including the impact ofcolonisation and other events and circumstances over time. The evidence is that4 Brief of Evidence of Margaret Kawharu, 2 June 2020 [Kawharu Brief] at [20] and [241].5 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown's Foreshoreand Seabed Policy (Wai 1071, 2004) at 3.6 Kruger Brief at [56].7 Maxwell Brief at [93].8 Kruger Brief at [40].12tikanga Māori rests on core principles that are common across most iwi and hapū. AsDr Te Kahautu Maxwell says, the core values are "like a whāriki; a woven mat, theymust go together for tikanga to stand up".9[32] Based on my (quite lengthy) review of the legal authorities and submissions, Iconsider it is clear that the law that accompanied Māori to Aotearoa was constitutedby tikanga. Many aspects of it are law in New Zealand now: Māori customary law,made by iwi and hapū, governing behaviour of iwi and hapū and those who belong tothem. As such, it is a "free-standing" legal framework recognised by New Zealandlaw. It does not necessarily cease governing an iwi or hapū just because the courts orParliament or even other iwi suggest otherwise.[33] Tikanga is often assumed, recognised and referred to by New Zealandlegislation. Like the common law made by courts, the legal effects of tikanga can beoverridden by legislation. But even Parliament cannot change tikanga itself. Iwi dothat, exercising their rangatiratanga. Similarly, one iwi cannot override the tikanga ofanother iwi without impinging on their rangatiratanga. Tikanga was recognised byEnglish common law that accompanied the Crown to New Zealand, as were othersources of law. It is recognised by New Zealand common law today. As governingvalues for iwi and hapū, tikanga informs the common law. But it can be even strongerin legal effect than that. Tikanga can determine the outcome of a court's applicationof a statute or the common law, as it has in some cases. It can be a direct source oflegal rights enforced by the courts.[34] Tikanga governs matters of process as well as substance. There are ways ofresolving disputes about tikanga which are consistent with tikanga and ways whichare not. Recourse to courts without agreement between the parties is not obviouslytikanga-consistent. As a matter of tikanga, of course, tikanga-consistent disputeresolution processes must be preferred to non-tikanga-consistent court resolution ofdisputes about tikanga. Indeed, resolution of a dispute about tikanga by tikanga-consistent processes may be more enduring than a ruling by a court. Tikanga-consistent dispute resolution may involve several or many discussions on marae over9 Maxwell Brief at [97].13a long period. Tikanga may require a discussion of a dispute over a long period oftime compared to Pākehā dispute resolution. A court must be wary of claims by onegroup or another that resolution is not possible in the time taken so far.[35] I accept that it would be a brave court that attempts to reconcile or prioritisetikanga that truly differs between iwi or hapū, especially if that reconciliation is nottikanga-based. An attempt to do so may well not be accepted at tikanga. It may notbe tika. But, as Mr Mahuika says, tikanga does not end when an issue is taken to court.A court decision that pays due regard to tikanga could, perhaps, sometimes free alogjam in relationships and enable further iterations of tikanga-consistent discussions.Because tikanga is law, iwi and hapū may seek legal remedies relying on recognitionof tikanga by the courts in particular cases. I accept Mr Hodder's submission that theCourt's declaratory jurisdiction is able to include the making of formal declarations oflegal status and rights, including customary rights, and of corresponding obligations.There may be a variety of different ways by which a court could seek to resolve adispute over tikanga that may be consistent with tikanga, including appointment ofpūkenga. Where all relevant parties agree through tikanga-based processes, theauthority of the Court might be useful in granting remedies regarding an issue oftikanga. If they do not agree, it is more difficult.[36] If tikanga-consistent resolution of a dispute about tikanga is not feasible, thenrecourse to a court may be appropriate as a matter of law. That necessarily followsfrom tikanga being part of New Zealand law. The quintessential function of courts isto determine disputes about law. That may include determining disputes abouttikanga. As arose in discussion with Mr Warren and Mr Mahuika in closingsubmissions, in some ways litigation is now the modern alternative to resolution bybattle which used to be, but is no longer, available to break a deadlock over tikanga.10I do not rule out a court doing so where a dispute genuinely requires resolution, as anultimate alternative to battle. Whether such a decision is tika, and consistent withtikanga, is another matter.10 Notes of Closings 253/23–254/16, 260/15–261/5.14[37] Just because a Court can do something does not mean it should. One reasonfor judicial caution is that legal precedents in case law will not be authoritative as tothe content of tikanga. This flows from the ongoing capacity for tikanga to changeand for there to be differences in tikanga, and the application of tikanga, between iwiand hapū. Iwi and hapū create, determine and change tikanga through exercising theirrangatiratanga. Courts do not and cannot make, freeze or codify tikanga. If a courtapproaches tikanga in a particular case, it must recognise tikanga on the basis of theevidence before it for the purpose of that case. What is recognised by a court cannotchange the underlying fact or validity of tikanga in its own terms. A second reason forcaution derives from the inherently difficult task of transcending culturally-specificmindsets. In recognising tikanga, common law courts must hold "in check closely"any unconscious tendency to see tikanga in terms of the English law heritage of NewZealand common law. They must be open to seeing tikanga on its own terms, as adistinct framework. A court's caution in approaching tikanga must be heightenedwhen the content of tikanga is disputed within an iwi or hapū or between iwi or hapū.[38] The parties differed on the standard to which tikanga must be proved, whetherto the usual standard for civil law cases, of the balance of probabilities, or to someother standard. The prospect that a court might find the tikanga of an iwi or hapū hasor has not been established "on the balance of probabilities" seems inapt. I accept thatit is not consistent with tikanga itself. And I accept that tikanga in fact is establishedby a dynamic consensus, evidenced by the ongoing practice of an iwi or hapū. Giventhat, it seems to me that a court simply has to be satisfied, on the evidence before it,that such a consensus prevails at any given time. That is consistent with how NewZealand courts approach the recognition of other forms of law, such as foreign law. Itis consistent with academic commentaries and with some other cases. I doubt there ismuch practical difference between proving on the balance of probabilities that aconsensus exists in an iwi or hapū about tikanga, and a court simply being satisfied ofthat. The crucial point is that the finding expressed by the Court is effectively abouttikanga as determined by the iwi or hapū.15D Mana whenua in Tāmaki Makaurau[39] Making findings of fact about historical issues in the 1700s and 1800s at thisdistance is fraught. Tikanga and traditional tribal histories can differ from each otherand competing views can validly be held and can differ over time. Any accounts ofhistorical events may differ when recounted for different purposes, whether, givenorally on the basis of tribal narratives or written down by professional historians. Thisis evidence of human qualities of different people focussing on different things atdifferent times for different purposes. The Courts are used to evaluating evidence bywitnesses of fact and expert witnesses in all spheres. I have evaluated and criticallyanalysed each piece of evidence presented by the expert and other witnesses in thecontext of its consistency or inconsistency with the other relevant evidence. I do notregard the evidence of professional and tribal historians as necessarily any more orless credible or reliable than each other. As Professor Michael Belgrave says, "[t]hereis no such thing as a definitive history".11[40] As the historian experts agree, I consider the accounts of the witnesses whogave evidence in the Native Land Court in 1866 and 1868 to be relevant evidence ofwhat witnesses of fact were understood (including by translators) to have said at a timecloser to the relevant events than we are now. I consider appreciably less weight isdue to the conclusions drawn by the judges in those hearings, who did not hear fromall the relevant potential witnesses, or even iwi, in the context of the most intenseconflict between the Crown and iwi, particularly with Waikato-Tainui and affiliatediwi in Tāmaki Makaurau.[41] In the judgment I review a number of issues regarding the historical narrativesand traditions in light of the evidence about tikanga. The evidence and submissionssuggest the Ngāti Whātua Ōrākei tribal historical narrative and tradition is clear,coherent, and consistent in terms of the tikanga of Ngāti Whātua Ōrākei. Theobjections of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and TeĀkitai Waiohua are different tribal historical narratives and traditions. Moreinformation would be required to reconcile some aspects of their objections to thehistorical narrative and tikanga of Ngāti Whātua Ōrākei: the timing and nature of the11 Notes of Evidence (NOE) 2153/5.16raupatu in the mid-18th century; whether Te Taoū maintained undisputed controlthereafter; whether Marutūāhu iwi other than Ngāti Pāoa had cultivations andsettlements in the area at issue in the 18th and 19th centuries; whether Te ĀkitaiWaiohua survived the raupatu with their tribal structures substantially intact; whetherNgāti Rau maintained a presence in the area at issue during the 1820s and 1830s andthe significance of that; and the effect of iwi returning to the isthmus with theprotection of Te Wherowhero.[42] Whether Ngāti Whātua Ōrākei, Marutūāhu Rōpū (other than Ngāti Pāoa), NgāiTai ki Tāmaki and Te Ākitai Waiohua wish to reconcile their tribal histories andtraditions and whether it occurs in a tikanga consistent manner, is up to them. It seemsto me to be better explored on a marae than by a Court. I do not attempt to reconcilethe different historical narratives and traditions in the judgment.[43] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua also object to theclaim by Ngāti Whātua Ōrākei that their conception of ahi kā roa and mana whenua isvalid in terms of the tikanga of other iwi and at tikanga Māori. At the heart of thedispute over the claim of Ngāti Whātua Ōrākei to ahi kā roa and mana whenua iswhether mana whenua is an exclusive or non-exclusive concept at tikanga. It is alsodirectly related to the commonality of tikanga regarding mana whenua across iwi andhapū.[44] The evidence of the pūkenga and other witnesses called by Ngāti WhātuaŌrākei is clear and consistent in their account of take raupatu, reinforced by taketupuna, followed by ahi kā roa in creating mana whenua. It is clear and consistent insaying that mana whenua is generally exclusive, except in fringe or contested areas orby agreement; it is not shared, particularly in a group's heartland or core rohe. NgātiWhātua Ōrākei say their tikanga is entirely consistent with tikanga Māori moregenerally. Ngāti Pāoa supports that in the terms noted above. So do Ngāti Kuri andNgāi Te Rangi.[45] I have no doubt that mana whenua, as the strongest "interest" at tikanga in the"heartland" or ūkaipō of an iwi, and central to their identity, is currently a real androbust aspect of the tikanga of Ngāti Whātua Ōrākei and some, perhaps many, but not17necessarily all, other iwi. This is consistent with the evidence of the independentpūkenga called by Ngāti Whātua Ōrākei from outside Tāmaki Makaurau: TāmatiKruger, Paul Meredith and Charlie Tawhiao. The evidence supporting this in terms ofthe tikanga and tribal narrative and traditions of Ngāti Whātua Ōrākei is given by theirown witnesses and is consistent with the published and unpublished writings of thelate Professor Sir Hugh Kawharu.[46] As Mr Majurey emphasises, Sir Hirini Mead's definition of mana whenuasuggests acknowledgement of the mana whenua of an iwi is important to its validityat tikanga. With the exceptions of the Kawenata Tapu with Ngāti Pāoa, andacknowledgement of Ngāti Whātua Ōrākei at Ōrākei, their neighbouring iwi in theseproceedings do not recognise or acknowledge the mana whenua of Ngāti WhātuaŌrākei over the whole area over which they claim it. I take the evidence from NgātiWhātua Ōrākei to be saying that recognition by other iwi is not a pre-requisite forNgāti Whātua Ōrākei to have mana whenua in terms of their own tikanga. Whatevereffects a Court declaration might have, including regarding the legal incidents of manawhenua, it is difficult to see how it could purport to constitute or require recognitionof mana whenua by another iwi if that would be inconsistent with their own tikangaand/or their own tribal traditions and history. That would be inconsistent with thenature of tikanga and its relationship to the law declared by courts.[47] Counsel for Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua (whocame to be known as Te Toru in the hearing) point to the evidence of their pūkengathat, for them, mana whenua can often be shared and is not an exclusive concept.There are also other authoritative statements, by Sir Edward Taihakurei Durie and theWaitangi Tribunal that doubt the nature of mana whenua in general. The evidence inthese proceedings shows that mana whenua can be exclusively held by one iwi or hapūand that it can be shared. Importantly, the pūkenga collectively agree that tikanga isshaped by the historical experiences of an individual iwi. No doubt mana whenua ismore easily shared for some iwi than others, in light of their experiences.[48] No one here argues that mana whenua obviates the other layers of customaryinterests of other iwi at tikanga. As acknowledged by Ngāti Whātua Ōrākei, theobligations arising from having mana whenua include a tika consideration of, and18looking after, others' customary connections. That might involve discussions of howbest to protect an urupā, acknowledgment that the history of another iwi in that areawill not be forgotten, or even agreeing that land within their heartland could beprovided to another iwi, akin to a tuku whenua. But at the same time, the evidence isthat it can be valid at their own tikanga for an iwi such as Ngāti Whātua Ōrākei toconceive of mana whenua as the strongest tikanga interest, held by one iwi, overridingaspects of the interests of other iwi while simultaneously owing responsibilities inrespect of those interests. It is valid at their tikanga, shaped by their historicalexperiences, including the impact of colonisation.[49] The pūkenga called by Te Toru were clear and consistent about theunderpinning principles of their tikanga and the implications for the claim by NgātiWhātua Ōrākei. It may be that there are subtle distinctions between tikanga and theapplication of tikanga through different iwi traditions and history, as Mr Mahuikasubmits. Or there may be a distinction between the underlying values and principlesof tikanga and what manifests if a tribe adheres to them, applying those principles, asMr Warren submits. But either way, I accept the evidence of Harry Mikaere, JamesBrown, David Wilson Takaanini and Dr Korohere Ngāpō that the tikanga and tribalhistories and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai kiTāmaki and Te Ākitai Waiohua do not accept that their interests in Tāmaki Makaurauare subject or inferior to the mana whenua of Ngāti Whātua Ōrākei.[50] I see no reason why the tikanga or application of tikanga by Ngāti WhātuaŌrākei and the other iwi may not differ regarding mana whenua. The High Court andCourt of Appeal have recognised that there can be variability in the nature of manawhenua. And the learned authors of Te Mātāpunenga say:12The phrase mana whenua has been held to link political responsibilities (theprotection of people, particularly members of a tribal group under traditionalleadership) and other land-related authority. However the inherent ambiguityof the expression mana whenua has made its use and that of thecomplementary expressions noted above a vexed issue, with theappropriateness of their use challenged by Māori and other commentators.According to some accounts, this mana may be shared by a number of separate12 Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of Referencesto the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington,2013) [Te Mātāpunenga] at 178.19tribal entities, but others would deny that such divided sovereignty ispermissible.[51] So, the tikanga, tribal history and tradition of some iwi, including NgātiWhātua Ōrākei, include mana whenua as the strongest form of tikanga interest thatcan be and is held by one iwi in Tāmaki Makaurau. The tikanga and tribal historiesand traditions of other iwi, such as Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Taiki Tāmaki, and Te Ākitai Waiohua, does not recognise that.[52] The Court has discretionary jurisdiction to grant declarations about tikanga. Iam satisfied the evidence demonstrates that Ngāti Whātua Ōrākei has mana whenuabased on take raupatu and ahi kā over the area in which they claim it, according totheir own tikanga and based on their tribal historical narrative and tradition. NgātiWhātua Ōrākei seeks a declaration of its rights at tikanga and law. The issues havebeen sufficiently traversed to support that. I would be inclined to make such adeclaration but on the basis that it speaks only of the tikanga and historical tribalnarrative and traditions of Ngāti Whātua Ōrākei. My preliminary view is that such adeclaration would not unduly cut across other proceedings or legislation, which decidedifferent issues. Such a declaration might be worded as follows:Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation tothe area identified in Map 1 of this judgment in central Tāmaki Makaurau,with all the obligations at tikanga that go with that, according to the tikangaand historical tribal narrative and tradition of Ngāti Whātua Ōrākei.[53] I reserve leave for the parties, and particularly Ngāti Whātua Ōrākei, to makefurther submissions, if they wish, on whether the Court should exercise its discretionto make a declaration in those or similar terms.[54] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not seekdeclarations regarding their tikanga. They oppose the declaration sought by NgātiWhātua Ōrākei that goes further than the tikanga of Ngāti Whātua Ōrākei. I amsatisfied, on the basis of the evidence I have heard, that Marutūāhu Rōpū (other thanNgāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept, based on theirtikanga and tribal histories and traditions, that their interests in Tāmaki Makaurau aresubject or inferior to the mana whenua of Ngāti Whātua Ōrākei. On that basis, I amnot prepared to make a declaration that suggests their tikanga, tribal histories and20traditions are consistent with those of Ngāti Whātua Ōrākei, which might be inferredfrom the declaration sought by Ngāti Whātua Ōrākei. But the parties may alsoconsider that a single declaration about the tikanga of Ngāti Whātua Ōrākei leaves toomuch room open for inferences about their positions. Accordingly, I also reserve leavefor the parties, and Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki andTe Ākitai Waiohua in particular, to make submissions on whether I should make adeclaration along the following lines:The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū(other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do notcurrently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua,as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to thearea identified in Map 1 of this judgment in central Tāmaki Makaurau.[55] I observe that the conflicts between iwi in these proceedings over these issuesare long-standing. I am sure the means of resolving them are available, at tikanga, tothem. I note that counsel for every iwi participating in the hearing stated they wouldprefer a tikanga-based settlement. They may consider the Court can assist to facilitatea tikanga-based resolution process, given my observations in part V regarding suchoptions as appointment of one or more pūkenga by consent. I reserve leave for anyiwi participating in these proceedings as parties or interested parties to make a jointapplication for such assistance with any of the disputed issues of applying tikangacanvassed in this judgment. I also reserve leave for them to apply for a declaration bythe Court to reflect a joint position about any of these disputed issues, reached by atikanga-consistent process, to be recorded by the Court.E Treaty Settlements and overlapping interests today[56] Part VII of the judgment outlines the experience of Ngāti Whātua Ōrākei withBastion Point protests and its Ōrākei claim to the Waitangi Tribunal. The claim wasfiled in 1984, the Tribunal reported in 1987 and implementing legislation was passedin 1991. In 1993, Ngāti Whātua Ōrākei lodged a broader claim with the WaitangiTribunal alleging historical breaches of the Treaty by the Crown and started directnegotiations with the Crown in 2003.[57] In 2006, Ngāti Whātua Ōrākei and the Crown signed an Agreement in Principle(AIP) to settle these claims. The proposed settlement involved financial redress as21well as cultural redress including vesting in a joint management body maunga such asMaungakiekie (One Tree Hill), Maungawhau (Mt Eden) and Puketapapa (Mt Roskill)and the body advising on the managment of Owairaka (Mt Albert Domain), Ohinerau(Mt Hobson Domain), Te Kopuke (Mt St John Domain), and Taurangi (Big KingRecreation Reserve). There were to be statutory acknowledgements of the cultural,spiritual, historical and traditional association of Ngāti Whātua Ōrākei with the latterfour sites plus Otahuhu (Mt Richmond Domain), North Head Historic Reserve anddefence land at Kauri Point. There would also be a 100 year right of first refusal forNgāti Whātua Ōrākei over surplus lands of the Crown and other agencies in the areaover which they claim mana whenua.[58] Concerns about the implications of the AIP prompted a claim to the WaitangiTribunal by Ngāti Te Ata, Ngāi Tai ki Tāmaki, Marutūāhu, Te Kawerau ā Maki andthose Te Taoū not descending from Tuperiri. The Tribunal conducted an urgent inquiryand issued its findings in June 2007. The Tribunal strongly criticised the Crown'sapproach in taking an explicit view of the strength of the customary interests of NgātiWhātua Ōrākei. It said that "for an external agency like the Office of TreatySettlements to determine that the interests of only one group should be recognised,and the others put to one side, runs counter to every aspect of tikanga we can thinkof".13 It recommended the draft settlement be put on hold.[59] In 2008, the new Minister for Treaty of Waitangi Negotiations, HonChristopher Finlayson, turned for advice, about settling claims in Tāmaki Makauru, tothe first Minister to hold that portfolio, the Rt Hon Sir Douglas Graham. Sir Douglasproposed an option, requiring "considerable courage, a generosity of spirit and a desireto work together in the common interest", of putting mana whenua to one side andrenegotiating the AIP. Accordingly, and impressively in terms of the negotiations thatmust have been required, in February 2010 the Crown and 13 iwi and hapū enteredinto a Collective Agreement which was reflected in a Deed in 2012 and legislation in2014. It vested specified maunga and motu of Tāmaki Makaurau in the iwi and hapūcollectively. The maunga are co-governed by them and the Auckland Council. Theiwi and hapū have a RFR for 170 years where properties are chosen on the basis of a13 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Tāmaki Makaurau SettlementProcess Report (Wai 1362, 2007) [Waitangi Tribunal Tāmaki Makaurau Report] at 96–97.22rotating carousel. In the course of negotiations, the Crown told iwi and hapū that itwould not agree to one iwi having a veto over redress it would offer to individual iwifor their iwi-specific settlements. The Ngāti Whātua Ōrākei settlement wasrenegotiated and other iwi also now have settlements with the Crown andimplementing legislation.[60] At the heart of the issues that give rise to these proceedings is how, innegotiating the settlement of historical claims under the Treaty of Waitangi with oneiwi, the Crown should approach the overlapping interests of other iwi. I heardextensive evidence about the Crown's policy about overlapping interests, the RedBook, which is outlined in Part VII of the judgment. I heard about proposals on thistopic by the Iwi Chairs Forum. In December 2021, after the hearing, I received theCrown's latest revised policy on overlapping interests, on which all parties had theopportunity to make submissions.[61] I also heard detailed evidence about the Crown's offers of Treaty redress toNgāti Pāoa, the Marutūāhu Rōpū and Te Ākitai Waiohua, and how it dealt with theoverlapping interests of Ngāti Whātua Ōrākei, including their claim to mana whenua.The Supreme Court has ruled that Ngāti Whātua Ōrākei could pursue its claim fordeclarations as to its rights, but it could not challenge the proposed transfers of specificproperties to other iwi, which would be implemented by legislation. They have beentreated in these proceedings as illustrative examples of the application of the Crown'soverlapping interests policy. I have also heard about the Waitangi Tribunal's 2019report regarding the application of the Crown's policy in Hauraki.F Tikanga obligations in settling Treaty claims[62] In part VIII of the judgment I start by considering submissions about threeparameters of the Court's jurisdiction in relation to the declarations Ngāti WhātuaŌrākei seek about the legal obligations of the Crown in relation to tikanga. First, Ifind that the complex multi-faceted nature of Treaty settlements does not necessarilycloak government decisions from the constitutional process of judicial review forunlawfulness or from declarations of legal right but bears on what relief should begranted. Second, I do not transgress the Supreme Court's finding, that Ngāti Whātua23Ōrākei cannot challenge the decisions to legislate to transfer particular properties.Third, I consider that the Court has jurisdiction, probably confined to determiningissues of law, to correct errors of law in Crown guidance and to correct manifestlyunreasonable decisions to issue guidance. I note that individual examples of theapplication of a policy are not the policy itself.[63] I make a series of findings about the law as it relates to tikanga, the Crown'spowers, the Treaty of Waitangi, law, the overlapping interests policy, and the Treatysettlement context in Tāmaki Makaurau.[64] Tikanga governs and binds iwi and hapū and is developed over time by iwi andhapū. The Crown is not an iwi or hapū. The Crown is not bound to follow tikanga inand of itself and does not develop tikanga. Neither does tikanga directly modify thecommon law or statutes which bind the Crown. In turn, common law and statutes donot directly modify tikanga, though they can provide for its effects and incidents inNew Zealand's legal system.[65] There is a respectable argument that the Crown's power to enter settlementswith iwi and hapū of its breaches of the Treaty of Waitangi is primarily a prerogativepower, linked to the Crown's exercise of its prereogative power to enter the Treaty ofWaitangi in 1840. Otherwise, it reflects the rights and powers of the Crown as a naturalperson. Either way, the Crown exercises a power that cannot override rights andliberties prescribed by law, whether they be conferred by statute, common law ortikanga. Tikanga and the Crown's residual or prerogative power are systems ofinternal self-regulation. Neither interferes with the legal effect of the other.[66] There can be little doubt that article two of the Treaty of Waitangi encompassesthe Crown's protection of tikanga. Tikanga is integrally woven with rangatiratanga;the two dimensions give life to each other. The Crown's undertaking to protectrangatira, hapū and tāngata katoa in the exercise of tino rangatiratanga in article twoinherently extends to their operation of tikanga. The nature of the Crown's obligationsin relation to tikanga, when they arise under the Treaty, are the orthodox obligationsas held by the Courts since the Lands case in 1987 and accepted and endorsed bysuccessive executive administrations and Parliaments.24[67] I identify three orthodox principles of the Treaty as particularly relevant to theTreaty settlements context here. Where Treaty obligations legally bind the Crown, theCrown will have legal obligations in relation to tikanga, to act reasonably and in goodfaith, with mutual cooperation and trust, and to actively protect tikanga. Whether thereare such legal obligations, and what exactly they require, depends on the statutory andfactual context in which the issue arises. The context of Treaty settlements alsodirectly invokes the duty to provide redress, and right to receive redress, for breachesof the Treaty. It is the primary reason for the Crown's Treaty settlement endeavours.And it may cut against aspects of the other duties. There may be circumstances inwhich the balance of Treaty considerations means the Crown has to make a decisionin relation to Treaty settlements that is inconsistent with the tikanga of one iwi oranother.[68] The Treaty of Waitangi is still currently thought not to give rise to free-standingobligations in and of itself in New Zealand law. In the context of this case, whetherthat is so makes little difference, due to the principles of statutory interpretation andadministrative law. Depending on the context, the Treaty of Waitangi can potentiallybear directly on the interpretation of a statute and can sustain judicial review of thetreatment of tikanga on the grounds, for example, of illegality, failure to consider arelevant consideration, or unreasonableness. Whether those grounds would beavailable in any particular case depends crucially on the context.[69] If there is any bare context in which it is apt for the Treaty of Waitangi to be amandatory relevant consideration for the Crown, it is where the Crown seeks to fulfilits duty under the Treaty of Waitangi to provide redress for its own past breaches ofthe Treaty of Waitangi. The duties of active protection of tikanga and of actingreasonably and in good faith, with mutual cooperation and trust in relation to tikanga,will bear on Crown decisions affecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will need to take reasonable stepsto understand, recognise and respect the tikanga of iwi or hapū, and the Crown willneed to actively protect the ability of iwi and hapū to exercise their tikanga.[70] There is nothing in my analysis that suggests that Treaty obligations relating totikanga in a Treaty settlement context apply only to the Crown. Iwi and hapū can also25owe obligations under the Treaty of Waitangi. It is a small step from existing case lawto acknowledge that, depending on the context, the Treaty of Waitangi may require iwiand hapū to assist the Crown to discharge its Treaty duty to other iwi and hapū toprovide redress for Treaty breaches, by engaging in tikanga-consistent processes withthose iwi and hapū about the status of relevant properties at tikanga.[71] I agree with the submissions of virtually all counsel that the notion of thehonour of the Crown and the United Nations Declaration on the Rights of IndigenousPeoples do not add materially to the Crown's duties under the Treaty of Waitangi inrelation to tikanga as outlined above. Only in extreme circumstances, where otherconstitutional principles are at play, might the honour of the Crown assist a Court.New Zealand endorsed the Declaration on the basis it does not intend to supplantTreaty principles as the way in which New Zealand attempts to settle grievances. Thatadds further weight to my interpretation of the context of Treaty settlements asrequiring consistency with Treaty principles. But it does not add substantively to thecontent of those principles in relation to the issues considered in these proceedings.[72] In its 2007 Tāmaki Makaurau Report into the 2006 AIP process, the WaitangiTribunal considered the Crown had not taken adequate account of tikanga in offeringexclusive redress to Ngāti Whātua Ōrākei on the basis of a predominance of interestswhen other iwi had demonstrable tikanga interests that not had not been properlyinvestigated. The Crown took the Tribunal's report seriously. But it appears to haveresponded primarily to what it saw as the Tribunal's rejection of assessing relativeweighting of tikanga interests, rather than the more general message of the importanceof it understanding tikanga. The Crown properly took the position that it was not forit to adjudicate or act as video referee in contests of mana whenua. But the problemwith the overall Crown reaction to the Tribunal's 2007 Report was that it did not adopta practice or policy of assigning anyone with expertise to understand and advise it onthe tikanga implications of its decisions.[73] The context of the negotiating principles and guidelines in the Crown's RedBook cements the Crown's general legal Treaty obligations in relation to tikanga indealing with overlapping interests in Treaty settlements. The Red Book, in both its2018 and latest versions, contains much useful guidance for the Crown. It also26envisages the Crown making assessments of the implications of tikanga interests, asCrown witnesses indicate it does. These assessments and judgements inherentlyrequire understanding of tikanga. They are tikanga interests.[74] Yet the language of the 2018 Red Book is striking in its determined avoidanceof references to tikanga or tikanga interests. It did not mention the word tikanga ortikanga concepts such as mana whenua. The 2021 version of the Red Book paysgreater attention to tikanga than did its predecessor. That would not be difficult. Butit does not explicitly acknowledge the legal requirement on the Crown to considertikanga, including the implications of mana whenua or other tikanga-based interests,and that it may not act unreasonably having regard to tikanga, in order to actconsistently with the Treaty of Waitangi. Not spelling out that requirement in theCrown's policy runs the risk of prejudicing overlapping tikanga interests of iwi andhapū.[75] The implications of time are difficult for everyone in this process. If the Crownhas breached the Treaty, its obligation is to provide redress, the sooner the better. Buttime has a different significance in tikanga. The Crown is obliged by the Treaty toallow reasonable time for disputes regarding overlapping tikanga interests in Treatysettlement negotiations to be resolved, depending on the particular circumstances of aparticular settlement, having regard to tikanga. It is inherently difficult to provide forin a policy.[76] Engaging as early as practicable with the overlapping iwi or hapū would help,as the Crown's policy says. So would engaging before a commitment has been madeto a particular property by the negotiating parties. Inventive negotiators may be ableto devise ways of parking particular disputed properties pending future tikanga-consistent resolution, while allowing the wider settlement to proceed. The Crown saysit is willing to facilitate discussions, act as observers, and provide logistical support toiwi negotiations if that is what iwi want. A process, such as that proposed by the IwiChairs Forum, that involves independent facilitation by pūkenga, might be promising.The Waitangi Tribunal's recommendations in the Hauraki Report should be takenseriously. And, no doubt, the Court would be available to assist with such processes,if the parties so wish. I also return to the notion that iwi and hapū have responsibilities27under the Treaty to engage in tikanga-consistent processes about the status of relevantproperties at tikanga. Depending on the context, refusing to do so may breach theTreaty of Waitangi.[77] I make only seven points about tikanga and Treaty settlements in TāmakiMakaurau:(a) First, I accept that the context of the 2011 Treaty settlement betweenthe Crown and Ngāti Whātua Ōrākei, and the 2012 Act, affirm andreinforce their obligations to act consistently with the Treaty ofWaitangi.(b) Second, I do not consider the context of the 1840s gifting of land byNgāti Whātua Ōrākei to the Crown adds materially to the legal dutiesof the Crown.(c) Third, the Collective Agreement, Collective Deed and Collective Actdo not affect who has mana whenua, or what that means, at tikanga inTāmaki Makaurau.(d) Fourth, I do not need to comment on the Crown's "no veto" positioncommunicated to iwi before the Collective settlement was agreed.(e) Fifth, the Crown has not taken into account a fully informedunderstanding of the implications of its decisions for the tikangainterests of all iwi and hapū.(f) Sixth, the Crown would be well advised to seriously consider theconstructive recommendations of the Waitangi Tribunal in the HaurakiReport and the Iwi Chairs Forum about how to improve its approach tooverlapping interests in Treaty settlements, if it has not already doneso.(g) Finally, the Crown as well as iwi and hapū, would also be well-advisedto establish mutual relationship management processes and structures28to enhance the health of their ongoing relationships, to the extent theirresources permit.[78] As mentioned earlier, the application of tikanga including the nature and extentof mana whenua in Tāmaki Makaurau, is contested between different iwi. Given that,making the declarations sought by Ngāti Whātua Ōrākei would provide a misleadingimpression of what the Court considers is a proper understanding of tikanga in TāmakiMakaurau or with the implications of tikanga for Treaty settlements in TāmakiMakaurau. I also find that tikanga does not legally bind the Crown in itself so itfollows that I do not consider the declarations sought by Ngāti Whātua Ōrākeiregarding the obligations of the Crown would be accurate statements of the law. Butthe parties may consider my judgment gives rise to alternative declarations that shouldbe made.G Result[79] I decline to make the declarations as sought by Ngāti Whātua Ōrākei. I reserveleave for any of the parties or interested parties, if they wish:(a) to make submissions on whether the Court should make a declarationalong the lines that:Ngāti Whātua Ōrākei currently have ahi kā and mana whenuain relation to the area identified in Map 1 of this judgment incentral Tāmaki Makaurau, with all the obligations at tikangathat go with that, according to the tikanga and historical tribalnarrative and tradition of Ngāti Whātua Ōrākei.(b) to make submissions on whether the Court should make a declarationalong the lines that:The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki,and Te Ākitai Waiohua do not currently recognise that NgātiWhātua Ōrākei have ahi kā and mana whenua, as thoseconcepts are conceived of by Ngāti Whātua Ōrākei, in relationto the area identified in Map 1 of this judgment in centralTāmaki Makaurau.29(c) to make submissions on whether the Court should make any alternativedeclarations about legal obligations in relation to tikanga in the contextof Treaty settlements, along the lines that:The duties of active protection of tikanga and of actingreasonably and in good faith, with mutual cooperation andtrust in relation to tikanga, will bear on Crown decisionsaffecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will needto take reasonable steps to understand, recognise and respectthe tikanga of iwi or hapū, and the Crown will need to activelyprotect the ability of iwi and hapu to exercise their tikanga.Depending on the context, the Treaty of Waitangi may alsorequire iwi and hapū to engage in tikanga-consistentprocesses with other iwi and hapū about the status of relevantproperties at tikanga.(d) to apply jointly for the Court's assistance to facilitate a tikanga-basedresolution process to address any of the disputed issues of applyingtikanga canvassed in this judgment or to apply jointly for a declarationby the Court to reflect a joint position about any of these disputedissues, reached by a tikanga-consistent process.[80] Any of the further submissions should be filed and served within three monthsof the date of this judgment. I reserve leave for any of the parties or interested partiesto request a teleconference to discuss any issues arising before that. There is no timelimit on the leave reserved to seek Court assistance. Costs are reserved.[81] I close this judgment by quoting the Waitangi Tribunal in the Ngāti Awa RaupatuReport:14In seeking solutions, it is important to bear in mind that Māori society isfundamentally about relationships. It is not enough to resolve the immediateproblem. The people must continue to live together, and the more importanttask is to rebuild the relationships based upon whakapapa and respect for themana of each group.14 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāti Awa Raupatu Report(Wai 46, 1999) at 136.30II The parties and issuesA These proceedings[82] In 2015, Ngāti Whātua Ōrākei applied for judicial review of decisions of theMinister for Treaty of Waitangi Negotiations to transfer land in Tāmaki Makaurau toNgāti Pāoa in settlement of their Treaty of Waitangi claims. In 2017, the High Courtstruck out the claim.15 The Court of Appeal dismissed the appeal of Ngāti WhātuaŌrākei on the basis the relief sought would interfere with parliamentary proceedings.16In 2018, the Supreme Court allowed a further appeal "with the result that NgātiWhātua Ōrākei can largely pursue its claim for declarations as to its rights".17However, Ngāti Whātua Ōrākei could not challenge the proposed transfers of specifiedproperties, which would be implemented by legislation.[83] Ngāti Whātua Ōrākei repleaded their claim and, in the fourth amendedstatement of claim, now seek declarations that:(a) Ngāti Whātua Ōrākei have ahi kā and mana whenua in relation to 2006RFR Land and the 1840 Transfer Land.(b) When applying the Overlapping Claims Policy in a way which relatesto and/or may affect any land within the area of the 2006 RFR Landand the 1840 Transfer Land, the Crown must act in accordance withtikanga, and in particular Ngāti Whātua Ōrākei tikanga.(c) Crown development of Proposals to include the land in the 2006 RFRLand and the 1840 Transfer Land in a proposed settlement with iwiwho do not have ahi kā in respect of that land, must be made inaccordance with tikanga, and in particular Ngāti Whātua Ōrākeitikanga.(d) In order to comply with tikanga in that situation when contemplatingor developing Proposals, or making decisions under its OverlappingClaims Policy to offer any interest in land within the 2006 RFR Landor the 1840 Transfer Land as part of a proposed Treaty settlement withan iwi other than Ngāti Whātua Ōrākei, and whether involving s 120of the Collective Act or not, the Crown must:(i) appropriately consult with Ngāti Whātua Ōrākei as the iwihaving ahi kā;15 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 [NgātiWhātua Ōrākei (HC strike out)].16 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554, [2018] 2 NZLR 648.17 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 [NgātiWhātua Ōrākei (SC)] at [3].31(ii) acknowledge the ahi kā of Ngāti Whātua Ōrākei as the iwihaving ahi kā;(iii) decline to include the land in the proposed settlement if thereis evidence that the transfer of the land would unjustifiablyerode the mana whenua of Ngāti Whātua Ōrākei as the iwihaving aki kā; and(iv) decline to include the land or recognise an interest in land inthe proposed settlement where the land has previously beenthe subject of a gift to the Crown, unless Ngāti WhātuaŌrākei, the gifting iwi, has provided its consent to the transfer.[84] For ease of reference, I reproduce Map 1 that is in the Summary above. Itshows the area over which Ngāti Whātua Ōrākei claim mana whenua in theseproceedings: the area with yellow boundaries.Map 1: The area over which Ngāti Whātua Ōrākei claim mana whenua32[85] This area was often referred to during the hearing as the "2006 RFR land"because it was the area over which Ngāti Whātua Ōrākei and the Crown agreed inprinciple in 2006 that Ngāti Whātua Ōrākei would have a right of first refusal (RFR).The subsequent Treaty settlement between Ngāti Whātua Ōrākei and the Crown didnot refer to this area. I do not use this label since it conveys an inaccurate sense of theorigin and timing of the claims of Ngāti Whātua Ōrākei over the area. Rather, I referto it as "the area over which Ngāti Whātua Ōrākei claim mana whenua" or, sometimes,as "the area at issue" for short. The 1840 Transfer Land referred to in the declarationssought is a subset of this area, marked in red. It was transferred by Ngāti WhātuaŌrākei to the Crown in 1840, as explained further below.B The parties[86] Ngāti Whātua Ōrākei originally filed these proceedings in August 2015. Thereare and have been several defendants to the proceedings:(a) The Crown is the first defendant.(b) The Ngāti Pāoa Iwi Trust was soon joined as the second defendant inSeptember 2015 and filed a statement of defence. On 21 January 2017,Ngāti Pāoa and Ngāti Whātua Ōrākei signed a Kawenata Tapu in atikanga process. In May 2019, Ngāti Pāoa withdrew their oppositionto Ngāti Whātua Ōrākei and was granted leave to be made an interestedparty in the proceedings, rather than a defendant. They opposeMarutūāhu Rōpū, of which they are usually a part.(c) Marutūāhu Rōpū is the post-settlement governance entity for fiveMarutūāhu iwi: Ngāti Pāoa; Ngāti Maru; Ngāti Tamaterā; NgaatiWhanaunga; and Te Patukirikiri. Marutūāhu Rōpū was initiallyaccorded intervener status but, by consent in March 2016, Wylie Jdirected that Marutūāhu Rōpū be joined as a defendant.1818 Ngāti Whātua Ōrākei Trust v Attorney-General [2016] NZHC 347.33(d) Te Ara Rangatū o Te Iwi o Ngāti Te Ata Waiōhua Inc was joined as adefendant in August 2019 but withdrew from the proceeding by consentin October 2020. This was on the basis they were exploring theirwhanaungatanga with Ngāti Whātua Ōrākei, instead of litigation. NgātiWhātua Ōrākei discontinued the proceedings against them.[87] Because of the issues at stake, other iwi were served and several applied, andwere granted leave, to participate in the proceedings as interested parties:(a) Ngāi Tai ki Tāmaki Trust (Ngāi Tai ki Tāmaki) and Te Ākitai WaiohuaSettlement Trust (Te Ākitai Waiohua) are interested parties because theoppose the claims of Ngāti Whātua Ōrākei to mana whenua in TāmakiMakaurau.(b) Ngāti Whātua o Kaipara and Te Rūnanga o Ngāti Whātua are interestedparties and support the position of Ngāti Whātua Ōrākei.(c) Ngāti Kuri Trust Board and Ngāi Te Rangi Settlement Trust haveintervened because of the impact this proceeding will have on theCrown's approach to the potential recognition of their rights andinterests in relation to those of other iwi in their respective rohe.[88] Te Whakakitenga o Waikato Inc applied to be joined as an intervener in May2016. That application was adjourned pending determination of the respondents'applications to strike out the proceedings. They filed another application to be joinedas an intervener in April 2017 at the Court of Appeal, but that application was declined.They did not seek intervener status in the Supreme Court but filed a memorandum inthe Supreme Court dated 11 May 2018 setting out their position submitting,relevantly:19[W]here there are overlapping interests with another iwi, the provision ofredress to an iwi by the Crown should:(i). be determined through a process that reflects tikanga;19 Te Whakakitenga o Waikato Memorandum of Counsel, 11 May 2018 at [3].34(ii). be commensurate with the relative customary interests of the iwiconcerned;(iii). be consistent with, and not prejudicial to, the rights and customaryinterests (including mana, rangatiratanga, mana whenua and manawhakahaere) of other iwi; and(iv). not undermine the value and integrity of existing settlements.[89] Te Whakakitenga indicated they were concerned that decisions the Crown hadalready made and redress it had proposed were going to "adversely affect thecustomary rights and interests of Waikato-Tainui". They offered their support forNgāti Whātua Ōrākei in these proceedings, particularly in opposition to the strikeout.20[90] In addition:(b) Ngāti Tamaoho indicated its interest in applying to be named anintervener in May 2019. However, in June 2019 they indicated they nolonger wished to participate in the proceeding.(c) Waiohua Tāmaki Alliance Ltd Partnership applied to be joined as aninterested party or intervener in May 2016 but did not pursue theapplication.(d) Te Warena Taua took some steps towards applying for Te Kawerau IwiSettlement Trust to intervene in 2016 but did not pursue the application.C The issues and hearing[91] On 16 November 2020, I held an interlocutory hearing regarding, among otherthings, the issues at stake. All parties and interested parties filed statements of issues.Counsel agreed that the statements differed in expression but not in substance. On20 Ngāti Whātua Ōrākei (SC) at [73].35that basis, as a general and preliminary guide, I expressed the issues at a high level asfollows:21(a) Has Ngāti Whātua Ōrākei maintained ahi kā and mana whenua in thespecified land?(b) What relationships do the other iwi and hapū parties and intervenershave with that land at tikanga?(c) How do Crown obligations to Ngāti Whātua Ōrākei arising from (a),given (b), impact on the Crown's application of its Overlapping ClaimsPolicy in terms of:(i) tikanga;(ii) the Treaty of Waitangi;(iii) the 2011 Treaty settlement between the Crown and NgātiWhātua Ōrākei, which led to the Ngāti Whātua Ōrākei ClaimsSettlement Act 2012;(iv) the Collective Treaty settlement between the Crown and iwi inTāmaki Makaurau (including Ngāti Whātua Ōrākei) which ledto the Ngā Mana Whenua o Tāmaki Makaurau CollectiveRedress Act 2014;(v) the honour of the Crown; and(vi) the United Nations Declaration on the Rights of IndigenousPeoples?(d) Should the Court make the declarations sought, or other declarations?21 Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 [Ngāti Whātua Ōrākei(issues and pūkenga)] at [8].36[92] The parties have not disagreed with these issues, though some assumed moreor less prominence during the hearing. The parties, interested parties and I all agreedthat the witnesses giving evidence about tikanga and historical issues should be cross-examined in order to fairly dispose of the case.22 I also granted leave, on applicationby Ngāti Whātua Ōrākei, for non-ministerial Crown witnesses regarding theapplication of its Overlapping Interests Policy to be cross-examined.23[93] I declined an application by Ngāi Tai ki Tāmaki, Te Ākitai Waiohua andMarutūāhu Rōpū to appoint a pūkenga to advise the Court. The application wasopposed by Ngāti Whātua Ōrākei and Mr Mahuika for Ngāti Pāoa submitted it wouldbe of questionable utility given the extensive evidence.24 With the benefit of thehearing, I am satisfied I heard ample expert evidence about tikanga from the pūkengacalled by the parties: Tāmati Kruger; Dr Te Kauhautu Maxwell; Paul Meredith;Wati Ngamane; Dr Korohere Ngāpō; Hauāuru Rawiri; David Wilson Takaanini; TeWarena Taua; and Charlie Tawhaio. In retrospect, I consider it would have beenbeneficial to appoint an independent pūkenga to conduct the conference of tikangaexperts, and an independent chair of the historian experts.[94] The hearing in the Auckland High Court began on 9 February 2021. The Courtsat on 37 days over 11 weeks, with interruptions for heightened COVID-19 alert levelsand other reasons, including to mark the death of Shaun Hindt of the High CourtRegistry. It was an eventful hearing. On 9 February 2021, Ngāti Whātua Ōrākei leda hīkoi of 300 people to the Court from Ōrākei, to support the opening of their case.On 7 April 2021, Kiingi Tuuheitia and Waikato-Tainui made a visit of similar size tothe Court to support the opening of the case of Ngāi Tai ki Tāmaki. All parties andinterested parties had access to a livestream of the hearing, including at marae. Thehearing concluded on 29 April 2021, almost exactly a year before I have been able todeliver this judgment in the No 1 Auckland High Court.[95] The hearing focussed on expert evidence about tikanga and history, as well asthe contemporary actions and policies of the Crown. I heard oral evidence from 3522 At [10].23 At [24].24 At [40].37witnesses and received affidavits or briefs of evidence from 38 witnesses. There werenine witnesses for Ngāti Whātua Ōrākei; six for the Crown; 11 for Marutūāhu Rōpū;three for Ngāti Pāoa; five for Te Ākitai Waiohua; and four for Ngāi Tai ki Tāmaki.One witness, Moka Apiti, gave a brief of evidence for Marutūāhu, Te Ākitai and NgāiTai ki Tāmaki. There are 3,096 pages of Notes of Evidence and 585 pages of thetranscript of the closing submissions. The parties filed around 960 pages of writtenclosing submissions and appendices and then further written submissions about theimplications of cases issued after the hearing and about the Crown's revisedOverlapping Interests Policy.[96] The issues in this case are important and, in several respects, ground-breaking.They concern issues of history, of tikanga, of the Treaty settlement process, and theextent to which the Court should intervene in all of those arenas. As I said at the closeof the hearing, it was a privilege to hear this case.III Ko Ngāti Whātua Ōrākei tēnei[97] Ngāti Whātua Ōrākei seeks declarations about tikanga and law that rest, in part,on events in the 18th and 19th centuries. To set this out adequately and respectfully,this first section of the judgment outlines the tribal history and tradition of NgātiWhātua Ōrākei as told by their witnesses and supported by other evidence, particularlythe expert evidence of Te Kurataiaho Kapea, and in the closing submissions of NgātiWhātua Ōrākei.25 The other witnesses who gave evidence and were relied upon byNgāti Whātua Ōrākei in relation to the historical narrative are: Margaret Kawharu;Ngarimu Blair; Professor David Williams; Dr Vincent O'Malley; and Paul Meredith.[98] The story of Ngāti Whātua Ōrākei told here by Ngāti Whātua Ōrākei is not afull tribal history. It is directed by Ngāti Whātua Ōrākei towards showing their manawhenua in the Tāmaki isthmus. But because it is the foundation of their case, and thehistory is important in its own right, it deserves to be set out at some length. The tribal25 Brief of Evidence of Te Kurataiaho Kapea (English translation), 2 June 2020 [Kapea Brief]; NgātiWhātua Ōrākei Closing Submissions, 19 April 2021 [Ngāti Whātua Ōrākei Closing]. Thefootnotes are those in the submissions of Ngāti Whātua Ōrākei. The headings are mine. The Courtwill post on the Courts of New Zealand website the Notes of Evidence (NOE), Notes of Closingsand written closing submissions. The parties may post their briefs of evidence on their websitesif they wish.38history and traditions of Ngāti Whātua Ōrākei does not have, and does not need,approval or disapproval by the Court. Neither do the tribal histories and traditions ofother iwi. Later, I address the implications of conflicts between tribal histories andtraditions, and tikanga. The parties were given the opportunity to review draft excerptsof the judgment relating to historical tribal narratives for accuracy.A Origins[99] All tribes trace their descent to Hawaiki. When Ngāti Whātua thinks aboutHawaiki, they remember Tāwhaki, Whakatau Pōtiki and Rongomai. Tāwhaki climbedto the heavens and retrieved the sacred baskets of knowledge and ancient incantationsfrom Rēhua-i-te-rangi. It is from Tāwhaki that Ngāti Whātua takes its divine authority.Whakatau Pōtiki was raised under the sea by a deity named Rongotakawhiu. Onbecoming an adult, Whakatau Pōtiki returned to land – he was the greatest warrior ofHawaiki. It is from Whakatau Pōtiki that Ngāti Whātua takes its supernatural authorityand its prowess in war. Rongomai is the captain of the waka Māhuhu-ki-te-rangi andwas responsible for transporting these Polynesian genealogies to New Zealand. FromTāwhaki came Wāhieroa, followed by Rāta, then Tūwhakararo, then Whakatau Pōtikiand then Rongoma.[100] The principal waka of Ngāti Whātua are:(a) Māhuhu-ki-te-rangi, which came from Waeroti, Waerota, Mataterā.Rongomai was the captain, Whakatau Pōtiki was the priest. It landedat Pārengarenga, travelled up to Waiapu (East Cape) and returned toMuriwhenua (the Far North), and then crossed to the West Coast andlanded at the Kaipara Harbour at Tāporapora. It ultimately returned toMuriwhenua. From Rongomai came Tikiwharawhara and thenMāwete.(b) Kurahaupō. To Ngāti Whātua, Pōhurihanga was the captain of thiswaka. Whatutāhae is his daughter. Through Whatutāhae, Ngāti Whātuahas a strong connection to this waka. Whatutāhae married Māwete.The line continued with Toroa, Te Iringa, Te Kura, Tōhē,39Tikiwharawhara II, Rerewā, Manumanu, Pepetaha, Ruawheke,Kahurau, and then Waihekeao who married Haumoewārangi.(c) Tākitumu, according to Ngāti Whātua ancestors, stopped at the Kaipara,around Poutō. Its main man was Tangaroa. Together they foughtagainst the people of Poutō, Te Kekehu. From Tangaroa cameMaikirangiaterā, then Maikirangiatepō, Rākitaha, Te Rangipāhura, TeIhioterangi, Rangitāwhakarere, Te Aweaweoterangi andHaumoewārangi, who married Waihekeao.(d) Tainui, according to the ancestors, stopped at Ngunguru in the vicinityof Whangarei. Here they erected a house overnight. Three names fromthis event were bestowed on the children of Hotonui, being Tāhuhu,Kuramangotini and Tahinga. Over time, their descendants arrived at theKaipara from the north and became the three hapū Ngāi Tāhuhu, NgātiKura and Ngāti Tahinga. There are also other connections to this waka,but they come from the south from Tāmaki into the Kaipara. They arethe Ngā Iwi people.(e) Te Arawa me Tainui. This is the Ngā Oho connection in Tāmaki, theline of descent from Ohomairangi (Ngā Oho). From Ngā Oho descendthe Ngā Iwi people and then the people of Te Waiohua. Then descendsNgāti Whātua Ōrākei. The line of Ohomairangi (Ngā Oho) continuedwith Muturangi then Taunga, Atuamatua, Houmaitawhiti,Tamatekapua, Kahumatamomoe, Tāwakemoetahanga, Uenuku-mai-i-rarotonga, Hinemāpunia, Hikarairo, Kuranoke, Poutūkeko,Whatutūroto, Huakaiwaka of Te Waiohua, Huatau, Te Atairēhia ofNgāti Te Ata, Pouate and Te Hōreta. Te Hōreta was followed by bothMokorua and Te Tahuri. Mokorua married Tarahawaiki and wasfollowed by Apihai Te Kawau. Te Tahuri married Tomoāure and wasfollowed by Awarua.40B The great migration from Muriwhenua to Kaipara[101] Māhuhu and Kurahaupō were at Muriwhenua – the genealogies of the twowaka joined whilst they lived together in that area, and these people became Ngā Ririkiand Ngāi Tamatea. They left that place to seek revenge for the death of Tauteka whowas murdered by Ngāti Kahu-Moemate-ā-Ika. They arrived at Hokianga andWaimamaku. They then moved on to Waipoua Forest, Maunganui Bluff and KaihuValley. Ngā Ririki and Ngāi Tamatea settled in these three places.[102] Whilst they were living at Waipoua Forest, Maunganui Bluff and Kaihu Valley,Haumoewārangi and his iwi were living at Poutō, the mouth of the Kaipara harbour.Haumoewārangi's elder brother Papapounamu travelled to Kaihu and there he sawtheir prowess at growing kūmara, taro and yam. Papapounamu returned toHaumoewārangi at Poutō and told him. In time, Haumoewārangi and his people wentthere to battle with Ngā Ririki. In these battles, Te Nganaia was killed andHaumoewārangi stayed in the area of Kaihu Valley.[103] In due course, Te Nganaia's grandchildren raised a battle againstHaumoewārangi and his people. Matuaahoaho and Kauteāwhā are the names of thesegrandchildren. At this battle, Toutara (of Haumoewārangi's people) was killed byKauteāwhā. The name Te Taoū comes from this event, because Toutara was spearedin the chest by Kauteāwhā.26 From Te Nganaia came Tohakirangi and thenMatuaahoaho. Te Nganaia was also followed by Whakaotirangi and then Kauteāwhā.C Ngāti Whātua v Nga Iwi[104] Around this time, being the 1600s, these people of Ngāti Whātua were livingbetween Maunganui Bluff and Poutō, the mouth of the Kaipara Harbour. The peopleliving on the other side of the Kaipara Harbour to Tāmaki were Ngā Iwi. Ngā Iwidescend from Ngā Oho. Ngā Oho are the descendants of the Te Arawa and Tainuiwaka. This is the time when Ngāti Whātua and Ngā Iwi met. Here began the firstmarriages, trials and tribulations between these two peoples.26 Tao in te reo Māori means spear, and ū means a woman's breast.41[105] Haumoewārangi is known for his prowess as a warrior. The power ofWaihekeao is ancestral and through her comes great authority. Coming from Māhuhu,Kurahaupō, Ngāi Tamatea, Ngā Ririki is a source of great power.(a) The first wife of Haumoewārangi was Waewaekura, of Ngā Iwi. Theyhad an only child, Rangiteipu was her name.(b) The second wife of Haumoewārangi was Waihekeao of Ngā Ririki.They had seven children. The majority of hapū from Maunganui Bluffto Tāmaki descend from these seven children.[106] There was a time when Rangiteipu (or Rongoteipu) visited relatives in the areaof Kaipātiki (Parakai). Haumoewārangi's home at that time was at Poutō. Rangiteipuwas returning to Poutō via Ōtakanini, Aotea (Shelly Beach) and Kawau (South Head).At Kawau, Ngā Iwi were planting kūmara, a sacred event. Because Rangiteipu brokethat tapu by coming upon those at Kawau, Ngā Iwi confiscated her belongings andsent her on her way.[107] Rangiteipu arrived back at Poutō and told her father what Ngā Iwi had done toher. When those crops were ready to harvest, Haumoewārangi, his children and theirpeople crossed over to harvest the kūmara of those gardens belonging to Ngā Iwi.They travelled on two waka. When the first waka was full of kūmara it left, with theboys of Haumoewārangi. Haumoewārangi and Rangiteipu were returning to thesecond waka when Ngā Iwi arrived and Haumoewārangi and Rangiteipu were slain.The name of the place where they were slain is Mānunutahi (Mosquito Bay).[108] Waihekeao, Haumoewārangi's second wife, made a request to Kāwharu ofKāwhia Harbour to avenge the deaths of Haumoewārangi and Rangiteipu. Kāwharuagreed to the request. This request was possible because of Rangiteipu's Ngā Iwigenealogy. Kāwharu arrived and the Raupatu Tihore (the stripping conquest) began.Ngā Iwi were given a beating all the way from the Kaipara to Tāmaki. Kāwharu didnot settle in Tāmaki, rather he returned to the Kaipara.42[109] On arrival back in the Kaipara, some of the Ngā Iwi had gathered onMoturemu. Moturemu was a strong fortress, an island with high cliffs. Kāwharu andhis war party went there. Kāwharu used his tall body as a ladder, for his warriors toclimb onto the island fortress. The people on the island fortress were killed and fromthis event came the name Te Tomokanga o Kāwharu (the ladder of Kāwharu).[110] Ngā Iwi were not exterminated by Kāwharu. They were still living in theKaipara but their strength had weakened. Kāwharu's sister had married into Ngā Iwi.Kāwharu went to visit his sister and to settle an insult made by Te Hūhunu. It washere that Kāwharu was deceived by Te Hūhunu's people, who killed Kāwharu.[111] This sat as a great burden to Ngāti Whātua, the deaths of Haumoewārangi,Rangiteipu and Kāwharu by Ngā Iwi. Ngāti Whātua knew that the relationshipbetween them and Ngā Iwi was beyond repair. Ngāti Whātua were unable to avengethose deaths. Ngāti Whātua turned to raise their children as great warriors. Some ofthese children were Tumupākihi, Poutapuaka, Te Atiakura, Hakiriri, Tikiwhakataha,Pani, Tete, and Hukatere among others.[112] When these children became adults, they were pure warriors who were secondto none. Two waka were built: Te Pōtae-o-Wāhieroa, and Te Wharau. Ngāti Whātuawere aboard Te Pōtae-o-Wāhieroa. Te Taoū were aboard Te Wharau. They travelledto the South Kaipara and were successful in conquest over Ngā Iwi. All fortresses felland Ngāti Whātua and Te Taoū settled in this area. And here the dominion wasextended, now, no longer from Maunganui Bluff to Poutō, but from Maunganui Bluffto Kaipara Harbour. Hence the saying of Te Ikataoroa of Te Roroa:When Maunganui looks, it looks to Kaipara; when Kaipara looks, it looks toMaunganui.D The 18th century raupatu or conquest of Tāmaki[113] Whilst Ngāti Whātua and Te Taoū were living in this new home in SouthKaipara, the conflict with Ngā Iwi continued; in particular the Ngā Iwi of Tāmaki,being Te Waiohua. Ngāti Whātua Ōrākei acknowledges that the renowned rangatiraof Te Waiohua, Kiwi Tāmaki, had undisputed mana over a substantial population andseveral settlements in Tāmaki Makaurau, including his principal and formidable pā at43Maungakiekie.27 At that time, around 1740, Te Waiohua had mana whenua over thearea over which Ngāti Whātua Ōrākei claim mana whenua today.28[114] Tension was growing between Waiohua and Te Taoū, as Te Taoū began pushingsouth into the rohe of Waiohua.29 This tension was magnified irreversibly when,around 1740, Kiwi Tāmaki and his warriors travelled to Kaipara to attend the uhunga(ceremony to remove tapu over remains) of Tumupākihi, a Te Taoū rangatira atWaitūoro (close to Parakai).30 When Kiwi Tamaki arrived, he launched a surpriseattack killing hundreds of Ngāti Whātua, including the sister of Ngāti Whātua rangatiraTuperiri and Tumupakihi's son.31[115] Tuperiri and Wahaakiaki, Tumupakihi's other son, managed to escape.Following this attack, they vowed to obtain utu against Kiwi.32 A number ofskirmishes followed. The survivors of Te Taoū fled to Te Mākiri (close to Te Awaroa/Helensville). When Kiwi Tāmaki arrived there, he and Wahaakiaki had a battle ofwords:Kiwi: Tomorrow your breast bone will hang on the tree on Tōtara-i-āhua [OneTree Hill, also known as Maungakiekie].Waha: It will be like this, tomorrow your breast bone will hang on the pūriritree on Maunga-a-Ngū [a hill at Te Awaroa/ Helensville].Kiwi: Kiwi will not die, unless Rēhua-i-te-rangi [a Māori god] says so.27 R C J Stone From Tamaki-Makau-Rau to Auckland (Auckland University Press, Auckland, 2001)[Stone From Tamaki-Makau-Rau] at 28; Brief of Evidence of Ngarimu Blair in Reply, 4 December2020 [Blair Reply] at [67]; and Brief of Evidence of Vincent O'Malley, 2 June 2020 [O'MalleyBrief] at [41].28 Native Land Court Ōrākei Block (1869) 2 Ōrākei MB, Transcribed Version [Native Land CourtŌrākei MB 2] at 207; Ōrākei Block (1869) as reported in Important Judgments Delivered in theCompensation Court and the Native Land Court 1866-1879 (Southern Reprints, 1994) [NativeLand Court Ōrākei Decision 1869] at 53; S Percy Smith The peopling of the North: notes on theancient Māori history of the Northern Peninsula and sketches of the History of Ngāti-Whātua tribeof Kaipara, New Zealand (Kiwi Publishers, Christchurch, 1998) [Smith The Peopling of the North]at 2; O'Malley Brief at [42]–[43].29 Angela Ballara Taua: 'Musket Wars', 'Land Wars' or Tikanga? Warfare in Māori Society in theEarly Nineteenth Century (Penguin Books, Auckland, 2003) [Ballara Taua] at 208; and O'MalleyBrief at [43].30 Ballara Taua at 208–209; and O'Malley Brief at [44].31 Native Land Court Ōrākei MB 2 at 78–79; Native Land Court Ōrākei Decision 1869 at 63; PaulTūhaere A Paper Giving an Account of the Genealogy of the Ancestors of Ngāti Whātua,handwritten version [Tūhaere Ancestors] at 11; Paul Tūhaere "An Historical Narrative Concerningthe Conquest of Kaipara and Tāmaki by Ngāti Whātua" (1923) 32 JPS 229 [Tūhaere "TheConquest"] at 231; O'Malley Brief at [44]–[45]; and Kawharu Brief at [70].32 Stone From Tamaki-Makau-Rau at 40; Ballara Taua at 208–209; Tūhaere "The Conquest" at 231;and O'Malley Brief at [45]–[47].44[116] Kiwi Tāmaki returned to Tāmaki with his war party. Wahaakiaki andWaitaheke led Te Taoū across the Manukau to Awhitu, where they sacked a Waiohuapā. The strategy was to entice Kiwi Tamaki off Maungakiekie – and it worked. Kiwiand other important Waiohua chiefs were lured to Paruroa (Big Muddy Creek) wherethey came across Tuperiri's party. Te Taoū laid their strategy and Kiwi Tāmaki waskilled by Wahaakiaki. Many Te Waiohua also died, hence the name Te RangiHingahingatahi (the Day That Many Fell). Ngāti Whātua Ōrākei say this signified theend of Waiohua as a dominant political force.33 The breast-bone of Kiwi was taken toMaunga-a-Ngū, and hung on the pūriri tree. Te Taoū returned to Kaipara to rest, butnot before Wahaakiaki took the pā at Māngere by surprise in revenge for the killing ofhis sister.34[117] Tuperiri was angry with Wahaakiaki because of his sisters who had been killedby Te Waiohua. Tuperiri confronted Wahaakiaki. The confrontation was deescalatedby Tuperiri's son Paewhenua. Peace was made – the pact between them was that allhapū would ascend to Tāmaki to fully conquer Tāmaki. All hapū gathered andascended to Tāmaki.[118] After learning Waiohua intended to reoccupy homes at Kohimarama, Te Taoūreturned to the area over which Ngāti Whātua Ōrākei claim mana whenua, for amilitary effort. Te Taoū first arrived at Te Okā (Point Erin). They then continuedalong the southern shores of the Waitematā to Kohimarama, where the pā there wascaptured. After this, Te Taoū captured Tokapurewha, Whakatakaka, Ōrākei andTaurarua, then they turned inland via Pukapuka to Maungakiekie where Te Taoūcaptured the pā based there. Te Taoū, under Tuperiri then followed Waiohua toMāngere and captured the pā in that district.35 At the conclusion of the conquest, TeTaoū stayed at Tāmaki and the other hapū returned to Kaipara.33 Native Land Court Ōrākei MB 2 at 179–180; Native Land Court Ōrākei Decision 1869 at 63;Stone From Tamaki-Makau-Rau at 42; Ballara Taua at 209–210; Smith The Peopling of the Northat 87; Kawharu Brief at [72]; O'Malley Brief at [48]–[50]; NOE 292/18–20 (Kawharu); and NOE639/9–11 (Blair).34 Native Land Court Ōrākei MB 2 at 80; Native Land Court Ōrākei Decision 1869 at 63; TūhaereAncestors at 10; Smith The Peopling of the North at 89b; Kawharu Brief at [73]; and O'MalleyBrief at [52].35 Tūhaere "The Conquest" at 232; Smith The Peopling of the North at 90; Kawharu Brief at [74];O'Malley Brief at [53]; Brief of Evidence of David Williams in Reply, 4 December 2020 [WilliamsReply] at [30]; NOE 639/9–11 (Blair), and NOE 694/18–33 (Williams).45[119] Ngāti Whātua Ōrākei say this was a comprehensive raupatu that resulted in atotal change to political dominance in Tāmaki Makaurau.36 With Waiohua completelydefeated, a section of Te Taoū under Tuperiri took control of the area over which NgātiWhātua Ōrākei claim mana whenua and became the major political force in the area.Tuperiri took over Maungakiekie Pā, which was renamed Hikurangi. Tuperiri's sonsTarahawaiki and Whakaariki occupied Onewa. His half-brother Te Waitaheke lived atTe Tō (Freeman's Bay). Other settlements were established at Onehunga, Ōrākei, theupper Waitematā, Māngere and Ihumātao.37E The connections established as a result of the raupatu[120] An integral part of the raupatu was establishing new links with those whom TeTaoū had conquered. Tuperiri had four children: Tomoāure, Tarahawaiki, Paewhenuaand Whakaariki. Tomoāure and Tarahawaiki married into Te Waiohua, in particularinto Ngāti Te Ata. From Huakaiwaka (Te Waiohua) came Huatau then Te Atairēhia(Ngāti Te Ata), Pouate and then Te Hōreta. Te Hōreta was followed by both Mokoruaand Te Tahuri. Mokorua married Tarahawaiki and was followed by Apihai Te Kawau.Te Tahuri married Tomoāure and was followed by Awarua.[121] Te Tahuri and Tomoāure gifted Tauoma (Panmure) to a relative of Te Tahuri,Kehu. Kehu's husband was Te Putu of Ngāti Pāoa. This is the arrival of Ngāti Pāoato Panmure, around 1780. At that time Tuperiri was living at Maungakiekie (One TreeHill). Te Tahuri and Tomoāure were living at Māngere and Āwhitu. Tarahawaiki andMokorua were living at Māngere, Puketāpapa and Āwhitu at times, and on theWaitematā at other times. Paewhenua and Whakaariki were living on the Waitematā.[122] Another connection of Ngāti Whātua to Ngāti Pāoa is the marriage of MaihiTe Hīnaki to Rīria Kotakota of Te Mangamata, a hapū of Ngāti Whātua in the Kaipara.Further, their child Wēneti Maihi Te Hīnaki married Ihapera Mū of Te Uri o Hau36 Stone From Tamaki-Makau-Rau at 40; Ballara Taua at 208–209; Kawharu Brief at [71]; andO'Malley Brief at [47].37 Native Land Court Ōrākei Decision 1869 at 65–66; Smith The Peopling of the North at 89–91;Affidavit of Hugh Kawharu, 9 December 2002, in Ngā Uri o Te Taoū Tribe Inc v Attorney-GeneralHC Auckland M.1079-00 and the Wai 388 claim at the Waitangi Tribunal at 5–6 [KawharuAffidavit Ngā Uri o Te Taoū]; Kawharu Brief at [76]; O'Malley Brief at [53]; NOE 292/30–33 –293/1–2 (Kawharu); and NOE 771/15–16 (Williams).46another hapū of Ngāti Whātua in the Kaipara. There are many families of NgātiWhātua Ōrākei today who descend from these marriages. From Haumoewārangi cameRango then Moerangaranga, Taumutu, Ruarangi, Houtahi, Ruarangi II, Rīria Kotakotaand then Wēneti Maihi Te Hīnaki. Rīria Kotakota married Maihi Te Hīnaki of NgātiPāoa. Wēneti Maihi Te Hīnaki married Ihapera Mū of Te Uri o Hau.[123] The eponymous ancestor of Te Ākitai is Kiwi Tāmaki. He is a grandson ofHuakaiwaka and his marriage to Rangihuamoa. Ngāti Whātua Ōrākei descend fromHuakaiwaka and his other marriage to Rauwhakiwhaki. The marriage of Huakaiwakaand Rangihuamoa resulted in Ikamaupoho who was followed by Kiwi Tāmaki. Themarriage of Huakaiwaka and Rauwhakiwhaki resulted in Huatau followed by TeAtairēhia, Pouate, Te Hōreta, Mokorua, and then Apihai Te Kawau of Ngāti WhātuaŌrākei.F Ngāti Whātua and Ngāti Whātua Ōrākei[124] Before the adoption of the name Ngāti Whātua, there was one hapū with thename Ngāti Whātua. They were the descendants of Kōieie, and their home was atŌtakanini in the Kaipara. Kōieie was alive around 1750. The name of this hapū todayis Ngāti Whātua Tūturu. From Haumoewārangi came Rango then Taumutu, Kōieie ofNgāti Whātua Tūturu, Tauhia and then Te Waru.[125] The name Ngāti Whātua was adopted as a name for all hapū from MaunganuiBluff to Tāmaki in the 1800s. Before this time, Ngāti Whātua lived according to Māoritraditions as hapū-based communities, with kinship ties between one hapū to another.[126] Some of the hapū from Maunganui Bluff to Tāmaki who adopted the nameNgāti Whātua are: Te Roroa, Te Uri o Hau, Ngāti Kura, Ngāti Tahinga, Ngāi Tāhuhu,Ngāti Rango, Te Mangamata, Ngāti Whātua Tūturu, Te Taoū, Ngā Oho and TeUringutu, along with others. Te Kurataiaho Kapea says that for a number of differenthapū to have adopted the umbrella name Ngāti Whātua is a strange concept, becausethese hapū do not trace their lineage to one ancestor or one great waka.3838 Kapea Brief at [11].47[127] After the raupatu, Te Taoū chiefs married Waiohua women which reinforcedTe Taoū ties to the land. This hapū became known as Ngāoho. The Ngāoho (or NgāOho) hapū of Ngāti Whātua Ōrākei is not the same entity as the 'first' Ngā Ohoassociated with Huakaiwaka and Waiohua.39 The two are related because of theintermingling of whakapapa of Te Taoū and early Ngā Oho people, but the Ngāohohapū that emerged following the raupatu is a distinct entity that identifies Tuperiri asthe eponymous ancestor.40[128] Ngāti Whātua Ōrākei accepts that some Waiohua people survived, stayed andintermarried with Ngāti Whātua Ōrākei. But those survivors who intermarried withNgāti Whātua Ōrākei came under the political influence of Ngāti Whātua Ōrākei,which was part of the fabric of Māori society.41 This is clear from the way they wereamalgamated into Ngāti Whātua hapū under Te Uringutu.42 Te Uringutu formed underthe leadership of Tuperiri's son Tomoaure, who led those who had fled, then returnedfollowing the raupatu.43[129] The three hapū of Te Taoū, Ngāoho and Te Uringutu were not separate orautonomous territorial groups. They were three hapū of Ngāti Whātua which livedand worked together.44 The Waitangi Tribunal described the development of adistinctive Ngāti Whātua Ōrākei identity (which was different from those NgātiWhātua still living further north) in this way:45Through common blood and shared destiny the combined group of Te Taoū,Ngāoho, and Te Uringutu came to live as one, on what is now greaterAuckland.39 Kapea Brief at [28]; and NOE 1155/18–34– 1156/1–7 (Meredith).40 NOE 1155/18–34–1156/1–7 (Meredith); and Ngāti Whātua Ōrākei Deed of Settlement ofHistorical Claims, 5 November 2011 [Ngāti Whātua Ōrākei Deed] at [8.5]; and NOE 292/7–8(Kawharu).41 NOE 292/7–14 (Kawharu).42 I H Kawharu, Ko te Mana Whenua o Ngāti Whātua o Ōrākei (Wai 388 Draft, paper presented tothe Crown, May 2003) [Kawharu Ko te Mana Whenua] at 4; and Kawharu Brief at [77].43 Native Land Court Ōrākei Decision 1869 at 65; Ballara Taua at 211; I H Kawharu Dimensions ofRangatiratanga (Hodge Fellowship, 1995-1996) [Kawharu Dimensions] at 39–40; KawharuAffidavit Nga Uri o Te Taoū at 6; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi TribunalReport of the Waitangi Tribunal on the Ōrākei Claim (Wai 9, 1987) [Waitangi Tribunal ŌrākeiReport] at 17; Kawharu Brief at [77]; O'Malley Brief at [54]–[56]; Brief of Evidence of DavidWilliams, 2 June 2020 [Williams Brief] at [35]–[37]; and NOE 640/1–4 (Blair).44 Native Land Court Ōrākei MB 2 at 10; Native Land Court Ōrākei Decision 1869 at 65; KawharuDimensions at 39–40; Kawharu Ko te Mana Whenua at 4; Williams Brief at [38]; and NOE734/18–31 and 735/4–7 (Williams).45 Waitangi Tribunal Ōrākei Report at 17; and O'Malley Brief at [55].48G Ngāti Whātua Ōrākei until the 1820s[130] Following the conquest by Te Taoū, Ngāti Whātua Ōrākei remained largelyundisturbed by neighbouring iwi in its central position in the area over which it claimsmana whenua for the rest of the 18th century and early 19th century.46 Tuperiricontinued to occupy Maungakiekie (One Tree Hill) until his death in the late 18thcentury.47 Ngāti Whātua Ōrākei accepts some Waiohua people survived, stayed andinter-married with Ngāti Whātua Ōrākei, but maintains they did so under the politicalinfluence of Ngāti Whātua Ōrākei.48[131] By this time, Ngāti Whātua Ōrākei say they held sway over the whole of thewest coast from Maunga-nui Bluff to the Manukau Heads, eastwards to the TāmakiRiver, and (in respect of the interests of Ngāti Whātua o Kaipara) extending north tonear Whangarei.49 By the beginning of the 19th century, although the main NgātiWhātua Ōrākei residences were at Ihumātao and Māngere, they had significantcultivations at Ōkahu Bay and along the shores of the Waitematā.50[132] There are some records of European encounters at this time. In July 1820,Missionary the Rev Samuel Marsden, the first known Pākehā visitor to the Tāmakiregion, met with Te Hinaki, a Ngāti Pāoa rangatira, and Te Kawau, a Ngāti Whātuarangatira. Ngāti Whātua Ōrākei say Marsden's description of the two chiefs isinstructive; Te Hinaki was described as a chief of Mokoia, while Te Kawau toldMarsden that the land upon the Waitematā belonged to him — a statement which TeHinaki evidently did not contradict.51 It was Te Kawau who escorted Marsden aroundthe areas west of the Tāmaki river.5246 Native Land Court Ōrākei MB 2 at 25; Native Land Court Ōrākei Decision 1869 at 65; andKawharu Brief at [86].47 Native Land Court Ōrākei MB 2 at 187; Native Land Court Ōrākei Decision 1869 at 67; andO'Malley Brief at [63].48 Ngāti Whātua Ōrākei Closing at [6.17].49 S P Smith Māori Wars of the Nineteenth Century (Whitcombe and Tombs, Christchurch, 1910) at19; and Kawharu Brief at [80].50 Native Land Court Ōrākei Block (1869) 1 Ōrākei MB, Transcribed Version, [Native Land CourtŌrākei MB 1] at 209 and 222; Native Land Court Ōrākei MB 2 at 160 and 185; Native Land CourtŌrākei Decision 1869 at 67; and O'Malley Brief at [65].51 JR Elder (ed) The Letters and Journals of Samuel Marsden, 1765-1838 (Coulls, Somerville,Wilkie and AH Reed for Otago University Council Dunedin, 1932) [Elder Marsden] at 271; andO'Malley Brief at [69].52 Elder Marsden at 271; and O'Malley Brief at [69].49H Strategic withdrawal in the 1820s[133] Following decades of peace, ongoing skirmishes with Ngāpuhi began toconcern those in the broader Tāmaki isthmus.53 In the 1820s, the isthmus was throwninto disarray when Ngāpuhi made repeated visits to Tāmaki heavily armed with newmilitary technology in the form of muskets.[134] The initial onslaught by Ngāpuhi took place in late 1821:(a) Ngāpuhi first arrived in March 1821, under the leadership of theirrangatira Koperu, and attacked Ngāti Pāoa at Mauinaina. Te Taoū wereamongst those who helped drive Ngāpuhi away.54(b) In October 1821 a taua, or war party, of up to 2,000, carrying as manyas 1,000 muskets reached Tāmaki Makaurau.55 Ngāpuhi found NgātiWhātua's rohe relatively undefended. Some time prior to Ngāpuhi'sarrival Te Kawau had departed the isthmus to jointly lead a large warparty across the North Island, known as the Amiowhenua (circling ofthe land). Te Kawau was in what is now Wellington when Ngāpuhiarrived.56(c) In November 1821, the Ngāpuhi taua attacked and destroyed theMauinaina and Mokoia pā of Ngāti Pāoa. Ngāti Pāoa suffered heavyloss of life, including senior rangatira Te Hinaki.57 The defenders ofMauinaina pā had five muskets to defend against the 1,000 of53 Kawharu Brief at [94].54 Native Land Court Ōrākei MB 1 at 221; Native Land Court Ōrākei Decision 1869 at 69; andKawharu Brief at [97.1].55 Ballara Taua at 217; and O'Malley Brief at [78].56 Native Land Court Ōrākei MB 1 at 204 and 211; Native Land Court Ōrākei MB 2 at 16–17;Kawharu Brief at [97.2]; and O'Malley Brief at [80].57 Native Land Court Ōrākei MB 1 at 204; Native Land Court Ōrākei MB 2 at 16–17; Te RōpūWhakamana i te Tiriti o Waitangi | Waitangi Tribunal The Hauraki Report (Wai 686, 2006)[Waitangi Tribunal Hauraki Report 2006] at 69; Kawharu Brief at [97.2]; O'Malley Brief at [81];and Williams Brief at [51].50Ngāpuhi.58 Ngāti Pāoa withdrew from the isthmus, seeking shelterfurther south in the Waikato.59[135] Te Kawau had been named by Ngāpuhi as a particular target; his absence onthe Amiowhenua likely spared Ngāti Whātua Ōrākei from a similar fate to NgātiPāoa.60 Some Ngāti Whātua Ōrākei women had remained in Māngere, cultivatingkumara. But upon hearing of the Ngāpuhi, they took shelter at Ikurangi on the northernside of the Manukau Harbour.61 Following their success at Mokoia and Mauinaina,Ngāpuhi returned north. From 1822 to 1825, Ngāti Whātua Ōrākei remained in thearea over which they claim mana whenua and moved seasonally. They continued toplant, fish, and store crops around the Waitematā.62[136] With some Ngāpuhi rangatira worried about reprisals for their taua, some stepstowards peace were made with a peace-making ceremony in the Bay of Islands in 1823between Ngāpuhi and Waikato. As part of the peace-making, Ngāpuhi woman MatireToha was married to Kati, the brother of Te Wherowhero of Waikato.63 Kati, MatireToha, and their party were hosted by Te Kawau on their return from the Waikato. TeKawau greeted the party at Takapuna, supplied them with food from Ōkahucultivations, and sheltered them for three days.64[137] Unfortunately, the peace that was brokered was short lived. In 1824 a groupof Te Uringutu were attacked by Ngāpuhi.65 In 1825, Hongi Hika began assemblinganother taua to attack Tāmaki. Hearing of the incoming taua, Te Kawau assembled aparty and headed north, but the battle took place at Te Ika-a-ranganui before he andhis fighters reached the scene in Kaipara. Although Ngāti Whātua Ōrākeioutnumbered the Ngāpuhi taua by about two to one, they possessed few muskets andwere defeated. Many were killed in the battle.6658 O'Malley Brief at [82].59 Ballara Taua at 219–220; Waitangi Tribunal Hauraki Report 2006 at 46; O'Malley Brief at [83];and Williams Brief at [51].60 Stone From Tamaki-Makau-Rau at 93; and O'Malley Brief at [88].61 Native Land Court Ōrākei MB 1 at 215; and O'Malley Brief at [80].62 Native Land Court Ōrākei MB 2 at 32–34; Native Land Court Ōrākei Decision 1869 at 71; BallaraTaua at 222; and O'Malley Brief at [87].63 Native Land Court Ōrākei Decision 1869 at 70; and O'Malley Brief at [90].64 Native Land Court Ōrākei Decision 1869 at 70–71; and O'Malley Brief at [91].65 Native Land Court Ōrākei Decision 1869 at 71; and O'Malley Brief at [94].66 Ballara Taua at 225; O'Malley Brief at [95]; and Williams Brief at [42].51[138] From this point, Ngāti Whātua Ōrākei evacuated their rohe, with someventuring south to the Waikato and others to the Waitākere ranges or to the east of theKaipara harbour.67 The risk of continued Ngāpuhi attacks made it unsafe for anyoneto remain at Tāmaki.68 European explorers visiting Tāmaki at the time noted anabsence of occupation during the late 1820s.69 These invasions were not followed bypermanent Ngāpuhi occupation. Ngāpuhi focus was on utu and glory, not onconquest.70 Ngāpuhi never settled in Tāmaki.71 As Dr Vincent O'Malley stated, ifanyone was in Tāmaki in the early 1830s, it would have been in a "fleeting fashion".72[139] Ngāti Whātua Ōrākei maintained their customary connections with the areaover which they claim mana whenua. As Te Kawau said "my fires were continuallybeing kindled at Ōrākei & Ōkahu".73 Despite not living there at the time, NgātiWhātua Ōrākei periodically returned to test the safety of Tāmaki,74 fish on theWaitematā,75 and even lived at times at Ōkahu Bay between raids.76[140] Eventually the threat from Ngāpuhi subsided and a new equilibrium wasrestored.77 In late 1835 Ngāti Whātua Ōrākei began their permanent return to the areaover which Ngāti Whātua Ōrākei claim mana whenua.78 Tāmaki Makaurau waseffectively deserted at the time,79 and Ngāti Whātua Ōrākei were the first iwi to returnto the wider Tāmaki isthmus.80 Their return was cautious, given tensions with67 Native Land Court Ōrākei MB 2 at 300–301; Native Land Court, The Ōrākei Decision at 73; StoneFrom Tamaki-Makau-Rau at 103 and 109–110; and Kawharu Brief at [97.11]–[97.12].68 Native Land Court Ōrākei Decision 1869 at 72; Stone From Tamaki-Makau-Rau at 103; andO'Malley Brief at [98]–[99].69 At [101]–[103].70 Waitangi Tribunal Ōrākei Report at 19; and Kawharu Brief at [100]–[101].71 Native Land Court Ōrākei MB 1 at 67–68; James Belich Making Peoples: A History of NewZealanders (Allen Lane, Auckland, 1996) at 161; Kawharu Brief at [100]; Williams Brief at [42]and [141]; NOE 732/10– 33 (Williams); and NOE 2830/21–24 (McBurney).72 NOE 1043/27–29 (O'Malley).73 Native Land Court Ōrākei MB 1 at 211.74 Brief of Evidence of Ngarimu Blair, 2 June 2020 [Blair Brief] at [55].75 Native Land Court Ōrākei MB 2 at 112; Stone From Tamaki-Makau- Rau at 103; Ballara Taua at229; O'Malley Brief at [99] and [107]; and NOE 63/6–9 (Kapea).76 Kawharu Brief at [101].77 Native Land Court Ōrākei Decision 1869 at 74–75; and O'Malley Brief at [109].78 Native Land Court Ōrākei MB 2 at 261; Native Land Court Ōrākei Decision 1869 at 75–76; andNOE 83/8–9 (Kapea).79 Native Land Court Ōrākei MB 1 67–68; Native Land Court Ōrākei Decision 1869 at 74–75; andWilliams Brief at [132].80 Williams Brief at [132]; Williams Reply at [16]; Blair Reply at [84]; and NOE 1043/10–34–1044/1–20 (O'Malley).52Ngāpuhi and Ngāti Pāoa, but they were protected by the continuation of longstandingalliances between Te Kawau and Te Wherowhero of Waikato.81[141] By the spring of 1837, Ngāti Whātua Ōrākei was planting gardens on theWaitematā side of the area over which Ngāti Whātua Ōrākei claim mana whenua, atHorotiu (Queen Street) and Remuera.82 A chapel was built at Ōrākei, from equalcontributions from the Anglican Church and Ngāti Whātua Ōrākei, and was dedicatedperhaps as early as 1837.83 Once re-established, Te Kawau invited Te Wherowhero tojoin Ngāti Whātua Ōrākei in gardening at Onehunga.[142] One factor driving groups to return to the isthmus was missionary-driven peacetalks. Hui were held in late 1835 and early 1836 involving Waikato, Ngāti Pāoa, andNgāti Whātua Ōrākei.84 Further hui were held throughout 1838. One of these washeld at Ōrākei and Ōkahu Bay, to discuss coordination in defence and cultivationplanning.85 Paora Tūhaere's evidence at the Ōrākei hearing was that in 1838permanent gardens and large houses were constructed on the Waitematā.86[143] Of course, Ngāti Whātua Ōrākei were not the only iwi in the broader TāmakiMakaurau region at this time:(a) Ngāti Pāoa were predominantly based in the Hauraki Gulf, particularlyWaiheke and Whakatiwai, Ōrere and other locations. They did not81 Native Land Court Ōrākei MB 1 at 71; Native Land Court Ōrākei MB 2 at 115; Native Land CourtŌrākei Decision 1869 at 75; Stone From Tamaki-Makau-Rau at 152; Ballara Taua at 231;Kawharu Brief at [103]–[104]; O'Malley Brief at [110]–[116]; Brief of Evidence of HauāuruRawiri, 13 October 2020 (English) [Rawiri Brief] at [41]; Brief of Evidence of Morehu Wilson,13 October 2020 [M Wilson Brief] at [79]; Mark Derby and Tanja Rother Te Ākitai WaiohuaCustomary Interests in three Auckland sites (August 2020) [Derby and Rother Te Ākitai WaiohuaCustomary Interests] at 50; Tangata Whenua Consultation Hearing Commission Report ofCommissioners to Auckland City Council (Auckland City Council, 1998) at 32; NOE 83/19–24(Kapea); and NOE 1163/31–34–1164/1–5 (Meredith).82 Native Land Court Ōrākei MB 2 at 118 and 289–290; Stone From Tamaki Makau-Rau at 175; andKawharu Brief at [107].83 Waitangi Tribunal Ōrākei Report at 31; and Kawharu Brief at [114].84 Stone From Tamaki-Makau-Rau at 161–164; and Kawharu Brief at [104]–[105].85 Kawharu Brief at [109.2].86 Native Land Court Ōrākei MB 2 at 88; Stone From Tamaki-Makau-Rau at 182; and KawharuBrief at [115].53return to Panmure/Mauinaina area following the Ngāpuhi raids, as thisbecame tapu.87(b) Further east were Ngāi Tai ki Tāmaki who predominantly lived inMaraetai but also had interests in Clevedon and Papakura and some ofthe Hauraki Gulf islands.88 In particular, Ngāi Tai ki Tāmaki now claimexclusive rights over Motutapu.89(c) Ngāti Te Ata, Ngāti Tamaoho and Te Ākitai ringed the extensivesouthern shore of the Manukau Harbour up to the western part of theMāngere peninsula. Te Ākitai had their main settlement at Pūkakiadjacent to that of Ngāti Whātua Ōrākei at Māngere and claimed rightsfrom the vicinity of Ōtara south to Papakura. Their area of interestabutted with Ngāti Pāoa at the Ōtāhuhu portage.90(d) Te Kawerau ā Maki occupied the forested mountainous western marginof the Tāmaki Isthmus, in particular the Waitakere region south ofTaupaki. Te Kawerau ā Maki also laid claim to occupational rights inparts of the North Shore peninsula, alongside Ngāti Pāoa and NgātiWhātua Ōrākei, and had fishing stations and a pā at Onewa on thenorthern shore of Waitematā.91[144] Ngāti Whātua Ōrākei continue to recognise the interests of these iwi in moderntimes.87 Native Land Court Ōrākei MB 1 at 147; Native Land Court Ōrākei Decision 1869 at 77; StoneFrom Tamaki-Makau-Rau at 306; Ballara Taua at 225; O'Malley Brief at [137]; Williams Brief at[50]–[51]; and NOE 2384/32–33 (McBurney).88 RCJ Stone Historical Report on the Auckland Metropolitan Area (Crown/Congress Joint WorkingParty, 1992) at 66; and O'Malley Brief at [133].89 Ngāi Tai ki Tāmaki Deed of Settlement Schedule: Documents at [3.2]; and NOE 2914/32–33,2915/1–25, 2916/16– 34 and 2917/1–3 (Brown).90 Kawharu Dimensions at 41; Alan La Roche The History of Howick and Pakuranga (The Howick& Districts Historical Society Inc, Auckland, 1991); and Williams Brief at [52].91 Kawharu Dimensions at 40–41; O'Malley Brief at [132]; and Williams Brief at [54].54I Ngāti Whātua Ōrākei and the Crown[145] As at 1840, following their return to Tāmaki, Ngāti Whātua Ōrākei hadresumed the exercise of political authority over their rohe.92 Their reach extendedfrom their principal kāinga between Māngere and Onehunga through Maungakiekie(One Tree Hill) to the Waitematā side of the area over which they claim manawhenua,93 with Te Kawau permanently based at Ōrākei.94 As their preeminentkaumātua, Ngāti Whātua Ōrākei say Te Kawau answered to no one outside of hispeople of Tāmaki.95[146] Lieutenant-Governor Hobson first visited Tāmaki Makaurau on 23 February1840 to gather more signatures for the Treaty of Waitangi. Upon entering theWaitematā, Hobson was immediately impressed. He spent the next few days exploringthe Tāmaki region, before he suffered a severe stroke. That necessitated other officialsgathering further signatures for the Treaty.96[147] Of the iwi in the Tāmaki Makaurau region, Ngāti Pāoa signed a copy of thetext of the Treaty of Waitangi first on 4 March 1840.97 This was arranged to be signedat Karaka Bay, so that members of Ngāti Pāoa at Waiheke and the Firth of Thamescould travel to sign the Treaty.98 Shortly after, on 20 March 1840, Te Kawau signed acopy of the text of the Treaty in te reo Māori at the settlement of Ngāti Whātua Ōrākeiat Māngere-Onehunga. Other signatories were Te Reweti and Te Tinana, and W C92 I H Kāwharu Ōrākei: A Ngāti Whātua Community (New Zealand Council for EducationalResearch, Wellington, 1975) at 5; and Williams Brief at [32] and [141].93 Native Land Court Ōrākei MB 2 at 66, 143–144, 190 and 293; Native Land Court Ōrākei Decision1869 at 79; Waitangi Tribunal Ōrākei Report at 19; Williams Brief at [43]; and NOE 728/30–34(Williams).94 Native Land Court Ōrākei MB 2 at 216–217; Native Land Court Ōrākei MB 2 at 51; Stone FromTamaki-Makau-Rau at 184 and 248; and Kawharu Brief at [118].95 Reply affidavit of Hugh Kāwharu for the third defendant, 27 August 2003 at [7] in Ngā Uri o TeTaoū Tribe Inc v Attorney-General HC Auckland M.1079-00 and the Wai 388 claim at the WaitangiTribunal; and Williams Brief at [85].96 Native Land Court Ōrākei MB 2 at 119; O'Malley Brief at [140]–[141]; and Kawharu Brief at[120].97 O'Malley Brief at [142].98 Williams Reply at [25.3].55Symonds witnessed the signing on behalf of the Crown.99 Despite signing in thislocation, Te Kawau was permanently based in Ōrākei at this time.100[148] Te Kawau was eager to form an alliance with the Crown. Based on 20 yearsof personal encounters with Pākehā, Te Kawau understood the power andopportunities of the European culture.101 Protection was also important, given theongoing potential threat from Ngāpuhi,102 Further, Ngāti Whātua were eager toparticipate in the trade that could come from closer association with the Europeans.103Margaret Kawharu says: 104In early 1840, Te Kawau's cousin, Te Whatarangi (aka Waterangi), called ameeting of all chiefs of Tāmaki, Waitematā, and Kaipara to discuss how tobest secure "peace and order and a cessation of war and strife". The lengthydiscussions did not yield firm plans, but a matakite (seer) called Titahi (alsoknown as Titai) had prophesised peace would only come to the Waitematā ifthe newly arrived Pākehā governor came here.[149] On this basis, in around April 1840 Te Kawau sent his nephew Te Reweti withseven other chiefs from Tāmaki, and Symonds, to the Bay of Islands with the promiseof land to convince Hobson to relocate the capital to the shores of the Waitematā.105This approach was accepted by Hobson.[150] Over the coming months, Hobson began arrangements to move the capital toAuckland. In September 1840, after two days of negotiating with Ngāti WhātuaŌrākei rangatira, Ngāti Whātua Ōrākei transferred "3,000 acres" (3,500 modern acres)of north facing land on the Waitematā starting from river Mataharehare nearNewmarket and continuing along the Waitematā to the river Ōpoutūkeha (or modernday Cox's Bay) and then from both points to the summit of Maungawhau (Mt Eden).10699 Native Land Court Ōrākei MB 2 at 119; Stone From Tamaki-Makau-Rau at 228; KawharuDimensions at 55; Kawharu Brief at [121]; Blair Brief at [62]; Williams Brief at [88]; O'MalleyBrief at [144].100 Native Land Court Ōrākei MB 1 at 216–217; Stone From Tamaki-Makau-Rau at 184 and 248;Kawharu Brief at [118].101 Waitangi Tribunal Ōrākei Report at 21; Kawharu Dimensions at 55; and Williams Brief at [89].102 Waitangi Tribunal Ōrākei Report at 21; Kawharu Dimensions at 55; and Williams Brief at [90].103 Kawharu Brief at [119]; and NOE 748/24–31 (Williams).104 Kawharu Brief at [119] citing Stone From Tamaki-Makau-Rau at 185.105 Native Land Court Ōrākei MB 2 at 42; Kawharu Dimensions at 55; O'Malley Brief at [146]; andWilliams Brief at [91].106 Land Deed signed by George Clarke (Chief Protector of the Aborigines) and Kawau, Tinana,Reweti Tamaki and others (Chiefs of Ngāti Whātua) in respect of 3,000 acres betweenMataharehare, Opou and Maungawhau (20 October 1840) [Land Deed, 20 October 1840].56Ngāti Whātua Ōrākei rangatira and George Clarke, the Chief Protector of Aborigines,walked the boundaries of this land and left large stones to mark the limits of what wasincluded.107 This land has come to be known as the 1840 Transfer Land in the NgātiWhātua Ōrākei Deed of Settlement and these proceedings.[151] Following this negotiation, on 18 September 1840 Auckland was formallyestablished at a ceremony to raise a flagstaff at Horotiu. This ceremony was asignificant affair; a 21-gun salute was fired, and Queen Victoria's health toasted,followed by a round of cheers and a celebratory luncheon. Over 100 Maori attendedthe ceremony where the Crown acknowledged the formation resulted from theCrown's agreement with Ngāti Whātua Ōrākei, and the Crown publicly affirmed therights of Ngāti Whātua Ōrākei over the area.108[152] On 20 October 1840 the transaction for the 1840 Transfer Land was confirmed.For what is now the most expensive land in the entire country, Ngāti Whātua Ōrākeireceived cash and goods valued at some £273. For Ngāti Whātua Ōrākei, the 1840Transfer Land meant immensely more than the cash and goods it received from theCrown. For them, it was a tuku, which required utu, or reciprocity, more broadly andrepresented the start of a mutually beneficial and enduring relationship with theCrown.109 Ngāti Whātua Ōrākei also saw the transaction as an invitation to share theland or a licence to occupy and did not understand that the Crown understood a saleas the transfer of exclusive ownership.110 As Te Kawau later said "I did not sell it Igave to them".111 From the perspective of Ngāti Whātua Ōrākei, the 1840 TransferLand was a tuku whenua.[153] The 1840 Transfer Land also represented a crucial development in the futureof Auckland. As Margaret Kawharu stated:112107 Stone From Tamaki-Makau-Rau at 248, 253 and 256; Kawharu Dimensions at 55; O'Malley Briefat [149]; Williams Brief at [92]; Blair Brief at [63]; and Kawharu Brief at [123].108 Stone From Tamaki-Makau-Rau at 254–256; Waitangi Tribunal Ōrākei Report at 22–23; O'MalleyBrief at [153]; and Williams Brief at [92].109 Kawharu Brief at [125]–[126]; Williams Brief at [93]; NOE 314/1–5 (Kawharu); and NOE1049/24–30 (O'Malley). The language used in the deed was "te utu mo taua wāhi wenua koiatenei".110 Waitangi Tribunal Ōrākei Report at 27; Kawharu Brief at [138]; Williams Brief at [99]; and NOE1174/15–27, 1206/31–33 and 1207/1–27 (Meredith).111 Native Land Court Ōrākei MB 1 at 15.112 Kawharu Brief at [125].57It is important to understand that this land transaction enabled theestablishment of the town of Auckland which soon became the main Europeansettlement, the leading commercial port and the seat of government in thecolony.[154] What followed was an influx of Māori and Pākehā into Auckland for the newtrading opportunities. Many iwi that came from their heartland to Tāmaki stayed andcultivated at Ōrākei and Ōkahu, after seeking Ngāti Whātua's consent.113 On 14March 1841, when Hobson took up official residence in Auckland, Te Kawau formallywelcomed Hobson at Ōkahu Bay in front of a thousand Ngāti Whātua and discussedNgāti Whātua Ōrākei working with the Crown, saying:114"Governor, Governor, welcome, welcome as a father to me! There is my landbefore you." He waved his hands towards the upper reaches of the harbour."Governor, go and pick the best part of the land and place your people, at leastour people upon it!"[155] Ngāti Whātua Ōrākei transferred two further blocks to the Crown in 1841 and1842, in what they say were tuku whenua, as noted in Map 2 below:(a) The first of these was on 29 June 1841 when a further 13,000 acres wasgiven to the Crown. This block of land, known as the Waitematā toManukau block began at Ōrākei in the east and ran down the road toManukau (now Manukau Road) until it reached Maungakiekie (OneTree Hill). The Southern boundary ran from Maungakiekie toPuketāpapa (Mt Roskill) by Owairaka (Mt Albert) to the portage of TeWhau. The western boundary runs from the portage of Te Whau to theboundary of the land in the first Crown purchase and from there alongthe coast to the bay of Ōrākei.115(b) The next transfer from Ngāti Whātua Ōrākei to the Crown was on 14September 1842. This was for 200 acres and is a triangle between113 Native Land Court Ōrākei MB 2 at 91 and 93–94; and Kawharu Brief at [131].114 Waitangi Tribunal Ōrākei Report at 23; and Kawharu Brief at [133].115 Maurice Alemann "Early Land Transactions in the Ngatiwhatua Tribal Area" (Master of Arts,University of Auckland, 1992) [Alemann "Early Land Transactions"] at 111; Blair Brief at [65];and O'Malley Brief at [159].58Royal Oak, Three Kings and the line towards Maungakiekie (One TreeHill).116Map 2: Further land transfers to the Crown in 1841 and 1842117[156] Following the end of the Crown's right of pre-emption in buying land fromMāori in 1844, Ngāti Whātua Ōrākei transacted directly with Pākehā settlers. By theend of 1845, settlers had acquired around 47,000 acres of land from Ngāti WhātuaŌrākei.118 The Crown then reinstated pre-emption and from 1846 to 1855 the Crownacquired 59,000 acres of Ngāti Whātua land.119 In 1841, Ngāti Whātua Ōrākei alsotransferred land at Pukapuka to Kati, Te Wherowhero's brother. Between 1842 and1843 they also bestowed a triangular piece of land in Remuera/Epsom upon Wetere ofNgāti Maoho, Ngāti Tamaoho and Ngāti Te Ata.120116 Alemann "Early Land Transactions" at 112; Blair Brief at [66]; and O'Malley Brief at [160].117 Stone From Tamaki-Makau-Rau at 300, see areas labelled 3 and 4.118 Ngāti Whātua Ōrākei Deed at [2.52]; and Williams Brief at [100].119 O'Malley Brief at [168].120 Native Land Court Ōrākei MB 1 at 33 and 217; Native Land Court Ōrākei MB 2 at 36–37; NativeLand Court Ōrākei Decision 1869 at 83; Stone From Tamaki-Makau-Rau at 291–293; KawharuBrief at [137]; and NOE 718/12–21 (Williams).59[157] In May 1844 was the hākari (feast) on the gifted lands at Remuera. At thisevent approximately 3,400 Māori attended from many different iwi with around 1000Pākehā spectators and observers, including Pootatau Te Wherowhero and GovernorFitzroy. Ngāti Whātua Ōrākei say they were the hosts of this event, and acontemporary lithograph of this event shows that Te Kawau and Ngāti Whātua Ōrākeiwelcomed the Governor to the hākari.121[158] In 1841 Ngāti Pāoa transacted a 6,000 acre block known as the KohimaramaBlock, which extended from Mission Bay and St Heliers to the Panmure Basin.122 TheNgāti Whātua Ōrākei assessment of the area over which they claim mana whenua,both in this proceeding and through the settlement process, aligns with this 1841assertion of mana whenua by Ngāti Pāoa, and of the boundary line between NgātiWhātua and the rohe of Ngāti Pāoa. By contrast:(a) When Ngāti Pāoa were transacting the Kohimarama Block, NgātiWhātua Ōrākei "drove [Ngāti Pāoa] away" when they had attempted tosurvey land over which Ngāti Whātua Ōrākei claimed mana whenua.123(b) Both Paora Tūhaere and Te Kawau protested to the Crown when Weteresold the land at Remuera that were gifted to him, with Te Kawau saying"I will not let my land go for him".124(c) Ngāti Whātua Ōrākei protested the inclusion of Taurarua in the 1840Transfer Land, which Ngāti Whātua Ōrākei said was excluded from thispurchase. This protest lasted over two decades and involved NgātiWhātua Ōrākei rangatira writing several letters to the Crown, raisingthe issue at the Kohimarama conference and petitioning the Crownregarding the land. It has never been returned.125121 Susan Cooper and Tony Batistich "The Great Māori Feast, Remuera" (10 November 2020) at 7, 9and 12; and O'Malley Brief at [129].122 Alemann "Early Land Transactions" at 110; and Williams Brief at [96].123 Native Land Court Ōrākei MB 1 at 159; Native Land Court Ōrākei MB 2 at 141 and 271; andO'Malley Brief at [157].124 R Stone James Dilworth (Dilworth Trust Board, Auckland, 1995) at 45–46; and Kawharu Brief at[139].125 O'Malley Brief at [259]–[268].60(d) Paora Tuhaere applied to the Native Land Court for the return of landsat Pukapuka. At the Court he said that Pukapuka "was not an absolutegift for all time; it was intended the land should revert to the peoplewho gave it".126[159] By the 1850s, Ngāti Whātua Ōrākei had only 700 acres at Ōrākei whichcontained the last remaining marae and papa kāinga of Ngāti Whātua Ōrākei.127[160] For the next 20 years Ngāti Whātua Ōrākei held up their side of the bargain.On top of the considerable land sales, Ngāti Whātua Ōrākei say they:(a) expressed considerable and public loyalty to the Crown and thereigning governor;128(b) supplied produce and worked on building projects with Pākehāsettlers;129(c) formed a close alliance with the Anglican Church;130(d) encouraged those within their own iwi to settle any differences throughthe courts;131(e) through Te Kawau, would act as an intermediary between the Crownand the Kingitanga, often advocating support for the Crown;132(f) were called on to host the Kohimarama Conference in 1860, with PaoraTūhaere stating to over 200 rangatira from across New Zealand thatNgāti Whātua Ōrākei is a "land-selling tribe" that has "always firmlyadhered to [the Governor] and to the Queen's sovereignty".133126 "Te Pukapuka" The New Zealand Herald (New Zealand, 13 September 1890) at 3.127 Waitangi Tribunal Ōrākei Report at 28; and Williams Brief at [104].128 At 39; and at [105].129 At 25; and at [101].130 At 25; and at [101].131 At 26; and at [102].132 At 39; and at [105]; and O'Malley Brief at [181].133 Ngāti Whātua Ōrākei Deed at [2.84]; O'Malley Brief at [177]; and Williams Brief [106].61[161] These actions were taken despite Ngāti Whātua Ōrākei holding concerns aboutthe loss of their land. Te Kawau was concerned that if they were not involved in landsales, they would lose their mana, and so he persisted.134 By the mid-1860s, NgātiWhātua Ōrākei and other Māori were becoming disillusioned and disheartened withany alliance with the Crown.135 As Te Kawau put it "I have been looking constantlyfor payment but have not got it".136 Unfortunately for Ngāti Whātua Ōrākei, thiswould only worsen with the creation of the Native Land Court. That the Crown failedto reciprocate is not in dispute.137J Ngāti Whātua Ōrākei and the Native Land Court[162] The Native Land Court was established under the Native Lands Act 1862, withFrancis Dart Fenton appointed its Chief Judge in 1865.138 In effect, an individualwould apply to the Native Land Court for a hearing to determine ownership over ablock of land. The applicant would then present evidence to support their claim. OtherMāori were able to come to court and offer their evidence in respect of that land. Afterhearing the evidence, the Court would determine who should receive title to theland.139[163] The Native Land Court has been widely (and strongly) criticised as a breach ofthe principles of the Treaty of Waitangi. The Court was designed to undermine tribalstructures and facilitate the alienation of land from Maori to ultimately benefitEuropean settlers' interests in acquiring more land.140 Ngāti Whātua Ōrākei agreeswith this characterisation of the Native Land Court, in particular the effect of itsjudgments. However, Ngāti Whātua Ōrākei is reluctant to accept the suggestion thatthe evidence put before the Court should be disregarded as a historical source.141 NgātiWhātua Ōrākei submit that the hearing was procedurally sound and the evidence and134 Waitangi Tribunal Ōrākei Report at 28–29; and Williams Brief at [103].135 Kawharu Brief at [158]–[159].136 Native Land Court Ōrākei MB 1 at 15.137 See generally: Kawharu Brief at [140], [146]–[147], [150]–[153] and [156]–[157]; and O'MalleyBrief at [180] and [182].138 Williams Brief at [115].139 At [116].140 O'Malley Brief at [197]; and Williams Brief at [113].141 O'Malley Brief at [198]; Williams Brief at [118]; Kawharu Brief at [163]–[164]; NOE 1023/12–21 (O'Malley); and NOE 1143/14–18 and 1178/14–33 (Meredith).62judgment are highly relevant, historically accurate, robust, legally sound and cannotbe ignored or disregarded.[164] The 700-acre Ōrākei Block was considered twice by the Native Land Court.There are two key factors that drove this matter to the Native land Court. First, NgātiWhātua Ōrākei were disheartened by the Crown's lack of support following the rapidloss of their land and so wanted security over their land at Ōrākei.142 Secondly,Heteraka Takapuna began publicly questioning the rights of Ngāti Whātua Ōrākei inthe land.143[165] Ngāti Whātua Ōrākei say that Heteraka Takapuna was a person with reasonablyunclear lineage who appeared to lack support from his iwi. Heteraka was born to aNgāti Whātua mother, but made no claim to the land through his Ngāti Whātua lineage.He also claimed descent from Waiohua.144 Ngāti Whātua Ōrākei say Heteraka istypically described as a Ngāti Pāoa rangatira. However, Ngāti Whātua Ōrākei says itappears that in all land transactions between Ngāti Pāoa and the Crown, Heteraka wasnever consulted by Ngāti Pāoa and often received nothing.145[166] In the first Native Land Court hearing in 1866, following several letterspublished in newspapers,146 Heteraka claimed the Ōrākei Block through Ngāti Tai.However, just before the hearing, in a separate Native Land Court hearing for islandsin the Hauraki Gulf, Ngāti Tai rangatira Hori Te Whetuki challenged Heteraka'sinclusion on the basis that his lands were confined to Tauoma and Takapuna.147 TeKawau and his people opposed Heteraka's claim. Both parties had legal counsel.148[167] Heteraka argued that Ngāti Tai had lived on the land until driven off byNgāpuhi, but then returned. He claimed responsibility for bringing the governor toAuckland. He did not know when Ngāti Whātua had taken up residence at Ōrākei.149142 Kawharu Brief at [159]; and O'Malley Brief at [182].143 O'Malley Brief at [183].144 At [185]–[186].145 Native Land Court Ōrākei Decision 1869 at 78; and O'Malley Brief at [185]–[186].146 O'Malley Brief at [182]–[196]; and NOE 753/33–34–754/1-5 (Williams).147 O'Malley Brief at [200].148 At [199].149 Notes taken in hearing the First Ōrākei Claim (1866) Native Land Court [Ōrākei Claim Notes1866] at 1–4; and O'Malley Brief at [201].63However, Ngāti Whātua Ōrākei say that Heteraka made multiple demonstrably falseor inconsistent statements:150(a) He claimed Ngāti Pāoa sold the 1840 Transfer Land,151 but the deed oftransfer says it was Ngāti Whātua.152(b) He claimed to have been living at Tāmaki since the time of GovernorFitzroy, even though he said was unaware of events such as the landtransfers in Auckland because he was "at the Thames".(c) He found Te Taoū living at Ōrākei when he had gone there to welcomethe first Governor and had been told by their chiefs that Ngāti Pāoa hadgiven them permission to occupy the land.[168] In contrast, the witnesses for Ngāti Whātua Ōrākei consistently said that theirinterests arose from the raupatu and that they had remained since then, except for whenthey had to withdraw in the face of Ngāpuhi muskets.153 In the 1866 hearing, TeKawau said that Ngāi Tai ki Tāmaki were also primarily based in Howick,154 which isconsistent with their rohe in the present day.[169] In 1866, the Native Land Court found that Heteraka's case had "entirelyfailed". The Court said it would:155 not have sufficient validity to warrant the putting those tribes in possessionof unoccupied territory, much less would such claims justify the Court inejecting other persons from an estate which, as is proved to its satisfaction,they have beneficially and undisputedly enjoyed from before the foundationof the colony.150 Ōrākei Claim Notes 1866 at 1–4; and O'Malley Brief at [201]; and NOE 1047/31–34 and 1048/1–8 (O'Malley).151 Ōrākei Claim Notes 1866 at 3.152 Land Deed, 20 October 1840.153 Ōrākei Claim Notes 1866 at 17–19; O'Malley Brief at [202]; and NOE 1048/9–33, 1049/1–34 and1050/1–7 (O'Malley).154 Ōrākei Claim Notes 1866 at 18; and O'Malley Brief at [203].155 O'Malley Brief at [204]; and Ōrākei Block (1866) Native Land Court as reported in The DailySouthern Cross (New Zealand, 10 December 1866) [Native Land Court Ōrākei Decision 1866].64[170] The Court held the "overwhelming balance of testimony" supported Te Kawauand any interests by Heteraka were of a "trivial and uncertain nature".156[171] In the second hearing in 1868, the claimant was Te Kawau for Ngāti WhātuaŌrākei, who sought a certificate of title. Heteraka again claimed the entire Tāmakiisthmus,157 but also on behalf of the Marutūāhu tribes (Ngāti Pāoa, Ngāti Maru, NgaatiWhanaunga and Ngāti Tamaterā). Other rangatira appeared for Tainui iwi (Ngāti TeAta, Ngāti Tamaoho, Ngāti Naho and Ngāti Pou) and asserted similar rights to thoseclaimed by Te Kawau.158 Those rangatira applied on the basis of occupation andancestry through Waiohua, but did not dispute the claims of Te Kawau. The argumentsin this hearing were substantially similar to those heard in the first hearing.159[172] In its judgment in 1869, the Court awarded the title to Te Kawau (and twelveothers from Ngāti Whātua) on the basis that:(a) Ngāti Whātua Ōrākei decisively defeated Waiohua in 1740 and thenheld undisputed possession of Tāmaki Makaurau.160(b) When Ngāti Whātua Ōrākei strategically withdrew from the area overwhich they claim mana whenua, no other iwi claimed the land and so"as title was in 1826, so it would be when the history resumed in1835".161(c) Ngāti Whātua Ōrākei were the "dominant lords of the soil" in Aucklandat 1840.162[173] The Court criticised Heteraka's case as the weakest of the claims put forwardand because it was difficult to ascertain its real character.163 It noted that, due to156 Native Land Court Ōrākei Decision 1866.157 Native Land Court Ōrākei MB 1 at 89; Native Land Court Ōrākei Decision 1869 at 53; O'MalleyBrief at [207]–[208] and [219]; and Williams Brief at [111].158 Native Land Court Ōrākei MB 1 at 87; Native Land Court Ōrākei Decision 1869 at 53; O'MalleyBrief at [207] and [217]; and Williams Brief at [111].159 O'Malley Brief at [208]–[209]; and Williams Brief at [111].160 Native Land Court Ōrākei Decision 1869 at 63–64; and Williams Brief at [131].161 At 73; and at [132].162 At 95; and at [129].163 At 89.65numerous inconsistencies, the Court found that Heteraka's evidence left an"unsatisfactory impression".164K Ngāti Whātua Ōrākei become landless[174] Despite the recognition of their rights at the Native Land Court, the relationshipbetween the Crown and Ngāti Whātua Ōrākei continued to deteriorate as the Crownsought to acquire the Ngāti Whātua Ōrākei papakāinga at Ōrākei. The WaitangiTribunal reported that, in the early 20th century, the Government was under immensepressure to buy more Māori land throughout the North Island.165 To facilitate this, theGovernment appointed a Commission to decide what land was "excessive to Māorineeds and should be sold, and what parts the Māori should be allowed to keep".166Initially that Commission determined that none of the Ōrākei block ought to be sold.However, shortly after, the Crown set about acquiring the block anyway.167 As theReverend Māori Marsden observed, the people of Ōrākei "became displaced persons,without a country or land, a people without mana, a people who had lost their identityand their mauri".168[175] Ngāti Whātua Ōrākei say they did their best to stop the loss of land. They mademultiple applications and petitions to the Court and Crown for recognition of theirrights in the whenua. In total there were eight actions to the Native or Māori LandCourt, four to the then-named Supreme Court, two to the Court of Appeal, two in theCompensation Court, six appearances before various commissions of inquiry, andfifteen petitions to Parliament seeking restoration of tribal ownership of their land. Atone point, Ngāti Whātua Ōrākei even built a palisade to protect their home.169However this was all in vain. Almost all of these were dismissed. Notably in oneinquiry where a Judge of the Native Land Court found in favour of Ngāti WhātuaŌrākei, saying in 1930 that "the Ōrākei block should have been a tribal reserve164 At 91. Ngāti Whātua Ōrākei identify a substantial number of inconsistencies in Ngāti WhātuaŌrākei Closing at App C.165 Waitangi Tribunal Ōrākei Report at 4.166 At 4.167 At 4.168 Ngāti Whātua Closing at [6.102].169 Kawharu Brief at [182].66protected from sales", the Crown simply ignored the finding and kept the report hiddenfrom the public.170[176] By contrast Ngāti Whātua Ōrākei say no other iwi protested these steps by theCrown.171 That includes Marutūāhu, though they did protest, in the "invasion ofAuckland", when one of their rangatira was arrested in 1851.172[177] Compulsory acquisitions were made in 1950 under the Public Works Act 1928,contrary to the Treaty of Waitangi.173 Sir Hugh Kāwharu observed that the Crown hadan objective, and:174 the instrument wielded by the Crown to achieve its end was the razor-sharpPublic Works Act which needed no other justification for its use than thepublic interest.[178] The evidence of Taiaha Hawke is that, by the early 1950s, the people of NgātiWhātua Ōrākei were virtually landless due to years of sustained compulsory andsometimes unethical acquisitions by the Crown.175 Though many whānau remainedon whatever land was left, in 1952 the remaining inhabitants were forcibly removedfrom their homes, including the family of Taiaha Hawke's father, Joe Hawke. JoeHawke was 11 years old at the time when his papakāinga, his home, the Ngāti WhātuaŌrākei village and meeting house Te Puru o Tāmaki, were burnt to the ground by theCrown. The response to this at Bastion Point and elsewhere led to the contemporaryTreaty of Waitangi settlement narrative in Tāmaki Makaurau, which is picked up inPart VII.L The Ngāti Whātua Ōrākei claim to mana whenua in Tāmaki Makaurau[179] On the basis of the above tribal historical narrative, Ngāti Whātua Ōrākei claimmana whenua in Tāmaki Makaurau, in the area depicted in Map 1 at a minimum. Thisis the land transferred by Ngāti Whātua Ōrākei to Governor Hobson in 1840 and other170 Waitangi Tribunal Ōrākei Report at 61, 71, 79, 91–92, 104, 110–111, 120–121, 216 and 218;Kawharu Brief at [171]–[172], [178]–[179], [182]–[183] and [194].171 Kawharu Brief at [175].172 O'Malley Brief at [243].173 Waitangi Tribunal Ōrākei Report at 6, 97 and 107.174 At 122, citing I H Kawharu Land as Tūrangawaewae: Ngāti Whātua's destiny at Ōrākei (NewZealand Planning Council, Planning Paper No 2, December 1979).175 Brief of Evidence of Taiaha (Lance) Joseph Hawke, 2 June 2020 [Hawke Brief] at [33].67subsequent transfers in the 1840s, not including land transferred to the Crown by otheriwi, such as the "Waikato triangle". Ngāti Whātua Ōrākei say this land is its heartlandor core rohe. It has been present there since the raupatu around 1740 by Tuperiri andTe Taoū of Te Waiohua. Ngāti Whātua Ōrākei left temporarily from 1826 to 1834 dueto the Ngāpuhi musket wars. But they say they did not lose, and have maintained,their ahi kā and mana whenua there, which continue to this day.[180] The claim by Ngāti Whātua Ōrākei is founded on several take whenua, or rightsand responsibilities to land, that are not mutually exclusive, at tikanga.176 Take tūpunaare responsibilities to whenua deriving from continuous occupation and use of the landby a group's ancestors. By contrast, take raupatu are responsibilities to whenuaderived through conquest or war, that displaces the people and their leaders whooccupied the estate, extinguishes their rights of occupation and establishes a newgroup of occupiers. Margaret Kawharu describes the effect of raupatu as a change inpolitical pre-eminence or political force.177[181] Ngāti Whātua Ōrākei says that a raupatu involves the military defeat of a groupfollowed by permanent occupation of that group's land, which in turn leads toahi kā.178 Mr Hodder submits that ahi kā or ahi kā roa is a fundamental take conferringrights and responsibilities over whenua. This is the concept of keeping the home fireslit – inter-generational and continuous occupation, use and permanent control of land.As Tāmati Kruger says, "ahi indicates the 'quality' of the particular take".179 Thedifferent kinds of ahi describe the means by which a group maintains their connectionwith the land and discharges their obligations towards it.180 Te Kurataiaho Kapea'sevidence is that the significance of fire is traced to Māhuika, the god of fire, and thatahi kā is how one knows people are living in an area.181 He says that if a victoriousgroup stays in an area permanently after a raupatu, there is tinei ahi, extinguishing the176 Te Mātāputenga at 370. The core meaning of the word is the base or root of something. It hastaken on a further specialised meaning of "right", especially in relation to land. "From ProtoCentral Eastern Polynesian take 'base, origin, source'". See also Kruger Brief at [102] suggesting"rights" as a European concept do not translate well to indigenous cultures because of theirconcentration on the individual.177 NOE 292/5–293/2.178 Ngāti Whātua Ōrākei Closing at [5.50].179 Kruger Brief at [105].180 At [105].181 Kapea Brief at [54]–[55].68old fires of that place and te tahu ahi, sparking new fires.182 If the new fires aremaintained, that transitions into ahi kā. If they are continued, that transfers intoahi kā roa.[182] Tāmati Kruger's evidence is that ahi kā roa, meaning permanency, is "thepresiding principle that will legitimise mana whenua and take whenua".183 Hedistinguishes ahi kā or ahi kā roa, a permanent presence, from ahi tahutahu (or ahiteretere), an occasional presence, and from ahi mātaotao, a rare presence likecamping.184 A cold fire could be relit with effort but ahi weto was a completelyextinguished fire.185 Tāmati Kruger emphasises that mana is not held "over" land oratua or people but only follows from actions fulfilling responsibilities to the land, atuaor people.186 Te Kurataiaho Kapea's evidence is that the mana whenua of an iwi goeshand in hand with their permanency in that place.187[183] Ngāti Whātua Ōrākei say raupatu followed by ahi kā roa is what happened afterthe raupatu by Tuperiri and Te Taoū in Tāmaki Makaurau around 1740. By contrast,they say the attacks by Rautau and Ngāti Maru in the 1600s, and Ngāpuhi in the 1820sand 1830s, were not followed by ahi kā. Mr Hodder submits Ngāti Whātua Ōrākeihas clearly occupied the area over which it claims mana whenua for severalgenerations. He submits the modern Treaty settlement situation has undoubtedlyaffected the relevance of the need for recognition by neighbouring iwi, given thecompeting goal of securing valuable redress.[184] Mr Hodder submits take raupatu was one of the very rare circumstances whichmay extinguish another group's tikanga connections and responsibilities to the land.Take raupatu does not in itself achieve a take tupuna, which would ordinarily beestablished through marriages with the defeated group. He points to Dr Ballara andSir Edward Taihakurei Durie suggesting this was common and a way of securing peace182 NOE 111/12–23.183 Kruger Brief at [106].184 At [105].185 NOE 1878/26–1879/7.186 Kruger Brief at [115].187 NOE 111/29-30 (Kapea).69and often forging a new tribal identity.188 Tāmati Kruger's evidence is that inter-marriage after raupatu was not a source of mana whenua for the conquered.189[185] Because Ngāpuhi did not settle in the Tāmaki Makaurau, Ngāti Whātua Ōrākeisay the mana over the whenua did not change in the 1820s or 1830s.190 Theyperiodically returned to test the safety of Tāmaki, to fish and even lived at Ōkahu Bay.As Te Kawau said "my fires were continually being kindled at Ōrākei & Ōkahu".191In Paul Meredith's opinion, this meant that Ngāti Whātua Ōrākei maintained ahi kā,or at the very least ahi kōmau, meaning slumbering fire.192 Ngāti Whātua Ōrākeisubmits that when determining mana whenua, the focus is not on establishingpermanent occupation of one particular site, but of continuous use of the land.193 Thebases of Ngāti Whātua Ōrākei at the Manukau were not incompatible with their baseson the Waitematā.194 By 1838, Ngāti Whātua Ōrākei was sufficiently established onthe Waitematā to be in a position to host hui at Ōrākei and Ōkahu Bay, regardingdefence and cultivation planning. As a matter of history and tikanga the predominantiwi established a 'domain' by virtue of its mana and political influence.195 Occupationof every inch of a domain is not a precondition of mana or political influence.196[186] Ngāti Whātua Ōrākei say the largely uncontested tuku whenua to the Crown inthe 1840s further illustrate the mana whenua of Ngāti Whātua Ōrākei, reflected in onlyTe Kawau having the rangatiratanga to gift the land. They point to the 1844 hākari atRemuera. The boundary line of the area over which Ngāti Whātua Ōrākei claims manawhenua accords with Ngāti Pāoa's 1841 transaction of the Kohimarama Block. NgātiWhātua Ōrākei says its challenges to other iwi undermining their mana whenua werefurther exercises of their mana whenua, whereas other iwi did not protest their tukuwhenua.188 Ballara Taua at 20; and Edward Taihakurei Durie Custom Law (Treaty of Waitangi Research Unit,1994) at 65.189 Brief of Evidence of Tāmati Kruger in Reply, 4 December 2020 [Kruger Reply] at [31]–[32].190 Native Land Court Ōrākei MB 1 at 67–68; James Belich Making Peoples: A History of NewZealanders (Allen Lane, Auckland, 1996) at 161; Kawharu Brief at [100]; Williams Brief at [42]and [141]; NOE 732/10– 33 (Williams); and NOE 2830/21–24 (McBurney).191 Native Land Court Ōrākei MB 1 at 211.192 Brief of Evidence of Paul Meredith, 2 June 2020 [Meredith Brief] at [77] and [164].193 NOE 508/8–19 (Blair).194 See for example Brief of Evidence of Michael Belgrave, 13 October 2020 [Belgrave Brief] at[773]–[774].195 NOE 101/16–27 (Kapea).196 NOE 1157/7–17 (Meredith); and NOE 1891/24–34 (Kruger).70[187] Ngāti Whātua Ōrākei says its mana whenua in this area is not shared with otheriwi. Ngāti Whātua Ōrākei recognises many groups have important historical andcustomary interests in certain parts of the area over which it claims mana whenua.197Ngāti Whātua Ōrākei acknowledges that:198[T]he obligations arising from having mana whenua include a tikaconsideration of others' customary connections consistent with the spirit,values and logic of tikanga across most and probably all groups.[188] Ngāti Whātua Ōrākei acknowledges that it is the responsibility of those withmana whenua to acknowledge and look after such interests. But it says that "[n]o othergroup has a credible basis for an equivalent claim" to mana whenua in the same area,at tikanga.199 Rather, resource-sharing arrangements merely acknowledge awhakapapa connection and affirm the host's mana whenua.[189] Ngāti Whātua Ōrākei says that mana whenua is generally only shared in fringe,border or contested areas.200 The primary position is that mana whenua is generallyheld exclusively. And mana whenua is not shared within a group's heartland, whichMr Hodder submits is clearly not foreign to opposing iwi.201 If there is no heartlandover which a group exercises exclusive mana whenua, there is no iwi.[190] Ngāti Whātua Ōrākei says that Ngāti Whātua Ōrākei tikanga is entirelyconsistent with the relevant general principles of tikanga Māori. It has called evidencefrom its own witnesses in this regard, Te Kurataiaho Kapea, Taiaha Hawke, MargaretKawharu and Ngarimu Blair. It relies on authoritative published and unpublishedscholarly works including by Professor Sir Hugh Kāwharu and the expert evidence ofhistorian Dr Vincent O'Malley and legal historian Professor David Williams. It relieson the evidence of the independent pūkenga it called from outside Tāmaki Makaurau:Tāmati Kruger, Paul Meredith and Charlie Tawhiao.[191] By contrast, Mr Hodder submits that, with the exception of Dr Te KahautuMaxwell, none of the tikanga witnesses of the opposing iwi have appropriately197 Ngāti Whātua Ōrākei Closing at [1.5].198 At [4.6].199 At [1.5].200 At [5.62].201 At [5.68].71qualified themselves to give opinion evidence or agreed to abide by the ExpertWitnesses Code of Conduct.202 He submits that much of the evidence of theMarutūāhu Rōpū witnesses, in particular, had not engaged with the evidence of NgātiWhātua Ōrākei, contained submission, was not in their own words and appeared tohave been the subject of common authorship. That is not to be expected in the HighCourt.[192] Mr Hodder submits for Ngāti Whātua Ōrākei that denial by other iwi thattikanga Māori exists, and assertions that only local tikanga exists, is simply wrong.203Ngāti Whātua Ōrākei rejects the existence of a tikanga specific to Tāmaki. Mr Hodderalso submits that the focus of Ngāti Whātua Ōrākei is on the Crown so if the Courtconsiders it should avoid pronouncements on tikanga adhered to by other groups, itshould still reach a conclusion on Ngāti Whātua Ōrākei tikanga, which it says isentirely consistent with the relevant general principles of tikanga Māori.IV Responses to Ngāti Whātua Ōrākei[193] This part of the judgment outlines the responses by other iwi and the Crown tothe historical narrative of, and claim to mana whenua, by Ngāti Whātua Ōrākei.Because the other iwi are responding to the claim of Ngāti Whātua Ōrākei, rather thanmaking claims themselves, I do not set out their tribal histories and traditions in asmuch detail. Rather, I deal with historical issues raised by each iwi, to the extent I canon the basis of the evidence before me. I make more general findings on issues relatingto the historical narrative and mana whenua at tikanga in Part VI.A The Marutūāhu Rōpū response to Ngāti Whātua Ōrākei[194] The Marutūāhu Rōpū, or Marutūāhu confederation of iwi, comprises fiveclosely related iwi of the Tainui waka: Ngāti Maru, Ngaati Whanaunga, NgātiTamaterā, Ngāti Pāoa and Te Patukirikiri.204 Marutūāhu iwi are independent iwi who202 At [5.15]. Te Warena Taua also qualified himself as an expert witness but I understand NgātiWhātua Ōrākei does not accept that.203 At [5.3]–[5.4].204 Second Defendant's Statement of Defence to Fourth Amended Statement of Claim, 8 December2019 at [3].72cherish their mana motuhake; they have fought each other at times.205 Marutūāhu arealso maritime peoples – highly mobile, moving between settlements, cultivations ormarine resources during the different seasons. Moana (the sea or water) connects themand is influential in their relationship with the whenua. Joe Tupuhi and Ted Andrewsrefer to a pepeha regarding the northern and southern limits of the influence of NgātiPāoa as being from Matakana estuary in the north to Matakana Island in the south.206Wati Ngamane refers to a similar pepeha in respect of all Marutūāhu iwi, includingNgāti Pāoa.207[195] Marutūāhu Rōpū do not challenge the identity of Ngāti Whātua Ōrākei beingcentred at Ōrākei, where they were located after 1840 and self-identify in theirname.208 Mr Majurey, for Marutūāhu Rōpū, acknowledges that does not precludeNgāti Whātua Ōrākei from having customary interests/mana elsewhere. He submitsno tribe in this proceeding challenges the recognition of Ngāti Whātua Ōrākeicustomary interests/mana in central Auckland.209 Marutūāhu Rōpū do not claim theyhave a centuries' old permanent settlement in central Auckland.210 But MarutūāhuRōpū do claim their iwi have customary interests or mana in central Auckland.[196] Ngāti Whātua Ōrākei submits that Maungawhau (Mt Eden) was abandonedaround 1700 because it became tapu following the attacks by Rautao and Ngāti Maruon the coastal areas of the Waitematā, before the attacks by Tuperiri.211 They rely inpart on the evidence of Wati Ngamane.212 Professor Michael Belgrave's evidence, forMarutūāhu Rōpū, notes that some of the stories from that time could evidence Rautaoremaining in the area after his victory.213 Professor Belgrave also notes that thetraditions about occupation are "less clear", though he referred to customary evidenceof such occupation.214205 Marutūāhu Rōpū Closing Submissions, 19 April 2021 [Marutūāhu Closing] at [78]; see also NOE2275/21–34 (Belgrave).206 "Pāoa Taringa Rahirahi mai Matakana ki Matakana" (Brief of Evidence of Ted Andrews and JoeTupuhi, 13 October 2020 [Andrews and Tupuhi Brief] at [9]).207 "Mai Ngā Kuri a Whārei ki Mahurangi" (Brief of evidence of Walter (Wati) Ngamane, 13 October2020 [W Ngamane Brief] at [11]);208 Marutūāhu Closing at [55].209 At [36].210 At [82].211 Belgrave Brief at [778] and [781].212 W Ngamane Brief at [76].213 Belgrave Brief at [778]214 At [779].73[197] There is some dispute between Marutūāhu Rōpū, Te Ākitai Waiohua and NgātiWhātua Ōrākei over the implications for mana whenua of what some witnesses havedescribed as the tuku whenua or wedding gift of Tauoma. Te Kurataiaho Kapea, calledby Ngāti Whātua Ōrākei, and Mark Derby, a historian called by Te Ākitai Waiohua,emphasise the importance of a "wedding gift" tradition accounting for the arrival ofNgāti Pāoa on the isthmus.215 This tradition holds that when Kehu of Ngāti Pāoa wasmarried in 1780, a tuku whenua was made by Te Tahuri of Waiohua and her husbandTomoāure, to her and her husband of Tauoma (Panmure). Mark Derby's evidenceindicates the gift is evidence of enduring Waiohua mana whenua in the area.216 NgātiWhātua Ōrākei criticise this account on the basis that, to the extent that any gift wasgiven, it was done in reliance on the mana of Te Taoū, not Waiohua.[198] The expert evidence of Morehu Wilson for Marutūāhu Rōpū, is that Ngāti Pāoawas located on the eastern side of the Tāmaki isthmus (Tikapa Moana – Waitematā)and Ngāti Whātua were to the west (Manukau).217 His evidence is that Ngāti Pāoa andMarutūāhu had their own tradition of their raupatu of the Waiohua tribes. He saysNgāti Pāoa and Marutūāhu were never conquered by Ngāti Whātua and there was noneed for any "wedding gift", as their tūpuna said at the 1868 Native Land Courthearing.218[199] Morehu Wilson's evidence is that Ngāti Pāoa lived in many pā and kāinga inTāmaki through the 18th and 19th centuries until the battles with Ngāpuhi atMauinaina and Mokoia in 1821–1822. These places include, within the area at issue,Ōkā (Pt Erin), Te Tō (Victoria Park), Maungawhau (Mt Eden), Pukekawa (AucklandDomain), Waipapa and Taurarua (Parnell).219 He also says each of the otherMarutūāhu iwi (which he does not identify) had their own settlements and cultivationsat these places or would live there at different times, including in coastal area duringannual seasonal harvesting. Morehu Wilson's evidence is that:215 Kapea Brief at [51]; and Derby and Rother Te Ākitai Waiohua Customary Interests at 16.216 Derby and Rother Te Ākitai Waiohua Customary Interests at 16.217 M Wilson Brief at [49]–[50].218 At [49]–[50].219 M Wilson Brief at [58].74(a) He is not aware of independent primary evidence of the claim by NgātiWhātua Ōrākei that they lived at Maungakiekie, Ōkahu, Onehunga orWaipapa in 1840.220(b) There is a Ngāti Pāoa tradition that Ngaromānia, a Ngāti Pāoa rangatira,lived at Te Pupu o Kawau, a pā on the Tāmaki River, after the NgātiWhātua raupatu.221 Hauāuru Rawiri gave evidence that the murder ofNgaromānia was recorded before the arrival of Captain Cook atWhitianga in 1769, and on that basis Ngāti Pāoa believe the rangatiramust have lived at Waimokoia after 1740.222 Mr Hodder submits thatthis Pā was outside of the area over which Ngāti Whātua Ōrākei claimmana whenua.(c) Ngāti Pāoa engaged in a number of battles in Tāmaki againstneighbouring iwi in the 18th century through to 1840, which recordstheir presence in the Tāmaki isthmus.223(d) Ngāti Pāoa and Marutūāhu did not need the permission of NgātiWhātua or any iwi to be in their ancestral waters and they sharedlocations for resource gathering in the isthmus with Ngāti Whātuathrough mutual recognition.224[200] In his written closing submissions, Mr Majurey also cited, without furtherexpanding on, particular evidence of Marutūāhu iwi "interests/mana" in centralAuckland which I have reviewed in detail.225 I note:(a) Hauāuru Rawiri's evidence concerns, and does not distinguish between,"Ngāti Pāoa and Marutūāhu".226220 At [99].221 At [63]–[64].222 Rawiri Brief at [31].223 M Wilson Brief at [66].224 At [72].225 Marutūāhu Closing at [83].226 Rawiri Brief at [15]–[18].75(b) Morehu Wilson gives evidence of a tradition of Ngaati Whanaungaharvesting a beached whale near Tokaroa – Te Ara Pekapeka a Ruarangi(Meola Reef), that they saw from their settlement at Onetaunga, nearKauri Point on the North Shore.227 But I have not been told when thatis said to have occurred or the significance of the settlement being onthe North Shore at tikanga.(c) The evidence Morehu Wilson points to, by Heteraka Takapuna, HaoraTipa Koinaki, and Henare Te Paora in the second Native Land Courthearing in 1868, is either explicit that Ngāti Pāoa was the principal orchief Marutūāhu iwi or says all their claims were the same.228(d) Tipa Compain supports the evidence of the other Marutūāhu witnessesat the first Native Land Court hearing in 1866.229 These are largelygeneral assertions that other Marutūāhu iwi "owned Auckland", inrelation to the hearing about the Ōrākei Block.(e) Dr Korohere Ngāpō, Harry Mikaere and David Taipari provideevidence of spiritual and historical associations and traditions of theTainui waka, Ngāti Tamatera and other Marutūāhu iwi with waahi tapuand other sites in central Tāmaki Makaurau, including the WhareTupuna Hotunui and Marutūāhu mauri at Pukekawa (the AucklandMuseum).230(f) Wati Ngamane's evidence is that Ngāti Maru, and other Marutūāhu iwi,lived in many pā and kāinga in Tāmaki Makaurau, including at Waipapaand Taurarua when Europeans arrived. He says that Taurarua whichincludes an area of Judges Bay, Parnell, close to Blackett's Point, wasa Marutūāhu Pā.231 Under cross-examination, Wati Ngamane conceded227 M Wilson Brief at [60].228 At [119]; Native Land Court Ōrākei MB 1 at 96–97, 120 and 164.229 Brief of Evidence of Tipa Compain, 13 Octover 2020 [Compain Brief] at TC1.230 Brief of evidence of Korohere Ngāpō, 13 October 2020 [Ngāpō Brief] at [16]–[20], [23]–[28] and[34]; Brief of Evidence of Harry Mikaere, 13 October 2020 [Mikaere Brief] at [46]–[56]; Brief ofEvidence of David Taipari, 13 October 2020 at [10], [25]–[27] and [33].231 W Ngamane Brief at [109].76that was during the time of Rautao, a Ngāti Maru rangatira who hadvictories over Waiohua.232 This would have meant that a raupatu andsubsequent ahi kā roa by Ngāti Whātua Ōrākei would have overtakenMarutūāhu interests according to tikanga Ngāti Whātua Ōrākei. Fromat least 1848 through to 1871, Ngāti Whātua Ōrākei protested theinclusion of Taurarua, very near Ōrākei, in the Ngāti Pāoa 1840 transferto the Crown, culminating in an 1871 petition filed by Pāora Tūhaere.233Wati Ngamane gave evidence that the Governor agreed to, but did not,reserve land at Blackett's Point in Parnell for Marutūāhu in 1842.234[201] Marutūāhu Rōpū also contests the Ngāti Whātua Ōrākei claims about the waythe land on the Waitematā side of the isthmus was used and by whom in the early1800s more generally. Mr Majurey points to Professor Michael Belgrave's analysisof the Rev Samuel Marsden's visits to Tāmaki in 1820 in submitting that Marutūāhuhad a collection of settlements heavily involved in agriculture in 1820 in Tāmaki, asdid Ngāti Whātua in the Manukau. 235 But this evidence was of cultivations byMarutūāhu iwi at Mokoia and Ngāti Whātua at Manukau, which Ngāti Whātua Ōrākeidoes not dispute and neither of which is in the area over which Ngāti Whātua Ōrākeiclaim mana whenua. And the Rev Marsden said that in July 1820, Te Kawau claimedthat the land upon the Waitematā belonged to him, in the presence of a rangatira fromMokoia.236[202] Professor Michael Belgrave does not identify the "sporadic evidence", preciselocation of, or iwi affiliation of a "most likely much smaller" community on the upperreaches of the Waitematā" or the evidence for why there were "probably more". 237Neither does he explain how that is consistent with his statement that "[w]hile theremay have been settlements on the Waitematā, particularly seasonal settlements forfishing, these cannot have been of any significant size".238 I do not consider Professor232 NOE 2378/14–29.233 Ngāti Whātua Ōrākei Closing at [6.144]; citing O'Malley Brief at [259] which cites to BruceStirling Ngāti Whātua O Ōrākei and the Crown, 1840-1865 (Commissioned by Ngāti Whātua oŌrākei Corporate, 2002) at 60.234 W Ngamane Brief at [88], [103]–[115].235 Belgrave Brief at [204].236 At [189].237 At [204].238 At [205].77Belgrave's evidence of this, or his characterisation of the Waitematā at the time as "abackwater", assists me. Seasonal settlements can be indicators of mana whenua interms of the Ngāti Whātua Ōrākei use of that concept.239[203] Professor Michael Belgrave notes the evidence of Marutūāhu witnesses beforethe Native Land Court who argued that Ngāti Whātua Ōrākei conquered the Manukaubut not the Waitematā side of the isthmus.240 He acknowledges there is evidenceTuperiri of Te Taoū occupied Maungakiekie after Kiwi Tāmaki's death. But hesuggests an "alternative interpretation" of historical evidence is that Marutūāhu andNgāti Whātua "faced away" from each other and towards different harbours; NgātiWhātua looked to Kaipara and the Manukau; and Marutūāhu looked to the Waitematāand Hauraki. Professor Belgrave cannot identify evidence "that people are using theWaitematā as anything other than a seasonal food gathering place, certainly in1820".241 I am not inclined to proceed on the basis of Professor Belgrave's alternativeinterpretation, which was not proffered as the interpretation of Marutūāhu Rōpū, andwhich appears to me to involve too great an element of speculation for my purposes.[204] Ngāti Whātua Ōrākei rely on the evidence of Professor David Williams,Ngarimu Blair and Dr Vincent O'Malley to suggest they were the first iwi to return tothe wider Tāmaki isthmus.242 Mr Majurey submits Ngāti Whātua was protected byMarutūāhu while sheltering in the Waikato in the 1820s. The evidence of MorehuWilson, Hauāuru Rawiri and of Dr Korohere Ngāpō is that the Marutūāhu iwi returnedto Tāmaki Makaurau around 1830, before Ngāti Whātua did.243 I do not consider thesequence and exact timing of the separate returns to different areas in TāmakiMakaurau makes much difference to the issues I am asked to determine.[205] But competing claims about who gave permission to whom to settle mightmake a difference. Hauāuru Rawiri's evidence for Marutūāhu Rōpū about NgātiWhātua settling at Ōrākei is that:Hei nui ngā hui i whakatū ai kia hohou te rongo ki waenganui i ngā iwi.239 See Ngāti Whātua Ōrākei Closing at [6.26] and [6.40]; and NOE 508/4-15 (Blair).240 Belgrave Brief at [773] and 781].241 NOE 2182/3-26.242 Williams Brief at [132]; Williams Reply at [16]; Blair Brief at [84].243 Ngāpō Brief at [30]; Rawiri Brief at [39]; M Wilson Brief at [77].78I tonohia e Uruamo me Whatarangi te whakaae kia noho ai ki Orākei. NāKahukoti (Ngāti Pāoa) i whakaae kia hohou te rongo.I whakatūria ngā hui ki Puneke, Otāhuhu, Orere me te whanga o Okahu. Kongā tupuna katoa nō Ngāti Whātua Orākei, Waikato, Ngāti Pāoa meMarutūāhu.(There were many gatherings that were held to establish peace amongst thetribes.Uruamo and Whatarangi asked to stay at Ōrākei. Kahukoti (of Ngati Pāoa)agreed, to broker the peace.Meetings were held at Puneke, Otāhuhu, Orere and Okahu Bay. With all theancestors from Ngāti Whātua Ōrākei, Waikato, Ngāti Pāoa and Marutūāhu.)[206] Morehu Wilson says that at the third peace meeting at Orere, a party led byUruamo of Ngāti Whātua arrived bearing gifts, intent on resuming the discussion ofmoving to Ōrākei. He says, consistently with Hetaraka's evidence in the Native LandCourt:244Uruamo asked of Kahukoti, "are you not willing that we should kindle ourfires at Orākei"?, to which Kahukoti replied "it is well, kindle the fires for us."[207] In response, Ngāti Whātua Ōrākei point to Te Kawau's denial that Te Taoūasked Kahikoti leave to light at fire at Ōrākei, at the second Ōrākei Native Land Courthearing in 1868.245 Mr Hodder submits that there is no evidence suggesting NgātiWhātua Ōrākei needed permission to live at Ōrākei, they did not act in a mannersuggesting that and neither did the Marutūāhu iwi, including by protesting the tuku ofNgāti Whātua Ōrākei to the Crown.[208] Hauāuru Rawiri suggests Ngāti Pāoa signing the Treaty of Waitangi at KarakaBay, St Heliers, and Ngāti Whātua signing at the Manukau Harbour is relevant.246 Itmay be. But my understanding is that rangatira did not necessarily sign the Treatyonly where they had mana whenua. More contextual information would be requiredto inform that question. Professor Michael Belgrave says there was intense conflictbetween iwi about which land would be available for sale in the 1840s by whom.247244 M Wilson Brief at [85]; and see Native Land Court Ōrākei MB 1 at 111 (Hetaraka), 157–158(Kepa), 160 (Pukerewa).245 Native Land Court Ōrākei MB 1 at 213246 Rawiri Brief at [46]–[48].247 NOE 2259/19–30.79[209] Mr Majurey acknowledges the minutes from Native Land Court hearings are arich source of tribal traditions but submits it is unsafe for this Court to make findingson the correctness of the decisions themselves. Morehu Wilson says that the NativeLand Court Ōrākei Block hearings in the 1860s clearly demonstrate "there was noaccepted grand tradition of Ngāti Whātua being "masters of the isthmus" among thetribes of Tāmaki Makaurau.248[210] In terms of tikanga, Mr Majurey submits none of other tribes in the proceedingagree Ngāti Whātua Ōrākei has exclusive mana in central Auckland. He acknowledgesthe tikanga of Ngāti Whātua Ōrākei does not admit of shared customary interests/manain central Auckland. But he submits this is not the tikanga of any other Tāmaki tribein this proceeding, including Ngāti Pāoa. In tikanga Māori there can be exclusiveareas, such as marae, urupā and māra, but that is not a universal position. InMarutūāhu tikanga, even marae and urupā are often shared.249 Mr Majurey points tothe evidence of Te Warena Taua, Joe Tupuhi, Tāmati Kruger and David WilsonTakaanini as acknowledging the uniqueness or difference of Tāmaki with other areasof the motu.250 He submits the country of Tūhoe or Tauranga moana is not like Tāmakiwhen it comes to the geographical and tribal landscape. Mr Majurey also points torespected written authorities regarding the concept of mana whenua and maintains thatsources going the other way illustrate that tikanga is highly contextual in differentplaces.[211] Mr Majurey submits the absence of any iwi recognition of mana whenua ofNgāti Whātua Ōrākei is significant in terms of tikanga, relying on Sir Hirini Mead'stext Tikanga Māori.251 Mr Majurey submits that the recognition by Ngāti Pāoa IwiTrust witnesses, Joe Tupuhi and Ted Andrews, of only Ngāti Whātua Ōrākei and NgātiPāoa having customary interests/mana in central Auckland is at odds with evidence(most of which Mr Majurey does not specifically identify) of: Hauāuru Rawiri and248 M Wilson Brief at [118].249 For example, Wharekawa Marae, Mātai Whetū Marae, Manaia Marae; see W Ngamae Brief at[33]; 75 acres of shared urupā between Ngāti Marutūāhu Rōpū and Ngāti Tamatera in TaurangaMoana Te Waiohua urupā at Ōrākei, see NOE 2565/13–2566/10 (Taua).250 NOE 2564/5–20 and 2567/3–15 (Taua); NOE 1336/24–29 (Tupuhi); NOE 1866/12–19 (Kruger);NOE 2945/2–22 (D Wilson).251 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Rev ed, Huia Publishers, Wellington,2016) [Mead Tikanga Māori].80Morehu Wilson in this hearing; Joe Tupuhi and Ted Andrew's evidence in the 2007Waitangi Tribunal hearing; and the Ngāti Pāoa tūpuna in the 1868 Native Land Courthearing.[212] The Marutūāhu Rōpū objections to the Ngāti Whātua Ōrākei claim are madeon behalf of all the Marutūāhu iwi. Mr Majurey submits that the Court is well able toassess and weigh the evidence in the context of this case. He submits it is open to theCourt to find that the claim by Ngāti Whātua Ōrākei to exclusive ahi kā and manawhenua is not made out over every inch of the claimed area.252B The Ngāti Pāoa challenge to Marutūāhu[213] These proceedings were sparked by the Crown's Treaty settlement offer toNgāti Pāoa of properties in the area over which Ngāti Whātua Ōrākei claims manawhenua. As explained earlier, Ngāti Pāoa Iwi Trust was soon joined as seconddefendant and Marutūāhu Rōpū was joined as third defendant. But in January 2017,Ngāti Pāoa entered into a Kawenata Tapu with Ngāti Whātua Ōrākei. The purposewas to build and maintain Ngāti Pāoa's long term relationships with Ngāti WhātuaŌrākei and to work through specific issues in a tikanga-based way.253 Accordingly,on 15 May 2019, Ngāti Pāoa applied and was granted leave to be made an interestedparty in the proceedings, rather than a defendant. The Marutūāhu Rōpū became thesecond defendant. As Mr Mahuika submits for Ngāti Pāoa, while Ngāti Pāoa andMarutūāhu Rōpū have tried to avoid a situation of open warfare, there is inevitably alevel of conflict.[214] Several of the issues with the historical narrative of Ngāti Whātua Ōrākei thatare raised by Marutūāhu Rōpū rely on the location of activities and settlements ofNgāti Pāoa as one of their constituent iwi. But Ngāti Pāoa Iwi Trust appears separatelyin these proceedings. The Iwi Trust has been the post-settlement governance entityfor Ngāti Pāoa since 2013, when 96 per cent of voting Ngāti Pāoa adults approved itsestablishment.254 Mr Mahuika submits the Trust is the representative of Ngāti Pāoa.No one takes issue with that in these proceedings. It will receive and administer252 Marutūāhu Closing at [32].253 Ngāti Pāoa Opening Submissions, 4 February 2021, at [8].254 Brief of Evidence of Hayden Solomon, 13 October 2020, [Solomon Brief] at [20].81settlement redress for Ngāti Pāoa from the Pare Hauraki Collective Redress settlement,the Marutūāhu Collective Redress settlement and the individual settlement of NgātiPāoa.255 The Ngāti Pāoa Deed of Settlement was signed at the Wharekawa Marae,Whakitiwai, on 20 March 2021 during the hearing of these proceedings.[215] Ratification of the Marutūāhu Collective Deed is currently held up by the viewof the Ngāti Pāoa Iwi Trust that the Deed does not give due recognition to Ngāti Pāoa'sinterests in Auckland and overstates the interests of other Marutūāhu Rōpū iwi.256 TheIwi Trust's relationship with the mandated negotiators for Ngāti Pāoa, Morehu Wilsonand Hauāuru Rawiri, has soured in the last two to three years.257 Morehu Wilson'sevidence is that is partly because of differences of opinion about how best to approachthe Marutūāhu collective settlement.258 I do not need to get into those issues in thisjudgment.[216] Ngāti Pāoa have their origins in Tainui history. As Joe Tupuhi and TedAndrews explain, when the Te Arawa chief Pikiao came to Pirongia and marriedRereiao from Waikato they had a son called Hekemaru who later married Heke i terangi. The issue of Hekemaru and Heke i te rangi were a daughter, Paretahuri, andtwo sons, Mahuta and Pāoa.259 Pāoa had a number of children named Toapoto,Toawhano (or Toawhana)260 and Koura, by his first wife Tauhākari. Tauhākari wasdescended from Whaturoto and Huirae, of Ngā Iwi; a former tribe of Tāmaki.Whaturoto is recognised as the parent of Huakaiwaka (ancestor of Te Waiohua) andHuirae.261 However, Pāoa left his home with Tauhākari at the village of Kaitotehe,adjacent to Taupiri Maunga and bordering the Waikato River. He moved to Haurakiwhere he wed Tukutuku, the daughter of Taharua (the great granddaughter ofMarutūāhu and granddaughter of Tamaterā).262 It is therefore through Pāoa's secondmarriage to Tukutuku that Ngāti Pāoa derives its close whakapapa connections toMarutūāhu.255 At [23].256 At [39] and [43].257 Ngāti Pāoa Closing Submissions, 19 April 2021 [Ngāti Pāoa Closing] at [78], citing NOE 2098/22-2099/16 (M Wilson).258 NOE 2098//20–2099/16 (M Wilson).259 Andrews and Tupuhi Brief at [10].260 Both spellings are used, by Andrews and Tupuhi and M Wilson respectively.261 M Wilson Brief at [18].262 At [19].82[217] Pāoa is not himself a descendant of Marutūāhu. Mr Mahuika submits that givesNgāti Pāoa a unique position amongst Marutūāhu iwi. At least part of the claims ofthe claims of Ngāti Pāoa in Tāmaki are derived from the connections Pāoa had withWaikato (and Waiohua), rather than Marutūāhu.263 Mr Mahuika submits that thehistorical evidence can only refer to the Marutūāhu confederation, which is not thesame as the Marutūāhu Collective, as it is known today for the purposes ofsettlement.264[218] Joe Tupuhi and Ted Andrews give evidence of the tribal history of Ngāti Pāoa.The descendants of Pāoa formed numerous sub-tribes dominating the western shoresof Tikapa Moana o Hauraki, the Hauraki Plains, and Piako River from Kerepehi toTahuna, Te Hoe o Tainui, Patetonga, Waitakaruru, Pukorokoro, Hauarahi, Kaiaua,Whakitiwai, Hunua, Orere, and Clevedon.265 They extended their footprint to theTāmaki River and moved throughout the islands of Waiheke, Ponui, Rataroa, Pakatoaand the wider Gulf Islands of Tikapa Moana o Hauraki to Mahurangi.266 By thebeginning of the 19th century, the largest settlements of Ngāti Pāoa were in Tāmaki.They were forced to seek refuge in Waikato by the Ngāpuhi invasion in 1821.267 Apeace pact in the mid-1820s between Ngāpuhi and Te Rauroha of Ngāti Pāoa led toNgāti Pāoa returning to their villages skirting the Gulf. They returned to Waiheke in1833. Ngāti Pāoa made a further peace pact with Ngāti Whātua at Ōkahu Bay, sealedby marriage settlements and gifts in the 1830s, as mentioned above.268[219] Five Ngāti Pāoa representatives signed the Treaty of Waitangi on 4 March 1840at Waitematā. A further three signed at Coromandel on 4 May 1840, one at MercuryBay on 7 May 1840 and seven Ngāti Pāoa rangatira signed at Waitematā on 9 July1840. By then, Ngāti Pāoa were again well-established in Tāmaki, with settlementsall around the eastern coast from Mission Bay and St Heliers to the Panmure Basin.269These are all outside the area over which Ngāti Whātua Ōrākei claims mana whenua263 Ngāti Pāoa Closing at [59](b).264 At [67].265 Andrews and Tupuhi Brief at [11].266 At [12].267 At [21].268 At [26].269 At [18].83but, as I have said above, that is not dispositive of the location of mana whenua oneway or the other.[220] In the 1860s Ngāti Pāoa, loyal to the Kiingitanga, were rendered almostlandless after an attack by colonial troops in the Firth of Thames and subsequent landconfiscations by the Crown. Three tribal centres of Ngāti Pāoa today are based aroundWharekawa Marae at Kaiaua, Makomako Marae at Pukorokoro near Miranda, andWaiti Marae, Tahuna. None of these are in the area over which Ngāti Whātua Ōrākeiclaims mana whenua.[221] Joe Tupuhi and Ted Andrews note that the Marutūāhu tribes are closely linked,have consulted together and acted collectively.270 But their evidence is that "NgātiPāoa has also always acted unilaterally and autonomously and even fought against theother Marutūāhu tribes from time to time".271 Professor Michael Belgrave notes theirony in 1820 of Ngāti Whātua and Ngāti Pāoa getting on well with each other whilethere was conflict between Ngāti Pāoa and other Marutūāhu iwi.272 The same mightbe said now. Each Marutūāhu iwi maintained and continues to maintain its own manaand retains the discretion to act independent or as part of the collective. I do notunderstand this to be disputed by Marutūāhu Rōpū.[222] There is one point on which the witnesses of Ngāti Pāoa take a different viewto Ngāti Whātua Ōrākei, regarding the 1869 Native Land Court decision.273 TedAndrews and Joe Tupuhi say Ngāti Pāoa disagrees with the Court's finding that theattack of Kapetaua of Ngāti Pāoa on pā at Ōrākei and Kohimarama was not a conquestand not the basis for claiming ongoing rights.274 They point to the kōrero of TeToangaroa (the dragging of the waka taua to the deep water of an outgoing tide) nearwhat is now Mechanics Bay to protest mistreatment of Ngāti Pāoa rangatira byconstabulary of other iwi, as related to Ngāti Pāoa making landfall as the ahi kā of thatarea. They say the ahi kā of Ngāti Pāoa has never gone out in these areas.275 They270 At [35].271 At [36].272 NOE 2275/21–34.273 Andrews and Tupuhi Brief at [30].274 At [32].275 At [32].84also "fiercely reject the proposition that Ngāti Pāoa interests are representative of abroader Marutūāhu interest in Tāmaki".[223] The force of Marutūāhu Rōpū's response to Ngāti Whātua Ōrākei is somewhatblunted by the fact that Ngāti Pāoa Iwi Trust opposes the position of the MarutūāhuRōpū,276 and supports the rights declarations sought by Ngāti Whātua Ōrākei to theextent they are consistent with the Kawenata.277 Mr Mahuika submits that thefollowing key points emerge from the evidence:(a) It is common ground that there are whakapapa connections shared bythe iwi of Tāmaki. But it is simply not the case that where one iwi was,all were. Mr Mahuika submits "[t]his argument appears to be based ona desire to obtain redress in Tāmaki independent from, and even overthe top of, the clear interests of Ngāti Pāoa".278 Each iwi maintainedand continues to maintain its own mana and iwi territories. Thesituation in Tāmaki Makaurau is complex but not unique. Whakapapaand whanaungatanga is not enough to give rise to a take or mana inrelation to land. More is required, as Charlie Tawhiao said in relationto Mātaatua, and as Te Warena Taua conceded.279(b) A take to land is required. Tāmati Kruger gave evidence of fiveexamples of take to establish an interest in land: take kitea (discoveringthe land); take tipuna (heritage or whakapapa); take raupatu (conquestor war); take tuko iho (gift including through marriage); and take hoko(an exchange, though not a purchase in the Pākehā sense).280 This wasnot contradicted, including in relation to Tāmaki. Take are not mutuallyexclusive but do not all provide the same intensity of responsibilities.(c) Mr Mahuika accepts there is some dispute about it, but submits theevidence suggests mana whenua is the strongest interest in land.281 He276 Ngāti Pāoa Closing at [74].277 At [197].278 At [68].279 NOE 1242/14-1243/12 (Tawhiao); NOE 2575/6-16 (Taua).280 Kruger Brief at [98].281 Notes of Closings 277/21–31.85relies, for example, on Charlie Tawhiao's evidence. Mana whenua canonly be shared through agreement, most likely at the fringes orextremities of a group's core rohe.282 Mana whenua will often be heldby only one group in a particular area to the exclusion of others.283(d) To establish mana whenua, a take to the land must be accompanied byoccupation giving rise to ahi kā roa.284 Ahi kā roa follows, and giveslegitimacy, to any particular take. Ahi kā roa must be present to ensurethe survival of an iwi and in that way defines an iwi.285 A group hasmana whenua if they occupy an area of land for a consistent period oftime and fulfil their responsibilities to the land in a manner consistentwith tikanga Māori and iho matua.286 That contributes to the strengthof the occupying group's mana. Mana whenua gives the right to inviteothers to share in the access to resources in particular localities andcorresponding responsibilities.287(e) Not all witnesses supported the distinction between mana whenua andother lesser interests. However, even where witnesses did not agree,they acknowledged that there are parts of Tāmaki that are particular toeach iwi and those iwi have the strongest (and in some casespredominant and even exclusive) rights.288(f) Tāmaki has complexities in its tribal landscape as a consequence of themovement of people through the area pre-1840 and the disruptioncaused by the Ngāpuhi incursions. This does not, however, mean it isdifferent. There is a clear pattern of occupation across Tāmaki withdifferent iwi acknowledged as being located in places and exercisingpredominant and even exclusive rights in those places. Even the map282 NOE 1327/11-21 (Tupuhi); NOE 1838/4-7(Kruger).283 Brief of Evidence of Paul Meredith in Reply, 4 December 2020 [Meredith Reply] at [27]; NOE2058/18-2059/19 (Compain); NOE 2915/26-2916/-24 (Brown); NOE 2579/1-12 (Taua).284 NOE 1244/1-34 (Tawhiao).285 Kruger Brief at [106].286 At [106].287 Kawharu Brief at [26]; Kruger Brief at [109].288 NOE 2578/19–2579/12 (Taua); NOE 2306/21-27 (Ngāpō); NOE 1625/16-1626/18 (Dreaver).86produced by Marutūāhu Rōpū and included in the Waitangi Tribunal'sHauraki Report shows individual iwi associated with different parts ofthe Tāmaki and Hauraki regions.289 It shows Ngāti Pāoa associatedwith Waiheke and south of the area at issue here, Ngaati Whanaungaand Ngāti Tamatera in the east and south-east Tāmaki, Ngāi Maru inWaiheke and Patukiriri not being in Tāmaki at all. Similar patterns areshow in other maps.290[224] The Ngāti Pāoa Iwi Trust's position is that it is not correct, as a matter of factor tikanga, that the Marutūāhu collective subsumes within it the interests of Ngāti Pāoaand can claim significant interests independently of Ngāti Pāoa.291 Rather, theysupport the evidence of Mr Taipari, one of Marutūāhu Rōpū's witnesses, that " whenwe come to do things in Tāmaki, we're Ngāti Pāoa ".292 Unlike the other Marutūāhuiwi, at least part of the take of Ngāti Pāoa in Tāmaki is derived from their Waikato(and Waiohua) connections, rather than Marutūāhu Rōpū. Mr Mahuika submits thatNgāti Pāoa has by far the most significant and extensive interests of the Marutūāhuiwi across Tāmaki and the evidence supports that.293 He submits that "[e]ven the otherMarutūāhu iwi do not identify Tāmaki as being within their core territories".294 MrMahuika submits it is solely or primarily through the interests of Ngāti Pāoa that theMarutūāhu Rōpū claims an interest in the 1840 transfer lands and the land over whichNgāti Whātua Ōrākei claims mana whenua.295[225] Perhaps the most salient point about the position of the Ngāti Pāoa Iwi Trust isthat they say they are not only defending the interests of Ngāti Pāoa in Tāmaki butalso the terms of the Kawenata Tapu and Conciliation Agreement entered into by NgātiPāoa and Ngāti Whātua Ōrākei in January 2017. Evidence about this is given for NgātiPāoa by Hayden Solomon, the Kaiārahi of the Ngāti Pāoa Iwi Trust since 2017, andfor Ngāti Whātua Ōrākei by Ngarimu Blair, Deputy Chairperson of the Ngāti WhātuaŌrākei Trust.289 Waitangi Tribunal Hauraki Report 2006 at 36.290 Stone From Tāmaki-Makau-Rau at 49; Kawharu Dimensions at 39.291 Ngāti Pāoa Closing at [57].292 NOE 2396/22–23 (Taipari).293 Ngāti Pāoa Closing at [5], [56] and [59]. See Solomon Brief at [42].294 At [66], citing Mikaere Brief at [56] and Blair Reply at [60].295 At [56].87[226] The Kawenata arose out of tikanga discussions between Ngāti Pāoa and NgātiWhātua Ōrākei about resolving differences in relation to redress the Crown offered toNgāti Pāoa as part of its own settlement.296 Ngāti Pāoa has similarly entered intoKawenata Tapu with other overlapping iwi, including Ngāti Te Rangi, Ngāti Ranginui,and Waikato-Tainui.297 They are intended "to define the level of interests claimed andto build and maintain long term, inter-generational relationships on a tikanga basis".298[227] The Kawenata Tapu and Conciliation Agreement (the Agreement) were agreedat the same site at Ōkahu Bay, near Ōrākei, at which the 1830s pact was reached.299The negotiators for Ngāti Pāoa were Morehu Wilson and Hauāuru Rawiri, who nowappear as witnesses for Marutūāhu Rōpū. In the Kawenata, Ngāti Whātua Ōrākeiacknowledges that Ngāti Pāoa has "lead mana whenua interests" in the east ofAuckland and on the North Shore. Ngāti Pāoa recognises that Ngāti Whātua Ōrākeihas "lead mana whenua interests" in central Auckland. The Kawenata Tapu, signed inte reo Māori and English on 21 January 2017, provides:HE KAWENATA TAPUWhakarongo mai ngā tāngata katoa ki āku nei kupuHe oati tapu tānei i a Ngāti Pāoa me Ngāti Whātua Ōrakei ka whakapuakinaki te aroaro tapu o tō tātou Kaihanga. Koia te timatanga me te whakaotinga ongā mea katoa. Ka pumautia tēnei kawenata tapu mō ō mātou tūpuna me āmātou uri whakaheke, ka titikaha mātou ki tēnei kawenata, ka whakaū i ngāwā katoa, i ā mātou mahi, i ā mātou kōrero, ka pēnei;TuatahiKa pumau ki ngā mātāpono matua o te Tika, te Pono me te Aroha i ngā wākatoaTuaruaKa tūtohu, ka whaikoha i ngā take whenua 'take matua me te take tautoko' kiroto o Tāmaki MakaurauTuatoruKa whāia, kia tiakina, kia kokiri i ngā take kia mahingātahi i runga i 'ngatake matua, take tautoko mete whanaungatanga i runga i te whakaiti tekotahitanga me te whakaaro auaha.296 Solomon Brief at [57].297 At [59].298 At [59].299 Andrews and Tupuhi Brief at [27].88SACRED COVENANTDeclaration to all thatThis is a sacred oath between Ngāti Pāoa and Ngāti Whātua Ōrakei whosolemnly declare before God and our ancestors, to uphold this sacredcovenant on behalf of our ancestors and descendants, that we will commit tothis Covenant in all that we do and say, and in so doing will;(Part 1)Adhere to the First Principles of Tika, Pono and Aroha at all times.(Part 2)Acknowledge and respect the 'Lead and Shared' interests both Iwi holdrespectively in Tāmaki Makaurau(Part 3)Seek to foster and advance opportunities to work together based on Lead orShared Interests and kinship, with humility, inclusiveness and innovation.Map 3: Areas agreed between Ngāti Whātua Ōrākei and Ngāti Pāoa that NgātiWhātua Ōrākei holds and exercises lead mana whenua89[228] The Agreement between Ngāti Pāoa and Ngāti Whātua Ōrākei recognises thateach of them hold and exercise "lead mana whenua" over their "lead area of interest",over which the other "acknowledges their mana whenua is not lead", as in Map 3. Inthe Agreement the parties also recognise that "Ngāti Whātua Ōrākei holds andexercises mana whenua" over a wider area, as in Map 4 below.Map 4: Areas agreed between Ngāti Whātua Ōrākei and Ngāti Pāoa that NgātiWhātua Ōrākei holds and exercises mana whenua, though not "lead manawhenua"[229] Ngarimu Blair discusses Taiaha Hawke's whakamārama in which he describesthe Kawenata as the spiritual aspect of the relationship between the two iwi and theConciliation Agreement as the aspect that operates in the physical world; together theybind the iwi.300[230] Morehu Wilson, a witness for Marutūāhu Rōpū, gave evidence that there wasa pause on implementation of the agreement following the January 2017 hui becausemaking the agreement was very difficult for the leadership of Ngāti Pāoa.301 But,300 Blair Brief at [325]–[326].301 M Wilson Brief at [123].90Ngāti Pāoa having agreed to the Kawenata, he stands by it. He makes the point thatthe Kawenata does not affect the evidence as to the traditions of Ngāti Pāoa andMarutūāhu. Under cross-examination, Morehu Wilson notes that the tikanga involvedin signing of the Kawenata was shared by Ngāti Whātua Ōrākei and Ngāti Pāoa.302[231] Hauāuru Rawiri also made several comments about the Kawenata:303(a) the Court is not the right place to discuss the Kawenata, however hebelieves it is important context;(b) Ngāti Pāoa leaders wanted to hold to the principles of "tika (what isright), te pono (honesty) and aroha (compassion) no matter what";(c) issues between two tribes should be "taken back to the marae to findresolution";(d) the Court does not adjudicate the issues between Ngāti Pāoa and NgātiWhātua Ōrākei;(e) the High Court action created a burden on the iwi's relationship andfinances;(f) Ngāti Pāoa were surprised by the legal action against them;(g) Ngāti Pāoa agreed to the Kawenata and he stands by it; and(h) the Kawenata does not impact on what has been laid down in theprotocols and the historical accounts of Ngāti Pāoa and Marutūāhu.[232] Mr Majurey, for Marutūāhu Rōpū, does not dispute the validity of theKawenata Tapu.304 He submits it does not demonstrate there is an agreed worldviewthat there is only one tribe with mana whenua and ahi kā in Tāmaki Makaurau, in the302 NOE 2090/21-24.303 Rawiri Brief at [52].304 Notes of Closings 160/11.91way Ngāti Whātua Ōrākei uses those terms. And he submits it is not a bar to therecognition of Ngāti Pāoa as one of the Marutūāhu iwi having mana whenua and ahi kāin central Auckland.305[233] No witness from Ngāti Whātua Ōrākei or Ngāti Pāoa, including those whogave evidence for Marutūāhu Rōpū, disavowed the Kawenata and ConciliationAgreement. Accordingly, the evidence is that Ngāti Pāoa has recognised NgātiWhātua Ōrākei has lead mana whenua interests in central Auckland to the extentoutlined in the Kawenata and Agreement.306 The evidence is that Ngāti Pāoa and NgātiWhātua Ōrākei have thereby reached agreement at tikanga over their respective manawhenua. The expert evidence of Ted Andrews and Joe Tupuhi is that this does notmean either iwi do not have "footprints" in the other areas. As they say, "[o]urfootprints are all over this whenua (land) and we both have shared histories andrelationships in these areas".307[234] Mr Mahuika submits that Ngāti Pāoa does associate Ngāi Tai ki Tāmaki andTe Ākitai Waiohua with the wider Tāmaki area. Ngāti Pāoa does not deny that NgāiTai ki Tāmaki and Te Ākitai Waiohua have interests that extend into the 1840 transferland the area over which Ngāti Whātua Ōrākei claim mana whenua. 308 Ngāti Pāoasays that is a matter for Ngāi Tai ki Tāmaki and Te Ākitai to address and prove andNgāti Pāoa does not take a position on it.C The response of Ngāi Tai ki Tāmaki[235] Ngāi Tai ki Tāmaki trace their ancestry from ancient pre-waka peoples knownas Patupaiarehe, led by Koiwiriki and his daughter Hinemairangi of Hunua, Papakura,Maraetai and Pakuranga.309 They welcomed famous voyaging waka such as Tainui,some crew members of which disembarked to settle among the tāngata whenua,including Taikehu at Te Maungauika (North Head) and on Motutapu, which he namedafter part of his Hawaiki homeland. Taikehu took possession of the fisheries at TeManuka (Manukau Harbour) by naming the fish Ngā tamariki toa o Taikehu.305 Notes of Closings 160/13–15.306 Andrews and Tupuhi Brief at [28].307 At [29].308 Ngāti Pāoa Closing at [86]–[87].309 Brief of Evidence of James Brown, 13 October 2020 [Brown Brief] at [24].92[236] James Brown, descendant of Te Whatataao (or Te Whatatau) and HetarakaTakapuna, and Chair of the Ngāi Tai ki Tāmaki Trust, gave evidence for and aboutNgāi Tai ki Tāmaki. His evidence is that, in early times, the entire Tāmaki isthmuswas controlled by Te Waiohua, a collective of tribes sharing common ancestry fromearly Tainui waka people, including Hua Kaiwaka, Tāmaki Te Ao, Kupapa, Hikapou,Te Kohu, Potaka, Potukeka, Te Ika Maupoho, Hua Tau and others.310 He says the linksand relationships between Tainui and Waiohua form the basis of interests withinTāmaki Makaurau, including those of Ngāi Tai ki Tāmaki and Ngāti Whātua Ōrākei.311[237] Ngāi Tai ki Tāmaki trace their lineage to:312(a) the original ahi kaa ancestress Mahuika, through Matakamokamo andMatakerepō;(b) the Tūrehu and Patupaiarehe of Hūnua and through to Waitakere;(c) pre-migration sentinels such as Peretū, Uika, Tāmaki and his sonMaruiwi;(d) along with various Tini entities, Tini o Maui, Ruatāmore and Tini o Toi;(e) Ngā Riki, Ngā Oho, the eponymous ancestor Te Whatataao (TeWhatatau); and(f) from the descendants of the Tainui waka ancestral explorers for whichmany place names in Tāmaki Makaurau are named, such as Horotiuand Te Motutapu a Taikehu.[238] Ngāi Tai ki Tāmaki includes individuals from: Ngāti Te Raukohekohe, NgātiKōhua, Ngāti Rangitawhia, Ngāti Taimanawaiti, Ngāti Taihaua, and Te Uri o Te Ao.313310 At [30]. The Ngāi Tai deed of settlement says that Tāmaki Te Ao was known as Takataka.311 At [32].312 Ngāi Tai ki Tamaki Closing at [4.3].313 Ngāi Tai ki Tāmaki Deed of Settlement of Historical Claims, 7 November 2015 at cl 10.5.93[239] Mr Warren, for Ngāi Tai ki Tāmaki, submits the historical narrative is far fromcertain, with conflicting evidence about several issues. Mr Warren submits there isuncertainty about whether the killing of Kiwi Tāmaki and utu by Tuperiri on TeWaiohua constituted a raupatu between two unrelated tribes.314 In this regard, MrWarren relies on the evidence of Te Warena Taua as providing an alternative narrativeof inter-tribal or intra-tribal fights between Tuperiri and Kiwi Tāmaki as close relativeswho both held their interests in Tāmaki through their Te Waiohua whakapapa.315 TeWarena Taua considers there was no such thing as the Ngāti Whātua raupatu ofTāmaki. I do not understand him to be disputing the battles. Rather he seems to bedisputing the tribal identities of those involved, arguing that because they were closelyrelated, there was no change in mana whenua. But no other witness takes this position.Apart from Te Warena Taua, the evidence of tribal historians and professionalhistorians is consistent that Te Taoū led by Tuperiri was a separate political entity, witha separate identity, to Te Waiohua, led by Kiwi Tāmaki. I proceed on that basis.[240] The more major historical issue over which Ngāi Tai ki Tāmaki differs fromNgāti Whātua Ōrākei is whether Ngāti Whātua Ōrākei maintained undisputed controlover the Tāmaki isthmus after Tuperiri's attacks and whether it therefore did notconstitute a raupatu at tikanga.316[241] Peter McBurney, a historian called by Ngāi Tai ki Tāmaki, gives evidencesuggesting that Te Taoū were not able to maintain undisputed control over the isthmusand wider district in the decades following Tuperiri's raupatu.317 He points to thekilling by Ngāti Pāoa of Tuperiri's sons and the Ngāti Pāoa defeat of Te Taoū andNgāoho in battle at Orohe.318 He suggests that what sent Waiohua people away fromthe isthmus was warfare amongst themselves.319 Mr Hodder put to Peter McBurneyin cross-examination that this is inconsistent with Peter McBurney's report on theHistory of Mahurangi and Gulf Islands Districts, where he described the raupatu as314 Brief of Evidence of Peter McBurney, 13 October 2020 [McBurney Brief] at [37].315 Brief of Evidence of Te Warena Taua, 14 October 2020 [Taua Brief] at [23]; NOE 2554/30–2555/10; NOE 2654/3.316 McBurney Brief at [41].317 At [37].318 At [41]–[44].319 NOE 2818-2819/21–26.94akin to revolution.320 Peter McBurney says "I have to stand by it" but that his viewshave changed somewhat since then.321[242] James Brown points to Hetaraka Takapuna's claim and evidence that whileNgāti Whātua may have won a number of skirmishes against iwi, including Ngāi Taiki Tāmaki, it did not achieve or set out to achieve any raupatu and he says that Ōrākeiis Waiohua land.322 Mr Warren submits this was never considered by the Native LandCourt, particularly by Chief Judge Fenton. It is difficult for me to consider now too,on the basis of the evidence before me.[243] Dr Te Kahautu Maxwell gives evidence that Ngāi Tai ki Tāmaki oral history,including from his 93-year old uncle, Bill Maxwell, was that Ngāi Tai ki Tāmaki werenever conquered.323 He says they were not attacked because of their whakapapa anda "contract" with Ngāpuhi. There was depopulation of the area until resettlement, buthe says the Ngāti Rau hapū of Ngāi Tai ki Tāmaki remained throughout.324 I have noother information about this.[244] Mr Warren also questions the unitary identity of Ngāti Whātua Ōrākei. Hesubmits the group known as Ngāti Whātua Ōrākei did not exist before the 20th century.He points to a statement by Ani Pihema to the Waitangi Tribunal, reported in their1987 Ōrākei Report, that "Ngāti Whātua Ōrākei" is of recent origin and that "te kei oTainui" (the stern of the Tainui waka) is still their name for the area.325 Ngāi Tai kiTāmaki challenges the submission of Ngāti Whātua Ōrākei that their three hapū werenot separate or autonomous territorial groups. Mr Warren submits the origins andmake-up of the three hapū said to comprise Ngāti Whātua Ōrākei, Te Taoū,Te Uringutu, and Ngā Oho, derive from different but related sources of whakapapaand history.326 Even the Native Land Court divided the Ōrākei Block along the linesof the three hapū.320 Peter McBurney Traditional History Overview of the Mahurangi and Gulf Islands Districts(Commissioned by the Mahurangi and Gulf Islands District Collective Committee, March 2010)[McBurney Mahurangi Report] at 148.321 NOE 2815/20.322 Brown Brief at [92]–[93].323 Maxwell Brief at [157].324 At [157]; NOE 2725/30–2726/10.325 Waitangi Tribunal Ōrākei Report at 17.326 Ngāi Tai ki Tamaki Closing at [3.34].95[245] I do not propose to dissect the identity of Ngāti Whātua Ōrākei in terms of itsthree hapū. Its contemporary identity is certainly asserted, and has been recognised,in many fora. I do not accept Te Warena Taua's evidence that "there's no such tribecalled Ngāti Whātua ki Ōrākei".327 Such distinctions between the identity of the threehapū are matters of tikanga Ngāti Whātua Ōrākei that are not in issue in thisproceeding.[246] Mr Warren submits there is uncertainty about the significance of the return ofNgāti Whātua Ōrākei under the mana of Potatau Te Wherowhero.328 The evidence ofTe Warena Taua is also that it was through their Te Waiohua connections that NgātiWhātua were able to seek refuge in Waikato and to live at Ōrākei.329 They were drivenout by Ngāpuhi and brought back to Tāmaki by Potatau who placed Ngāti Whātua atvarious kāinga in Tāmaki, including at Ōrākei, under his mana in the 1830s.330[247] Within the area over which Ngāti Whātua Ōrākei claim mana whenua, NgāiTai ki Tāmaki says they continue to exercise kaitiaki responsibilities to the point ofsignificant decisions. The evidence of James Brown is that all of Tāmaki Makaurauis the heartland of Ngāi Tai ki Tāmaki, based on whakapapa.331 More specifically,Ngāi Tai ki Tāmaki say:332(a) They have ancestral interests in Pukekawa (Auckland Domain) andHorotiu (Auckland University). The Auckland High Court is on a NgāiTai ki Tāmaki pā site, Te Reuroa. Ngāi Tai ki Tāmaki still considerthese sites as ancestral sites of Ngāi Tai ki Tāmaki and have the manato that whenua.333(b) They have interests in Maungakiekie (One Tree Hill) on the basis it wasunder the mana of Te Waiohua confederation of tribes, including NgāiTai ki Tāmaki hapū Ngāti Kohua and Te Uri o Te Ao. Ngāi Tai ki327 NOE 2585/6–11 (Taua).328 McBurney Brief at [54]; Taua Brief at [25]–[33].329 Taua Brief at [30].330 At [32].331 NOE 2896/19–32.332 Brown Brief at [34]–[46].333 NOE 2903/27–2904/6 (Brown).96Tāmaki has an urupā on Maungakiekie known as Te Tupo o Te Tiniwhere Te Tahuru, the mother of Kiwi Tāmaki, and many other TeWaiohua tūpuna were buried.(c) Maungawhau (Mt Eden) was a significant Pā of Waiohua in TāmakiMakaurau and includes many sacred sites such as Te Tuahu oHuakaiwaka (the altar of Huakaiwaka). Ngāi Tai ki Tāmaki and manyother groups have an ancestral connection with Maungawhau throughits occupation by Te Waiohua, not just Ngāti Whātua Ōrākei.(d) The correct name of Puketāpapa (Mt Roskill) is Pukewiwi. Ngāi Tai kiTāmaki have interests there. Ngāti Whātua Ōrākei also has ancestralconnection to the area through occupation of the site by Te Waiohua.(e) They have shared interests through Te Uri o Te Ao and Ngāti Kohua(Te Waiohua) to Mt Hobson, Mt St John, and Te Tātua-a-Riukiuta (BigKing Reserve). Te Too (Freemans Bay) was the site of an old Waiohuapā with which Ngāi Tai ki Tāmaki had a close association. Pare TePutu, mother-in-law of Princess Te Puea was born there. Ngāi Tai kiTāmaki camped there, without need of any permission, as they broughtproduce by canoe from Maraetai to the city in the 1860s.[248] In terms of tikanga Ngāti Whātua Ōrākei, Mr Warren submits that, by anyobjective assessment of the evidence, the definition of ahi kā and mana whenua overevery inch of whenua claimed by Ngāti Whātua Ōrākei cannot be sustained. Thetribal/traditional history of Tāmaki Makaurau, including the isthmus, is far morecomplex and nuanced than Chief Judge Fenton's decision suggests.[249] The position of Ngāi Tai ki Tāmaki is that the isthmus remained a contestedarea following the death of Kiwi Tāmaki. Ahi kā has not been maintained in thetraditional way by any tribe in the area over which Ngāti Whātua Ōrākei claim manawhenua, for many generations. If any tribe dominated, it was the forebears of HeterakaTakapuna and his relatives, who descended from Hua o Kaiwaka, and Ngāi Tai kiTāmaki. Ngāi Tai ki Tāmaki rejects the Ngāti Whātua Ōrākei claim to exclusive mana97whenua through raupatu and ahi kā and the assertion that mana whenua, based onahi kā, is not compromised by other iwi interests and ancestral connections.[250] Accordingly, Ngāi Tai ki Tāmaki say many tribes, including Ngāti WhātuaŌrākei, have and share mana whenua in the area at issue. Ngāi Tai ki Tāmaki says itis for each tribe to describe the nature and extent of their mana. Ngāi Tai ki Tāmakiacknowledge Takaparawhau/Ōrākei, where the Ngāti Whātua Ōrākei marae sits,consistent with its name, as the heartland of Ngāti Whātua Ōrākei.334 Ngāi Tai kiTāmaki acknowledges Ngāti Whātua Ōrākei are present in central Tāmaki Makaurauand acknowledges their excellent kaitiakitanga and carrying out of responsibilities.[251] Furthermore, tikanga has evolved. Mr Warren submits the concept of ahi kāhas naturally evolved over time to meet the changing circumstances of TāmakiMakaurau. For Ngāi Tai ki Tāmaki today, relying on Te Mātāpunenga, ahi kā is betterdefined by a spiritual connection together with the fulfilment of cultural and legalresponsibilities in a modern context.335[252] Ngāi Tai ki Tāmaki say Ngāti Whātua Ōrākei is not the only tribe that exercisesthis form of ahi kā in the area over which they claim mana whenua today. They pointparticularly to the enduring Tainui links to the isthmus evident in whakapapa andhistory, such as iwi only being able to return in the 1830s under Te Wherowhero'sprotection and continued acknowledgement of Tāmaki Makaurau as Te Kei o Te WakaTainui. They rely on the agreement by the pūkenga called by Te Toru that "each iwiat the tikanga conference have individual customary interests (mana whenua)".336[253] Mr Warren submits that the evidential basis on which Ngāti Whātua Ōrākeiasserts mana whenua is simply two Native Land Court decisions and little more thana general interpretation of ahi kā that gives no recognition to shared whakapapaconnections between the people within Tāmaki Makaurau. Mr Warren submits ahi kāand mana whenua do not exist in a vacuum of other tikanga. They are part of a moresophisticated lattice of connections and obligations.337 Take tupuna and334 Kruger Brief at [108] and NOE 1900/15-30 (Kruger).335 NOE 2567/3-15 and 2655/20-2656/10 (Taua) and 2743/22-31 (Maxwell).336 Te Toru Pūkenga Summary at [1].337 NOE 1867/19-1868/-15 (Kruger).98take whanaungatanga were most important in Tāmaki Makaurau and enabled closelyrelated but distinct tribal groups access to resources across the wider district.[254] The world view of Ngāi Tai ki Tāmaki necessarily encompasseswhanaungatanga, whakapapa, shared responsibilities and aroha amongst othertikanga. Mana whenua is underpinned by whanaungatanga and shared rights andresponsibilities with varying layers of customary interests at play. Mana whenua andahi kā are what manifests if a tribe adheres to underlying principles of tikanga such asmanaakitanga and whanaungatanga, by consistently doing the right thing.338 In centralAuckland, because of the geography and whakapapa, application of the principles oftikanga have created shared mana whenua.339[255] Ngāi Tai ki Tāmaki acknowledges their view of history and tikanga is differentto that of Ngāti Whātua Ōrākei and some other tribes before the Court. Mr Warrensubmits that the contest will no doubt continue as it has for three centuries and thatmost tikanga experts in this proceeding claim it should not be resolved by this Court.D The response of Te Ākitai Waiohua[256] Ms Coates, for Te Ākitai Waiohua, submits that because of Crown actions, TeĀkitai Waiohua lost their voice and profile in Tāmaki without clear rangatirarepresentation, rendering the iwi virtually invisible to many third parties, as stated intheir deed of settlement with the Crown.340 Te Ākitai Waiohua rangatira, Pepene TeTihi and Ihaka Takaanini died in Crown custody.341 Another, Mohi Te Ahi a Te Ngu,was banished in the 1860s. This means the traditional history of Te Ākitai Waiohuahas not been recorded in the way it has for others.342 Absence of evidence is notevidence of absence.[257] The expert evidence of Te Ākitai Waiohua kaumātua David Wilson Takaanini,a direct descendant of Ihaka Takaanini, is that Te Ākitai Waiohua descend from Ngā338 Notes of Closings 247/7–11.339 Notes of Closings 247/22–25.340 Te Ākitai Waiohua Deed of Settlement of Historical Claims, 23 December 2020 at 9.341 At 25.342 Tony Walzl Te Ākitai Waiohua Customary Interests Report (presented and abridged by Te ĀkitaiWaiohua Iwi Authority) [Walzl Te Ākitai Waiohua] at 25.99Oho, Ngā Riki and Ngā Iwi. 343 Ngā Oho was the ancient tribe and original people ofthe land, who gradually split up but whose name is still used to describe the tāngatawhenua of Tāmaki. Ngā Iwi came from Ngā Oho and has been used to describe allthe groups who inhabited lands in and around Tāmaki. These early groups split fromeach other and formed new groups over time but are united by whakapapa. Te ĀkitaiWaiohua is a member of Waiohua, a confederation of groups and interests withinTāmaki, connected by whakapapa and association over time.344[258] Huakaiwaka (or Hua o Kaiwaka), the eponymous ancestor of Waiohua, wasrecognised as a chief of Ngā Oho, Ngā Riki and Ngā Iwi.345 He lived in the17th century at Maungakiekie, where he also died. He had a primary pā site atMaungawhau and his territory covered all of Tāmaki.346 His son, Te Ikamaupoho,married Te Tahuri and also lived at Maungakiekie.347 Their son, Kiwi Tāmaki, wasborn at Maungawhau.348 He became the paramount chief of Waiohua and the foundingancestor of Te Ākitai Waiohua.349 He lived in Maungakiekie, moved seasonally toother pā, such as Te Pane o Mataaoho (Māngere Mountain), and was a dominantrangatira across Tāmaki.350[259] David Wilson Takaanini's evidence is that Te Ākitai Waiohua acknowledgethat the Te Taoū branch of Ngāti Whātua, led by Wahaakiaki, defeated Kiwi Tāmakiin battle around 1740 and this was central to the creation of Te Ākitai Waiohua andNgāti Whātua Ōrākei as we know them today.351 Ms Coates, for Te Ākitai Waiohua,notes there is dispute over exactly when the battle occurred, as do others. DavidWilson Takaanini's evidence is that the defeat did not extinguish Te Waiohua, whosurvived with an unbroken line from Kiwi Tāmaki. For example, from Kiwi Tāmakicame Rangimatoru then Pepene Te Tihi, then Ihaka Takaanini, then Te Wirihana, then343 Brief of Evidence of David Wilson, 13 October 2020 [D Wilson Brief] at [10].344 At [10] and [16].345 At [15]; and see Walzl Te Ākitai Waiōhua at 50, Rawiri Brief at [27], McBurney Brief at [69],NOE 292/17–20 (Kawharu), NOE 531/17–21 and 598/31-34 (Blair), NOE 2572/25–30 (Taua),NOE 2794/28–2795/7 (McBurney).346 D Wilson Brief at [17]; Stone at 28.347 Walzl Te Ākitai Waiōhu at 26.348 Blair Brief at [364].349 D Wilson Brief at [20].350 At [22].351 At [23]–[24].100Periko Manutapuwaenui, then Te Hiko, then Joseph Wilson and now David WilsonTakaanini.[260] David Wilson Takaanini's evidence is that the ancestors of Te Ākitai Waiohuare-established themselves in South Auckland, in and around Māngere, in the19th century. Pūkaki is their marae. He says Rangimatoru, the son of Kiwi Tāmakiand Paretutanganui, married Moenoho from Ngāti Rongo (part of Te Taoū) and NgātiPoataniwha.352 He died at the battle of Orohe against Ngāti Pāoa, alongside NgātiWhātua. David Wilson Takaanini's evidence is that if Waiohua had been conqueredby Ngāti Whātua, their tūpuna would not have fought together.353 Te Horeta, arangatira of Ngā Iwi and Waiohua and direct descendant of Huakaiwaka, had adaughter Te Tahuhi.354 She married Tuperiri's son Tomoaure.355[261] Ms Coates submits that Waiohua dominance, which constituted mana whenua,was recognised in the 17th century.356 While subsequent intermarriage gave NgātiWhātua Ōrākei a take in the whenua, Waiohua continued to have an underlying manathrough an ancestral dimension, that allows them to have mana whenua.357[262] Te Ākitai say the battle between Kiwi Tāmaki and Wahaakiaki did not result inthe extinguishment of the Waiohua people. They point to Mark Derby's evidence thatthe narrative portraying the wholesale raupatu of Waiohua by Te Taoū, dominated bythe victor's perspective, is being increasingly challenged and a more nuanced historyis coming to light.358 This was a skirmish between close cousins and a revengekilling.359 They point to Dr Vincent O'Malley's Report Te Wherowhero saying:360 as Russell Stone notes, the notion that Te Wai-o-Hua were 'extirpated' andbecame 'extinct' as a result of Te Taoū conquest – as Chief Judge Fenton352 D Wilson Brief at [31].353 At [35].354 At [33].355 Kawharu Brief at [77].356 Notes of Closings 185/19–25.357 Notes of Closings 186/15–187/12.358 Derby and Rother Te Ākitai Waiohua Customary Interests at 13–14.359 Te Ākitai Waiohua Closing Submissions, 19 April 2021 [Te Ākitai Waiohua Closing] at [75](b),citing Taua Brief at [23], Kapea Brief at [45]–[46].360 Te Ākitai Waiohua Closing at [75](a), citing Vincent O'Malley Pōtatau Te Wherowhero andTāmaki Makaurau (Waikato-Tainui College for Research and Development, October 2014)[O'Malley Te Wherowhero] at 8; Brief of evidence of Karen Wilson, 13 October 2020 [K WilsonBrief] at [106]; D Wilson Brief at [25].101promoted in his notorious Ōrākei judgment of 1868 – is today considerederroneous.[263] Professor Stone actually said that Chief Judge Fenton had "repeated amisconception" because "what had been eliminated were not the former Tāmakipeoples themselves, but their previous hapū structures ".361 He suggested that"[t]wo groups of remnants" returned in the later decades of the 18th century,Te Uringutu and Te Ākitai.362[264] David Wilson Takaanini says that everyone had to get out of Tāmaki when itwas invaded by Ngāpuhi taua.363 Te Ākitai sheltered in the Waikato under theprotection of Te Wherowhero. Ms Coates submits that Ngāti Whātua Ōrākei suffereda series of major defeats such that the historian Professor Stone concluded they were"destroyed as an iwi of power".364 My reading is that Professor Stone was referringin that passage to Ngāti Whātua o Kaipara.[265] Te Ākitai Waiohua returned under the protection of Te Wherowhero sometimebetween 1832 and 1835.365 In a report for Te Ākitai Waiohua, historian Mr TonyWalzl, notes evidence that at least some of Te Ākitai first returned to Ōrākei withApihai Te Kawau before moving to Pūkaki in Manukau around 1840.366 During thisre-settlement, there was seasonal movement of Tāmaki iwi to where they once hadgardens and settlements.367 Mr Walzl's evidence also suggests that, although some TeĀkitai may have returned to Ōrākei with Te Kawau, there was a Te Ākitai settlementat Pukaki in 1832 and others moved to Pūkaki around 1840 and up to the 1860s.368 Ido not understand Te Ākitai to be claiming mana whenua at Ōrākei in the sense thatNgāti Whātua Ōrākei conceive it.361 Stone From Tāmaki- Makau-Rau at 45.362 At 46.363 D Wilson Brief at [38]. And see Walzl Te Ākitai Waiōhua at 62.364 Te Ākitai Waiohua Closing at [91](a), citing O'Malley Te Wherowhero at 12 which quotes StoneFrom Tāmaki-Makau-Rau at 102.365 Derby and Rother Te Ākitai Waiohua Customary Interests at 50; and Walzl Te Ākitai Waiohua at64.366 Walzl Te Ākitai Waiōhu at 66, citing Native Land Court Ōrākei MB 2 at 221-2 (Te Hapimana).367 Stone From Tāmaki- Makau-Rau at 182.368 Walzl Te Ākitai Waiōhu at 66.102[266] Ms Coates submits the uncertain conditions and contested power over theisthmus made it difficult for Te Kawau to return in the 1830s, and would not have beenpossible without the protection of Te Wherowhero.369 She submits that Dr VincentO'Malley's report, Te Wherowhero, shows that the situation was more complicatedthan one iwi exercising exclusive mana whenua. She points to the evidence of TeWarena Taua that this was effectively the period in which any group ceased to holdahi kā in the central Tāmaki area.370 Ngāti Whātua Ōrākei point to Mark Derby'sstatement that, "by 1840, Tāmaki Māori acknowledged Apihai Te Kawau Te Tawa,who had strong support from Te Wherowhero, as their paramount chief and leader".371David Wilson Takaanini's evidence is that, during the 1840s, Te Wherowhero, IhakaTakaanini and other leading chiefs were largely responsible for keeping Auckland safefrom Hone Heke.372[267] Ms Coates submits Te Kawau, who featured prominently in Tāmaki land salesin the central isthmus, had whakapapa connections to Ngāti Whātua, Te Waiohua andTainui.373 She submits initial purchase histories should be given little weight for thepurpose of these proceedings. She submits the sales happened relatively soon afteriwi returned to the isthmus and were a poor reflection of customary rights. Neitherwas the lack of protest at the time compelling, given the context of iwi re-establishingthemselves and then being in conflict with the Crown.[268] Ms Coates submits that placing great reliance on the Native Land Courtdecisions in the 1860s would perpetuate an incomplete and flawed narrative. Shepoints to Dr Vincent O'Malley's acknowledgement that it is possible iwi with validcustomary interests in the isthmus, outside the Ōrākei block, may not have participatedin the hearings.374 His evidence is that the Native Land Court was generally a "highlyflawed mechanism for determining customary rights" which "often failed to reflectcustomary tenure fully or adequately".375 Te Ākitai Waiohua disagree with Professor369 O'Malley Te Wherowhero at 12 and 25.370 NOE 2561/5-10 (Taua).371 Ngāti Whātua Ōrākei Closing at [6.164], citing Derby and Rother Te Ākitai Waiohua CustomaryInterests at 24.372 D Wilson Brief at [39].373 Te Ākitai Waiohua Closing at [96].374 NOE 1013/7–9 (O'Malley).375 O'Malley Brief at [198].103David Williams' evidence that the Native Land Court's Ōrākei reasoning wasappropriate and conclusions robust.376 That is because:(a) Te Ākitai was not represented at the hearing as their key rangatira wereincarcerated or banished;(b) the proceeding expressly focussed on the Ōrākei Block not elsewhereon the isthmus;(c) the Native Land Court was a highly flawed mechanism for determiningcustomary rights and titles; and(d) there has never been a full official inquiry into the extent of Tainuiinterests in Tāmaki.377[269] Throughout all these events, David Wilson Takaanini's evidence is that TeĀkitai Waiohua continued to maintain an ongoing relationship to the land in Tāmaki.For example:378(a) Te Ākitai Waiohua has connections and associations to all the maungain Tāmaki;(b) in the 1860s, Ihaka Takaanini supervised both Māori hostels atOnehunga and Mechanics Bay near Ōrākei;(c) Te Iringa o Rauru in Symonds Street was the site of a tree where Rauruof Ngāti Whātua was killed in the mid-17th century which began thehostilities between the two tribes;376 Te Ākitai Waiohua Closing at [105], citing Williams Brief at [109].377 Te Ākitai Waiohua Closing at [106]–[107], citing O'Malley Te Wherowhero at 4 and 85, Walzl TeĀkitai Waiōhua at 75, Te Ākitai Waiohua Deed of Settlement of Historical Claims, 23 December2020 at cl [5.27]; NOE 1013/7–19 (O'Malley); O'Malley Brief at [198]; Te Rōpū Whakamana ite Tiriti o Waitangi | Waitangi Tribunal Rēkohu – A Report on Moriori and Ngāti Mutunga Claimsin the Chatham Islands (Wai 64, 2001) [Waitangi Tribunal Rēkohu Report] at 144.378 D Wilson Brief at [40]–[43].104(d) Te Tii Tutahi is the Waiohua name for Newmarket, a wāhi tapu wherethe umbilical cords of chiefly children of the Waiohua were buried;(e) Te Ipupakore, off Mt Eden Road, was the main water well that suppliedthe Waiohua people at the Maungawhau Pā;(f) Te Roto a Rangi, a small pool near what is now St Albans Church inDominion Road, is named after Rangihuamoa, wife of Huakaiwaka andgrandmother of Kiwi Tamaki; and(g) Te Puna a Rangi, a water source located near the junction of ManukauRoad and Mt St John Avenue, is also named after Rangihuamoa.[270] Ms Coates points to recognition by a number of witnesses called by other iwithat Te Ākitai have mana within the area over which Ngāti Whātua Ōrākei claim manawhenua.379 She submits Te Ākitai Waiohua are currently active kaitiaki and expresstheir ahi kā across the isthmus, and maintain their customary interests andrelationships with the whenua, to the extent they are able to do so in a highly regulatedlandscape that is pre-dominantly no longer Māori-owned. This includes protesting TeAkaranga Māori Association planting a tree at Te Tuahu i Huakaiwaka and a proposalto build a model pā on Maungawhau in 1927–29,380 active expressions of kaitiakitangathrough participation in a number of current forums, and recent engagement withresource consents on the Waitematā side of the area over which Ngāti Whātua Ōrākeiclaim mana whenua.381[271] Ms Coates submits Te Ākitai Waiohua has deep hononga to areas in centralTāmaki going back to Ngā Oho, Ngā Riki, Ngā Iwi, Huakaiwaka and Kiwi Tāmaki.They see that as giving them standing in central Tāmaki. Te Ākitai Waiohua have take379 NOE 2905/4–10 (Brown); NOE 2052/17–20 (Compain); M Wilson Brief at [39]–[40]. NOE2307/24–31 (Ngāpō); Taua Supplementary Brief, 1 April 2021, at [17]; NOE 2548/14–17 and2558/22–2559/8 (Taua).380 Derby and Rother Te Ākitai Waiohua Customary Interests at 74-75.381 Waiohua-Tāmaki Alliance Limited Partnership, Tūpuna Taonga o Tāmaki Makaurau Trust,Tupuna Maunga Authority, conservation co-governance, Mana Whenua Kaitiaki Forum,Watercare Kaitiaki Forum, Auckland Transport, Auckland Tourism, Events and EconomicDevelopment, Eke Panuku Governance Mana Whenua Forum, Pile Mooring RedevelopmentKaitiaki Engagement Plan Forum, America's Cup Kaitiaki Engagement Plan Forum, andIndependent Māori Statutory Board.105tupuna in the Tāmaki isthmus and, although they do not use the term ahi kā roa, theyhave maintained an equivalent presence in the isthmus as a matter of fact and tikanga.[272] Ms Coates submits all this suggests, at the very least, a more complex picturethan Ngāti Whātua Ōrākei exercising exclusive mana whenua from 1740 to the presentday. She refers to the Waitangi Tribunal's characterisation of Tāmaki as "anintensively occupied part of the country, where constant habitation by changingpopulations of Māori as a result of invasions, conquests, and inter-marriage has createddense layers of interests".382 Accordingly, the identity of Te Ākitai is tied to KiwiTāmaki and the whenua to which he and his ancestors belonged, which cannot bebroken.383[273] In terms of tikanga, Ms Coates submits the declarations sought by NgātiWhātua Ōrākei are premised on exclusivity, individual authority and subordination ofother interests. Rights cannot be divorced from responsibilities with respect to landand people at tikanga.384 She submits the tikanga relied upon by Ngāti Whātua Ōrākeiis not credibly upheld in light of the evidence. She notes a suggestion that the term"mana whenua" is not helpful in any context.385 Ms Coates submits:386The effect of what is being sought by Ngāti Whātua Ōrākei generally,however, is to expunge the mana whenua interests of all other iwi, includingTe Ākitai, from the face of the Tāmaki isthmus. Ngāti Whātua Ōrākei areattempting to use the law as a tool to subjugate the customary and tikangabased interests of others and make their expression in a Treaty settlementcontext subordinate to the exercise of Ngāti Whātua Ōrākei tikanga andauthority and, ultimately, subject to Ngāti Whātua Ōrākei's whim.Te Ākitai Waiohua says that rights and interests in Tāmaki are more complexthan one hapū being able to lay an impenetrable blanket with fixed andabsolute boundaries of mana whenua and ahi kā over a vast area that has theeffect of subordinating and/or ousting the customary interests and Treatysettlement opportunities of other iwi and hapū.382 Waitangi Tribunal Tāmaki Makaurau Report at 12.383 D Wilson Brief at [29].384 Meredith Brief at [53].385 Catherine Iorns Magallanes "The use of tangata whenua and mana whenua in New ZealandLegislation: Attempts at Cultural Recognition" (2011) 42 VUWLR 259 at 266-267; and WaitangiTribunal Rēkohu Report at 28–29.386 Te Ākitai Waiohua Closing at [7] and [183].106[274] Te Ākitai Waiohua say that exclusivity is not a necessary corollary of mana andthe evidence highlights that shared mana whenua not only exists but is common inMāori society, pointing to the agreements between Ngāti Whātua Ōrākei and NgātiPāoa in the Kawenata Tapu, between Ngāi Te Rangi, Ngāti Pūkenga and NgātiRanginui in Tauranga moana. She points to the Arbitration Panel in the Central NorthIsland Forest lands recognising substantive, medial and limited mana whenua inblocks between Ngāi Tuhoe, Ngāti Manawa, Ngāti Rangitihi, Ngāti Tuwharetoa, NgātiWhakaue, Ngāti Whare, Raukawa and affiliated Te Arawa iwi/hapū.387 SeveralWaitangi Tribunal reports and court decisions recognise shared mana whenua inRēkohu, Ngāti Awa, Port Nicholson, Tararua and Pouākani.388 Ms Coates submits thatshared mana whenua is even implicit in the very construct of Ngāti Whātua Ōrākeiwith three constituent hapū having "joint" mana over their lands, associate with onemarae and have shared responsibility for the people and their whenua.[275] Te Ākitai Waiohua see the world through their connections and relationship toland and people; an inclusive way of being, best expressed through whakapapa,whanaungatanga and manaakitanga. Nigel Denny's evidence is:389Tāmaki is very different from other places where historically there has beenonly one key group that dominates the area through to modern times. InTāmaki iwi live side by side in a complex network involving multiple layersof interest spreading across the whenua. The name Tāmaki Makaurau as theplace 'desired by many' or 'of a hundred lovers' acknowledges this status.[276] Te Ākitai acknowledges subsequent intermarriage of Ngāti Whātua Ōrākeiwith Waiohua gave Ngāti Whātua Ōrākei a take in Tāmaki but say the underlying manaof the Waiohoa people through their ancestral connections and their take to the landremained. Te Ākitai Waiohua maintained a whakapapa connection to the land through387 Central North Island Forests Land Collective Settlement Act 2008, sch 2.388 Waitangi Tribunal Rēkohu Report at 26; Te Rōpū Whakamana i te Tiriti o Waitangi | WaitangiTribunal Ngāti Awa Settlement Cross-Claims Report (Wai 958, 2002) [Waitangi Tribunal NgātiAwa Cross-Claims] at 135; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal PortNicholson Block Urgency Report (Wai 2235, 2012) at 11; Paewai v Tāmaki a Nui-A-RuaTaiwhenua (Kahungunu) – Rangitane o Tāmaki Nui-A-Rua Inc Society 11 Takitimu Appellate MB96 (11 ACTK 96) at 9; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR142 [Mercury (HC)] at [10](d); and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi TribunalReport on Auckland Railway Lands (Wai 264, 1992) at 5 and 11.389 Brief of Evidence of Nigel Denny, 13 October 2020 at [8].107strategic marriage with Ngāti Whātua after the battle between Kiwi Tāmaki and TeTaoū.390 David Wilson Takaanini says: 391Ngāti Whātua claim that these strategic inter-marriages cemented their rightsand interests in the whenua. But this is like saying that they inter-married withus but not us with them. Whakapapa has two sides and you can't wipe outone. We see these marriages not only as a means of peace-making but as away of continuing to connect us by whakapapa to the land that our tupunaheld.[277] Te Ākitai rejects the blanket claim of exclusive mana whenua that NgātiWhātua drape over the isthmus. Ms Coates submits that if Waiohua mana whenuarights were completely extinguished in the isthmus, the concept of utu and thereciprocal obligation to rebalance mana, would have meant continued fighting. Butinstead Te Ākitai Waiohua tūpuna fought alongside Ngāti Whātua Ōrākei. The pre-eminent right according to tikanga Māori was and remains take tupuna rather than takeraupatu, which was a weak form of right.392 That Ngāti Whātua Ōrākei, by marryinginto Waiohua, can now claim take tupuna, does not preclude Te Ākitai Waiohua alsohaving rights and interests in the whenua on the same basis.393[278] In contemporary Auckland, where little land is held by Māori, Te ĀkitaiWaiohua say it is predominantly at the marae where haukainga can exercise exclusivecontrol or authority. Outside of the marae, one needs to navigate the many and variedinterests that exist in a particular context.394 The evidence, including their name,suggests the "heartland" of Ngāti Whātua Ōrākei is at Ōrākei where they have theirstrongest association.395 This is the land Ngāti Whātua Ōrākei did not sell and overwhich the Bastion Point protest occurred. Pā sites are markers of where ancestorsonce resided but many groups, including Te Ākitai, can point to significant pā sites oftheir tūpuna including throughout the central isthmus.390 D Wilson Brief at [30].391 At [34].392 Waitangi Tribunal Rēkohu Report at 7; and Meredith Brief at [61] and [66]–[70].393 NOE 296/4–9 (Kawharu).394 D Wilson Brief at [45]–[50], NOE 2952/18–31 (D Wilson).395 NOE 62/18–28 (Kapea).108E The Crown's comments[279] Dr Ward, for the Crown, makes general submissions about the claim by NgātiWhātua Ōrākei to mana whenua. He submits the Court may assess the lawfulness ofthe current Crown policy at issue without determining the true position of groups attikanga in the 18th and 19th centuries.396 He notes that even specialist courts, such asthe Māori Land Court and Māori Appellate Court, are cautious in approaching claimsto mana whenua, including claims to exclusive mana whenua, which the Māori LandCourt has said are preferably dealt with on the marae.397[280] Dr Ward submits that Ngāti Whātua Ōrākei has not established the content oftheir asserted tikanga rights, either in terms of defining the exact nature of the tikangaconcepts, such as the inherently exclusive nature of mana whenua, or theirconsequences at tikanga:(a) The evidence is that different iwi hold different perspectives on tikangaand may describe interests in different ways.398 None of the"universally significant" principles of tikanga identified by the NgātiWhātua Ōrākei witnesses include ahi kā, mana whenua, take tuku, tukuwhenua and take hoko, or exclusive mana whenua.399(b) There is a lack of specificity as to what is meant by Ngāti WhātuaŌrākei tikanga. Ngarimu Blair suggests it is simply the expression oftikanga concepts of general understanding across iwi.400 Te KurataiahoKapea says it is "[w]hatever is determined by Ngāti Whātua Ōrākei"and declines to provide an example.401396 Attorney-General Closing Submissions, 19 April 2021 [Crown Closing] at [368].397 Tararua District Council (1994) 138 Napier MB 85 (138NA MB 85) at 10.398 NOE 2942/14–17 and 2945/13–22 (D Wilson); NOE 3076/20–26 (K Wilson); NOE 2376/5–14(W Ngamane); NOE 2393/25–31 (Taipari); NOE 2567/8–15 (Taua); NOE 294/8–10 (Kawharu);NOE 73/17–29 (Kapea).399 Kruger Brief at [54]–[58]; Kawharu Brief at [3]; Meredith Brief at [33]–[53]; NOE 703/12–15(Williams).400 NOE 426/19–23 (Blair).401 NOE 45/8–24 (Kapea).109(c) There is an absence of consensus on the nature and characteristics ofmana whenua:402 whether it is an exclusive concept; whether it isproprietary in nature; whether recognition by others is required;whether the concept of a "heartland" is generally understood andapplied.(d) The characteristics of ahi kā are unclear, for example in relation to howlong it takes to lose an interest by not maintaining ahi kā and how atribe can exercise ahi kā where it owns little of its traditional lands.403The nature and incidents of take tuku, tuku whenua and take hoko areunclear.[281] The Crown's position is:404In summary, the evidence presented in this proceeding suggests the nature andincidents of "mana whenua", "ahi kā", and "tuku whenua" are highlycontested. The plaintiff's evidence fails to clearly articulate the characteristicsof these concepts, the criteria for their establishment, or their tikangaimplications (in particular what constitutes an "erosion" of mana whenua [or]"offence" to Ngāti Whātua Ōrākei tikanga). Given the contested nature ofthese concepts, and the plaintiff's claim to exclusivity, the Attorney-Generalsubmits it would not be appropriate or even possible, for the Court to declarethat Ngāti Whātua Ōrākei holds mana whenua and ahi kā in central Auckland.Nor can the Court be satisfied that the tikanga evidence establishes anygeneral "rule" that can be said to govern interactions between iwi and theCrown in the negotiation and settlement of Treaty claims.[282] Otherwise, in relation to the historical evidence, the Crown takes issue withNgāti Whātua Ōrākei's characterisation of the 1840 transfers of land as tuku whenuaand the implications of that. Dr Ward points to Ngāti Whātua Ōrākei's account of tukunot being accepted by other iwi.405 He submits Ngāti Whātua Ōrākei would have beenaware that transactions with the Crown would not have been purely tikangatransactions from the outset. And the Crown takes legal points regarding the effect ofthe alleged tuku whenua.402 NOE 1195/13–26 (Meredith); Te Mātāpunenga at 178; NOE 1199/26–28 (Meredith); WaitangiTribunal Rēkohu Report at 28–29; and Crown Closing at [311]–[331].403 Crown Closing at [332]–[334].404 At [299].405 At [397].110F The position of Ngāti Kuri and Ngāi Te Rangi[283] Ngāti Kuri and Ngāi Te Rangi rely on the evidence of Charlie Tawhiao of NgāiTe Rangi, called by Ngāti Whātua Ōrākei, regarding mana whenua at tikanga:45 Overlapping claims and overlapping interests exist as a natural part ofMaori reality. To be properly considered in the context of settlingTreaty of Waitangi grievance claims they need to be considered withinthe context from which they are derived, that is within the context oftikanga Maori. Tikanga Maori requires that interests in land andterritory be viewed as degrees of relationship of a people to that landor territory.46 Although my whakapapa allows me to claim relationships with manyhapū and iwi, I would not claim to have equally strong relationshipswith all of the hapū and iwi to whom I have whakapapa links. Myprimary cultural identity derives from my home marae and hapū, theplace where I live and the place I will go to when I die. But at certaintimes, those wider whakapapa connections, no matter how old ordistant, can be very important. For example, they can be revived inwhaikōrero at a tangihanga to establish my relationship to thedeceased. And in that way I am able to bring back to living memoryour broader connections as iwi Māori.47 The important point is that just as with whakapapa connections, notall interests in land and territory are equal. Mana whenua is the highestand most powerful form of interest that defines and governs all otherinterests. There can be no " layering" of mana whenua. There can,however, be layering of lesser interests over mana whenua interests,according to tikanga.51 The Waitangi Tribunal's notion of "layers of interests" and theCrown's interpretation of this as meaning that all layers have equalmerit, is a gross oversimplification of these relationships.406 Ratherthan layers of interests, cultural interests in this context exist as acomplex series of relationships that exist alongside each other eachwith its own dimensions. To accept all interests as having equal valuein tikanga terms demeans the very tikanga that underpins suchinterests. That tikanga places relationships to the natural universeincluding each other, above all else. A conflation of these culturalinterests displaces the true nature and intent of those interests whichis to preserve relationships between hapū and iwi and the whenua thatdefines them. Doing so provides a simple solution for the Crown butone that is least likely to correspond with reality.[284] Mr Smith, for Ngāti Kuri and Ngāi Te Rangi, submits:407406 Waitangi Tribunal Tāmaki Makaurau Report at 95–96.407 Ngāti Kuri and Ngāi Te Rangi Closing, 19 April 2021 [Ngāti Kuri and Ngāi Te Rangi Closing] at[15] (footnotes included).111Mana whenua is the highest and most powerful form of interest that definesand governs all other interests.408 Mana whenua is the ability to exerciseauthority over access to a territory and resources.409 It is not divisible.410[285] Mr Smith points to Charlie Tawhiao's evidence under-cross examination thatthe agreement between Ngāi Te Rangi, Ngāti Pūkenga and Ngāti Ranginui, to sharemana whenua over Mauao, was a consensual accommodation and an exception to thegeneral rule of the indivisibility of mana whenua.411 They submit this is consistentwith the findings of the adjudication panel on the Kaingaroa Forest licence dispute.412Neither Ngāti Kuri nor Ngāi Te Rangi take a position on tikanga as it applies in Tāmakispecifically.413G Historical experts[286] In my interlocutory judgment in these proceedings of 25 November 2020, Irequested the historical witnesses to confer in order to produce a joint witnessstatement before the hearing about the matters on which they agree and disagree, andtheir reasons.414 Before Christmas 2020, I further requested them (including Mr Tauaand without client representatives) to endeavour to confer in the second half of January2021.415[287] On 17 February 2021, counsel for Ngāti Whātua Ōrākei provided a summaryof the outcome of the historical experts' conference, prepared by Dr Vincent O'Malley,the historical expert called by Ngāti Whātua Ōrākei who attended. On 22 February2021, counsel for Te Toru provided a similar document prepared by Mark Derby andagreed to by their historical experts, Peter McBurney, Professor Michael Belgrave andTe Warena Taua. In response to queries from counsel, I directed that the memorandafiled should be added to the common bundle, limited updating evidence should be408 Brief of Evidence of Charles Tawhiao, 2 June 2020 [Tawhiao Brief] at [46]409 Brief of Evidence of Charles Tawhiao in Reply, 4 December 2020 [Tawhiao Reply] at [14].410 Tawhiao Brief at [31]–[32].411 NOE 1311/22–1312/19 (Tawhiao).412 Moana Jackson, Tahu Potiki and Wayne Ngata The Findings of the Adjudication Panel in the ManaWhenua Process (Convened by the Central North Island Iwi for Te Kaingaroa a Haungaroa CrownForest Licences, 26 June 2014).413 Ngāti Kuri and Ngāi Te Rangi Closing at [12].414 Ngāti Whātua Ōrākei (HC issues) at [41](a).415 Ngāti Whātua Ōrākei Trust v Attorney-General CIV-2015-404-2033, 23 December 2020 (MinuteNo 11) at [6].112permitted, and cross-examination should be permitted regarding the substantive issuesbut not the process of the conferences.416[288] In summary, the positions on which the historical experts could agree inrelation to the historical narratives were:417(a) Prior to 1820, the main permanent settlements in the area were atMokoia, Mauinaina and in the Manukau area. Te Toru witnesses alsoconsidered there were no permanent settlements on the Tāmaki isthmusat the time.(b) In the context of ongoing conflict across the Tāmaki district in the1820s, Ngāti Whātua withdrew from the area:(i) after 1826 (Ngāti Whātua Ōrākei witness); or(ii) around 1826 for strategic reasons, as had other iwi (Te Toruwitnesses).(c) Multiple iwi re-located to the Waikato district temporarily.(d) Tāmaki was not completely deserted then. Various groups (accordingto the Ngāti Whātua Ōrākei witness) or iwi groups (according to TeToru witnesses) sporadically returned or remained while others were inWaikato.(e) The return to the Tāmaki isthmus was a gradual one, with Ngāti Whātuasettling at first in the Manukau area, before a gradual return to Tāmakiby the late 1830s (Ngāti Whātua Ōrākei witness) or in the late 1830s(Te Toru witnesses).416 Ngāti Whātua Ōrākei Trust v Attorney-General CIV-2015-404-2033, 3 March 2021 (Minute No13) at [21].417 Ngāti Whātua Ōrākei Memorandum of Counsel, 17 February 2021; and Te Toru JointMemorandum of Counsel, 22 February 2021.113(f) Before 1840, in general terms, tribal boundaries were often fluid orpoorly defined and sometimes intersected or overlapped. The partiesliving on the isthmus in the period immediately before 1820 generallyhad relatively close and cordial relations with one another.(g) The October 1840 transfer by Ngāti Whātua Ōrākei to the Crown wasa conditional transaction rather than an outright sale of land.(h) The evidence given in the Native Land Court hearings on the Ōrākeiblock is relevant when assessing relationships within the specified area.Such evidence should be critically assessed like any other form ofevidence.(i) All historical sources have limitations and should be critically analysedand examined. Particular forms of evidence should not be privilegedover others.[289] I accept that the positions on which the historical experts have been able toagree have added evidential weight. I do not consider that what they agreed at theconference materially impacts the respective positions of the parties or interestedparties about the historical narrative. I take them into account in arriving at my viewson the historical narrative.H Pūkenga[290] In the judgment of 25 November 2020, as with the historical experts, Irequested the pūkenga, the expert witnesses in tikanga called by the parties andinterested parties, to confer in order to produce a joint witness statement before thehearing about the matters on which they agree and disagree, and their reasons.418 Eachof the pūkenga was an impressive witness, making careful responses drawing on deepknowledge. Collectively, their expert evidence about tikanga is authoritative.418 Ngāti Whātua Ōrākei (issues & pūkenga) at [41](a). Some of the expert historian witnesses alsogive their opinions on customary interests held by various iwi but, to the extent that those opinionsdepend on tikanga, I do not place great weight on them, compared with the evidence of thepūkenga who are experts in tikanga.114[291] Paul Meredith summarised what he, Tāmati Kruger, and Charlie Tawhaio,pūkenga called by Ngāti Whātua Ōrākei, considered had been agreed.419 Dr TeKauhautu Maxwell also prepared a summary, in two parts, as agreed by the pūkengacalled by Te Toru: Dr Te Kauhautu Maxwell; Te Warena Taua; Hauāuru Rawiri;Wati Ngamane; Dr Korohere Ngāpō; and David Wilson Takaanini:420(a) Part A contained a description of some of the concerns the experts hadwith the way the conference was run. I accept their advice that theCourt must appoint a facilitator for such conferences to ensure set tasksare completed and attendees understand their roles and responsibilityto the Court.(b) Part B was a marked-up version of the summary prepared by PaulMeredith, including an added translation in te reo Māori. There weredifferences between the English summary prepared by the pūkengacalled by Ngāti Whātua Ōrākei and those called by Te Toru. I describehere the responses to the questions regarding mana whenua in TāmakiMakaurau.421[292] Question 1: What are the fundamental principles of tikanga that apply torelationships between iwi and to the whenua in Tāmaki Makaurau, and elsewhere,including any principles relating to shared interests and whakapapa?(a) The pūkenga called by Ngāti Whātua Ōrākei stated that "[i]n relationto relationships between iwi, consideration must be given to whakapapaand whanaungatanga". The pūkenga called by Te Toru expanded thisto say that consideration must be given to "the fundamental principlesof tikanga with particular regard to whakapapa and whanaungatanga".419 Tikanga summary attached to Ngāti Whātua Ōrākei Memorandum of Counsel, 17 February 2021[Ngāti Whātua Ōrākei Pūkenga Summary].420 Tikanga summary attached to Te Toru Memorandum of Counsel, 22 February 2021 [Te ToruPūkenga Summary].421 See NOE 2373/4–2374/26 (W Ngamane).115(b) The pūkenga called by Ngāti Whātua Ōrākei stated that "in the contextof land i.e. He whenua te take, whakapapa and whanaungatanga arealso relevant in considering the customary rights and interests to landderived from particular lineage and relationships (eg moenga rangatira,taumau ie. strategic marriages)". The pūkenga called by Te Toru added"the fundamental principles of tikanga with regard to whakapapa andwhanaungatanga" and deleted "taumau ie. strategic marriages".(c) All pūkenga "[a]greed that the fundamental principles of tikanga inrelation to the whenua in Tāmaki Makaurau, and elsewhere are thosethat are collectively known as Take Whenua" and that these include:Take Tupuna; Take Ahi Kā; Taka Tapatapa Whenua; Ngā KarakiaUruuwhenua. The pūkenga all agreed Take Tuku Whenua and TakeRaupatu were on that list but the pūkenga called by Ngāti WhātuaŌrākei placed them first and third respectively while the pūkenga calledby Te Toru placed them last. All pūkenga agreed these should not beconsidered a finite list. The pūkenga called by Te Toru "[a]greed thatan interrogation of these Take Whenua will assist in identifying thosethat have mana whenua or shared rights and interests".[293] Question 3: Has tikanga applied in Tāmaki Makaurau since Māori firstinhabited the Tāmaki isthmus or only from 6 February 1840? If the former, how doespre-1840 tikanga shape the relationships between iwi and to the whenua in TāmakiMakaurau post 1840? All pūkenga:Agreed that tikanga and those take whenua have applied since Māori firstinhabited the Tāmaki isthmus and that they existed pre and post 6 February1840.As to the second question, it was agreed that the answer more so lies ininvestigating the historical and contemporary narratives of each tribe and theirrelationship to the land and each other. This will inform the relevant tikangaat play. Each individual iwi would need to speak to this.[294] Question 5: If [Ngāti Whātua Ōrākei claims (a) exclusivity over the whenuadescribed as the "2006 RFR land" as against all other iwi and (b) a veto over thewhenua described as "1840 Transfer Land" as against all other iwi] what is the tikanga116that applies in Tāmaki Makaurau that supports such a claim? All pūkenga agreed (withone difference in wording marked up by the pūkenga called by Te Toru):If the answer is yes, the take whenua identified in Question 1 would need tobe demonstrated with the support of historical narratives and evidence.Agreed that the notion of exclusivity could be expressed in tikanga, howeverit was maintained by the Tāmaki iwi present that this was not exclusivity [noone iwi has exclusive mana] in the Auckland CBD area, so such tikanga didnot apply.[295] Question 6: In terms of the tikanga that applies in Tāmaki Makaurau, what arethe respective iwi interests/relationships of each of the iwi to the whenua described asthe "2006 RFR land"? The pūkenga stated (with differences marked up by those calledby Te Toru):Noted each iwi present claimed a mana whenua interest to the Auckland CBDarea.Agreed that each iwi would have to demonstrate their take whenua [tikangabased interests] as described in Question 1 to substantiate that claim.Acknowledgement again of Pākehā settlement and colonisation in shapinghistorical and contemporary interests and relationships.Agreed important to interrogate any [refer to whakapapa, taunaha whenua,tapa whenua, pepehā, whakatauākī,] moenga rangatira (chiefly strategicmarriages) as well as kōrero rangatira, kupu taurangi, kōrero ōhākī (notedsayings/promises/last words) in relation to the land.[The "2006 RFR land" no longer exists; it was negated by the WaitangiTribunal Tāmaki Report 2007]Agreed that any notion [an interrogation] of [these Take Whenua will identifywho has Mana Whenua or] shared [rights and] interests and rights requires themutual agreement of the parties involved.[If the court wishes to ascertain that individual iwi have Mana Whenua(interests) the court would need to carry out its own interrogation.][It is not the responsibility of the individual iwi opposing this claim to againjustify ourselves to the court, we had to prove that we held Mana Whenua tothe Crown during the settlement process.][296] Question 7: Have the following tribes maintained ahi kā and mana whenua inthe "2006 RFR Land": Ngāti Whātua Ōrākei; Te Ākitai Waiohua; Ngāi Tai ki Tāmaki;Te Kawerau a Maki; Ngāti Te Ata; Ngāti Tamaoho; the Marutūāhu Iwi (individually117and collectively); Waikato-Tainui? All the pūkenga (with differences marked up bythose called by Te Toru):Agreed that it is for [each] iwi to provide their own historical narratives andevidence to validate their mana whenua and ahi kā.[If the court wishes to ascertain that individual iwi have Mana Whenua(interests) the court would need to carry out its own "interrogation".][It is not the responsibility of the individual iwi opposing this claim to againjustify ourselves to the court, we had to prove that we held Mana Whenua tothe Crown during the settlement process.][297] Question 8 (or question 2 according to the pūkenga called by Te Toru): Thestatus in tikanga of the "1840 Transfer Land". All the pūkenga (with one wordingdifference marked up by those called by Te Toru):Agreed iwi might claim and have interests post any transfer of land.Agreed it is important to examine whether the transferee/s of any land hadsuch a right to do so in accordance with relevant tikanga including whetherthe land was theirs. Those take whenua listed in Question 1 would need to beexamined to establish whether the transferee/s held the mana whenua.No agreement as to the nature of the transfer ie whether it was a tuku or hokoand what it entailed.V TikangaA What is tikanga?[298] Dr Te Kahautu Maxwell states:422Tikanga must have a base or a tūrangawaewae for it to stand up to the tests ofvalidity. Tikanga is derived from the pakiwaitara, the creation stories a powerdelegated from the gods to the ancestors. The fact that tikanga has its originswith the gods gives it validity and tapu sanctity. For example, when Ngā Tamaa Rangi held a wānanga (counsel) to separate their parents, this was the firstexample of a wānanga. When the sons of Rangi debated whether to separatetheir parents or not, this was the first example of whaikōrero. During thisseparation of Ranginui (Sky father) and Papatūānuku (Earth mother) it is saidthat Papatūānuku cried out in pain and bade farewell to Ranginui; this was thefirst example of karanga. The fact that these practices have their genesis in thecreation stories is validation. The people validate tikanga, the marae, the hapūand the iwi. Iwi validate tikanga by adhering to the rule and practicing thetikanga in their own particular way that is unique to their iwi and their region.422 Maxwell Brief at [124].118[299] Tāmati Kruger put it this way: 423Tikanga and kawa as ideologies ground themselves in Māori philosophy, oriho matua. Quite literally iho is the umbilical cord that connects a woman andher child. Matua suggests something that is chiefly, important and occurringbefore anything else. Iho matua, then, is the foundational nature of wisdom,insight and appreciation according to Māori traditions. It is not a coincidencethat the ideas underpinning Māori philosophy relate to the importance of theconnection between woman and child, and the creation of life. In Māoritradition, the creation of human life and all elements of the natural world arethemselves grounded in an understanding of the origins of the cosmos. Thatknowledge system is also referred to as kawa, the same kawa as the protocolsor practical expression of tikanga Māori. This connection represents anongoing and enduring connection between the human and the natural worldsand the cosmological origins of Te Ao Māori.[300] A number of witnesses referred to a simple but elegant explanation of tikangaby the Rt Rev Manuhuia Bennett, who was quoted by Margaret Kawharu:424There is a great deal of thought and writing around the concept of tikangaMāori but one of the simplest definitions I have heard of is from the ReverendManuhuia Bennett, who said "tikanga", or custom, was the "right person,doing the right thing, in the right way,"425 that is within a Māori culturalframework. A Māori cultural framework is always three dimensional.[301] Tikanga can be understood to be a conception of behaviour that is tika or, asTāmati Kruger explains:42638 Broadly speaking, tikanga Māori is a set of binding principles, beliefsand traditions practised collectively by Māori whānau, hapū and iwisince time immemorial. The word tika means 'correct', 'just', 'decent'and 'honourable' in te reo Māori, and so tikanga is consideredideologically as the right way to do things, which accordingly guidesand constrains all aspects of Te Ao Māori and Māori life includingsocial relationships and ceremonies, moral behaviour, economicactivity and so on. There are consequences for breaching tikanga,which are generally proportionate to the particular transgression.39 The practice or practical expression of tikanga is sometimesdistinguished from the guiding principles of tikanga itself. Theseprotocols are referred to as kawa, and are always grounded in theprinciples of tikanga. Kawa are flexible and adapt over time to423 Kruger Brief at [44]–[45] (italics of Māori words omitted).424 Kawharu Brief at [20] and [241]. Similar definitions are offered in the Andrews and Tupuhi Briefat [27]; Kruger Brief at [38]; Blair Brief at [328]; Meredith Brief at [30]; W Ngamane Brief at[18]; and NOE 2705/13–16 (Maxwell).425 Alex Frame and Paul Meredith "Mock Fighting and Performed Reconciliation" in Peter Adds andothers (eds) Reconciliation, Representation and Indigeneity (Universitātsverlag Winter GmbHHeidelberg, Heidelberg, 2016) 138.426 Kruger Brief at [38]–[39].119changing circumstances, though they are first and foremost coerciveand normative in nature.[302] The authors of Te Mātāpunenga say:427Tika has an outer or surface meaning of 'straight, direct, keeping a directcourse', tied in with moral connotations of justice and fairness, includingnotions such as 'right, correct'. Ryan adds 'authentic, rights, bulls-eye' and'realistic' to the list of English equivalents. Ultimately derived from ProtoEastern Oceanic *tika 'dart, throw a dart', the modern Māori word comes fromEastern Polynesian *tika 'straight, correct, right', senses which are alsoreflected in cognate terms in Mangarevan, Tahitian, Tuamotuan andRarotongan.Tikanga is the nominalised form of tika. This word has connotations like 'rule,plan, method', extending through a general notion of any normal or usual wayof being or acting, to perhaps three sets of related but to some extent separateideas, 'reason, meaning or purport', 'custom' in a quasi-legal sense (as distinctfrom the more mundane meaning of 'habit', for which tikanga can also beemployed), and 'authority, control, legal condition or criterion'. These sameconnotations can be found for cognates of tikanga in other Eastern Polynesianlanguages, e.g. Rarotongan, tika'anga 'right, authority, the proper thing to do;decision'.[303] The evidence of Dr Te Kahautu Maxwell is that "tikanga determines the rightway or the correct way of exercising your kawa".428 Dr Korohere Ngāpō put it thisway:429Tikanga Māori is an order of beliefs and practices of what is normal and right.Tikanga operates at the personal (private) or public (group) level. Tikangaprovides a level of Māori ethics and what is acceptable to keep order in a hapūor iwi setting. Broadly speaking, tikanga Māori is connected to kawa thatderives from the Māori atua. So, tikanga is a structure giving effect tofundamental principles to achieve balance. Tikanga can be interchangeablewhere kawa is rigid like the rising and setting of the sun.[304] Hirini Moko Mead suggests in his text Tikanga Māori that tikanga can beconsidered in several different ways: as a means of social control and interpersonalrelationships; in terms of ethics and moral judgements; as a normative system; ascustomary law (by lawyers); as an element of economic activity; as a means ofrehabilitating prisoners; and an essential part of mātauranga Māori or Māoriknowledge.430427 Te Mātāpunenga at 429 (italics omitted for words in te reo).428 NOE 2705/4–26.429 Ngāpō Brief at [9].430 Mead Tikanga Māori at 6–8.120[305] In terms of a western conception, tikanga can be viewed as consisting of normsof behaviour which a hapū or iwi develop over time and which acquire such force thatthey are regarded by that hapū or iwi as binding. As the footnotes indicate, valuablebooks have been written on tikanga, in addition to the valuable evidence given in thiscase. I do not treat the subject at further length, but I do outline my understanding ofsalient characteristics of of tikanga relevant to this case, based on the evidence andsubmissions.[306] First, there are no differences between the parties as to the need to understandtikanga holistically as an interlocking set of reinforcing norms. There may not be onlyone principle of tikanga which determines what is tika in a given situation. Rather,there is likely to be a set of principles which reinforce each other in pointing the way.As Ms Coates submits, for Te Ākitai Waiohua, "[t]ikanga is therefore a systemcomprised of interwoven principles that guides action and relationships".431 As theLaw Commission said in 2001, in a passage it quoted again in two of its 2021reports:432As always in tikanga Māori, the values are closely interwoven. None standsalone. They do not represent a hierarchy of ethics but rather a koru, or a spiral,of ethics. They are all part of a continuum yet contain an identifiable core.[307] Second, tikanga revolves around values and a value system. In 1996,Taihakurei Durie defined "Māori custom law" as "values, standards, principles ornorms to which the Māori community generally subscribed for the determination ofappropriate conduct".433 In 2001, the Law Commission endorsed Joan Metge's view431 Te Ākitai Waiohua Closing at [154] citing NOE 704/17 (Williams).432 Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLCSP9, 2001) [Law Commission Māori Custom and Values] at [126], quoted in Te Aka Matua o teTure | Law Commission Review of Succession Law: Rights to a person's property on death | Hearotake i te āheinga ki ngā rawa a te tangata ka mate ana (NZLC IP46, 2021) at [2.47] [LawCommission Succession Issues Paper]; and Te Aka Matua o te Ture | Law Commission He arotakei te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person'sproperty on death (NZLC R145, 2021) [Law Commission Succession Report] at [2.15].433 Meredith Brief at [29]; citing Edward Taihakurei Durie "Will the Settlers Settle? CulturalConciliation and Law" (1996) 8 Otago L R 449 at 452.121of tikanga as "way(s) of doing and thinking held by Māori to be just and correct, theright Māori ways".434 The Commission said:435Tikanga Māori comprises a spectrum with values at one end and rules at theother, but with values informing the whole range. It includes the valuesthemselves and does not differentiate between sanction-backed laws andadvice concerning non-sanctioned customs.436 In tikanga Māori, the realchallenge is to understand the values because it is these values which providethe primary guide to behaviour.437[308] Accordingly, "an analysis of any particular tikanga or kawa should reveal thecontinuously guiding presence of mana atua, mana tangata and mana whenua".438Similarly, Paul Meredith's evidence is:439 there is no way in tikanga Māori to divorce the rights and responsibilitieswith respect to land with those rights and responsibilities associated withpeople. In Te Ao Māori, the relationship between people and land is intimateand always informed by whakapapa (genealogy) links to tupuna (ancestors)and atua (spiritual deities).[309] Third, the implications of this speak to the role of tikanga in constituting iwiand hapū. The Waitangi Tribunal has said:440Tikanga is both a consequence and a source of Māori identity. Unlike mostWestern law, tikanga is not a norm that is external to the person. Without[their] relationship through tikanga to land by whakapapa, in a fundamentalsense, [they do] not exist. Tikanga defines [them]; protects [them]; shapes[their] idea of [themselves] and [their] place in the world.[310] In a very real sense, then, tikanga is fundamental to "constituting" an iwi orhapū. It is essential to their identity along with, for example, their tribal histories,traditions and places. Without their tikanga, an iwi or hapū are not who they are. Itfollows that tikanga is quintessentially developed by each iwi or hapū, in the exercise434 Law Commission Māori Custom and Values at 16, citing Joan Metge Comments provided to theLaw Commission on a draft "Māori Custom and Values in New Zealand Law" 16 February 2001at 1. This Study Paper was developed while Denese Henare was a Commissioner and with thesupport and guidance of Manuhuia Bennett, Taihakurei Durie, Mick Brown, Mason Durie,Whetumarama Wereta and Te Atawhai Taiaroa.435 At [75] (footnotes included).436 Joseph Williams He Aha Te Tikanga Māori (Law Commission, 1998) [Williams He Aha TeTikanga Māori] at 8.437 At 8.438 Kruger Brief at [59] (italics of Māori words omitted).439 Meredith Brief at [53].440 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown's Foreshoreand Seabed Policy (Wai 1071, 2004) at 3.122of their rangatiratanga. As their custom, and as essential to their identity, principles oftikanga are norms of that iwi or hapū.[311] Fourth, there are different versions of which principles would be regarded as"core" to tikanga. Ngāti Whātua Ōrākei identify seven: whanaungatanga,manaakitanga, kaitiakitanga, mana, tapu and noa, utu and ea.441 Other iwi in thisproceeding emphasise particular principles. The Crown identifies other lists.442 As allparties here agree, tikanga is inherently contextual. The principles that are relevantwill depend on the context of the particular issue that arises, holistically.[312] Fifth, obviously but importantly, as circumstances change over time, normsevolve in response. Tikanga and its practice can change over time. None of thepūkenga disagreed with that.443 It was accepted that "tikanga have continued to evolveand are not static".444 As Mr Mahuika submits, there can be differences betweenexperts as to what changes and what endures but there is a general view that generalprinciples, and the way they manifest, change.445 Tāmati Kruger describes tikanga as"ongoing and continuously updating".446 Paul Meredith says:447[37] In addition to the performative and normative nature of tikanga, tikangais characteristically dynamic and receptive to change. It is this ability oftikanga to change, and the fact that it is socially constructed as a matter ofregional tribal practice rather than by a central governing body, that accountsfor some variations among tribes. Nevertheless, Durie asserts that change waseffected with: adherence to those fundamental principles and beliefs thatMāori considered appropriate to govern the relationshipsbetween persons, peoples and the environment.[313] Paul Meredith also agrees that tikanga can evolve, through the practices of thepeople of an iwi or hapū, guided by historical precedent and their rangatira.448 He441 Ngāti Whātua Ōrākei Closing at [5.34].442 Crown Closing at [302]. See also Law Commission Māori Custom and Values at n 165, citingJoan Metge Commentary on Judge Durie's Custom Law (unpublished paper for the LawCommission, 1996) at 3.443 See Meredith Brief at [37] and Meredith Reply at [44]; Kruger Brief at [56]; NOE 715/13–20(Williams), 264/21–29 (Kawharu), 2701/20–29 and 2702/1–26 (Maxwell).444 Meredith Reply at [44]. See Kruger Brief at [56]; and NOE 301/24–29 (Kawharu), 723/10–24(Williams), 2701/20–29 and 2702/1–26 (Maxwell).445 Notes of Closings 272/30–273/19.446 Kruger Brief at [56].447 Meredith at [37] (footnote omitted).448 NOE 1167/17 – 1168/20 (Meredith).123considers higher level principles of tikanga are less likely to change over time,compared with variations in how they are expressed.449 All customs and law change.Otherwise they would not necessarily perform the function which they developed toperform. As the Law Commission said in 2001, "[t]ikanga Māori should not be seenas fixed from time immemorial, but as based on a continuing review of fundamentalprinciples in a dialogue between the past and the present".450[314] And sixth, Dr Te Kahautu Maxwell says "[t]ikanga is a way of life".451 WatiNgamane says, "[t]ikanga is not a formula found in books, it is lived and passed onthrough the generations in the traditional way."452 Hirini Mead explains in his textthat the ideas and beliefs about tikanga are carried in the minds of individuals, buildingup during their lifetimes "by seeing, being told, instructed and scolded, and by researchand reading".453 He also notes the importance of the operation or performance of theidea of tikanga, and the need for social validation by witnesses of the performance oftikanga.454 He summarises:455By now it is clear that tikanga at one level is conceptual and represents a setof ideas, beliefs and practices. At another level it has to do with practice.Tikanga may be translated as custom (which applies especially to the practiceof tikanga) or it might be referred to as a customary concept (which focuseson the set of ideas). There are also several aspects of tikanga which help usunderstand the nature and complexity of our customs. As well as theconceptual and performance aspects already mentioned, there is the ritualcomponent, the witnessing of large-scale events, the value of manaakitanga,the knowledge and experience aspect of the group who are poised to carry outa tikanga, the assessment and judgment aspect, the obligations of participants,and the pragmatic knowledge that underpins some tikanga. In an analysis oftikanga all of these aspects need to be considered, and there are probablyothers.[315] Paul Meredith reinforces this, saying: 456[36] Tikanga norms and rules were not only practised day-to-day, they werepassed on through generations predominantly via aural traditions such as449 NOE 1168/18–20 (Meredith).450 Law Commission Māori Custom and Values at [10], citing Michael Belgrave Māori CustomaryLaw: from Extinguishment to Enduring Recognition (unpublished paper for the Law Commission,Massey University, Albany, 1996) at 51.451 Maxwell Brief at [93].452 W Ngamane Brief at [17].453 Mead Tikanga Māori at 16–17.454 At 17.455 At 25.456 Meredith Brief at [36] (italics of Māori words omitted).124korero (oratory), waiata (songs), haka (performance) and karakia (prayer)among other performed actions. Unlike western normative concepts which aregenerally recorded and passed on in written instruments, these aspects of TeAo Māori (the Māori world) all have their own charismatic force, which Māorirefer to as te ihi me te wehi, which cannot be translated into writing.[316] Tāmati Kruger says:457 my knowledge of tikanga Māori is gained, interpreted and passed onthrough lived experience and authentic cultural engagement with Te Ao Māorime Te Ao Tūhoe (the Māori world and the Tūhoe world), rather than throughacademic or written sources. After all, Te Ao Māori was, until fairly recently,an aural and practical tradition passed down through for example whaikōrero(oratory), karakia (prayer), waiata (song), haka (performance) and hui(meetings).Practising tikanga and kawa is an inherently experiential and spiritual part ofTe Ao Māori. It is difficult to commit an account of tikanga to writing because,as I've mentioned, Māori traditions are predominantly aural and practical.[317] So, tikanga loses something when reduced to writing. It even loses somethingwhen explained orally, in the abstract. Tikanga is performed, more than stated. Thisis relevant to the giving of evidence of tikanga in court. The tikanga experts who gaveevidence at trial were impressive in their command of nuance and subtlety inidentifying and distinguishing how relevant principles of tikanga apply to differentcontexts. But their explanations and examples do not simply involve the dry statingof a principle and outcome. Sometimes, more meaning lies in what is not said. Thepūkenga invoke unstated but salient human characteristics and virtues, such as honour,humility, and humour. Oral evidence of this is important. A written record is inferior.No doubt that poses particular challenges in appeals.B Tikanga across iwi[318] The parties disagree about the degree of difference between the tikanga ofdifferent iwi and about the extent to which tikanga Māori is common across all iwiand hapū in Tāmaki Makaurau and elsewhere:457 Kruger Brief at [20] and [40] (italics of Māori words omitted).125(a) Mr Hodder, for Ngāti Whātua Ōrākei, submits "[t]here is a body ofcustom within te ao Māori which is properly described as 'tikangaMāori'", which is "a set of binding principles, beliefs and traditionspractised collectively by Māori as whānau, hapū and iwi since timeimmemorial".458 He accepts tikanga can be flexible and localised butsubmits it is simply wrong to argue that tikanga in Tāmaki Makaurau isunique. He submits the non-expert witnesses of opposing iwi nevertruly explained the differences they saw between their and NgātiWhātua Ōrākei tikanga, which were regularly revealed by cross-examination to be inconsequential.459 Mr Hodder submits that,"[w]hile the expression of tikanga Māori may differ across regions anddevelop over time, the underlying values and principles that inform thebroader system of tikanga Māori are universal and of generalapplication".460 Witnesses for Ngāti Whātua identified some"universally significant" principles of tikanga.461 Mr Hodder submitsNgāti Whātua Ōrākei tikanga is entirely consistent with the relevantgeneral principles of tikanga Māori and the burden of proof is on thosewho say their tikanga is different.462(b) Mr Mahuika, for Ngāti Pāoa, submits that the suggestion that tikangawithin Tāmaki is unique is not supported by the evidence.463 Hesubmits the different iwi traditions and history mean there is adifference in the application of tikanga but does not necessarily meanthat different tikanga applies in Tāmaki from elsewhere.464458 Ngāti Whātua Ōrākei Closing at [5.25]–[5.26].459 At [5.31].460 At [5.28].461 Kruger Brief at [54]–[58]; Kawharu Brief at [3]; Meredith Brief at [33]–[53]; NOE 703/12–15(Williams).462 Notes of Closings 379/21–32.463 Ngāti Pāoa Closing at [7].464 Notes of Closings 274/5–275/24.126(c) Mr Majurey, for Marutūāhu, put the most emphasis on differencesbetween tikanga in Tāmaki Makaurau and elsewhere.465 He submitsthere is no universally accepted tikanga in Tāmaki Makaurau.466(d) Ms Coates, for Te Ākitai Waiohua, accepts there are some underlyingvalues and principles that are universal and shared by Māori butsubmits that how they are expressed varies across regions and betweengroups.467 She submits tikanga recognises regional as well as inter-iwiand inter-hapū variations.468 She submits the nature of tikanga is suchthat specificity and context are vital.(e) Mr Warren, for Ngāi Tai ki Tāmaki, submits they accept the principlesand values underpinning tikanga are generally similar across Te AoMāori.469(f) Mr Ward, for the Crown, submits it is clear from the evidence thatdifferent perspectives on tikanga may be held between different iwi.470He submits the evidence is that tikanga is highly contextual andinterconnected and relational, rarely supplying bright-line rules butinstead providing broad social norms capable of qualification.471[319] The evidence of the pūkenga and other witnesses is important and reasonablyconsistent with each other and with most of the parties' submissions in this regard. Onthe issue of whether principles of tikanga vary between iwi or are universal, all thepūkenga consider:472465 Marutūāhu Closing at [40]–[43] citing NOE 2564/5–20 (Taua), 1336/24–29 (Andrews andTupuhi) and 1866/12–19 (Kruger).466 Notes of Closings 162/13–16.467 Te Ākitai Waiohua Closing at [151].468 Te Ākitai Waiohua Closing at fn 282, citing Kruger Brief at [76]; Meredith Brief at [37]; and NOE1151/5–19 and 1194/11–18 (Meredith), 1308/20–25 (Tawhiao), 1868/6–9 (Kruger) and 2550/12–16 (Taua).469 Notes of Closings 247/2–5.470 Crown Closing at [300]–[301], citing NOE 2296/1–4 (Ngāpō), 2320/17–18 and 2327/28–29(Mikaere), 2941/2–4 (Wilson), 2346/25–30 and 2347/5–6 (W Ngamane).471 Crown Closing at [303]–[304] citing NOE 705/16 – 28 (Williams), 2712/1–5 (Maxwell) and302/5–27 (Kawharu).472 Ngāti Whātua Ōrākei and Te Toru Pūkenga Summaries at point 2.127It was agreed that there are fundamental philosophical underpinningswithin Māoridom or what was described as the 'Tāhuhu he aratohu',that is that guide iwi approaches to tikanga and allow for some sharedunderstandings and mutual interactions.However, tikanga are shaped by each iwi's own historical narrativesand thus the application of tikanga cannot be examined andunderstood without that context.Agreed the historical context includes the disruption of colonisationand its impact on iwi and their ability to exercise their tikanga.There was some discussion around whether tikanga is temporary orconstant. There was agreement as to the mutability of tikanga shapedby individual iwi's historical experiences but that the Tāhuhu elementmentioned above ensured an element of commonality across iwi.[320] Paul Meredith and Wati Ngamane explicitly endorse this aspect of thesummary in their evidence.473 Morehu Wilson notes that the summary should not betaken as a summary of tikanga as a whole, but a summary of that hui.474 Otherwise,the evidence of individual witnesses on this point was:(a) Te Kurataiaho Kapea considers there are general principles of tikangaincluding ahi kā and mana whenua, and that he would not expect otheriwi to take substantially different approaches to those principles.475(b) Margaret Kawharu considers that tikanga will be adapted when appliedby rangatira in the best interests of the iwi or hapū in different sets ofcircumstances – and so may differ from other tikanga.476 She saystikanga adapts to contemporary circumstances, but not at the expenseof a community's identity.477(c) Paul Meredith acknowledges each hapū and iwi will have their owntikanga. He considers, as discussed at the tikanga experts' hui, thatthere are "tāhuhu", or signposts, of "overarching" tikanga which "sortof provided guidance to those variations".478 These commonalities473 NOE 1151/5–19 (Meredith) and 2373/19–2374/2 (W Ngamane).474 NOE 2951/1–13.475 NOE 105/26–106/15.476 NOE 264/21–29.477 NOE 301/24–29.478 NOE 1151/5–22.128allow Māori to "interact on a tikanga basis".479 As discussed by SirHirini Mead, Sir Joe Williams and Sir Edward Taihakurei Durie, he seestikanga Māori as an underpinning that informs more regional variationsof tikanga.(d) Charlie Tawhiao states:480I agree that tikanga is determined by those people who holdthe authority and ability to define it. In that sense it is highlylocalised and is indeed an expression of mana motuhake,mana whenua, and rangatiratanga.ButTikanga is not completely unique to each hapū or iwi.If there was no commonality among these ideas we could nothave functioned as a Māori society. We have to have sharedideas of how the universe came to be and of what is right inorder to interact with each other.(e) Tāmati Kruger explains that there may be different kawa acrossdifferent iwi but "the principles are generally the same".481 Somedifferent practices might occur but he agrees with Mr Mahuika'sproposition in cross-examination that "the values that underpin land,connection, whakapapa, ahi kā roa are consistent across Māorisociety".482(f) Dr Korohere Ngāpō considers that core values and principles existacross all or most Māori groups, and these may be described as tikangaMāori.483 He says "tikanga is a structure giving effect to fundamentalprinciples to achieve balance".484(g) Harry Mikaere agrees that core principles of tikanga from his differentiwi are not particularly controversial and he would not expect anyoneto seriously disagree with him on that.485479 NOE 116/23–28.480 Tawhiao Reply at [35]–[36].481 NOE 1840/27.482 NOE 1842/8–1.483 NOE 2312/4–15.484 Ngāpō Brief at [9].485 NOE 2340/11–25.129(h) Dr Te Kahautu Maxwell acknowledges there are principles of tikangaand core values that underpin tikanga, though how they are applied orexhibited or practiced may vary across iwi and even within hapū.486 Hecharacterises the tāhuhu, or signpost or root, of tikanga as remainingthe same. He explains that tikanga also adapts to differences in an iwior hapū's place – for example climate or geothermal activity caninfluence the way people dress.487(i) Te Warena Taua believes it is important to focus on the application ofthe principles of tikanga Māori in a specific regional area.488 Althoughhe uses the phrase tikanga Māori often, he also refers to tikanga as itapplies to a particular area or marae.489[321] Pūkenga who gave evidence were not prepared to make definitive statementsabout the tikanga of an iwi or hapū to which they did not whakapapa.490 Most saidthat those who do not whakapapa to an iwi or hapū are unqualified to make anystatements about the tikanga of that iwi or hapū, though others contested this.491 Forexample, Tāmati Kruger was explicit in saying he did not claim to be an expert in thetikanga of other iwi or know how tikanga is practiced and applied in Tāmaki.492 Somehad different views. Paul Meredith expressed "trepidation" but did not rule outcommenting on other's tikanga.493 Charlie Tawhiao said he was comfortable makingconclusions about the tikanga of another iwi; but he noted that his doing so wouldlikely be offensive to those iwi in the same way he would be offended if others wereto make conclusions about the tikanga of Ngāti Whātua Ōrākei.494486 Maxwell Brief at [96]–[97]; and NOE 2710/32–2711/18.487 NOE 2704/3–28.488 NOE 2550/13–14489 NOE 2612/26–31.490 Maxwell Brief at [153]; Taua Brief at [20]; NOE 96/3–4 (Kapea), 703/8–12 (Williams), 2714/28–34 and 2715/1–20 (Maxwell). Compare NOE 1309/7–18 (Tawhiao) and Meredith Reply at [5].491 Maxwell Brief at [153]; Taua Brief at [20]; NOE 96/3–4 (Kapea), 703/8–12 (Williams), 2714/28–34 and 2715/1–20 (Maxwell).492 NOE 1868/4–15 (Kruger). He did acknowledge that he made some conclusions about tikanga inTāmaki in his evidence, NOE 1868/16–1869/8. He also stated he did not find external expertscommenting on Tūhoe tikanga offensive; NOE 1890/15–18.493 Meredith Reply at [5].494 NOE 1309/7–18 (Tawhiao).130[322] The position agreed by the pūkenga set out above determines the point. Therewere and are fundamental philosophical underpinnings, tāhuhu he aratohu, that guideiwi approaches to tikanga and allow for some shared understandings and mutualinteractions. However, the tikanga of an iwi or hapū is shaped by the historicalnarrative of that iwi or hapū, including the impact of colonisation and other events andcircumstances over time. As such, the application of tikanga cannot be examined andunderstood without that context. At this conceptual level this position is consistentwith most of the submissions outlined above.[323] It is also reinforced by commentaries. The Law Commission recently observedthat "Māori, both individually and collectively, interpret tikanga in their own ways andplace varying degrees of importance on particular values".495 Sir Hirini Mead stressesat the beginning of his book Tikanga Māori that:496 ideas and practices relating to tikanga Māori differ from one tribal regionto another. While there are some constants throughout the land, the details ofperformance are different and the explanations provided may differ as well.[324] The Law Commission said in 2001:497It is this ability of tikanga to change that accounts for its variations amongtribes. While the practice of tikanga can differ depending on thecircumstances of the particular iwi, hapū or whānau, those changes are alwaysguided by the fundamental values that underpin tikanga.This is not to say that Māori live in a society where anything goes. The pointis that tikanga Māori has been receptive to change while maintainingconformity with its basic beliefs.[325] Tikanga varies across iwi and hapū because they face different circumstances,which can lead to adjustments in what is required of custom. But, the evidence is thattikanga Māori rests on core principles that are common across most iwi and hapū.Such common understanding and sharing of tikanga can ease tensions, smoothrelationships, and facilitate understandings between different iwi and hapū. As Dr Te495 Law Commission Succession Report at [2.15].496 Mead Tikanga Māori at 9.497 Law Commission Māori Custom and Values at [12] and [16].131Kahautu Maxwell says, the core values are "like a whāriki; a woven mat, they mustgo together for tikanga to stand up".498C The legal status of tikanga[326] Tikanga was the first law of Aotearoa. It accompanied and governed Māoriwhen they came here on successive voyages, before tauiwi did.499 It arose "as anecessary and inevitable expression of self-determination" of Māori, as Sir JoeWilliams has said.500 Tikanga provided and provides rules, values, principles, andprocesses for identifying and developing customary practices, regulating behaviourand resolving disputes. Professor Joseph Raz has described law as "regulating humanbehaviour by prescribing conduct, and it expresses the decision to regard legal systemsas independent normative systems".501 As such, tikanga can be conceived of as a"sphere of law in its own right".502 Sir Joe Williams also notes that:503Tikanga and law are not co-extensive ideas. Tikanga includes customs orbehaviours that might not be called law but rather culturally sponsored habits.[327] The Colonial Office initially recognised this to some extent. In 1839, theMarquis of Normanby instructed Captain Hobson on his departure from Britain thatMāori "must be carefully defended in the observance of their own customs", at leastuntil "brought within the pale of civilised life".504 In obtaining signatures to the Treatyof Waitangi in 1840, Hobson and his emissaries provided repeated assurances to Māorito this effect. For example, in a letter of 27 April 1840 Hobson rejected, as false,statements that Māori customs would be trampled down and abolished. He reiteratedassurances he said he had already made to rangatira at Waitangi and Hokianga,498 Maxwell Brief at [97].499 Ani Mikaere "The Treaty of Waitangi and Recognition of Tikanga Māori" in Michael Belgrave,Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty ofWaitangi (Oxford University Press, Melbourne, 2005) 330 at 330; and Joseph Williams "LexAotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" (2013)21 Wai L Rev 1 [Williams "Lex Aotearoa"] at 2.500 Williams "Lex Aotearoa" at 9.501 Joseph Raz The Concept of a Legal System: An introduction to the Theory of Legal Systems (2nded, Clarendon Press, Oxford, 2003) at 171.502 Natalie Coates "The Recognition of Tikanga in the Common Law of New Zealand" (2015) 1NZLR 1 at 4; and Annette Sykes "The Myth of Tikanga in the Pākehā Law" (Nin Tomas MemorialLecture, 5 December 2020).503 Williams "Lex Aotearoa" at 2–3.504 Correspondence from the Marquis of Normanby to Captain Hobson, RN, 14 August 1839 (1840)New Zealand Parliamentary Papers at 40.132promising that "the Governor will ever strive to assure unto you the customs belonging to the Māori".505 Mr Shortland made similar assurances at Kaitaia as didMajor Bunbury at Tauranga in May 1840.506[328] Hobson asserted the sovereignty of the United Kingdom in New Zealand inMay 1840. The Crown, in New South Wales legislation that applied to New Zealandin 1840, in the Letters Patent of 1840 and in subsequent legislation, explicitly"recognised no title to land in New Zealand other than by that held by Māori accordingto their customs and usages and that established by the Crown's own grants (followingextinguishment of native title)".507 In December 1840, Lord John Russell recognisedin his instructions to Governor Hobson that "[The Māori people] have established bytheir own customs a division and appropriation of the soil with usages having thecharacter and authority of law ".508[329] So the assertion and enforcement of British law did not necessarily displacetikanga. And, in reality, the early colonial institutions of British government often didnot reach far enough across New Zealand to conflict with the ongoing operation oftikanga. Most parts of New Zealand were beyond the enforcement of British law inthe 1840s, except by voluntary agreement by the relevant iwi or hapū.509 In thoseplaces, tikanga was the only effective law. As Governor Gore Brown told the ColonialOffice in 1860 "English law has always prevailed in the English settlements, butremains a dead letter beyond them".510 That changed over time, particularly after the505 Ned Fletcher The English Text of the Treaty of Waitangi (2022 forthcoming, Bridget WilliamsBooks, Wellington) at 334, citing circular letter of Hobson to the chiefs, 27 April 1840, astranslated by T Lindsay Buick The Treaty of Waitangi: How New Zealand Became a British Colony(3rd ed, Thomas Avery & Sons, New Plymouth, 1936 at 191.506 At 335.507 Proprietors of Wakatū [2017] NZSC 17, [2017] 1 NZLR 423 at [96].508 Dispatch from Lord John Russell to Governor Hobson, 9 December 1840 (1841) 311 New ZealandParliamentary Papers at 27, cited in A Frame "Colonising Attitudes Towards Māori Custom"[1981] NZLJ 105 at 106.509 See, for example, R v Maketu SC Auckland, 1 March 1842 reported in New Zealand Herald andAuckland Gazette (Auckland, 19 January 1842) 2 at 2–3; and R v Rangitapiripiri SC Wellington,1 December 1847 reported in New Zealand Spectator and Cook's Strait Guardian (4 December1847) at 2–3.510 Governor Gore Browne to the Duke of Newcastle (1 November 1860) (552) Vol XLVII BritishParliamentary Papers 393 at 394, cited in Paul McHugh Aboriginal Societies and the CommonLaw (Oxford University Press, New York, 2004) [McHugh Aboriginal Societies] at 171.133wars of the 1860s. But it was still true of some areas of New Zealand until the early20th century.511[330] English common law eventually came to apply in New Zealand. This wasconfirmed by the New Zealand Parliament in 1858, retroactively, in the English LawsAct 1858.512 The preamble to the Act noted that "the Laws of England as existing onthe 14th day of January; 1840, have until recently been applied in the administrationof Justice in the Colony of New Zealand, so far as such laws were applicable to thecircumstances thereof".513 But "doubts have now been raised as to what Acts of theImperial Parliament passed are in force in the said colony".514 The preambleconcluded that it is "expedient that all such doubts should be removed without delay".Accordingly, in s 1, the New Zealand Parliament "declared and enacted" that(emphasis added):The laws of England as existing on the 14th day of January 1840, shall, so faras applicable to the circumstances of the said Colony of New Zealand, bedeemed and taken to have been in force therein on and after that day, and shallcontinue to be therein applied in the administration of Justice accordingly.[331] The English Laws Act was consolidated and continued in 1908. Today, s 5 ofthe Imperial Laws Application Act 1988 preserves its continuing effect even moreexplicitly in relation to the common law:After the commencement of this Act, the common law of England (includingthe principles and rules of equity), so far as it was part of the laws of NewZealand immediately before the commencement of this Act, shall continue tobe part of the laws of New Zealand.[332] Importantly, there is a venerable line of English common law authorityrecognising local custom as law. Common law itself originated in local custom.515511 McHugh Aboriginal Societies at 172.512 English Laws Act 1858 21 and 22 Vict No 2.513 14 January 1840 was the date Governor Gipps swore in Captain Hobson as Lieutenant Governorof New Zealand in Sydney and also signed three anticipatory proclamations in respect of NewZealand. See David V Williams "The Pre-History of the English Laws Act 1858: McLiver v Macky(1856)" (2010) 41 VUWLR 361 [Williams "McLiver v Macky"] at 377.514 The "doubts" had been expressed by Acting Chief Justice Sidney Stephen in McLiver v Macky,"Supreme Court" 13 (980) Daily Southern Cross (Auckland, 18 November 1856) at 3. StephenACJ held that the Wills Act 1837 did not apply in New Zealand but that "British subjects . . . carrywith them the Common Law of England". The Attorney-General who introduced the Bill was thelosing counsel in McLiver. See Williams "McLiver v Macky" at 376.515 Shaunnagh Dorsett "'Since Time Immemorial': A Story of Common Law Jurisdiction, Native Titleand the Case of Tanistry" (2002) 26 MULR 32 [Dorsett "Since Time Immemorial"] at 36.134Although English common law has sought to unify (or subordinate) other legalregimes, it has long had to uphold legal pluralism by recognising the validity of othersources of law in particular areas or spheres, such as Anglo-Saxon law after theNorman conquest, in the acquisition of the Channel Islands and Isle of Man, and inthe recognition of ecclesiastical law and the law merchant.516[333] In 1608, in the Case of Tanistry which was ultimately settled by agreement,both sides accepted that the common law recognised particular Irish custom as havingsurvived British acquisition of sovereignty by conquest, subject to the custom beingreasonable, certain, of immemorial usage, and compatible with the Crown'ssovereignty.517 In 1774, Lord Mansfield considered that finding in Campbell v Halland held authoritatively that local laws of the conquered Grenada continued in forceuntil altered.518[334] This approach ebbed and flowed around the British Empire in the 19th century,with variations, including in New Zealand. The Crown and Te Ākitai Waiohua relyon Professor McHugh's 1991 text, The Māori Magna Carta, regarding thepresumption of continuity in New Zealand.519 His 2004 book, Aboriginal Societiesand the Common Law, is both more comprehensive and nuanced.520 In Takamore vClarke, the Court of Appeal outlined various authorities regarding the reception ofcustom in English common law and in New Zealand common law.521[335] I note in particular:(a) In the well-known case of R v Symonds in 1847, Chapman J in theSupreme Court of New Zealand (effectively equivalent to the High516 Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (OxfordUniversity Press, Auckland, 1991) [McHugh The Māori Magna Carta] at 84; and ShaunnaghDorsett "Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of'Barbarous' Customs in New Zealand in the 1840s" (2009) 30 J Legal Hist 175 at 193.517 The Case of Tanistry (1608) Davis 28, 80 ER 516 (KB). See also Calvin's Case (1608) 7 Co Rep1a at 17b; and Dorsett "Since Time Immemorial". The first three characteristics were repeated bythe House of Lords in Wolstanton Ltd v Newcastle-under-Lyme Corp [1940] AC 860 (HL) at 876.The New Zealand Court of Appeal summarised these characteristics of English law in Takamorev Clarke [2011] NZCA 587, [2012] 1 NZLR 573 [Takamore (CA)] at [109].518 Campbell v Hall (1744) 1 Cowp 208 at 209, 98 ER 1045 at 1047.519 McHugh The Māori Magna Carta at 83–85, 87–90 and 92–93.520 McHugh Aboriginal Societies.521 Takamore (CA) at [109]–[121].135Court now), declined to engage with submissions based on the Treatyof Waitangi.522 He focussed more particularly on the law of aboriginaltitle, holding that New Zealand and other courts "as have adopted thecommon law of England, have invariably affirmed and supported[certain established principles of law applicable to relations withindigenous peoples]" and stated that these principles:523 are in fact to be found among the earliest settled principles of ourlaw; and they are in part deduced from those higher principles, fromcharters made in conformity with them, acquiesced in even down tothe charter of our own colony; and from the letter of Treaties withnative tribes, wherein those principles have been asserted and actedupon.(b) In R v Ratea in 1849, in a criminal rather than an aboriginal title context,the Court recognised Māori customary law, holding that small mattersof custom could be left to Māori law.524(c) In 1901, in Tāmaki v Baker, the Privy Council dismissed argumentsbased on Wi Parata, holding that it was "rather late in the day" for anargument that "there is no customary law of the Maoris of which theCourts of law can take cognizance".525 It noted that the relevant statuteplainly assumed "the existence of a tenure of land under custom andusage which is either known to lawyers or discoverable by them byevidence".526(d) In 1908, in Public Trustee v Loasby, Cooper J held that the costs ofprovisions for a tangi were properly met out of the estate of a deceasedrangatira in recognition of Māori tangihanga custom.527522 Mark Hickford Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire(Oxford University Press, New York, 2011) [Hickford Lords of the Land] at 207.523 R v Symonds (1847) NZPCC 387 (SC) at 3.524 R v Ratea SC Wellington, 1 September 1849 reported in New Zealand Spectator and Cook's StraitGuardian (Wellington, 5 September 1849) 2 at 2525 Tāmaki v Baker (1901) NZPCC 371 at 382–383.526 At 382–383.527 Public Trustee v Loasby (1908) 27 NZLR 801 (SC) [Public Trustee v Loasby].136(e) In 1910, in Baldick v Jackson, Stout CJ disapplied an English statuteon the basis of Māori customary whaling practices.528(f) In 1912, in Tamihana Korokai v Solicitor-General, the Court of Appealacknowledged the enforceability of native title against the Crown inrelation to the bed of Lake Rotorua.529(g) In 1919, in Arani v Public Trustee, the Privy Council upheld Māoricustomary adoption as an alternative to the processes under theAdoption of Children Act 1895.530[336] The nature of the common law is that a judge decides each case in its owncontext, drawing on relevant lines of authority. Some lines are cut, when they nolonger suit the times. In 2001, the Law Commission considered that rules ofdiscontinuity, contrary to the presumption of continuity, are now regarded as "a detourfrom proper common law principles".531 Other lines of common law authority endure,if they suit contemporary needs, much like aspects of tikanga itself. As outlined below,modern case law indicates there is now no doubt that New Zealand common lawrecognises Māori customary law, or tikanga. But, in modern times, Parliament hastaken the lead in that, by passing legislation.[337] New Zealand statutes have consistently recognised and continue to recognisetikanga, though at times they have also legislated against and purported to extinguishit, as in the Tohunga Suppression Act 1907 and the Native Land Act 1909. As notedby the Law Commission, the Native Exemption Ordinance 1844, Resident MagistratesCourts Ordinance 1846, and Resident Magistrates Act 1867 all gave some legislativerecognition to Māori custom law.532 Indeed, though it was never implemented, s 71of the New Zealand Constitution Act 1852 (UK) empowered districts to be identifiedwhere Māori "laws, customs, and usages" would govern all Māori relations with each528 Baldick v Jackson (1910) 30 NZLR 343 (SC) [Baldick v Jackson] at 344–345.529 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA) at 345.530 Arani v Public Trustee [1920] AC 198 (PC).531 Law Commission Māori Custom and Values at [49].532 At [84]–[90].137other. The Native Land Acts Amendment Act 1882 even made "native custom"paramount in relation to Māori succession to land.533[338] Contemporary statutes invoke tikanga explicitly and not infrequently. Forexample, the preamble to the Marine and Coastal Area (Takutai Moana) Act 2011states:(4) This Act takes account of the intrinsic, inherited rights of iwi, hapū,and whānau, derived in accordance with tikanga and based on theirconnection with the foreshore and seabed and on the principle ofmanaakitanga. It translates those inherited rights into legal rights andinterests that are inalienable, enduring, and able to be exercised so asto sustain all the people of New Zealand and the coastal marineenvironment for future generations:[339] "Tikanga Māori" is defined to mean "Māori customary values and practices"by s 2 of the Resource Management Act 1991, s 4 of Te Ture Whenua Māori Act 1993(from 2002), s 9 of the Marine and Coastal Area (Takutai Moana) Act 2011, andothers.534 Other statutes have slightly different formulations of the meaning of tikangaMāori, as: "Māori customary law and practices"; "Māori custom and practice"; "Māoricustom and protocol"; and "Māori protocol and culture".535 Many Acts that ratifyTreaty settlements define tikanga or customary rights. Relevantly here:(a) Sections 11 of the Ngāti Whātua Ōrākei Claims Settlement Act 2012defines "customary rights":customary rights means rights according to tikanga Māori,including—(a) rights to occupy land; and(b) rights in relation to the use of land or other natural or physicalresources.533 Native Land Acts Amendment Act 1882 46 Vict No 27, s 4; and Pahoro v Cuff (1890) 8 NZLR751 (SC) at 756.534 Te Ture Whenua Māori Act 1993, s 4; Māori Television Service (Te Aratuku Whakaata IrirangiMāori) Act 2003, s 6; Resource Management Act 1991, s 2; Public Records Act 2005, s 4; FisheriesAct 1996, s 2; Walking Access Act 2008, ss 8 and 13; Environmental Protection Authority Act2011, s 9; Family Violence Act 2018, s 18; Housing Accords and Special Housing Areas Act 2013,s 89(2); and Marine and Coastal Area (Takutai Moana) Act 2011, s 9.535 Oranga Tamariki Act 1989, s 2; Local Government Act 2002, s 33(5); Climate Change Response(Zero Carbon) Amendment Act 2019, s 5H(2); and Heritage New Zealand Pouhere Taonga Act2014, s 10(3).138(b) Section 13 of the Ngāi Tai ki Tāmaki Claims Settlement Act 2018contains the same definition of customary rights and s 2 also defines"tikanga" to mean "customary values and practices".[340] In many ways, contemporary common law has been relatively muted andcautious, compared with Parliament's fuller-throated legal recognition of tikanga.Annette Sykes suggests that the incremental way tikanga has been incorporated intoPākehā law raises concerns of "window dressing by Pākehā lawmakers and those whoadminister justice".536 Recognition has certainly proceeded in fits and starts, but it hasbecome more gradually consistent in recent years, fanning out from consideration ofthe law of aboriginal title and customary rights.[341] In 1986 in Te Weehi v Regional Fisheries Officer, Williamson J reviewed anumber of the authorities mentioned above, as well as Canadian authorities, articlesby Professor McHugh and Waitangi Tribunal reports, in upholding the continued legalexistence of Māori customary fishing rights.537[342] In 2003, in Attorney-General v Ngāti Apa, the Court of Appeal furtherconfirmed the potential for legal recognition of Māori customary rights, in relation tothe foreshore and seabed, that are found to exist as a matter of tikanga.538 Thejudgments largely dealt with customary fishing rights in terms of customary propertyrights, preserved by common law and assumed and unextinguished by legislation.539The Court cited the Privy Council's judgment in Amodu Tijani v Secretary, SouthernNigeria and various New Zealand authorities in holding that "the common lawrecognised pre-existing property after a change of sovereignty".540 However, theCourt made further comments on the relationship between the common law andtikanga as to the preservation of proprietary rights:536 Annette Sykes "The Myth of Tikanga in the Pākehā Law" (Nin Tomas Memorial Lecture, 5December 2020).537 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC) at 686–688.538 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) [Ngāti Apa] at [10].539 See [13] and [47] (Elias CJ).540 At [15]–[48] (Elias CJ). citing Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399[Amodu] at 402–403.139(a) Elias CJ noted that "the existence and content of customary property isdetermined as a matter of the custom and usage of the particularcommunity", in application of, and as a question of, tikanga.541(b) Gault P considered "[i]nterests in land in the nature of usufructuaryrights or reflecting mana", "may be capable of recognition both intikanga Māori and in a developed common law informed by tikangaMāori" though he doubted they would satisfy relevant sections of TeTure Whenua Māori Act.542(c) Tipping J observed:[185] It follows that as Māori customary land is an ingredient of thecommon law of New Zealand, title to it must be lawfully extinguishedbefore it can be regarded as ceasing to exist. In this respect Māoricustomary title is no different from any other common law interestwhich continues to exist unless and until it is lawfully abrogated. Inthe case of Māori customary land, the only two mechanisms availablefor such abrogation, short of disposition or lawful change of status,are an Act of Parliament or a decision of a competent court amendingthe common law. But in view of the nature of Māori customary title,underpinned as it is by the Treaty of Waitangi, and now by the Te TureWhenua Māori Act 1993, no court having jurisdiction in New Zealandcan properly extinguish Māori customary title. UndoubtedlyParliament is capable of effecting such extinguishment but, again inview of the importance of the subject matter, Parliament would needto make its intention crystal clear. In other words, Parliament'spurpose would need to be demonstrated by express words or at leastby necessary implication.(d) Tipping J also observed that whether there is, and the extent of any,difference between land and sea in relation to customary rights to theforeshore "must be determined in accordance with tikanga Māori ratherthan the English common law. Tikanga Māori is to this extent part ofthe law of New Zealand".543[343] Takamore v Clarke was the first contemporary case to grapple seriously andexplicitly with the status and effect of tikanga in New Zealand law, outside a property541 At [32]–[33], citing Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 at 351 and NativeRights Act 1965, s 4; and at [49] and [88].542 At [106].543 At [205].140context.544 Glazebrook and Wild JJ, in the Court of Appeal, traced the recognition ofcustomary law by English common law and the presumption of continuity in Englishand New Zealand law.545 They noted that "the continuation of customary law isinherent in the recognition of aboriginal property because customary law definesthe content of aboriginal proprietary rights".546 They reviewed the requirements thatcustom be long-standing and continuous, reasonable, and certain,547 but consideredthat "a more modern approach to customary law is to try to integrate it into thecommon law where possible rather than relying on the strict rules of colonial times".548The majority also considered that "[i]t requires no leap of faith therefore to suggestthat in general the common law of New Zealand should as far as is reasonably possiblebe applied and developed consistently with the Treaty of Waitangi".549[344] Without rejecting that, the Supreme Court took a different approach. Amajority of the Supreme Court, Tipping, McGrath and Blanchard JJ, held thatdecisions on disposal of a body were up to the executors and potential administratorsof an estate, taking account of the views of those close to the deceased.550 Theystated:551[150] The English common law has always applied in New Zealand onlyinsofar as it is applicable to the circumstances of New Zealand.552Consequently the evolution of the common law in New Zealand reflects thespecial needs of this country and its society. The New Zealand common lawcan never be in conflict with its statute law, but with that qualification, ourcommon law has always been seen as amenable to development to takeaccount of custom.553 Such development may occur in different ways.[345] They said that "the common law of New Zealand requires reference to thetikanga, along with other important cultural, spiritual and religious values, and allother circumstances of the case as matters that must form part of the evaluation".554544 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 [Takamore (SC)].545 Takamore (CA) at [109]–[121].546 At [120].547 At [121]–[132].548 At [254].549 At [249].550 Takamore (SC) at [152]–[156].551 At [150] (footnotes included).552 Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18] per Elias CJ and [105] perMcGrath J.553 Baldick v Jackson; and Public Trustee v Loasby.554 Takamore (SC) at [164].141Accordingly, executors and potential administrators are required to consider thosevalues in some circumstances.[346] Separately, Elias CJ observed that the case had to be resolved by the Courtbecause neither family nor tikanga decision-making processes had resolved thedispute.555 She said:[94] Values 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 into NewZealand only "so far as applicable to the circumstances of the colony".556It is the approach adopted in Public Trustee v Loasby557 and, in Australia, inManktelow v Public Trustee.558 Māori custom according to tikanga istherefore part of the values of the New Zealand common law.[347] Takamore has been seen as an advance in the preparedness of New Zealandcourts to recognise tikanga. In the last five years, New Zealand courts are increasinglyconsidering, and recognising tikanga in law. For example:(a) In 2017, in Proprietors of Wakatū v Attorney-General in the SupremeCourt, Glazebrook J accepted that decisions on who is the appropriateplaintiff would normally be decided according to tikanga. She notedthat tikanga "can vary between different iwi and hapū and it can evolveand develop over time".559 And she said "[t]here may also be issues asto the rights of smaller collective groups (such as hapū) against a widercollective group (the iwi)".560(b) In 2019, in Ngāti Whātua Ōrakei Trust v Attorney-General the SupremeCourt remitted the present case to the High Court for hearing.561 EliasCJ said: "[r]ights and interests according to tikanga may be legal rights555 At [92].556 The footnote refers to an earlier footnote that says "The English Laws Act 1858, s 1; and EnglishLaws Act 1908, s 2; the effect of these provisions is now preserved by s 5 of the Imperial LawsApplication Act 1988".557 Public Trustee v Loasby at 807.558 Manktelow v Public Trustee [2001] WASC 290, (2001) 25 WLR 126 at [19].559 Wakatū at [670], citing the Law Commission Māori Custom and Values at [10]; and AnnisSomerville "Tikanga in the Family Court – the gorilla in the room" (2016) 9 NZFLJ 157 at 158560 At [672].561 Ngāti Whātua Ōrakei (SC).142recognised by the common law and, in addition, establish questions ofstatus which have consequences under contemporary legislation".562(c) In 2020, in Ngāti Maru Trust v Ngāti Whātua Ōrākei, Whata J statedthat "the jurisdiction to declare and affirm tikanga based rights in Statelaw rests with the High Court and/or the Māori Land Court", rather thanunder the Resource Management Act 1991.563 But even there, he heldthat evidential findings may be made,564 and "[t]o ignore or refuse toadjudicate on divergent iwi claims is the antithesis of recognisingand providing for them and an abdication of statutory duty".565(d) In 2020, in Trans-Tasman Resources Ltd v Taranaki-WhanganuiConservation Board, the Court of Appeal characterised tikanga as "anintegral strand" of the common law of New Zealand and held it musttreated as "applicable law" under the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012.566(e) In 2021, in Sweeney v The Prison Manager, Spring Hill CorrectionsFacility, I said "[w]here material to a case, the Courts can, and mayhave an obligation to, recognise and uphold the values of tikanga Māoriin applying the law of judicial review and granting remedies".567(f) Also in 2021, I stated in Ngawaka v Ngāti Rehua-Ngātiwai ki AoteaTrust Board (No 2):568[43] Tikanga Māori was the first law in Aotearoa.569 It arose "as anecessary and inevitable expression of self-determination" of562 At [77].563 Ngāti Maru Trust v Ngāti Whātua Ōrākei [2020] NZHC 2768, [2021] NZRMA 179 at [67].564 At [68].565 At [73].566 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86,[2020] NZRMA 248 at [177]–[178].567 Sweeney v The Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021]2 NZLR 27 at [75].568 Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021]2 NZLR 1 [Ngawaka] (footnotes included). An application for leave to appeal this judgment wasabandoned.569 Williams "Lex Aotearoa" at 2–5.143Māori.570 It is "an old system based around kinshipadapted to thenew circumstances of this place".571 Tikanga is still law for manyiwi and hapū.(g) Later in 2021, Cooke J held in Mercury NZ Ltd v Waitangi Tribunal thatthe Tribunal did not have a discretion under its statute to make decisionsinconsistent with tikanga.572 He said:[103] It is now well accepted that tikanga Māori is part of NewZealand's common law.573 There is a degree of ambiguity, however,in describing it as "part of" the common law. It has previously beenidentified as a source for the development of the common law. Thisis uncontroversial as the courts frequently look to customs, practices,and contemporary societal attitudes when the common law isdeveloped. But tikanga can be a little more than that. In somesituations, tikanga will be the law, rather than merely being a sourceof it. There will be situations, perhaps particularly when the relevantMāori participants agree upon the tikanga to be applied where a courtor tribunal will be applying that tikanga to resolve the matters withinits jurisdiction.574 To state the obvious the relevance and significanceof tikanga will be highly contextual.[104] The present matter involves the exercise of statutory powers bythe Tribunal under the TOW Act. The key question is how tikangaprinciples affect the exercise of those powers. The Tribunal haseffectively treated them as an important relevant consideration, but ithas decided that in the exercise of its statutory powers it has adiscretion to depart from tikanga.575 I disagree. In my view, this isone of the situations where as a matter of interpretation of the statutethe Tribunal does not have a discretion to make decisions that areinconsistent with tikanga. Neither does it have a discretion to directremedies that are inconsistent with the principles of the Treaty. Thisis one of the situations where both tikanga principles, and theprinciples of the Treaty are essentially binding. In this context,tikanga forms a key part of the law to be applied rather than merelybeing a relevant consideration.[111] It seems to me that tikanga Māori is an important aspect of theprinciples of the Treaty. The Māori text speaks of the Queenprotecting "te tino rangatiratanga o o ratou wenua o ratou kainga meo ratou taonga katoa". That is chiefly authority over lands and othertaonga. That carries with it the relevant tikanga in relation to those570 At 9.571 At 5.572 Mercury (HC) (footnotes included).573 Takamore (SC) at [94] and [164]; and Ngāti Apa.574 See Ngawaka at [58].575 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Determinations of the TribunalPreliminary to Interim Recommendations Under Sections 8B and 8HC of the Treaty of WaitangiAct 1975 (Wai 863, 2020) at [259]–[261].144lands. This is less clear in the English version, albeit that theguaranteed exclusive and undisturbed possession of lands wouldnaturally include the customs that were associated with the lands.(h) At the end of 2021, in Te Pou Matakana Ltd v Attorney-General, whileacknowledging that "it is not for the Court to itself decide what tikangaapplies", Gwyn J relied on Cooke J's statement that there will besituations where a court will be applying tikanga to resolve the matterswithin its jurisdiction.576[348] The most authoritative and recent judicial statements about the place of tikangain New Zealand law are by the Supreme Court in September 2021 in Trans-TasmanResources Ltd v Taranaki-Whanganui Conservation Board.577 They unanimouslyconfirm that tikanga-based customary rights and interests are "existing interests"protected by the statutory requirement to recognise and respect the Crown's obligationto give to effect to the principles of the Treaty of Waitangi.578 In addition they said:579Further, drawing on the approach to tikanga in earlier cases such as Takamorev Clarke, all members of the Court agreed that tikanga as law must be takeninto account by the [decision-making committee] as "other applicable law"under s 59(2)(l) of the EEZ Act where its recognition and application isappropriate to the particular circumstances of the consent application at hand.[349] William Young and Ellen France JJ held that "tikanga is a body of Māoricustoms and practices, part of which is properly described as custom law".580Winkelmann CJ and Glazebrook J agreed.581 Williams J also broadly agreed and madeexplicit that the question of what is meant by "existing interests" and "other applicablelaw" "must not only be viewed through a Pākehā lens".582 In a statement with whichGlazebrook J agreed, he said:583576 Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319 at [111]; citing Mercury(HC) at [103].577 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [Trans-Tasman (SC)][2021] NZSC 127, [2021] 1 NZLR 801.578 At [8].579 At [9] (footnotes omitted).580 At [169]. At n 282, they explicitly left "open for determination the questions of whether or nottikanga is a separate or third source of law and whether or not there should be any change to thetests for the recognition of customary law as law set out in Loasby".581 At [332] per Winkelmann CJ and [237] per Glazebrook J.582 At [297].583 At [297] (footnotes omitted) and see n 371 per Glazebrook J.145As the Court of Appeal rightly pointed out, the interests of iwi withmana moana in the consent area are the longest-standing human-related interests in that place. As with all interests, they reflect therelevant values of the interest-holder. Those values–mana,whanaungatanga and kaitiakitanga–are relational. They are alsoprinciples of law that predate the arrival of the common law in 1840.And they manifest in practical ways as William Young and EllenFrance JJ note.[350] In this case, Mr Mahuika submits, for Ngāti Pāoa, that "[t]ikanga as the firstlaw of Aotearoa, is and always has been part of local circumstances".584 And"[t]ikanga will inform and form part of the development of the common law inAotearoa".585 He submits that the Treaty of Waitangi supports the recognition oftikanga as relevant to the development of the common law. This is on the basis of theTreaty's protection of "nga taonga katoa" and Waitangi Tribunal findings that article 2of the Treaty protects Māori custom and cultural values.586 Mr Mahuika also submitsrecognition of tikanga in the development of the common law is consistent withinternational instruments including the United Nations Declaration on the Rights ofIndigenous Peoples.587 Article 5 of the Declaration states that decisions for theresolution of conflicts and disputes of indigenous peoples with States "shall give dueconsideration to the customs, traditions, rules and legal systems of the indigenouspeoples concerned and international human rights".[351] Mr Smith, for Ngāti Kuri and Ngāi Te Rangi, also submits tikanga is a taongaand itself defines what is guaranteed to Māori under the Treaty of Waitangi. Hesubmits it is well-established that principles of tikanga inform the common lawthrough its values and, in appropriate cases, as a direct ingredient that can beincorporated into the common law.584 Ngāti Pāoa Closing at [148], citing Ani Mikaere "The Treaty of Waitangi and recognition ofTikanga Māori" in Michael Belgrave, Merata Kawharu and David Williams (eds) WaitangiRevisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland,2005) 300; and Williams "Lex Aotearoa" at 2.585 At [152].586 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Motunui-Waitara Report (Wai 6,1983) at 51. See also Waitangi Tribunal Ōrākei Report at 190; Te Rōpū Whakamana i te Tiriti oWaitangi | Waitangi Tribunal Ngai Tahu Land Report (Wai 27, 1991) at 824; and Te RōpūWhakamana i te Tiriti o Waitangi | Waitangi Tribunal The Mohaka River Report (Wai 119, 1992)at 63–64.587 Ngāti Pāoa Closing at [160], citing Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua Inc vAttorney-General [2018] NZHC 2886, [2019] NZAR 12.146[352] Dr Ward, in closing for the Crown, submits:588Tikanga Māori is given expression in New Zealand's law either throughcommon law recognition (as an underlying value that informs theinterpretation and development of law, or alternatively as a source of privaterights and obligations) or through statute. In other words, tikanga does notoperate as a free-standing source of law separate from the common law andstatute with the effect of displacing or superseding the application of thecommon law and/or statute.[353] Dr Ward submits tikanga Māori is recognised as part of the values of NewZealand common law as stated by Elias CJ in Takamore. He submits, when the Britishacquired sovereignty over a territory where there were indigenous laws, the commonlaw presumed the customary laws generally continued until altered by legislation,relying on McHugh.589 As he states in the Crown's closing submissions, "[t]he Englishcommon law has always recognised local custom as law for a borough or other localarea (subject to certain qualifications)".590 In particular, he submits any continuity ofMāori customary law was limited personally to the Māori population, and did notapply to dealings between Pākehā and Māori.591 He also submits, relying on the expertevidence of Paul Meredith, that legal provision for Māori custom was achieved bylegislative reform not common law adjudication.592 While Dr Ward acknowledgestikanga as part of the common law, he submits what that means in any particular casewill differ depending on the tikanga invoked and the nature of the proceeding.[354] Ms Coates submits, for Te Ākitai Waiohua, that "the importance and centralityof tikanga as part of the fabric of the common law and its operation and relevance aspart of the state legal system is now undeniable".593 She submits it is now well-accepted that tikanga forms "part of" the common law. But she submits the validityof tikanga is not sourced within the state legal system which recognises it, rather it isa separate legal framework. That should inform where the Courts should and shouldnot stray in relation to their jurisdiction concerning tikanga.594 Te Ākitai say that any588 Crown Closing at [171.1].589 McHugh The Māori Magna Carta at 83. See also Takamore (CA) at [112] (per Glazebrook andWild JJ); and The Case of Tanistry (1608) Davis 28, 80 ER 516 (KB).590 Crown Closing at n 264.591 McHugh The Māori Magna Carta at 85. See also Takamore (CA) at [177]–[183].592 At [177], citing Meredith at [116]—[121].593 Te Ākitai Waiohua Closing at [220].594 Notes of Closings 209/3–9.147foray into contested tikanga disputes between iwi need to be done with reluctance andcaution, ensuring preservation of the integrity of tikanga.595[355] Based on my review of the legal authorities and submissions above, I considerit is clear that the law that accompanied Māori to Aotearoa was constituted by tikanga.Many aspects of it are law in New Zealand now: Māori customary law, made by iwiand hapū, governing behaviour of iwi and hapū and those who belong to them. Assuch, it is a "free-standing" legal framework recognised by New Zealand law. It doesnot cease governing an iwi or hapū just because the courts or Parliament or even otheriwi suggest otherwise. In the context of succession law, the Law Commission recentlynoted:596While tikanga Māori has remained a constant as an independent source ofrights and obligations in te ao Māori and the first law of Aotearoa, there is nowbroader acknowledgement of its significance for Aotearoa New Zealand,including under te Tiriti o Waitangi | Treaty of Waitangi (the Treaty).[356] As the Chief Justice foreshadowed in Takamore, in the end the family thereappears to have found reconciliation in that case in accordance with tikanga rather thanin accordance with the default position determined by the Supreme Court.597 TāmatiKruger gave evidence in this case about that. He said "in one day we resolved theissue, as is resolved today, the Takamore case. So what the judicial system failed todo, we did it with $200 worth of catering".598[357] Tikanga is often assumed, recognised and referred to by New Zealandlegislation. Like the common law made by courts, the legal effects of tikanga can beoverridden by legislation. But even Parliament cannot change tikanga itself. Iwi dothat, exercising their rangatiratanga. Similarly, one iwi cannot override another thetikanga of another iwi without impinging on their rangatiratanga.[358] Tikanga was recognised by English common law that accompanied the Crownto New Zealand, as were other sources of law. It is recognised by New Zealandcommon law today. As governing values for iwi and hapū, tikanga informs the595 Notes of Closings 213/11–15.596 Law Commission Succession Report at [2.2].597 Takamore (SC) at [102].598 NOE 1916/3–5.148common law. But it can be even stronger in legal effect than that. Tikanga candetermine the outcome of a court's application of a statute or the common law, as itdid in Baldick v Jackson, Public Trustee v Loasby, and Mercury. 599 It can be a directsource of legal rights enforced by the Courts, as recognised in Ngāti Apa andNgawaka.600 So, how the courts approach and treat tikanga deserves careful attention.D The Court's role regarding tikanga[359] I have received submissions from the parties and interested parties andevidence from the pūkenga and other Māori witnesses about the consistency withtikanga of a Court dealing with tikanga:(a) Te Kura Kapea considers that the Court can appropriately have a rolein resolving tikanga disputes when iwi and hapū are unable to agreethrough tikanga processes.601(b) Margaret Kawharu states she is not comfortable with the Courtdetermining tikanga.602 Tikanga should be left to the rangatiratanga ofrangatira.(c) Paul Meredith considers that resolution of tikanga disputes by the Courtis "not ideal" but may be necessary and appropriate provided the Courtis assisted by tikanga experts.603(d) David Williams's view is that tikanga processes are preferable, butresolution by the Court may be used as a last resort.604 Charlie Tawhiaoalso states that bringing a court case is appropriate as a last resort todefend mana whenua.605599 Baldick v Jackson; Public Trustee v Loasby; and Mercury (HC).600 Ngāti Apa; and Ngawaka at [57].601 NOE 43/29–44/14.602 NOE 264/7–10.603 NOE 1191/8–25.604 NOE 724/19–725/9.605 Tawhiao Brief at [11].149(e) Tāmati Kruger considers that it is not consistent with tikanga for inter-iwi or inter-hapū disputes to be determined by the Court, and thattikanga processes "cannot be exhausted".606 But he states that the Courtis the right place for disputes about Crown conduct to be aired.607(f) Dr Te Kahautu Maxwell states he is "somewhat disappointed" that thedispute is before the Court, and that determination of tikanga beforecourts "is not a proper exercise of mana and is not tika".608(g) Dr Korohere Ngāpō observes that resolution of tikanga disputes by theCourt would be "difficult", because "they don't fully know orunderstand all the aspects relating to tikanga".609(h) Harry Mikaere cautions the Court to "exercise the utmost care with anypronunciations on tikanga" due to the significance of any determinationfor iwi and hapū in Tāmaki Makaurau.610 Wati Ngamane gives a similarwarning, calling for the Court to be "very careful" when makingdeterminations about tikanga.611(i) Te Warena Taua considers that "matters of this nature do not sit well ina Pākehā institution" and resolution should be achieved through atikanga Māori process.612 He states that the adversarial nature of theCourt is inappropriate, given that tikanga is about "connections andwhat binds us".613(j) Ngarimu Blair's view is that the courtroom is a place for tikanga as alast resort. He states "[g]iven we've exhausted all other avenues to606 NOE 1922/10–20.607 NOE 1922/22–31.608 Maxwell Brief at [164].609 NOE 2308/1–9.610 Mikaere Brief at [79].611 W Ngamane Brief at [142].612 Taua Brief at [15].613 At [16].150resolve the claims of Marutūāhu that reach into our heartland, we'vehad to come here".614(k) Karen Wilson did not consider it "appropriate for the Crown (or theCourt for that matter) to make general determinations of concepts suchas ahi kā and mana whenua".615 However, she did state the Crownought to have an understanding of the various rights and interests in anarea as well as the relative strengths of those rights and interests.616[360] Counsel have made submissions on how the courts should treat tikanga:(a) Mr Hodder, for Ngāti Whātua Ōrākei, submits that the Supreme Court'sjudgment in Takamore indicates that the Court can recognise tikanga,consistent with Treaty of Waitangi principles.(b) In his oral closing submissions Mr Mahuika, for Ngāti Pāoa, submitsthat in the traditional Māori world there were times when thingsreached a point where they were resolved not by intermarriage andpeace agreements but by the patu.617 While going to Court is similarlynot the ideal way of resolving a dispute, sometimes, when the partiesare unable to resolve a matter between themselves, there needs to be amethod by which a resolution is able to be reached. Iwi are entitled topursue court proceedings and it would be a dereliction of the Court'sresponsibility not to attempt to engage with issues that are properlybefore it.(c) Dr Ward, for the Crown, submits that Māori custom may be local,flexible and evolving, with the consequence that certainty of generalprinciples may be difficult to achieve. He notes the risk of judicialdetermination of custom freezing tikanga at one stage of itsdevelopment. He advocates "a judicial approach that is mindful of the614 NOE 571/16-17.615 K Wilson Brief at [105].616 At [105].617 Notes of Closings 260/15–261/5.151unique character of tribal tradition and practice that is engaged in anyclaim about tikanga".618(d) Mr Majurey, for Marutūāhu, identifies the central question in this caseto be "whether the mainstreaming of the first law in Aotearoa meanstikanga must be decided by the Court".619 He submits the Court mustbe very careful about "finding" tikanga as fact and effectively relies onmy observations in Ngawaka. He submits it is not the role of a court,nor is it possible for a court, to make determinations that attempt toreconcile or prioritise different tribal tikanga.(e) Ms Coates, for Te Ākitai Waiohua, submits the validity of tikanga is notsourced within the state legal system which recognises it. Rather it is aseparate legal framework.620 She identifies risks in the courts codifyingtikanga, which would kill it, freezing a particular version of tikanga, orfreezing it at a particular time.621 She acknowledges that the role andfunction of the Court is to make declarations on the law, of whichtikanga is a part. But she submits the Court should tread with cautionwhen confronted with genuinely held, but differing, positions ontikanga and its application. She points to witnesses for Ngāti WhātuaŌrākei, the Crown, Marutūāhu, Ngāi Tai ki Tāmaki and Te Ākitaistating their objections to, or lack of comfort with, Pākehā institutionsincluding the Court and Crown, determining, defining and decidingmatters of tikanga.622 She submits that tikanga disputes are mostappropriately resolved in accordance with, and as a matter of, tikanga.She cites then Chief Judge Williams of the Māori Land Court saying"[t]ikanga divined by a judge who is not a member of the kin group and618 Crown Closing Submissions at [200], citing Ngawaka at [58].619 Marutūāhu Closing at [9]620 Te Ākitai Waiohua Closing, 19 April 2021 at [221].621 At [241](d), citing Williams He Aha Te Tikanga Māori at 8; and NOE 706/19–22 (Williams).622 NOE 264/7–16 (Kawharu), 1191/8–25 (Meredith), 2308/1–9 (Ngāpō); Maxwell Brief at [164];and K Wilson Brief at [105]. Compare NOE 42/5–10 and 43/29–44/14 (Kapea).152handed down from on high would be the antithesis of tikanga".623She submits the issues before the Court regarding tikanga:624 are effectively an internal tikanga based dispute betweenthe iwi playing itself out in the Treaty settlement context.These disputes have existed for centuries and are simply re-playing themselves out in a different time and context.Ms Coates submits the integrity of tikanga should be preserved. Thismay mean the Court should decline to make determinations anddeclarations when it is inconsistent or inappropriate as a matter oftikanga to do so.625 Whether that is so is context-dependent.626(f) Mr Warren, for Ngāi Tai ki Tāmaki, submits it is not the role of theCourt to attempt to define tikanga concepts when there is a contest asto their meaning.627 He submits the Court must be cautious not todetermine, create, or change tikanga because the relevant hapū or iwidoes that. He points out that tikanga is imbued with spirituality fromngā atua Māori, giving it validity and tapu sanctity.628[361] With the benefit of the context of this case, authorities, and submissions, Imaintain and expand on the views I expressed in Ngawaka.[362] Tikanga governs matters of process as well as substance.629 There are ways ofresolving disputes about tikanga which are consistent with tikanga and ways whichare not. Full discussion by kaumātua on a marae, abiding by the kawa of the marae,and resulting in consensus, can be consistent with tikanga. Recourse to courts withoutagreement between the parties is not obviously tikanga-consistent. Only one of thetikanga experts who gave evidence here says that it is.630 Some say recourse to courts623 Williams He Aha Te Tikanga Māori at 8.624 Te Ākitai Waiohua Closing at [244].625 At [246].626 Notes of Closings 214/6.627 Ngāi Tai ki Tamaki Closing at [3.6]; and see NOE 1915/8–24 and 1922/10–20 (Kruger). CompareNOE 42/5–10 and 43/29–44/14 (Kapea).628 Ngāi Tai ki Tamaki Closing at [3.16].629 See Law Commission Succession Report at [13.9].630 NOE 42/5–10 and 43/29–44/14 (Kapea).153is inconsistent with their tikanga.631 Others say that recourse to courts is far lessappropriate or preferable than tikanga-consistent processes.632[363] As a matter of tikanga, of course, tikanga-consistent dispute resolution processmust be preferred to non-tikanga-consistent court resolution of disputes about tikanga.Indeed, resolution of a dispute about tikanga by tikanga-consistent processes may bemore enduring than a ruling by a court, as Tāmati Kruger's evidence about resolutionof the Takamore dispute illustrates.[364] Tikanga-consistent dispute resolution may involve several or many discussionson marae over a long period. Tikanga may require a discussion of a dispute over along period of time compared to Pākehā dispute resolution. Those involved willdetermine how long that is, depending on the circumstances. As Mr Mahuika submits,the time that it takes depends on the context. A court must be wary of claims by onegroup or another that resolution is not possible in the time taken so far. Tāmati Kruger,the eminent pūkenga from Tūhoe, says that a tikanga-consistent process "cannot beexhausted".633 He said "we live in a different time zone to Pākehā culture We thinkand operate in generations. That's how long these things take."634 On the other hand,Ngarimu Blair's evidence is that the risk involved in a Court determining manawhenua is "a risk that we, as great as it is, have determined as an iwi to undertake".635Seeking a determination before the Court is a "last resort" in the absence of resolutionof the dispute by a tikanga-consistent process.636[365] I accept that it would be a brave court that attempts to reconcile or prioritisetikanga that truly differs between iwi or hapū, if that reconciliation is not tikanga-based. An attempt to do so may well not be accepted at tikanga. It may not be tika.But, as Mr Mahuika says, tikanga does not end when an issue is taken to court. A631 NOE 264/7–10 (Kawharu); NOE 1922/10–20 (Kruger); Maxwell Brief, 13 October 2020 at [164];and Taua Brief at [15].632 NOE 1191/8–25 (Meredith), 657/8–18 (Blair) and 724/19–725/9 (David Williams); and TawhiaoBrief at [11].633 NOE 1922/15–20.634 NOE 1842/16–19.635 NOE 657/12–14.636 NOE 657/8–11 (Blair).154court decision that pays due regard to tikanga could, perhaps, sometimes free a logjamin relationships and enable further iterations of tikanga-consistent discussions.[366] Because tikanga is law, iwi and hapū may seek legal remedies relying onrecognition of tikanga by the courts in particular cases. They may assert theircustomary rights and seek declarations accordingly. That is what Ngāti Whātua Ōrākeidoes here, as the Supreme Court ruled they could.637 I accept Mr Hodder's submissionfor Ngāti Whātua Ōrākei that the Court's declaratory jurisdiction is able to include themaking of formal declarations of legal status and rights, including customary rights,and of corresponding obligations.[367] I deal further with the relevance of tikanga to relief in the parts of this judgmentdealing with declarations. But I note, in general, that there may be a variety ofdifferent ways by which a court could seek to resolve a dispute over tikanga that maybe consistent with tikanga. Paul Meredith gave evidence that there is historicalprecedent of third parties being requested to mediate or sometimes arbitrate oncontested issues of tikanga.638 A court could appoint one or more pūkenga, with astrong connection to the relevant iwi or hapū and/or a deep understanding of therelevant tikanga, to make a decision. It could refer the matter to the Māori AppellateCourt under s 61 of Te Ture Whenua Maori Act 1993. Where all relevant parties agreethrough tikanga-based processes, the authority of the Court might be useful in grantingremedies regarding an issue of tikanga. If they do not agree, it is more difficult.[368] If tikanga-consistent resolution of a dispute about tikanga is not feasible, thenrecourse to a court may be appropriate as a matter of law. That necessarily followsfrom tikanga being part of New Zealand law. The quintessential function of courts isto determine disputes about law. That may include determining disputes abouttikanga. As arose in discussion with Mr Warren and Mr Mahuika in closingsubmissions, in some ways litigation is now the modern alternative to resolution bybattle which used to be, but is no longer, available to break a deadlock over tikanga.639I do not rule out a court doing so where a dispute genuinely requires resolution, as an637 Ngāti Whātua Ōrākei (SC) at [52]–[53].638 NOE 1142/29–33.639 Notes of Closings 253/23–254/16, 260/15–261/5.155ultimate alternative to battle. Whether such a decision is tika, and consistent withtikanga, is another matter.E How should the Court approach tikanga?[369] Just because a Court can do something does not mean it should. In 1894, theCourt of Appeal considered that the (then) Supreme Court had no knowledge of"Native customs" which were "known and understood only by those who have madea special study of them".640 Accordingly, the Court declared itself unqualified tointerfere with the Native Land Court's decisions by way of judicial review.641 Thishas changed. But the need for caution remains.[370] One reason for judicial caution is that legal precedents in case law will not beauthoritative as to the content of tikanga. This flows from the ongoing capacity fortikanga to change and for there to be differences in tikanga, and the application oftikanga, between iwi and hapū. In 2001, the Law Commission said:642[18] Flexibility cannot be so great as to allow a proposition to be advanced asMāori custom law where it is in conflict with basic principles handed downfrom the ancestors. Certainty cannot be so paramount that past understandingsof tikanga Māori should be adopted, along the lines of common lawprecedents, without continually being tested by the practical jurisprudence ofMāori communal decision-making. So judges and decision-makers invited togive recognition to tikanga Māori should bear in mind that the vitality ofcustom law is being continuously replenished within the fora of te ao Māori.There is a need to be cautious – kia tūpato.[371] Iwi and hapū create, determine and change tikanga through their owndeliberative aggregation of practices in exercising their rangatiratanga. Courts do notand cannot make, freeze or codify tikanga. Accordingly, a court must be cautious andcareful when dealing with tikanga. As Churchman J said in Re Edwards (No 2):643I reiterate here that it is not the role of the Court to define the tikanga of theapplicants. As I discuss at [308] below, the proper authorities on tikanga arethose who have been tasked or honoured with the mātauranga of their tīpuna– the knowledge and wisdom passed down to them by their ancestors.640 Te Wharo v Davy (1894) 12 NZLR 502 (CA) at 514 (Williams J).641 At 514.642 Law Commission Māori Custom and Values.643 Re Edwards (No 2) [2021] NZHC 1025 [Re Edwards] at [272].156[372] If a court approaches tikanga in a particular case, it must recognise tikanga onthe basis of the evidence before it. A Court may recognise tikanga made by iwi orhapū "for the particular purpose of the particular case before it at the time".644 Whatis recognised by a court cannot change the underlying fact or validity of tikanga in itsown terms. If tikanga changes, a future court will not be able to rely on a past courtprecedent. It must consider the evidence of tikanga at the time relevant to that case.[373] A second reason for caution derives from the inherently difficult task oftranscending culturally-specific mindsets. Most High Court Judges are currentlyPākehā and most are trained more in the common law tradition than in tikanga. In2003, in Ngāti Apa, Elias CJ and Keith J in the Court of Appeal cited the caution byViscount Haldane in the Privy Council:645There is a tendency, operating at times unconsciously, to render [native title]conceptually in terms which are appropriate only to systems which havegrown up under English law. But this tendency has to be held in check closely.As a rule, in the various systems of native jurisprudence throughout theEmpire, there is no such full division between property and possession asEnglish lawyers are familiar with. A very usual form of native title is that ofa usufructuary right, which is a mere qualification of or burden on the radicalor final title of the Sovereign where that exists. In such cases the title of theSovereign is a pure legal estate, to which beneficial rights may or may not beattached. But this estate is qualified by a right of beneficial user which maynot assume definite forms analogous to estates, or may, where it has assumedthese, have derived them from the intrusion of the mere analogy of Englishjurisprudence.[374] Tipping J similarly observed explicitly:646[184] It is also important to recognise that the concept of title, as used in theexpression "Māori customary title", should not necessarily be equated withthe concepts and incidents of title as known to the common law of England.The incidents and concepts of Māori customary title depend on the customsand usages (tikanga Māori) which gave rise to it. What those customs andusages may be is essentially a question of fact for determination by the MāoriLand Court.[375] In Takamore in 2012, Elias CJ said:647[95] What constitutes Māori custom or tikanga in the particular case is aquestion of fact for expert evidence or for reference to the Māori Appellate644 Ngawaka at [58].645 Ngāti Apa at [144], citing Amodu at 402–403.646 Ngāti Apa at 683. And see Re Edwards at [121]–[130] and [144].647 Takamore (SC) (footnotes included).157Court in an appropriate case.648 A court asked to identify the content of customby evidence is not engaged in the same process of interpretation or law-creation, as is its responsibility in stating the common law. As in all caseswhere custom or values are invoked, the law cannot give effect to custom orvalues which are contrary to statute or to fundamental principles and policiesof the law. But it is necessary for the Court to take care in identifying thecustom or values truly relevant to its determination. In that connection, Iconsider that the majority in the Court of Appeal were wrong to see thecustoms or values here invoked as requiring the Court to accept determinationaccording to tikanga, including by forcible removal of the body of thedeceased.[97] The role of the Court is not to judge the validity of traditions or valueswithin their own terms. It is concerned with the application of establishedtraditions and values in fulfilling the Court's own function of resolvingdisputes which need its intervention. The determination of the Court saysnothing about what is right according to the value systems themselves.Indeed, the determination of the Court can only settle the immediate legalclaim. The family and tikanga processes may well continue.[376] In 2021, in Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2), Istated:[57] Tikanga Ngāti Rehua-Ngātiwai ki Aotea lies at the heart of this dispute.That very description demonstrates that the relevant tikanga belongs to, andperhaps even constitutes, Ngāti Rehua-Ngātiwai ki Aotea. The common lawrecognises tikanga and its binding force on those subject to it. But a courtdoes not determine, create or change tikanga. The relevant iwi or hapū doesthat, as Parliament recognises, for example in relation to whāngai in s 114Aof Te Ture Whenua Māori Act 1993.[58] As noted above, I have previously accepted that tikanga is law proved asfact.649 Usually, a court "finds" facts for the purposes of a case. But a courtmust be very careful about "finding" tikanga as a fact, even where it is requiredby the relevant iwi or hapū to do so. Whereas most facts relevant to a case arecreated by circumstance, I understand tikanga to be created by the relevanthapū or iwi through a mixture of practice, tradition and deliberation. Tikangacan change over time. Any recognition by a court can only be a snapshot at acertain point. And a court recognises tikanga only for the particular purposeof the particular case before it at the time. What is recognised by a courtcannot change the underlying fact of tikanga determined by the hapū or iwi,exercising their rangatiratanga.[377] In recognising tikanga, common law courts must hold "in check closely" anyunconscious tendency to see tikanga in terms of the English law heritage of New648 Te Ture Whenua Maori Act 1993, s 61.649 Ngāti Whātua Ōrākei (issues and pūkenga) at [36].158Zealand common law.650 They must be open to seeing tikanga on its own terms, as adistinct framework. I accept Mr Ward's submission that the Court must be mindful ofthe unique character of tribal tradition and practice engaged in any claim abouttikanga. A court's caution in approaching tikanga must be heightened when thecontent of tikanga is disputed within an iwi or hapū or between iwi or hapū.[378] A court must identify the tikanga relevant to the issues it has to decide,recognising the holistic nature of tikanga referred to above.651 A court must be carefuland cautious in its findings, which must be based on expert evidence, whether ofpūkenga called by litigants or appointed by the Court. That is particularly so wherethere is, or appears to be, a conflict of tikanga of different iwi or hapū.[379] I also have heard evidence and submissions about whether it is consistent withtikanga for a Court to deal with tikanga and, on that basis, what it is appropriate for aCourt to do in relation to tikanga. I deal with that below, in the context of the particulartikanga and issues that arise here. But before I turn to that context, I need to addressthe arguments I heard on the standard of proof of tikanga.F The standard of proof of tikanga[380] The validity of local custom in English common law derived from its practice,which was considered a matter of fact, often relying on the evidence of the oldestmembers of the local community.652 In Wolstanton Ltd v Newcastle-under-LymeCorporation in 1940, the House of Lords suggested the presumption that a custom wasin immemorial existence "should in general be raised by evidence showing continuoususer as of right going as far back as living testimony can go".653 In Public Trustee vLoasby, a pre-requisite for Cooper J's tests for recognition of custom was that thecustom be proved.654 In Takamore v Clarke, two independent experts gave evidenceof Tūhoe custom.655 As noted in Loasby, the authorities explained above, and asagreed by all parties here, it seems clear that tikanga is proved as fact.650 Amodu at 403.651 Takamore (SC) at [95].652 Dorsett "Since Time Immemorial" at 43.653 Wolstanton Ltd v Newcastle-under-Lyme Corp [1940] AC 860 (HL) at 876.654 Richard Boast and others Māori Land Law (2nd ed, LexisNexis NZ, Wellington, 2004) [BoastMāori Land Law] at [2.2.5], citing Public Trustee v Loasby.655 Takamore (CA) at [58].159[381] However, the parties differ here on whether tikanga must be proved to the usualstandard for civil law cases, of the balance of probabilities, or to some other standard:(a) Mr Hodder, for Ngāti Whātua, accepts the civil burden of proof lies onNgāti Whātua Ōrākei, who must prove their case as more probable thannot. He submits there is nothing to suggest that tikanga prescribes adifferent standard or burden of proof or that any of the exceptions tothe usual standard apply.656 He acknowledges that a court is unlikelyto say it is 100 per cent sure about contested matters of history andtikanga but that Ngāti Whātua Ōrākei has probably proven its casebeyond reasonable doubt.657(b) The Crown's written closing submits that it is unclear whether thestandard of proof is determined by the civil standard of the balance ofprobabilities or approached from a tikanga standard and, if the latter,what that is.658 The written closing submits that care needs to be takento avoid an assumption that a common law test would be applied, whichmay have some tension with the requirements at tikanga fordetermining the application of tikanga. In closing orally, Dr Wardsubmits it is unclear whether the standard of proof for ascertainingwhether Ngāti Whātua Ōrākei has mana whenua or ahi kā is determinedby the common law civil standard or should be approached from atikanga standard, about which there is a lack of evidence.659 He submits"there's a real issue for the Court about trying to determine what tikangais by applying a standard of proof that is not a tikanga standard".660(c) Mr Majurey, for Marutūāhu, submits the civil standard of proof is inaptwhere the Court is being asked to determine tribal identity inaccordance with tikanga. Rather, he submits a claim in tikanga mustbe determined at tikanga, not a tauiwi construct of the balance of656 Notes of Closings 429/5–8 and 430/2-24.657 Notes of Closings 430/8–24.658 Crown Closing at [362].659 Notes of Closings 107/12–108/10 and 120/13–20.660 Notes of Closings 107/21–23.160probabilities, though that is open to the Court.661 He submits tribaldisputes were resolved by consensus, by battle or by cementing peace,before first contact with Europeans. Accordingly, he submits theappropriate tikanga yardstick is consensus, absent which the Courtmust decline to make declarations, and tikanga determinations are notfor this Court to make. Alternatively, the criminal standard is apotential third option.(d) Mr Warren, for Ngāi Tai ki Tāmaki, submits there must be a very clearalignment of tikanga before the Court can make a finding of fact oneway or the other. He submits that the standard of proof here, given thattribal identity is at stake, must be higher than the usual civil standard.He submits the standard of proof required should be more akin tobeyond reasonable doubt and cites the "clear and convincing evidence"standard adopted by the United States Supreme Court in Colorado vNew Mexico.662[382] I do not consider Mr Warren's valiant efforts to introduce American standardsof proof bear edible fruit in New Zealand. As Churchman J in Re Edwards stated inrelation to customary rights cases under the provisions of the Marine and Coastal Area(Takutai Moana) Act, "the starting point is that the civil burden of proof, on the balanceof probabilities, is applicable".663 As he noted, the Māori Land Court adopted theposition in Tau v Ngā Whānau o Morven & Glenavy – Waihao 903 Section IX Blockthat customary rights and interests must be established to that civil standard, "havingregard to that standard's inherent flexibility that takes into account the nature andgravity of the matters at issue".664 The position of the Māori Land Court is entitled toconsiderable respect in relation to such issues.[383] But there may be a difference between the standard of proof faced by a partywho is required to prove a fact in court and how a court recognises the existence of661 Notes of Closings 149/13–24 and 153/27–31.662 Colorado v New Mexico 467 US 310 (1984).663 Re Edwards at [100].664 Tau v Ngā Whānau o Morven & Glenavy – Waihao 903 Section IX Block [2010] Māori AppellateCourt MB 167 (2010 APPEAL 167) at [61]; and Bristol v Ngāti Rangi Trust [2017] Chief Judge'sMB 269 (2017 CJ 269) at [24].161particular tikanga. The prospect that a court might find the tikanga of an iwi or hapūhas or has not been established "on the balance of probabilities" seems inapt. I acceptthat it is not consistent with tikanga itself. And I accept that tikanga is established bya dynamic consensus, evidenced by the ongoing practice of an iwi or hapū. Giventhat, it seems to me that a court simply has to be satisfied, on the evidence before it,that such a consensus amongst the relevant iwi or hapū prevails at any given time.That is consistent with how New Zealand courts approach the recognition of otherforms of law, such as foreign law.[384] Foreign law is proved as a matter of fact to the satisfaction of the Judge.665 TheCourt of Appeal has stated foreign law must be pleaded and proved "as a fact to thesatisfaction of the judge by expert evidence or sometimes by certain other means".666It cannot be decided based on precedent as it is a question of fact rather than law.667 Itis typically proved by expert evidence.668 Evidence of foreign law in New Zealandcourts is governed by s 144 of the Evidence Act 2006. Under that provision, foreignlaw may be proved by expert evidence, copies of laws, relevant governmentdocuments, law reports, and other "reliable source[s] of information" in the Judge'sview. I consider the New Zealand courts can usefully take the same approach of beingsatisfied as to the content of tikanga, based primarily on the evidence or commentaryof pūkenga.[385] Professor Richard Boast in Māori Land Law notes that foreign law needs to beproved by qualified experts, and that "logically, the same should be true of indigenouscustomary law".669 The Privy Council in Angu v Attah stated that:670As is the case with all customary law, it has to be proved in the first instanceby calling witnesses acquainted with the native customs until the particular665 M Pawson Laws of New Zealand Proof of Foreign Law (online ed) at [272], citing BilgolaEnterprises Ltd v Dymocks Franchise Systems (NSW) Pty Ltd [2000] 3 NZLR 169 (CA), reversedby Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289 (PC); Mount Cook(Northland) Ltd v Swedish Motors Ltd [1986] 1 NZLR 720 (HC) at 726; and Apple Computer Incv Apple Corps SA [1990] 2 NZLR 598 (HC) at 602.666 Schaeffer v Murren [2020] NZCA 224 at [28], citing Lord Collins (ed) Dicey, Morris and Collinson the Conflict of Laws (15th ed, Sweet & Maxwell, London, 2012) at [9R-001]. See also SkyeCourt Pty Ltd v Mason CA6/03, 18 June 2003 at [10].667 M Pawson Laws of New Zealand Proof of Foreign Law (online ed) at [272].668 At [274].669 Boast Māori Land Law at [2.2.5].670 Unreported, see Boast Māori Land Law at [2.2.5].162customs have, by frequent proof, become so notorious that the Courts will takejudicial notice of them.[386] Similarly, Moore J reinforced in Ngāti Hurungaterangi v Ngāti Wahiao thattikanga concepts are "evidence-based matters of fact", unless the specific custom "hasbecome so 'notorious' as to no longer require proof".671 This is analogous to foreignlaw which must be proved by "an appropriately qualified expert".672 The EnvironmentCourt has stated that it is "well settled that Maori customary law is treated as analogousto foreign law and is a matter of fact to be proved by appropriately qualifiedexperts".673 "[F]ruitful source[s]" for proving and interpreting tikanga include expertevidence and the reports of the Waitangi Tribunal.674[387] So, in Te Weehi v Regional Fisheries Officer, custom was proved by theevidence of University lecturers and kaumātua.675 In Arani v Public Trustee, the PrivyCouncil relied on decisions of the Māori Appellate Court and an affidavit from arangatira.676 In short, as Profesor Boast says, custom should be "rigorously proven"and New Zealand courts have "adhered closely to the 'foreign law' analogy" forreception and proof of tikanga.677[388] That is consistent with tikanga being law, even if it is proved as fact. A balanceof probabilities test can only apply to questions of fact.678 And, as Elias CJ pointedout in Z v Dental Complaints Assessment Committee, "[t]he notion of flexibility inapplication of the civil standard is confusing and disputed even among judges of highstanding".679[389] As the Court of Appeal has said in a different context, "[t]he phrase 'issatisfied' means simply 'makes up its mind' and is indicative of a state where the Court671 Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378 at [176]; andBoast Māori Land Law at [2.2.5].672 At [171]; and Boast Māori Land Law at [2.2.5].673 Land Air Water Association v Waikato Regional Council [2001] 7 NZED 26 at [394].674 At [395]–[397].675 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC).676 Arani v Public Trustee [1920] AC 198 (PC).677 Boast Māori Land Law at [2.2.5] and [2.25].678 Saifiti v Commissioner of Police (1992) 7 CRNZ 695 (HC) at 697.679 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [4].163on the evidence comes to a judicial decision."680 The Court of Appeal has also said theneed to be satisfied "calls for the exercise of judgment" by a court and "[i]t is inapt toimport notions of the burden of proof and of setting a particular standard".681[390] I doubt there is much practical difference between proving on the balance ofprobabilities that a consensus exists in an iwi or hapū about tikanga, and a court simplybeing satisfied of that. The crucial point is that the finding expressed by the Court iseffectively about tikanga as determined by the iwi or hapū.VI Mana whenua in Tāmaki Makaurau[391] This Part of the judgment addresses whether Ngāti Whātua Ōrākei has manawhenua in Tāmaki Makaurau in terms of the historical basis for their claim, in termsof the tikanga of Ngāti Whātua Ōrākei and in terms of tikanga more generally.A Historical evidence[392] In these proceedings, several parties sought to impugn the evidence of variouswitnesses about the historical narrative which underlies the Ngāti Whātua Ōrākeiclaim to mana whenua. For example:(a) Dr Vincent O'Malley was tasked under cross-examination by MsCoates with explaining a difference in tone and emphasis of his brief ofevidence formulated for Ngāti Whātua Ōrākei with his Te Wherowheroreport, written to support Waikato-Tainui in their direct negotiationswith the Crown in 2014.682 She submits little weight should be givento his evidence which was Ngāti Whātua Ōrākei centric and under-emphasised the interests of Waikato-Tainui. Mr Warren also questionsDr Vincent O'Malley's credibility in these proceedings based on hislack of interaction with the Te Wherowhero report.683 Mr Warren680 R v White (David) [1988] 1 NZLR 264 (CA) at 268. See also Nogueira v New Zealand Police[2018] NZHC 1435 at [8]–[15].681 R v Leitch [1998] 1 NZLR 420 (CA) at 428 citing R v White (David) [1988] 1 NZLR 264 (CA) at268. This was endorsed by the Supreme Court in Z v Dental Complaints Assessment Committee[2008] NZSC 55, [2009] 1 NZLR 1, the majority (at [96]) citing R v Leitch, and Elias CJ (at [26])citing authorities relied upon in R v White (David).682 NOE 996/31–997/7 (O'Malley).683 Ngāi Tai ki Tāmaki Closing Submissions, 19 April 2021 [Ngāi Tai ki Tāmaki Closing] [7.15].164submits the confidential nature of that report does not excuse DrVincent O'Malley from ensuring its findings were factored into hisevidence for this case.(b) Ms Coates submits that Professor David Williams' evidence reliedheavily upon the work of Sir Hugh Kāwharu who he acknowledgedcould not be considered independent.684(c) Ms Coates notes that Tāmati Kruger acknowledged he was not, andCharlie Tawhiao and Paul Meredith did not claim to be, experts in thetikanga and customary history of Tāmaki.685(d) Peter McBurney faced explaining, under cross-examination by MrHodder, a marked evolution of his thinking about Tuperiri's raupatubetween his Mahurangi Report, for the Mahurangi and Gulf IslandDistrict Collective completed by the end of 2009, and his report withNat Green for Ngāi Tai ki Tāmaki completed in December 2011.686(e) Mr Hodder submits that the Court was entitled to expect much betterfrom Professor Michael Belgrave on the grounds that he was "prone togratuitous slurs about other witnesses and would endorse or dismissother historians according to whether their views supported histheories".687(f) Ngāti Whātua Ōrākei applied to exclude Te Warena Taua's evidencealtogether on the grounds it was based on privileged information hereceived from Ngāti Whātua Ōrākei before preparing his evidence forNgāi Tai ki Tāmaki and on the basis it was not impartial. I declined theapplication, though I described the meeting and discussions by Te684 NOE 701/6 (Williams).685 NOE 1868/4– 5 and 13–15 (Kruger); NOE 1308/28–1309/29 (Tawhiao); Meredith Brief at [138];NOE 1143/11–15 (Meredith).686 NOE 2814/27-2815/20, and see: NOE 2799/25–32; McBurney Mahurangi Report at 148; andPeter McBurney and Nat Green Ngāi Tai Ki Tāmaki Claims Overview Report (December 2011) at[362].687 Ngāti Whātua Ōrākei Closing at n 5, [2.12], and [6.169].165Warena Taua with Ngarimu Blair, after being engaged by Ngāi Tai kiTāmaki, as "troubling".688 In closing, Ngāti Whātua Ōrākei accused TeWarena Taua's evidence of being plainly partial, speculative, lackingcredibility and intended to denigrate the mana of Ngāti WhātuaŌrākei.689 Ngāi Tai ki Tāmaki rejected the criticism.[393] I take Dr Ward's point that making findings of fact about historical issues inthe 1700s and 1800s at this distance is fraught. I also take his point that both tikangaand traditional tribal histories can differ from each other and competing views canvalidly be held.690 They can also differ over time. As Tāmati Kruger says:691An one must appreciate how things have evolved, how things have changed,how relationships have now evolved from 1840 to now. And so whenexamining what was going on in 1840 and trying to find that semblance in2021, and we can't, because its different, we must not make a judgement thenthat one of them is lying. Is 1840 lying or is 2021 lying? No, no what we'reobserving is humanity in progress, evolution [394] But any accounts of historical events may differ when recounted for differentpurposes, whether given orally on the basis of tribal narratives or written down byhistorians paid for their views. They can be slanted by particular interests at play atany given time as well as the limits of the understanding or experience of thewitnesses. Such tendencies are evidence of human qualities of different peoplefocussing on different things at different times for different purposes. The Courts areused to evaluating evidence by witnesses of fact and expert witnesses in all spheres. Ihave taken the above submissions into account in terms of the weight I accord toparticular evidence. They have not caused me to put aside all the evidence of anywitness. I have evaluated and critically analysed each piece of evidence presented bythe expert and other witnesses in the context of its consistency or inconsistency withthe other relevant evidence. I have attempted to make explicit my assessments inrelation to each piece of evidence, where required.688 Ngāti Whātua Ōrākei Trust v Attorney-General [2021] NZHC 88 at [34].689 Ngāti Whātua Ōrākei Closing at n 5 and [6.132].690 NOE 2077/8–14 (Wilson); NOE 2184/13–23 (Belgrave).691 NOE 1860/6–12.166[395] It is fair to say that I have had more difficulty with Te Warena Taua's historicalevidence than that of other witnesses. But I have also been struck by the approach tohistorical evidence by professional historians contracted to undertake research forclients for purposes of advocacy. On occasion, the presentation of their research canconvey the impression that the evidence has been viewed in the light of a pre-existinghypothesis rather than the other way around. This is a general concern; I do not intendto target any particular witness. In any case, I do not regard the evidence ofprofessional and tribal historians as necessarily any more or less credible or reliablethan each other. As the historical experts agreed:692All historical sources have limitations and should be critically analysed andexamined. Particular forms of evidence should not be privileged over others.[396] As Professor Michael Belgrave says, "[t]here is no such thing as a definitivehistory".693[397] Regarding the Native Land Court, I consider the accounts of the witnesses whogave evidence to be relevant evidence of what witnesses of fact were understood(including by translators) to have said at a time closer to the relevant events than weare now. The historical experts agreed on that. I consider appreciably less weight isdue to the conclusions drawn by the judges in those hearings, who did not hear fromall the relevant potential witnesses, or even iwi, in the context of he most intenseconflict between the Crown and iwi, particularly with Waikato-Tainui and affiliatediwi in Tāmaki Makaurau. I do not discount the Court's conclusions entirely. Theydid, as Mr Hodder submits, constitute application of judicial method to the evidenceof witnesses closer to the relevant events than we are today. But, as Dr O'Malley saidin his Te Wherowhero report:694The Native Land Court has been the object of sustained criticism from theWaitangi Tribunal and many historians for its tendency to impose a simplifiedand simplistic set of rules around determining ownership to lands that ignoredthe reality of a much more complex and intricate customary reality. In manyrespects the Ōrākei judgment provided a template for this kind of approach.An intricate and evolving network of customary rights on the ground wasswept aside in favour of a convenient 'one iwi' ruling.692 Ngāti Whātua Ōrākei Memorandum of Counsel, 17 February 2021; and Te Toru JointMemorandum of Counsel, 22 February 2021.693 NOE 2153/5.694 O'Malley Te Wherowhero at 85.167B The historical basis of mana whenua at Ngāti Whātua Ōrākei tikanga[398] I outlined the historical narrative and traditions of Ngāti Whātua Ōrākei andtheir submissions about tikanga in Part III. I outlined responses to that in Part IV. Inthe course of that I made observations about the historical evidence relied upon, whereI was able to do so. Here I examine the objections in terms of a number issuesregarding the competing historical narrative and traditions in light of the evidenceabout tikanga:(a) the timing of the attacks by Tuperiri and Te Taoū on Waiohua in the1700s;(b) uncertainty as to whether Te Taoū was able to maintain undisputedcontrol over the isthmus in the decades following Tuperiri's attacks;(c) the implications of Ngāti Pāoa occupying any whenua over which NgātiWhātua Ōrākei claim mana whenua;(d) whether Marutūāhu iwi other than Ngāti Pāoa occupied sites on theisthmus after that;(e) whether Tuperiri and Te Taoū conducted a raupatu of Waiohua;(f) the effect of the strategic withdrawal by Ngāti Whātua Ōrākei from theisthmus in the 1820s and 1830s;(g) the significance of the return of Ngāti Whātua Ōrākei under the manaof Te Wherowhero;(h) whether tikanga concerning ahi kā has evolved; and(i) the implications of historical associations with sites, including wāhitapu, in the area over which Ngāti Whātua Ōrākei claim mana whenua.1 The timing of Tuperiri's attacks168[399] Ngāti Whātua Ōrākei say Tuperiri and Te Taoū attacked and defeated Waiohuaaround 1740. Morehu Wilson, implicitly accepts the raupatu occurred in 1740 indiscussing Marutūāhu traditions.695 Te Ākitai Waiohua consider it more likely that theattacks occurred around 1780 to 1790.696 The evidence before me is:(a) In 1869, when Te Kawau died, his nephew Paora Tūhaere said he was"known to be 90; or more than 90", placing his birth in the 1770s.697He estimated the attacks occurred between 1750 and 1755.698(b) Professor David Williams suggests 1760 as the date.699 Mr Hoddercites estimates of the date of the raupatu, consistent with reports of theWaitangi Tribunal Ōrākei Report, Office of Treaty Settlements reportsand other sources, as occurring in:(i) 1740–1750 by Professor Stone;700(ii) 1750 by Percy Smith who said "[f]rom personally knowingmany of the grandsons of those who took part in the subsequentevents, I am inclined to think that 1750 is nearer the date. It isimpossible however to get it correctly";701 and(iii) 1740 or 1760 by Sir George Graham.702(c) In her text Taua in 2003, Dr Angela Ballara suggested the 1740 datederived from Chief Judge Fenton's Native Land Court judgment.Unlike Paora Tūhaere, she assumed Te Kawau was born in the 1790s.Based on that, assumptions about Tuperiri being a contemporary ofHongi Hika's father, and the age of Tuperiri's sons she estimates the695 M Wilson Brief at [63]–[65].696 Te Ākitai Waiohua Closing at [73], citing McBurney Brief at [35]-[36].697 Mangai Uhu Uhu "Ke a te kai tuhi o te Waka Māori" Te Waka Māori (Napier, 16 December 1869)at 40.698 Paul Tūhaere A Paper Giving an Account of the Genealogy of the Ancestors of Ngāti Whātua,handwritten version (undated) at 11.699 NOE 768/18–20.700 Stone From Tāmaki-Makau-Rau at 40.701 Smith The Peopling of the North at 85.702 George Graham MS 120 George Graham papers (1887).169raupatu may have been as late as 1780 or 1790.703 Peter McBurneysuggests the 1740 raupatu is more likely to have occurred around 1780to 1790, based on Ballara's work.704[400] Marutūāhu does not take a stance on this timing. Ngāi Tai ki Tāmaki does notexplicitly take a position on the date of the raupatu either, though Mr Warren notes thedate is contested and far from certain.705 Professor Michael Belgrave, giving evidencefor Marutūāhu Rōpū, considers there are major difficulties in connecting whakapapato dates and, as a result, he does not take a definitive position on when the raupatuoccurred.706 I agree. This is a finely balanced question on which historical sourcesand expert historians do not agree and which a Court is poorly placed to "resolve". Ithas become a matter of tribal tradition. If I had to do so, I would be inclined to placegreater weight on the estimates of those who lived closer to the time such as PaoraTūhaere but there are arguments against doing so. I do not consider I need to resolvethe precise timing of Tuperiri's attacks in Tāmaki Makaurau. If they occurredsignificantly later, that could be relevant to how long Ngāti Whātua Ōrākei enjoyedahi kā until the 1820s. But I do not understand from the tikanga evidence aboutraupatu here that the timing of these events would make a significant difference to theclaim of Ngāti Whātua Ōrākei to mana whenua now in terms of their own tribalnarrative and tikanga, or to those of the other iwi.2 Whether Te Taoū maintained undisputed control after Tuperiri's attacks[401] It difficult to determine as a matter of fact the claim by Ngāi Tai ki Tāmaki thatthere is uncertainty about whether Te Taoū and Ngāti Whātua Ōrākei were able tomaintain undisputed control over the isthmus in the decades following Tuperiri'sraupatu, and the tikanga implications of that. The historical tribal narrative of NgāiTai ki Tāmaki, including the oral history of which Dr Te Kahautu Maxwell givesevidence, suggests they did not. It is a matter of tribal tradition, better argued on amarae.703 Ballara, Taua at 493 n 1.704 McBurney Brief at [36]705 Ngāi Tai ki Tāmaki Closing at [3.37].706 NOE 2176/31–2177/12; and see NOE 2200/7–15.170[402] Ngāi Tai ki Tāmaki also rely on Peter McBurney's evidence. But his viewshave changed over time. His reliance on the killing of Tuperiri's sons by Ngāti Pāoaand their victory at Orohe does not appear necessarily to demonstrate the point. Andthese incidents relate to conflict between Ngāti Whātua Ōrākei and Ngāti Pāoa, fromwhom Ngāti Whātua Ōrākei does not claim take raupatu and with whom Ngāti WhātuaŌrākei has now entered the Kawenata Tapu. Accordingly, it is not clear to me thatthey undermine the claim to mana whenua by Ngāti Whātua Ōrākei as a matter oftikanga, as I explain next.3 The claims of Ngāti Pāoa and Marutūāhu Rōpū[403] I do not consider I need to resolve disputes which concern occupation by NgātiPāoa of the area over which Ngāti Whātua Ōrākei claim mana whenua. Ngāti Pāoaand Ngāti Whātua Ōrākei have concluded their own tikanga-consistent resolution oftheir respective areas of "lead mana whenua". No Ngāti Whātua Ōrākei, MarutūāhuRōpū and Ngāti Pāoa witness who addressed the implications of the Kawenata Tapuand Agreement disputed their validity in terms of their respective tikanga. Ngāti Pāoadoes not now dispute Ngāti Whātua Ōrākei having "lead mana whenua" over the areain which they claim it in this proceeding. Indeed, Ngāti Pāoa recognises the claim.Ngāti Pāoa is also fierce in its assertion of independence from Marutūāhu Rōpū in thisregard. There is no suggestion that is inconsistent with tikanga.[404] So, to the extent that the objections by Marutūāhu Rōpū to Ngāti WhātuaŌrākei mana whenua rely on the occupation, actions and tikanga interests of NgātiPāoa, they appear currently to be settled by the Kawenata Tapu and ConciliationAgreement between Ngāti Pāoa and Ngāti Whātua Ōrākei in terms of the tikanga ofboth of those iwi. That appears to me to apply to the issues of:(a) whether Waiohua or Te Taoū invited Ngāti Pāoa to live in the Waitematāat the time of the alleged tuku whenua or "wedding gift" in 1780 andwhether Ngāti Pāoa needed any such tuku;(b) whether, as Morehu Wilson says, Ngāti Pāoa lived in pā and kāinga,engaged in battles, and mutually recognised shared resource-gathering171areas with Ngāti Whātua Ōrākei in the 1700s and 1800s on the Tāmakiisthmus until the Ngāpuhi incursions in the 1820s;(c) whether, as Hauāuru Rawiri and Morehu Wilson say, at peacegatherings around 1835, Kahukoti of Ngāti Pāoa effectively permittedNgāti Whātua to stay at Ōrākei on their return to the isthmus; and(d) whether, as Ted Andrews and Joe Tupuhi say, the ahi kā of Ngāti Pāoahas never gone out in Ōrākei, Kohimarama and Ōkahu.7074 Other Marutūāhu iwi claims[405] It is difficult to determine as a matter of fact, on the basis of the evidence beforeme, the implications of Morehu Wilson's evidence that other Marutūāhu iwi hadcultivations and settlements at the pā and kāinga where he says Ngāti Pāoa livedthrough the 18th and 19th centuries until the early 1820s.708 I have little context aboutthese sites, including when they were occupied, by which iwi and whether they wereoccupied again after the 1830s return. The same applies to the tradition of NgaatiWhanaunga harvesting a beached whale at Tokaroa – Te Ara Pekapeka a Ruarangi.[406] It is, accordingly, difficult for me to determine the historical basis ofMarutūāhu iwi other than Ngāti Pāoa having interests over these sites at tikanga, andwhether they approach ahi kā roa and mana whenua in the same sense in which NgātiWhātua Ōrākei uses those concepts. And the historical experts have agreed that"[b]efore 1840, in general terms, tribal boundaries were often fluid or poorly definedand sometimes intersected or overlapped". More detailed evidence and inquiry wouldbe required in relation to each site. Again, these are matters of conflicting tribaltraditions better discussed on marae.5 The continuation of Waiohua707 Andrews and Tupuhi Brief at [30]–[33]. See also M Wilson Brief at [112]; Maxwell Brief at [159].708 M Wilson Brief at [58].172[407] I accept that Tuperiri's attacks did not result in the extinguishment or extinctionof the Waiohua people. Clearly they did not, because everyone accepts Ngāti WhātuaŌrākei subsequently married Waiohua people. And Te Ākitai Waiohua exists today.But, as Mr Derby acknowledges, the dominant narrative is that there was a raupatu, orconquest of Waiohua by Tuperiri and Te Taoū. That is reflected in the evidence beforeme. Professor Stone's work, on which Te Ākitai Waiohua relies, suggests the hapūstructures of Waiohua were "eliminated" by the raupatu. He suggests Te ĀkitaiWaiohua returned as a "remnant" in the later decades of the 18th century. Mr Derbyrelies on Lucy Macintosh's work for the Manukau City Council that "Te ĀkitaiWaiohua re-established itself in the 1820s and the Te Ākitai Waiohua territory includedPūkaki and extended north towards Onehunga".709 The views of these Pākehāhistorians is that Waiohua did not survive the raupatu with its tribal structuressubstantially intact. But that does not appear consistent with their tribal tradition.[408] David Wilson Takaanini's authoritative evidence for Te Ākitai Waiohua, as adirect descendant of Kiwi Tāmaki, is that their ancestors "re-established" themselvesin the 19th century. He says that happened in and around Māngere, which is where TeĀkitai Waiohua is based today. His evidence is:[29] Te Ākitai have an enduring connection with central Tāmaki, the areaoccupied by our tupuna. Our identity is tied to Kiwi Tāmaki and the whenuato which he and his ancestors belonged. This cannot be broken.[30] Te Ākitai Waiohua also maintained a whakapapa connection to the landthrough subsequent strategic marriage between Ngāti Whātua and theWaiohua people that occurred after the battle between Kiwi Tāmaki and TeTaou.[409] Overall, the evidence before me does not suggest that the tikanga interests ofTe Ākitai Waiohua constitute ahi kā and mana whenua in the way Ngāti Whātua Ōrākeiconceive of it or impugn the ahi kā and mana whenua of Ngāti Whātua Ōrākei in theway Ngāti Whātua Ōrākei conceive of it. But neither does the evidence of the interestsof Te Ākitai Waiohua in specific sites in this area at their tikanga and on the basis oftheir tribal traditions suggest they accept the tikanga conceptions of Ngāti Whātua709 Derby and Rother "Te Ākitai Waiohua Customary Interests" at 15, citing Lucy Mackintosh"Shifting Grounds: History, Memory and materiality in Auckland Landscapes c. 1350 – 2018"(Thesis submitted for Doctor of Philosophy in History, University of Auckland, 2019) at 44. Seealso Lucy Mackintosh Shifting Grounds: Deep Histories of Tāmaki Makaurau Auckland (BridgetWilliams Books, Wellington, 2021) at 38.173Ōrākei. And Te Ākitai Waiohua does not seek declarations from the Court about theirown tikanga and traditoins.6 The implications of strategic withdrawal in the 1820s-1830s[410] There is a question as to the effect of the departure by Ngāti Whātua Ōrākeifrom Tāmaki after or around 1826. It is not disputed that Ngāpuhi did not establishahi kā in Tāmaki in that period. So I do not consider that, at tikanga as Ngāti WhātuaŌrākei conceive it, and in terms of Ngāti Whātua Ōrākei tribal narrative and traditions,the ahi kā roa and mana whenua of Ngāti Whātua Ōrākei was extinguished. But I havelittle contextual information or supporting evidence for Mr Brown's suggestion thatNgāti Rau, a Ngāi Tai ki Tāmaki hapū, maintained a presence on the isthmus duringthe Ngāpuhi incursions. That would require more examination to resolvesatisfactorily, preferably on a marae. Ngāi Tai ki Tāmaki do not seek that examinationby the Court.[411] There is no suggestion that the temporary withdrawal by any of the iwi fromTāmaki Makaurau in the 1820s and 1830s affected their interests in the area at tikanga,as each of them conceive of it.7 Return under Te Wherowhero's protection[412] Mr Warren submits there is uncertainty about the significance of the return ofNgāti Whātua Ōrākei under the mana of Te Wherowhero. Te Warena Taua's evidenceis that Ngāti Whātua Ōrākei was able to seek refuge in Waikato due to their Waiohuaconnections. And, as Ms Coates submits, it seems clear that Te Kawau's return wouldnot have been possible, at least at that point, without the protection of Te Wherowhero.As Mr Hodder submits, the evidence to the Native Land Court of Matire Toha, aNgāpuhi women married to Kati, supports the proposition that there was an alliancebetween Te Kawau and Te Wherowhero.710[413] The personal mana of Te Wherowhero is unquestioned. And what NgātiWhātua Ōrākei say was a gift by Te Kawau to Kati, of lands at Pukapuka, is another710 Native Land Court Ōrākei MB 2 at 36–55.174matter. But there is no evidence before me in these proceedings that, by protectingNgāti Whātua Ōrākei and other iwi who returned to Tāmaki, Te Wherowhero and/orWaikato-Tainui acquired or asserted mana whenua over all the land that those iwi thenre-occupied in Tāmaki, in the sense in which Ngāti Whātua Ōrākei conceive of manawhenua. Neither does the evidence suggest they asserted mana whenua on the basisof Te Wherowhero's protection of the new capital of Auckland in the 1840s.[414] When Te Whakakitenga o Waikato Inc indicated their support of the positionof Ngāti Whātua Ōrākei in this case in May 2018, Ngāti Whātua Ōrākei was seekingdeclarations of their ahi kā and mana whenua in the area at issue. But their challengethen focussed on the Crown's specific decisions to offer land in that area to MarutūāhuRōpū and Ngāti Pāoa. The position of Waikato-Tainui regarding the declarations nowsought by Ngāti Whātua Ōrākei has not been formally put before the Court. Waikato-Tainui are not a party in these proceedings. Kiingi Tuuheitia and Waikato-Tainui cameto court in support of the opening of the case of Ngāi Tai ki Tāmaki. I do not makeany findings about the mana whenua or other tikanga interests of Waikato-Tainui.8 Has tikanga regarding ahi kā evolved?[415] Mr Warren submits that, for Ngāi Tai ki Tāmaki today, ahi kā is better definedby a spiritual connection together with the fulfilment of cultural and legalresponsibilities in a modern context. He relies on Te Mātāpunenga.711 He points tothe evidence of Te Warena Taua and Dr Te Kahautu Maxwell that the terms ahimataotao and tahutahu are not used within the isthmus.712[416] I do not understand the position of Ngāi Tai ki Tāmaki to affect the pre-colonisation requirements of tikanga. As the entry for ahi kā in Te Mātāpunengasays:713Entry Guide. 'Keeping fires alive', as a metaphor for the active exercise ofrights of occupation, is seen by many commentators as a prerequisite for botha legitimate claim to a particular tract of land and to tāngata whenua status ina district. The metaphor itself appears to have reflected a concrete reality,although buildings, boundary posts, cultivations and burial grounds would711 Te Mātāpunenga at 33.712 NOE 2567/3-15 and 2655/20-2656/10 (Taua) and 2743/22-31 (Maxwell).713 Te Mātāpunenga at 33.175also be evidence of sustained occupation. The concept of ahi kā was codifiedby the Native Land Court and other judicial bodies, but the Court'sinterpretation of the custom was regarded by some Māori authorities as havingover-simplified a complex issue. Thus, while occupation was conceded to beimportant, arguments were advanced that ancestry had also to be taken intoaccount. Nonetheless, continuous possession in itself appears to have been akey factor in the assertion of customary rights to land in both Aotearoa andother parts of Polynesia.[417] Nor do I understand the position of Ngāi Tai ki Tāmaki to be inconsistent withthe position of other iwi about the effect of colonisation on tikanga in contemporarytimes. As the pūkenga agree, "tikanga are shaped by each iwi's historical narrativesand thus the application of tikanga cannot be examined and understood without thatcontext", and "the historical context includes the disruption of colonisation and itsimpact on iwi and their ability to exercise their tikanga".714[418] There is nothing to suggest the responsibilities of an iwi or hapū to whenuaover which they have ahi kā, signifying their continued presence, cannot be fulfilleddespite non-Māori ownership of that whenua. The key appears to be the notion ofpermanency of presence said by Ngāti Whātua Ōrākei, on the basis of the evidence ofTāmati Kruger and Te Kurataiaho Kapea, to be the fundamental underlyingdistinguishing feature – perhaps a tāhuhu of ahi kā compared with ahi tahutahu or ahimātaotao.715 The changing nature of ahi kā does not appear to undermine the claim ofNgāti Whātua Ōrākei in terms of the tikanga and tribal history and tradition of NgātiWhātua Ōrākei.9 Historical associations[419] Finally, it is clear that Marutūāhu iwi, Ngāi Tai ki Tāmaki and Te Ākitai deeplyvalue their various spiritual, ancestral and historical connections with sites, includingwāhi tapu – their deep hononga – in the area over which Ngāti Whātua Ōrākei claimmana whenua. But Ngāti Whātua Ōrākei does not dispute that other iwi haveconnections and relationships with sites in central Auckland. They deny that other iwihave mana whenua at tikanga and they deny that what other iwi have is equivalent toor displaces the mana whenua of Ngāti Whātua Ōrākei in the area at issue. The714 Ngāti Whātua Ōrākei Pūkenga Summary and Te Toru Pūkenga Summary, point 2.715 Kruger Brief at [106]; NOE 111/29-30 (Kapea).176historical associations to the whenua by other iwi is not, itself, inconsistent with theclaim of Ngāti Whātua Ōrākei to mana whenua as they conceive it.10 Summary of historical tribal narratives and traditions[420] The evidence and submissions suggest the Ngāti Whātua Ōrākei tribalhistorical narrative and tradition is clear, coherent, and consistent in terms of thetikanga of Ngāti Whātua Ōrākei.[421] The objections of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmakiand Te Ākitai Waiohua are in the nature of different tribal historical narratives andtraditions. As indicated above, more information would be required to reconcile someaspects of their objections to the historical narrative and tikanga of Ngāti WhātuaŌrākei: the timing and nature of the raupatu in the mid-18th century; whether Te Taoūmaintained undisputed control thereafter; whether Marutūāhu iwi other than NgātiPāoa had cultivations and settlements in the area at issue in the 18th and 19th centuries;whether Te Ākitai Waiohua survived the raupatu with their tribal structuressubstantially intact; whether Ngāti Rau maintained a presence in the area at issueduring the 1820s and 1830s and the significance of that; the effect of iwi returning tothe isthmus with the protection of Te Wherowhero.[422] Whether Ngāti Whātua Ōrākei, Marutūāhu Rōpū (other than Ngāti Pāoa), NgāiTai ki Tāmaki and Te Ākitai Waiohua wish to reconcile their tribal histories andtraditions and whether it occurs in a tikanga consistent manner, is up to them. It seemsto me to be better explored on a marae than by a Court. I do not attempt to reconcilethe different historical narratives and traditions in the judgment.C Mana whenua in Tāmaki Makaurau at tikanga Māori[423] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua also object to theclaim by Ngāti Whātua Ōrākei that their conception of ahi kā roa and mana whenua isvalid in terms of the tikanga of other iwi and at tikanga Māori. At the heart of thisissue is whether mana whenua is an exclusive or non-exclusive concept at tikanga. Itis also directly related to the commonality of tikanga regarding mana whenua acrossiwi and hapū.177[424] The evidence of the pūkenga and other witnesses called by Ngāti WhātuaŌrākei is clear and consistent in their account of take raupatu, reinforced by taketupuna, followed by ahi kā roa in creating mana whenua. It is clear and consistent insaying that mana whenua is generally exclusive, except in fringe or contested areas orby agreement; it is not shared, particularly in a group's heartland or core rohe. NgātiWhātua Ōrākei say their tikanga is entirely consistent with tikanga Māori moregenerally. Ngāti Pāoa supports that in the terms noted above. So do Ngāti Kurī andNgāi Te Rangi.[425] I have no doubt that mana whenua, as the strongest "interest" at tikanga in the"heartland" or ūkaipō of an iwi, and central to their identity, is currently a real androbust aspect of the tikanga of Ngāti Whātua Ōrākei and some, perhaps many, but notnecessarily all, other iwi. This is consistent with the evidence of the independentpūkenga called by Ngāti Whātua Ōrākei from outside Tāmaki Makaurau: TāmatiKruger, Paul Meredith and Charlie Tawhiao. For example, in more detail, TāmatiKruger's evidence in chief is:716107 It is possible for an iwi or hapū to have ahi kā roa within its rohe butalso have areas of ahi mataotao. It is equally possible that an iwi orhapū with ahi kā roa can allow another group into its rohe, such thatthat group can establish an ahi mataotao connection.108 That is a natural consequence of the way in which Māori society wasconfigured. As I've mentioned the centre of an iwi is its hapū orcommunity and so it is there that the iwi's power is concentrated.Physical centres of the hapū then become sites of power, authority andinfluence within the iwi's rohe (heartland). These sites comprised of amarae ātea, which was reserved for political debate and decision-making, papakāinga, which contained the family homesteads and thevillage, pā being the wider neighbourhood and includes any gardensand areas of industry such as fishing and clothing production and urupā,the burial sites. Geographically then, most members of the iwi wereconcentrated in the centre of the rohe, as was the power and authorityof that group. Towards the boundaries of the site of influence therewould be a decentralising of power and so there any influence andpower over whenua along the margins of the boundary would be sharedwith neighbouring iwi.109 The ability of an iwi to protect or control its rohe is due to the strengthof its ahi kā concentrated at the centre of its rohe. The limit of thatexclusive authority is reflected in the land: an iwi would not likelycontend that they held ahi kā roa in an area where they could not, forexample, send troops to defend it or gift a portion of it to secure a716 Italics of Māori words omitted.178marriage or other alliance. Those limits should not be considered asboundaries in the Pākehā sense where they are fixed lines on maps. Iwiboundaries were often marked by natural features such as rivers,streams, plains and mountains, but these physical markers were just oneconsideration in defining the rohe of an iwi. The influence andauthority of that iwi was equally significant.110 An iwi can also maintain influence in land that is beyond its area ofexclusive interests. That influence would usually be maintained bysomething other than tāngata whenua status, such as a marriage (inother words, a particular person is not 'of' that particular land, but mayseek to influence what happens there by way of marital alliances).111 Beyond the areas of exclusive interest, and the area of influence, iwican claim shared interests with other iwi. Those interests would oftenbe located at the true limits of the rohe of a particular iwi, where two ormore iwi may reciprocally acknowledge each other's interests.[426] In his evidence in reply, Tāmati Kruger says:17 I agree with Dr Maxwell and Mr Mikaere (at paragraphs [148]-[156] and[41] respectively) that mana whenua can sometimes be shared. Howeverto my mind there is no such thing as "shared mana whenua" over an iwi'sheartland, or core rohe. Iwi are a territorial, cultural, political, economicnations, where iwi and hapū connect closely to land and other naturalresources within a specified territory. A territory always has a heartland,and the heartland with landmarks is in turn a crucial aspect of the identityof an iwi. It is the place of origin, existence and future of the iwi and isfilled with strong whanaungatanga connection traces between the iwi andthe land. Simply put, if there was no heartland, there would be no iwi.The tribal structure is a kinship organisation layered by iwi, hapū, whānauinherent to their culture.18 And iwi have strong connection to their heartland, which is where theywill have undisputed mana whenua, mana tangata. "Shared manawhenua" cannot be accommodated within this paradigm, except towardsthe extremities of the territory of an iwi, where shared interests is mostobvious within another iwi. These areas are roha rōhai, or shared interestsas I referred to in my earlier statement and addressed the tikangaimplications of such places being shaken by the ebb and flow of politicsand the fortunes and misfortunes of life.19 An iwi can still access the resources from the heartland of another iwi.But accessing resources on this land does not confer mana whenua, ratheracknowledges whakapapa connections. They are still consideredmanuhiri / rāwaho (outsider or non-local), and the iwi with mana whenuaare the tāngata whenua. The tāngata whenua exercise and express theirmana whenua by controlling, operating and managing the terms ofconditions of access to natural resources.[427] Charlie Tawhiao says:179(a) mana whenua is central to iwi identity, which is intimately bound toplace;717(b) "[i]f all their mana whenua is shared, then they have no identity that isseparate from those who they share it with";718(c) there can be no "layering" of mana whenua although there can belayering of lesser interests alongside mana whenua, according totikanga.719[428] As Ngāti Whātua Ōrākei submits in closing:720Mana whenua is best expressed as the responsibility for exercising exclusivecultural authority in a specific rohe or location. It is both the exercise of powerover the land, and a corresponding responsibility for the land. The use of theterm mana also means that mana whenua is central to iwi identity. Iwi existas unique entities not just because of their specific whakapapa but also becauseof their very specific relationship with a place or whenua. Iwi identity isintimately bound to place. It is that relationship with a place or whenua thatdefines mana whenua. And because mana whenua is central to iwi identity itis fiercely defended.721[429] The evidence supporting this in terms of the tikanga and tribal narrative andtraditions of Ngāti Whātua Ōrākei is given by their own witnesses, Te KurataiahoKapea, Taiaha Hawke, Margaret Kawharu and Ngarimu Blair. It is consistent with thepublished and unpublished writings of its distinguished kaumātua and leading scholarand anthropologist, the late Professor Sir Hugh Kāwharu. As Ngāti Whātua Ōrākeisays, in their tikanga, the principle of mana whenua is:722Ngāti Whātua Ōrākei has mana whenua over its heartland, or ūkaipō. Manawhenua is the responsibility for exercising cultural authority, and includes thefollowing (which is not intended to be an exhaustive list):(a) the authority to grant rights of use or access to its heartland and itsresources;723717 Tawhiao Brief at [28].718 NOE 1235/10-12 (Tawhiao).719 Tawhiao Brief at [47].720 Ngāti Whātua Ōrākei Closing at [5.57] (footnote included).721 Tawhiao Brief at [27]–[28].722 Ngāti Whātua Ōrākei Closing at [5.109] (citations included).723 Kruger Brief at [119]; Kruger Reply at [19].180(b) the authority to withhold such access, including through imposition ofrāhui;724(c) the authority to recognise, and the responsibility to protect, thecultural connections of other iwi within the heartland;725(d) the responsibility of welcoming manuhiri and caring for them;726(e) the responsibility of kaitiakitanga towards the whenua.727[430] Sir Hirini Mead's text Tikanga Māori suggests 11 requirements to establishingmana whenua today:7281. Mana whenua is achieved by military action (take raupatu, take ringakaha, take pakihiwi kaha) that displaces the people and their leaderswho occupied that estate, extinguishes their rights of occupation anduse of the land and establishes a new group of occupiers. 2. Mana whenua is based on occupation by a group of people over anarea of land they settle on for several generations (take ahikāroa).Ultimately this land becomes the rohe, or tribal estate, of the newgroup. Rapata Wahawaha is of the opinion that ahikāroa by itself isinsufficient to clinch a claim; it needs to be supported by take tipuna(ancestral right).3. Military action by itself is usually not sufficient to extinguish all rightsto the land. Usually the new leaders marry women of the land toritually secure the land and bring it under the control of newleadership. This tikanga might be called 'take moe whenua'. It isbased on the notion that the hau (spiritual essence) of the land restswith the women of the land. They carry within them the essence andsignificance of what whenua is about. Whenua is to sustain the life ofa growing infant in the womb. Out in the world of light the whenuasustains the people and provides for each individual a place for one'sfeet to stand upon, tūrangawaewae. This land is home. The claim tothe land based on take tipuna (ancestral claim) is more highly valuedthan any other take and this is an important point. It is also fair to saythat if the new leaders do not marry into the land, the conquering iwigoes to extraordinary lengths to try and extinguish tāngata whenuarights totally.4. Acknowledgement by neighbouring iwi is required to validate the newpolitical reality that now controls the estate. This is an important partof the validating process so that occupation is seen to be accomplishedthrough complying with the tikanga relating to land acquisition.5. The estate should be able to meet the basic needs of the new group ofoccupiers as well as those former citizens who were allowed to724 Tawhiao Reply at [15]; Meredith Reply at [8.3].725 Tawhiao Reply at [25] and [28].726 Kruger Brief at [119].727 Meredith Brief at [87]; Tawhiao Brief at [30].728 Mead Tikanga Māori at 306–308.181remain, usually because of the skills they possessed and sometimesthrough family connections – whanaungatanga.6. The new iwi/hapū needs to establish alliances that will help validateits occupation, increase its military strength and at the same time setup trade relationships for resources and taonga that the local peopleneed from others.7. The new group sets in place systems such as a leadership structure,kāinga arrangements, organisations to carry out collective tasks,training schools and arrangements that allow each whānau to lookafter itself. It will require every hapū to have a group of able-bodiedmen and women ready to respond to military attacks and ready to joinin iwi-wide enterprises such as large-scale fishing, building a meetinghouse, establishing village sites or in earlier times hurriedly buildingdefensive fighting pā.8. Once its systems are developed and are in place, the new group is ableto defend its rohe against others and over several generations. 9. With all of these in place mana whenua is secured, and the people areable to live in relative peace, tend to their gardens and food-gatheringactivities, practice their arts, establish well-organised kāinga, buildhouses and waka of various kinds, grow their population, look afterthe sick and wounded and ensure that the people are on side with thespiritual world.10. Members of the next generation are able to claim the land on the basisof ancestral rights established through take moe whenua and nowbecome take tipuna, as claims through take ringa kaha are valid butless so.11. The people and their leaders are able to enjoy rangatiratanga; thussecuring mana whenua is the first step towards being able to exerciserangatiratanga over the people of the land. Others may argue that thechief's writ kicks in from the moment of occupation, but I argue thatthis occurs over time when mana over the land has been validated andaccepted by other iwi. There is a process to establish mana whenuaand it takes time.[431] As Mr Majurey emphasises, Sir Hirini's fourth requirement suggestsacknowledgement of the mana whenua of an iwi is important to its validity at tikanga.With two exceptions, the evidence before me is that the neighbours of Ngāti WhātuaŌrākei participating in these proceedings do not recognise or acknowledge the manawhenua of Ngāti Whātua Ōrākei over the whole area over which they claim it. Theexceptions are:(a) Ngāti Pāoa recognises the mana whenua of Ngāti Whātua Ōrākei overthe area at issue in the Kawenata Tapu and Conciliation Agreement.182That has weight due to the strength of the potential claims of Ngāti Pāoain the area.(b) My understanding is that Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and TeĀkitai Waiohua agree that Ngāti Whātua Ōrākei has mana whenua inthe terms Ngāti Whātua Ōrākei conceive of that, at their heartland ofŌrākei:(i) Mr Majurey submits "[f]or Marutūāhu, there is no challenge tothe identity of Ngāti Whātua Ōrākei being centred at Ōrākei".729(ii) Ngāi Tai ki Tāmaki acknowledge Takaparawhau/Ōrākei, wherethe marae of Ngāti Whātua Ōrākei sits, consistent with its name,as the heartland of Ngāti Whātua Ōrākei.730(iii) Te Ākitai Waiohua notes the evidence suggests the "heartland"of Ngāti Whātua Ōrākei is at Ōrākei, where they have theirstrongest association.731[432] Otherwise, and elsewhere, the lack of recognition by other iwi that NgātiWhātua Ōrākei holds mana whenua is a potential problem for Ngāti Whātua Ōrākei interms of tikanga Māori. Mr Hodder submits there was no credible contest ofrecognition until the modern Treaty settlements, which affect the relevance of the needfor recognition, and may explain why recognition may not be forthcoming. No doubtthe context of Treaty settlements exacerbates the tensions. However, the Native LandCourt proceedings in the 1860s illustrate that such tensions have been present for sometime. And Treaty settlements can hardly affect the need for recognition by others ifthat is required at tikanga. I take the evidence from Ngāti Whātua Ōrākei to be sayingthat recognition by other iwi is not a pre-requisite for Ngāti Whātua Ōrākei to havemana whenua in terms of their own tikanga. Implicit in the terms of the declarationthey seek is that it is also true at tikanga Māori and at the tikanga of other iwi.729 Marutūāhu Closing at [55].730 Ngāi Tai ki Tamaki Closing at [2.12]; citing NOE 1900/13–30.731 NOE 62/18–28 (Kapea)183[433] Whatever effects a Court declaration might have, including regarding the legalincidents of mana whenua, it is difficult to see how it could purport to constitute orrequire recognition of mana whenua by another iwi if that would be inconsistent withtheir own tikanga and/or their own tribal traditions and history. That would beinconsistent with the nature of tikanga and its relationship to the law declared by courtsexamined in Part V. This is also directly related to the implications of the tikanga ofdifferent iwi being different in their conceptions of the exclusivity or non-exclusivityof mana whenua.[434] Ngāti Whātua Ōrākei say that their tikanga is entirely consistent with therelevant general principles of tikanga Māori. Ngāti Pāoa support the conception ofmana whenua put forward by Ngāti Whātua Ōrākei. But Marutūāhu Rōpū, Ngāi Taiki Tāmaki and Te Ākitai Waiohua (Te Toru) object. They accept that Ngāti WhātuaŌrākei have tikanga interests in the area over which they claim mana whenua. But TeToru do not accept that Ngāti Whātua Ōrākei has mana whenua that overrides or issuperior to their own tikanga interests in that area. And Mr Warren, for Ngāi Tai kiTāmaki, disagrees that ahi kā or mana whenua are underpinning principles of tikanga– rather, they are what manifests if a tribe adheres to the underlying principles.732[435] Counsel for Te Toru point to the evidence of their pūkenga that, for them, manawhenua can often be shared and is not an exclusive concept.733 There are also otherauthoritative statements that doubt the nature of mana whenua in general. In 1994, SirEdward Taihakurei Durie observed:734Some Māori have adopted the opinions of the early European writers. Thisincludes and may apply especially to Māori academics. This, and thevoluminous, archival record expressing the Pākehā view, makes the truth yetharder to ascertain. The current constructs of hapū acting collectively asnational states and exercising mana whenua or dominion over definedterritories may owe more to European influence than we may care to admit.While significant rangatira had influence from time to time over widelydispersed hapū, it is arguable that their control depended upon their personalmana and not on political land boundaries. Their mana could come and goand arguably, their influence was over people rather than land. Again, I amnot suggesting there was no sense of unity amongst the people of descentgroups, but that the nature of the unity must be seen in Māori terms. It is one732 Notes of Closings 247/7/9.733 Ngāi Tai ki Tamaki Closing at [3.61]–[3.64]; Te Ākitai Waiohua Closing at [14]; and MarutūāhuClosing at [53].734 E T Durie "Ethics and Values in Māori Research" (1998) 4 He Pūkenga Kōrero 19 at 2223.184thing to equate this unity with dominion at English law, but quite another toreconstruct Māori society to make it fit.[436] The Waitangi Tribunal has made several observations about mana whenua thathave evolved over time and between different Tribunal panels. In 2001, a WaitangiTribunal comprising Chief Judge Durie, John Kneebone, Professor Gordon Orr andMakarini Temara, issued the Rēkohu Report. The report condemned the term "manawhenua" as doing "violence to traditional ethics".735 It criticised the inclusion of theterm in legislation, going as far as to state that statutory reference to mana whenua wascontrary to the principles of the Treaty.736 It stated:737The term "mana whenua" appears to have come from a nineteenth-centuryMāori endeavour to conceptualise Māori authority in terms of the Englishlegal concepts of imperium and dominium. It links mana or authority withownership of the whenua (soil). But the linking of mana with land does not fitcomfortably with Māori concepts. Recent research tends to agree that the term"mana whenua" itself does not appear in the early records about customaryrights to land. ... These opinions confirm that the term "mana" was personaland was used in regard to the influence or authority of chiefs. Other opinionscompiled in the Appendix consider that mana whenua was a nineteenth-century invention. Crown counsel likewise challenged – we think correctly –its use to describe the general authority of a particular group over any area ofland.We are inclined to think that the term "mana whenua" is an unhelpfulnineteenth century innovation that does violence to cultural integrity.However, subject to such arrangements as may have been settled by the peoplethemselves, our main concern is with the use of the words "mana whenua" toimply that only one group can speak for all in a given area when in fact thereare several distinct communities of interest, or to assume that one group has apriority of interest in all topics for consideration. Some matters may rightlybe within the purview of one group but not another. As far as Moriori areconcerned it is clear that they retain a customary interest in their ancestrallands and cannot be denied the right to be heard thereon.[437] In 2004, a Tribunal comprising Sir John Clarke, Dame Alamein Koopu, JudgeRichard Kearney, Professor Sorrenson and the Hon Michael Bassett (dissenting), inthe Tauranga Moana Raupatu Report, endorsed that view, stating:738We also endorse the Rēkohu Tribunal's concerns about the use of the term'mana whenua', particularly when it is used to assert that one group hasexclusive authority within a particular area. Māori custom was characterised735 Waitangi Tribunal Rēkohu Report at 11.736 At 260.737 At 28 (footnotes omitted).738 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Raupatu o Tauranga Moana(Wai 215, 2004) at 40 (footnotes omitted).185by complex overlapping and intersecting interests, so that, in differentcircumstances, the interests of one group or another might be more significant.The concept of 'mana whenua' appears to be a nineteenth-century innovation,which confuses the personal or spiritual quality of mana with the distinct issueof rights to land.[438] In the Tāmaki Makaurau Report in 2007, a Waitangi Tribunal comprisingJudge Carrie Wainwright, Joanne Morris and Te Wharehuia Milroy carefully did notfocus on mana whenua as a concept but was heavily critical of the notion ofexclusivity, or "predominance of interests", as used in the proposed Treaty settlementwith Ngāti Whātua Ōrākei:739[439] By contrast, in the Hauraki Settlement Overlapping Claims Inquiry Report, theTribunal, composed of Judge Miharo Armstrong, Professor David Cochrane, ProfessorRawinia Higgins and Dr Ruakere Hond, engaged with the concept of mana whenua ina more positive way, which may have reflected position of the iwi claimants. Itstated:740 that is often precisely how redress is perceived: as an expression of agroup's mana whenua status within the rohe in which the redress lies.According to Mr Tawhiao, this is 'naturally an affront to those iwi whoalready hold mana whenua in that area'. His views echoed those of anotherNgāi Te Rangi claimant, Hauata Palmer, who stated before the Pare HaurakiDeed was signed that if it was 'finalised with redress that is in TaurangaMoana, the Crown is effectively saying that Hauraki have mana whenua, manamoana, and rangatiratanga in Tauranga Moana. That is just patently wrong,and it is simply not true.'[440] Each of these reports no doubt reflect the claims before each Tribunal, and theirdiffering contexts. They may also reflect differences in the tikanga of differentclaimant iwi and, perhaps, evolution of tikanga over time. My own perception is thatthe term "mana whenua" has become increasingly used in the last 20 years to refer notonly to the tikanga concept but as a shorthand for those who hold mana whenua – whoused to be referred to as the tāngata whenua.[441] Te Toru do not deny the possibility of exclusive mana whenua or that NgātiWhātua Ōrākei considers that to be part of tikanga Ngāti Whātua Ōrākei. Both739 Waitangi Tribunal Tāmaki Makaurau Report at 96–97.740 At 84.186Mr Majurey and Ms Coates accept that.741 Ngāi Tai ki Tāmaki asserted their manawhenua and rangatiratanga over Rangitoto (Peratu) and Motutapu and their counselargued they had a pre-eminent interest in those motu in 2018.742 Te Ākitai Waiohuaclaimed to have a heartland centred on their marae and its environs in its 2010 MandateStrategy.743 Ngaati Whanaunga claims on their website to have areas of shared andexclusive mana whenua.744 Authoritatively, the pūkenga in these proceedingscollectively agree that "the notion of exclusivity could be expressed in tikanga".745But they also state "it was maintained by the Tāmaki iwi present that no one iwi hasexclusive mana in the Auckland CBD area, so such tikanga did not apply".746[442] The evidence in these proceedings shows that mana whenua can be exclusivelyheld by one iwi or hapū and that it can be shared. Importantly, the pūkenga collectivelyemphasise that tikanga is shaped by the historical experiences of an individual iwi.No doubt mana whenua is more easily shared for some iwi than others, in light of theirexperiences. Perhaps that can be seen in the differences between the iwi here. It wouldmake sense for Ngāti Whātua Ōrākei, with its experience of loss of land, to beparticularly focussed on authority over whenua. Perhaps the heritage of Marutūāhuiwi as a mobile, maritime people, is less rooted in territorial areas and exclusivity.Perhaps the ancient origins of Ngāi Tai ki Tāmaki and Te Ākitai Waiohua, seeingothers come and go in wider Tāmaki Makaurau and elsewhere, naturally incline themto emphasise the nuance and complexity of their relationships in terms of whakapapaand whanaungatanga.[443] No one in these proceedings disagrees with the Tribunal's Rēkohu or TaurangaMoana reports that it is wrong at tikanga to assume that an exclusive version of manawhenua held by one iwi obviates the layers of interests of other iwi at tikanga. Thatwould be inconsistent with the nature of mana whenua explored in the evidence inthese proceedings. Indeed, as acknowledged by Ngāti Whātua Ōrākei, the obligationsarising from having mana whenua include a tika consideration of, and looking after,741 Marutūāhu Closing at [52]; Notes of Closings 203/2–16.742 NOE 2914/10–2916/24 (Brown); and Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation[2017] NZCA 613, [2018] 2 NZLR 453 at [79]–[80].743 Te Ākitai o Waiohua Iwi Authority Te Ākitai Mandate Strategy (November 2010) at 3.744 NOE 2058/18–28 (Compain).745 Te Toru Pūkenga Summary at [5].746 At [5].187others' customary connections. In their closing submissions, Ngāti Whātua Ōrākeirefers to Charlie Tawhiao's explanation that iwi owe each other "tikanga obligationsto be fair and reasonable where another group is claiming connections in theirheartland".747 That might involve discussions of how best to protect an urupā,acknowledgment that the history of another iwi in that area will not be forgotten, oreven agreeing that land within their heartland could be provided to another iwi, akinto a tuku whenua.748[444] But at the same time, the evidence is that it can be valid at their own tikangafor an iwi such as Ngāti Whātua Ōrākei to conceive of mana whenua as the strongesttikanga interest, held by one iwi, overriding aspects of the interests of other iwi whilesimultaneously owing responsibilities in respect of those interests. The evidenceindicates this is valid at the tikanga of Ngāti Whātua Ōrākei, shaped by their historicalexperiences and tribal narratives and traditions, including the impact of colonisation.[445] Any suggestion that such a conception of mana whenua is a 19th centuryinnovations implies that tikanga may not evolve in certain directions. That does notseem to recognise that tikanga, and its application, continues to evolve over time andis shaped by the ongoing experience of iwi, including in the twentieth and twenty-firstcenturies. The evidence here does not suggest that a conception of mana whenua asthe strongest tikanga interest held by one iwi necessarily transgresses the tāhuhu oftikanga Māori. Many iwi appear to have adopted exactly that conception. The iwi inthese proceedings have demonstrated that different conceptions of mana whenua,whether in response to contemporary pressures or not, are currently legitimateconcepts at their own tikanga.[446] I do not accept Mr Hodder's submission that the pūkenga called by Te Toru are"simply wrong" about mana whenua in tikanga Māori or their own tikanga. And I donot consider that to be affected by whether or not they have agreed to abide by theExpert Witnesses Code of Conduct. The pūkenga called by Te Toru were clear andconsistent about the underpinning principles of their tikanga and the implications forthe claim by Ngāti Whātua Ōrākei:747 Ngāti Whātua Ōrākei Closing at [5.74].748 At [5.75]–[5.76].188(a) Harry Mikaere's evidence is that the Ngāti Whātua Ōrākei claim toexclusive mana whenua does not reflect the tikanga of Ngāti Maru andMarutūāhu or Waitangi Tribunal findings on custom.749 He saysrelationships with whenua do not depend on continual occupation buton maintaining or keeping warm the relationships with the whenua.750He says:While Tāmaki is not our "core territory" or "predominant areaof interest" (to use the language of the Waitangi Tribunal), itis no less a part of us and our identity. Nor, is our relationshipwith the whenua consequently inferior. Notions of primaryand non-primary (second class iwi) have no basis in ourtikanga. Again, I am talking in the context of an exclusivemana whenua/ahi kā claim brought by one hapū against allother iwi over a huge area with a complex and contestedhistory.(b) Wati Ngamane's evidence emphasises whakapapa andwhanaungatanga in the tikanga of Ngāti Maru and Marutūāhu.751 Hesays shared whenua and resources is a common tradition amongMarutūāhu iwi and that mana whenua and ahi kā, for them, "is all aboutwhanaungatanga and whakapapa to the whenua".752(c) James Brown's evidence is: 753Mana whenua for Ngāi Tai starts and ends with whakapapa.And as explained by tohunga and by other experts, it'sunderpinned by many other sub features of our whakapapa:whaungatanga, aroha, tika, pono. So our definition is NgāiTai ki Tāmaki have mana whenua through their whakapapa toTāmaki Makaurau in this context.(d) David Wilson Takaanini's evidence is that all tikanga principles areconnected: whanaungatanga informs how Te Ākitai Waiohua interactwith other groups; manaakitanga reflects their historical and ancestralconnections; the deep hononga, ancestral connections, of Te Ākitai to749 Mikaere Brief at [35]–[37] and [40]–[41]. See also [46]–[56].750 At [38].751 W Ngamane Brief at [20]–[22].752 At [32]–[34].753 NOE 2896/3-1–9 (Brown).189areas in central Tāmaki gives them standing and mana there.754 Hisevidence is that the term "mana whenua" according to the elders of TeĀkitai Waiohua is "arrogant" whereas "tāngata whenua" denotes themana of all people in Tāmaki Makaurau.755(e) Dr Korohere Ngāpō says that "[w]hanaungatanga and whakapapa areat the heart of tikanga" which is part of why tikanga Marutūāhuemphasises inclusiveness and allows for shared whenua within their"heartland" or "core areas".756 His evidence is that Marutūāhuacknowledge all the other tribes in Tāmaki "because history,whakapapa and tikanga put us all there on the whenua".757[447] It may be that there are subtle distinctions between tikanga and the applicationof tikanga through different iwi traditions and history, as Mr Mahuika submits. Orthere may be a distinction between the underlying values and principles of tikanga andwhat manifests if a tribe adheres to them, applying those principles, as Mr Warrensubmits.758 But either way, I accept the evidence of Harry Mikaere, James Brown, andDavid Wilson Takaanini and Dr Korohere Ngāpō that the tikanga and tribal historiesand traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and TeĀkitai Waiohua do not accept that their interests in Tāmaki Makaurau are subject orinferior to the mana whenua of Ngāti Whātua Ōrākei.[448] I see no reason why the tikanga or application of tikanga by Ngāti WhātuaŌrākei and these other iwi may not differ regarding mana whenua. The High Courtand Court of Appeal have recognised that there can be variability in the nature of manawhenua:(a) In Port Nicholson Block Settlement Trust v Attorney-General, ininterpreting the absence of a proposed reference in a deed to exclusivemana whenua, Williams J said "[i]n a land tenure system driven by754 D Wilson Brief at [51]–[55].755 D Wilson Brief at [57].756 Ngāpō Brief at [10].757 At [41].758 Notes of Closings 247/7–9.190kinship, the phrase mana whenua meant (and means) authority andpriority, but not necessarily exclusivity".759(b) Moore J in the High Court in Ngāti Hurungaterangi v Ngāti Wahiaosaid:760The variability of opinion on the topic [of mana whenua], theinfluences of context (particularly time and space) and thedeeply divergent views of the contesting parties necessarilymeans the concepts of mana whenua have not assumednotorious status.(c) Williams J, for the Court of Appeal in Kamo v Minister of Conservationemphasised the need for a proper determination of the factualbackground regarding contested mana whenua, saying, in addition:761There is a further complication in this case. Ngāti Mutungaand Moriori are now considerably intermingled, althoughthey are not co-extensive communities. It is common, intikanga Māori at least, for conqueror and conquered(assuming those terms to be apt in this case) to intermarry inthis way. The victor obtains thereby the deeper ancestral right(or take tupuna) of the vanquished by recruiting their DNA.And the vanquished obtain the protection of a stronger ally ata time of vulnerability by agreeing to share whakapapa. Butthese things can change. Mana whenua is not frozen in time.It is a living principle of tikanga. Mana whenua might cometo be shared, or it might merge in the name of a new sharedancestor. These are complex factual questions to be assessedon the evidence against the applicable principles of tikangaMāori, or tikane Moriori, or indeed both.[449] On the basis of the extensive factual evidence in this context, between theseiwi in Tāmaki Makaurau at this time, I conclude that who has mana whenua as a matterof tikanga and tribal history and tradition, and what that means, is contested. That isconsistent with what the learned authors of Te Mātāpunenga said more generally in2013:762759 Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181 at [72].760 Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378 at [174].761 Kamo v Minister of Conservation [2020] NZCA 1, [2020] 2 NZLR 746 [Kamo] at [27].762 Te Mātāpunenga at 178 (references and italicisation of Māori words omitted). The quotation aboutmana whenua is one paragraph in a 27-page entry but gives the flavour of the contested nature ofthe concept.191The phrase mana whenua has been held to link political responsibilities (theprotection of people, particularly members of a tribal group under traditionalleadership) and other land-related authority. However the inherent ambiguityof the expression mana whenua has made its use and that of thecomplementary expressions noted above a vexed issue, with theappropriateness of their use challenged by Māori and other commentators.Some commentators on the other hand have identified mana whenua as a keycomponent of tribal identity, and, particularly in contemporary situations, itsretention as a symbolic marker of status has been noted even when there is nolonger any authority to be exercised, or physical presence of those said topossess it, on the land over which mana is claimed. Mana whenua has beenconstrued in a broad sense as indicating a form of ownership and used thatway in some government documents. Its possession has been officiallydeemed an attribute which must be recognised by government agencies; inofficial discourse its meanings have extended to include an environmentalresponsibility acquired by individuals in infancy, and synonymity with theterms tāngata whenua. Mana whenua has been identified as an attribute ofchieftainship, either generally or specifically in relation to the Kīngitanga. Ithas also been given statutory recognition as a form of customary authority.Apart from official and Kīngitanga-related discourse, the term mana whenuahas been used to encapsulate the collective right of a descent group to occupyand identify with their territory, and, in a broader sense, to signify the effectiveoccupation and use of land as a base for collective enterprise. According tosome accounts, this mana may be shared by a number of separate tribalentities, but others would deny that such divided sovereignty is permissible.[450] So, the tikanga, tribal history and tradition of some iwi, including NgātiWhātua Ōrākei, include mana whenua as the strongest form of tikanga interest heldby one iwi. The tikanga and tribal histories and traditions of other iwi, such asMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua,does not recognise that. What that means in terms of the declarations sought heredepends largely on the Court's role in relation to tikanga more generally.D Declarations about mana whenua[451] The Woolfs' authoritative text on The Declaratory Judgment explains that "[a]declaratory judgment is a formal statement by a court pronouncing upon the existenceor non-existence of a legal state of affairs".763 Declarations are a well-established formof relief in the common law and are now a routine remedy in judicial review. As EliasCJ said in the Supreme Court in these proceedings in 2018, "[w]here claims of right763 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London,2011) [Woolf and Woolf The Declaratory Judgment] at [1–02].192or legal interest are made in our constitutional order, it is the function of the courts todetermine them."764 The majority stated that:765It is common ground that the function of the courts includes makingdeclarations as to rights. Nor is there any dispute that it may be possible forNgāti Whātua Ōrākei to advance a claim in relation to customary rights.[452] The majority said "it must be open to Ngāti Whātua Ōrākei to seek to clarifyits status in the area over which it claims rights short of a challenge to the particulardecisions to transfer the specified properties".766[453] Declarations of right became a more common remedy in English courts fromthe mid-19th century.767 They were originally a private law remedy in the Court'sinherent jurisdiction. In New Zealand, the High Court has general equitablejurisdiction to make declarations.768 That may be an apposite source of authority fordeclarations of legal rights at tikanga, if a source needs to be identified. The Courtalso has supervisory jurisdiction under the common law, and under s 16(1)(b) of theJudicial Review Procedure Act 2016, to grant declaratory relief in judicial reviewproceedings. That is also relevant here; these are judicial review proceedings in form.And the Court has jurisdiction under the Declaratory Judgments Act 1908 in relationto the interpretation or validity of statutes or other instruments, though that may notbe so relevant to matters of pure tikanga.[454] The Court's power to grant a declaration as a remedy is discretionary. It iswell-established in the law of judicial review that "courts today will generally considerit appropriate to grant some form of relief where they find reviewable error".769 Adeclaration will not usually be made where it lacks utility. But declarations vindicaterights and bind the parties by preventing them from relitigating the same issues.[455] Here, Ngāti Whātua Ōrākei seeks a declaration that:764 Ngāti Whātua Ōrākei (SC) at [78].765 At [34].766 At [53].767 Woolf and Woolf The Declaratory Judgment at [2–01].768 Association of Dispensing Opticians of NZ Inc v Opticians Board [2000] 1 NZLR 423 at [10]. Seegenerally Rachael Schmidt-McLeave "Declaratory Relief" in Sir Peter Blanchard (ed) CivilRemedies in New Zealand (2nd ed, Thomson Reuters, Wellington, 2012).769 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 [Ririnui] at [112] perElias CJ and Arnold J.193Ngāti Whātua Ōrākei have ahi kā and mana whenua in relation to the 2006RFR Land and the 1840 Transfer Land.[456] Mr Hodder submits the ahi kā and mana whenua of Ngāti Whātua Ōrākei createa status which the Court can and should recognise by making the declaration. Hesubmits the Court can and should determine issues of tikanga, the other partiesoverstate the fluidity of the factual matrix, a declaration would not pre-empt otherdeterminations, and all relevant parties have been served. Mr Hodder submits NgātiWhātua Ōrākei have proven, as a matter of fact and a matter of tikanga, that they havemana whenua and ahi kā in the area over which they claim it, and it has a sound basisin law for the Court to exercise its discretion to issue a declaration to that effect. Hesubmits that if the Court comes to the view that the declarations should be modified,then it should provide an opportunity for the parties to make submissions on the termsof the declarations that would reflect the judgment.770 Ngāti Pāoa, supports thedeclarations sought, as reflective of the Kawenata and Conciliation Agreement.Otherwise, they too would like the opportunity to make further submissions onalternative terms of declarations.771[457] Counsel for the other parties oppose such a declaration:(a) Mr Majurey, for Marutūāhu Rōpū, submits that it is open to the Courtto decline the declaration if the Ngāti Whātua Ōrākei claim of exclusiveahi kā and mana whenua is not made out over every inch of the claimarea. He submits the declaration has no limitation as to extent andclaims exclusivity but is not clear on its wording. He submits it wouldtend to pre-empt pending litigation regarding the foreshore and seabedand it would encompass the Tūpuna Maunga shared by iwi, andproperties they purchased under the right of first refusal, under the NgāMana Whenua o Tāmaki Makaurau Collective Redress Act 2011. If theCourt proposes to make an alternative declaration, Marutūāhu Rōpūwould like the opportunity to make submissions on that.772770 Notes of Closings 582/14–26.771 Notes of Closings 317/4–6.772 Notes of Closings 156/20–157/3.194(b) Mr Warren, for Ngāi Tai ki Tāmaki, submits the declaration sought willdivide people, create a legal class under the guise of tikanga and foreverdistort the history of Tāmaki Makaurau, contrary to tikanga. Tikangais sourced in atua so this is not a conventional situation for the Court toapply law to facts. He submits it is clear that any declaration regardingsole ahi kā or exclusive mana whenua for Ngāti Whātua Ōrākei iswholly inappropriate.(c) Ms Coates, for Te Ākitai, submits that the Court should decline to grantdeclarations when it is inconsistent or inappropriate with tikanga to doso.773 She submits the declaration sought has no utility outside of thespecific articulated effect of the other declarations sought, so if theyfail, so should this one. She submits there is no reasonable basis for theCourt to find as a matter of fact or tikanga that Ngāti Whātua Ōrākeihas the only and exclusive mana whenua and ahi kā interests within therelevant area, or to make any of the declarations sought by NgātiWhātua Ōrākei. Te Ākitai Waiohua would have to see any alternativedeclarations in order to comment on them.774(d) Dr Ward, for the Crown, submits that the declaration sought is too broadand general and unclear for the Crown, local government and other iwi,and that the declarations lack utility. In particular, he submits theimpact on a consent authority's assessment of matters under s 6(3) ofthe Resource Management Act 1991 is uncertain and it would cut acrossother proceedings. A declaration may freeze tikanga. He submits thereis real doubt whether the declaration would serve a useful purpose as itwould not alter other group's traditional histories and understandings.Because the application of tikanga Māori is highly contested here, hesubmits it may be appropriate to decline to make declarations, as inother cases where matters of tikanga could not be resolved on the facts.773 Notes of Closings 213/14–15.774 Notes of Closings 184/29.195775 If an extensive reframing of the declarations sought is proposed,fairness would require an opportunity for further submissions.776[458] In Part V of the judgment, I traversed the nature of tikanga as a free-standinglegal framework recognised in New Zealand law. Tikanga is often assumed,recognised and referred to by New Zealand legislation. Tikanga was recognised byEnglish common law that accompanied the Crown to New Zealand. It is recognisedby New Zealand common law today. It can determine the outcome of a court'sapplication of a statute or the common law. It can be a direct source of legal rights.The Court can make declarations about tikanga, where that is appropriate.[459] In Part V, I also outlined my conclusions about the Court's role regardingtikanga. Tikanga-consistent dispute resolution process must be preferred to non-tikanga consistent court resolution of disputes about tikanga. But it follows fromtikanga being part of New Zealand law that, if tikanga-consistent resolution of adispute about tikanga is not feasible, then recourse to a court may be appropriate as amatter of law. It would be a brave court that attempts to reconcile or prioritise tikangathat truly differs between iwi or hapū, especially if that reconciliation is not tikanga-based. An attempt to do so may well not be accepted by those who follow tikanga. Itmay not be tika. There may be a variety of different ways by which a court could seekto resolve a dispute over tikanga that are more consistent with tikanga. I also acceptedthat the Court's declaratory jurisdiction is able to include the making of formaldeclarations of legal status and rights, including customary rights, and ofcorresponding obligations.[460] From one perspective, the lack of external recognition of, and respect for, theirmana whenua is one of the reasons why Ngāti Whātua Ōrākei sought a declarationfrom the Court. From another perspective, such a lack of recognition and respectmeans a declaration is not justified at tikanga. From yet another perspective, perhaps775 Kamo; Pouwhare v Kruger HC Wellington CIV-2009-485-976, 12 June 2009 at [28]–[29].776 Notes of Closings 142/28–143/13.196closest to the conclusions I have come to, Ngāti Whātua Ōrākei simultaneously hasmana whenua from some perspectives, and not from others.777[461] It will be clear from my analysis above that I am satisfied the evidencedemonstrates that Ngāti Whātua Ōrākei has mana whenua based on take raupatu andahi kā over the area in which they claim it, according to their own tikanga and basedon their tribal historical narrative and tradition. Ngāti Whātua Ōrākei seeks adeclaration of its rights at tikanga and law. The issues have been sufficiently traversedto support that. I would be inclined to make such a declaration on the basis that itspeaks only of the tikanga and historical tribal narrative and traditions of Ngāti WhātuaŌrākei. My preliminary view is that such a declaration would not unduly cut acrossother proceedings or legislation, which decide different issues. Such a declarationmight be worded as follows:Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation tothe area identified in Map 1 of this judgment in central Tāmaki Makaurau,with all the obligations at tikanga that go with that, according to the tikangaand historical tribal narrative and tradition of Ngāti Whātua Ōrākei.[462] That is not what Ngāti Whātua Ōrākei sought, though Mr Hodder suggestedthat Ngāti Whātua Ōrākei might regard such a declaration founded on the tikanga ofNgāti Whātua Ōrākei as helpful. So I reserve leave for the parties, and particularlyNgāti Whātua Ōrākei, to make further submissions, if they wish, on whether the Courtshould exercise its discretion to make a declaration in those or similar terms.[463] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not seekdeclarations regarding their tikanga. They oppose the declaration sought by NgātiWhātua Ōrākei that goes further than the tikanga of Ngāti Whātua Ōrākei. I amsatisfied, on the basis of the evidence I have heard, that Marutūāhu Rōpū (other thanNgāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept, based on theirtikanga and tribal histories and traditions, that their interests in Tāmaki Makaurau aresubject or inferior to the mana whenua of Ngāti Whātua Ōrākei. On that basis, I amnot prepared to make a declaration that suggests their tikanga, tribal histories and777 It is tempting to draw an analogy with the measurement problem in quantum mechanics. This isexemplified by Schrödinger's cat, which simultaneously exists in two different states untilobserved. But that does not seem entirely apt.197traditions are consistent with those of Ngāti Whātua Ōrākei, which might be inferredfrom the declaration sought by Ngāti Whātua Ōrākei.[464] I also do not consider that Ngāti Whātua Ōrākei and the opposing iwi have yetexhausted the possibility of tikanga-based resolution about the differences betweenthem over mana whenua, if it can be exhausted. Trial by battle (of lawyers) is notnecessary. The Court should not intervene by making declarations that go further thanthe tikanga of Ngāti Whātua Ōrākei for that reason as well. But the parties mayconsider that a single declaration about the tikanga of Ngāti Whātua Ōrākei leaves toomuch room open for inferences about their positions.[465] Accordingly, I also reserve leave for the parties, and Marutūāhu Rōpū (otherthan Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua in particular, to makesubmissions on whether I should make a declaration along the following lines:The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū(other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do notcurrently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua,as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to thearea identified in Map 1 of this judgment in central Tāmaki Makaurau.[466] I observe that the conflicts between iwi in these proceedings over these issuesare long-standing. I am sure the means of resolving them are available, at tikanga, tothem. I note that counsel for every iwi participating in the hearing stated they wouldprefer a tikanga-based settlement. They may consider the Court can assist to facilitatea tikanga-based resolution process, given my observations in part V regarding suchoptions as appointment of one or more pūkenga by consent. I reserve leave for anyiwi participating in these proceedings as parties or interested parties to make a jointapplication for such assistance with any of the disputed issues of applying tikangacanvassed in this judgment. I also reserve leave for them to apply for a declaration bythe Court to reflect a joint position about any of these disputed issues, reached by atikanga-consistent process, to be recorded by the Court.198VII Treaty settlements and overlapping interests todayA Bastion Point and specific Treaty settlements of Ngāti Whātua Ōrākei[467] The Ōrākei block includes 13 acres at Bastion Point. This land was acquiredby the Crown for defence purposes in 1886. It was not returned. In 1976, the Crownannounced it was planning to develop the remaining land at Bastion Point for high-income housing and parks. Taiaha Hawke gave compelling evidence about the BastionPoint protests. He is Senior Cultural Engagement specialist to the Ngāti WhātuaŌrākei Trust, a direct descendant of Tuperiri and the son of Joe Hawke. I acknowledgeJoe Hawke's attendance at the hearing.[468] In brief, on 5 January 1977, roughly 30 members of the Ōrākei Maori ActionCommittee occupied Bastion Point. The occupation and protests grew and continuedin 1977 and 1978. The Government met with members of Ngāti Whātua Ōrākei. Thatresulted in transfer of ownership of 29 acres and 27 state houses and land, and a debtof $200,000, confirmed in the Ōrākei Block (Vesting and Use) Act 1978.[469] In parallel, the Government pursued legal action to evict the protesters. On 25May 1978, the Government sent in around 600 police, army personnel, army vehicles,buses, bulldozers and helicopters to forcibly remove the protestors. A navy frigatewas stationed in the harbour in direct sight of the occupation. Taiaha Hawke'sevidence is that the images and footage from this shameful act are now a well-documented event in the national psyche.778 Two hundred and twenty-two protesterswere arrested, and the meeting house, buildings, and gardens were demolished. Thiswas the first of three mass arrests that took place at Bastion Point. Most of theprosecutions were eventually dropped.[470] Taiaha Hawke says the Bastion Point occupation gave Ngāti Whātua Ōrākeitime and space to think, act and feel Māori, and rekindle their connection with NgātiWhātua Ōrākei land. They felt as though they had finally returned home.778 Margaret McClure "Auckland Places – Eastern suburbs: Ōrāker to the Tāmaki River" (5 August2016) Te Ara — the Encyclopedia of New Zealand <www.teara.govt.nz>.199[471] In 1984, Joe Hawke and 12 others filed a claim with the Waitangi Tribunal thatthe 1978 settlement was unjust and contrary to the Treaty of Waitangi. The Tribunalheard the claim at Ōrākei in May 1985. In July 1985 a second hearing was held intoissues concerning the control of the Ōrākei marae. The Tribunal issued its report inNovember 1987. The report contains a detailed history of the Ōrakei block. TheTribunal findings emphasised by Ngāti Whātua Ōrākei in this proceeding are that:(a) Ngāti Whātua Ōrākei are tāngata whenua of what is now centralAuckland;779(b) the Crown alienated the Ōrākei block from collective ownership inbreach of the Treaty of Waitangi;780 and(c) the Crown's actions to clear the papakāinga in the 20th century(including the discharge of raw sewerage near the papakāinga,deliberate flooding, and the "traumatic" evictions of 1952) were inbreach of the Treaty.781[472] The Tribunal recommendations included that the Crown vest land at BastionPoint and Ōkahu, and the Ōrākei marae and meeting house, in Ngāti Whātua Ōrākei.The recommendations were given effect through the Ōrākei Act 1991.[473] Ngāti Whātua Ōrākei made other specific Treaty claims. One, in 1993, resultedin a settlement with the Crown in relation to surplus railway lands in TāmakiMakaurau. Ngāti Whātua Ōrākei and the Crown signed a deed of settlement involvingpayment of $4 million to the Ngāti Whātua o Ōrākei Māori Trust Board and TeRūnanga o Ngāti Whātua.782 And in 1996, in compensation for the loss of preferentialaccess to subsidised state housing at Ōrākei, the Crown paid $8 million to the TrustBoard, "on account" of an eventual wider Treaty settlement.779 Waitangi Tribunal Ōrākei Report at 19.780 At 255.781 At 255.782 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Reports on Lands at Waikanae,Wellington, Auckland and South Auckland (Wai 264, 1992); and Deed of Settlement of SurplusAuckland Railways Lands, 6 July 1993.200B The 2006 Ngāti Whātua Ōrākei AIP and the Waitangi Tribunal[474] In 1993, Ngāti Whātua Ōrākei lodged a broader claim with the WaitangiTribunal alleging historical breaches of the Treaty by the Crown. This has not beenthe subject of a Tribunal hearing. In May 2003, Ngāti Whātua Ōrākei entered directnegotiations with the Crown. On 9 June 2006, the Ngāti Whātua o Ōrākei Trust Boardand Hon Mark Burton as Minister in charge of Treaty Negotiations for the Crown,signed an Agreement in Principle (AIP) to settle Ngāti Whātua Ōrākei's historicalTreaty of Waitangi claims.[475] The AIP recorded that the parties were "willing in principle" to settle NgātiWhātua Ōrākei's historical claims in a subsequent Deed of Settlement (subject topassage of settlement legislation) on the basis, relevantly, of:(a) "the cornerstone of the Crown's settlement offer", described in cl 10 as:(i) an agreed Historical Account, including the Treaty of Waitangiin Māori and English, a preamble about Ngāti Whātua before1840 and its claims, and an account of the relationship betweenNgāti Whātua and the Crown;(ii) Crown acknowledgements that certain of its actions oromissions breached the Treaty of Waitangi; and(iii) a Crown apology for those breaches;(b) "cultural redress" through:(i) vesting (and possible name changes to) Maungakiekie (OneTree Hill Domain), Maungawhau (Mt Eden Historic Reserve),Puketapapa (Mt Roskill, Winstone Park Domain) and PurewaCreek Stewardship Area, as reserves governed by a jointmanagement body;201(ii) empowering the joint management body to advise on themanagement of Owairaka (Mt Albert Domain), Ohinerau (MtHobson Domain), Te Kopuke (Mt St John Domain), andTaurangi (Big King Recreation Reserve);(iii) statutory acknowledgements of the cultural, spiritual, historicaland traditional association of Ngāti Whātua Ōrākei with thelatter four sites plus Otahuhu (Mt Richmond Domain), NorthHead Historic Reserve and defence land at Kauri Point;(iv) enhanced relationships with government agencies and localauthorities; and(v) the possibility of non-exclusive redress recognising thehistorical and cultural relationship of Ngāti Whātua Ōrākei withRangitoto and Motutapu;(c) financial and commercial redress of:(i) payment of $10 million, including earlier settlement redress;(ii) a 100 year right of first refusal (RFR) for Ngāti Whātua Ōrākeiover surplus lands of the Crown, Transit New Zealand, theAuckland District Health Board, naval housing, four policestations and some Housing New Zealand Corporationproperties, in a defined area, as depicted in Map 1 in thisjudgment (the area over which Ngāti Whātua Ōrākei claimsmana whenua in these proceedings); and(iii) a Crown offer of sale and lease back of defence houses ascommercial redress;202(d) the definition of Ngāti Whātua o Ōrākei which would be furtherdeveloped and discussed and would include:783those that descend from Tuperiri and the Ngāti Whātua oŌrakei hapū of Nga Oho, Te Uringutu and Te Taoū to theextent that customary interests from these hapū wereexercised after 1840 predominantly in the areas of CentralAuckland, West Auckland, North Shore and Tāmaki isthmus.(e) the Deed would include acknowledgement by both parties that thesettlement does not extinguish or acknowledge any customary rights ofNgāti Whātua Ōrākei and:784is intended to enhance the ongoing relationship between theCrown and Ngāti Whātua o Ōrākei (both in terms of Te Tiritio Waitangi/the Treaty of Waitangi and otherwise)[476] Clauses 6–8 of the AIP recorded that:(a) the parties would work together to develop a Deed of Settlement;(b) the parties reserved the right to withdraw from the AIP; and(c) the AIP was entered into on a without prejudice basis, was non-bindingand may not be used as evidence (though of course it has been, by bothparties, here).[477] There is evidence that the Crown understood Ngāti Whātua Ōrākei to havepressed for the RFR over a geographic area for commercial reasons.785 The thensolicitors for Ngāti Whātua Ōrākei argued a geographic area could be fixed, contraryto the Crown's usual practice at the time, because that would delineate only an area ofcommercial redress, to which mana whenua was not relevant.786 There is alsoevidence OTS saw the RFR as an opportunity to "go some way to meeting Ngāti783 Ngāti Whātua o Ōrākei Māori Trust Board Agreement in Principle for the Settlement of theHistorical Claims of Ngāti Whātua o Ōrākei (9 June 2006) [Ngāti Whātua Ōrākei AIP] at cl 53a.784 At cl 61a.785 Memorandum Manager, OTS to Minister, 4 March 2005 at [27]–[28].786 Letter from Wackrow Williams and Davies to Ngāti Whātua, 19 April 2005.203Whātua o Ōrākei's strong desire for the Crown to recognise its mana through thissettlement".787[478] Other iwi in Tāmaki Makaurau had not reached Treaty settlements of their ownallegations of Treaty breaches with the Crown at that point. Concerns about theimplications of the AIP prompted a claim to the Waitangi Tribunal by Ngāti Te Ata,Ngāi Tai ki Tāmaki, Marutūāhu, Te Kawerau ā Maki and those Te Taoū not descendingfrom Tuperiri.788 The Tribunal conducted an urgent inquiry and issued its findings inJune 2007. In summary:789➢ The Office of Treaty Settlements did not balance the need to pursueand tend a relationship with Ngāti Whātua o Ōrākei in order to achievesettlement, with its Treaty obligation also to form and tendrelationships with the other tangata whenua groups in TāmakiMakaurau. The mode of dealing with the other tangata whenuagroups left them uninformed, excluded, and disrespected.➢ The explanation of the process for dealing with 'overlapping'claimants in the Office of Treaty Settlement's policy manual Ka Tikaā Muri, Ka Tika ā Ma (the Red Book) is summary and unhelpful. Itdeals only in broad principles, and gives no clear idea as to how theywill be applied or achieved.➢ The Red Book's treatment of how cultural redress will be handled insituations where there is competition over sites and recognitionprovides no insight into how problems will be identified andaddressed.➢ The Office of Treaty Settlements' letter to other tangata whenuagroups of 1 July 2003 offers them more hope: officials wanted to workwith these groups "[t]hroughout the course of settlementnegotiations" to arrive at "a good understanding of [their] interests inthe Auckland area".➢ What the Office of Treaty Settlements actually did, however, waswholly inadequate. Neither the broad outlines of aspiration andprinciple in the Red Book, nor the expectations raised by the 1 July2003 letter, were fulfilled. The office's performance also fell short ofthe standard required for a good administrative process in Treatyterms, and this is the standard that should apply.➢ The draft settlement was not supported by a robust process,particularly as regards cultural redress. Nonexclusive redress was alsooffered when officials were in no position to assess the potentialstrength of others' claims to exclusive interests in those sites.787 Internal OTS Memorandum, 10 March 2005 at 4.788 Waitangi Tribunal Tāmaki Makaurau Report at 113.789 At 86.204➢ The offer to Ngāti Whātua o Ōrākei of exclusive redress in maungawas purportedly on the basis of a predominance of interests. Thisapproach was not adequately prefigured and is anyway inapplicableto cultural redress.➢ The expression of the commercial redress in the agreement inprinciple is neither complete nor, in some key areas, clear, so it's notpossible to know from that document what is on offer, nor how muchit is worth.➢ Because it is not possible to ascertain what Ngāti Whātua o Ōrākei isbeing offered, the other tangata whenua groups cannot assess whetheror not to rely on the Crown's assertion that it can do the same forothers.[479] The Tribunal strongly criticised the Crown's approach in taking an explicitview of the strength of the customary interests of Ngāti Whātua Ōrākei:790The use of 'predominance of interests' as a basis for giving exclusive rights incultural sites to one group – even when other groups have demonstrableinterests that have not been properly investigated – is a Pākehā notion that hasno place in Treaty settlements. Where there are layers of interests in a site, alllayers are valid. They derive from centuries of complex interaction with thewhenua, and give all the groups with connections mana in the site. For anexternal agency like the Office of Treaty Settlements to determine that theinterests of only one group should be recognised, and the others put to oneside, runs counter to every aspect of tikanga we can think of.[480] The Tribunal recommended the Crown "engage with and understand conceptsof layers of interests, rather than 'predominance' and ranking".791 Regarding the AIP,the Tribunal recommended:792The draft settlement with Ngāti Whātua o Ōrākei should now be put on hold,until such a time as the other tangata whenua groups in Tāmaki Makaurauhave negotiated with the Crown an agreement in principle, C Collective and individual settlements in Tāmaki Makaurau[481] The Crown treated the Tribunal's Tāmaki Makaurau Report as "extremelysignificant".793 On becoming Minister for Treaty of Waitangi Negotiations at the endof 2008, the Hon Christopher Finlayson turned for advice, about settling claims inTāmaki Makauru, to the first Minister to hold that portfolio, the Rt Hon Sir Douglas790 At 96–97.791 At 109.792 At 107.793 Affidavit of Michael Dreaver, 14 October 2020 [Dreaver Affidavit], at [16].205Graham.794 In May 2009, Cabinet agreed to Sir Douglas's proposed approach whichthe Minister acknowledged carried some risks, as it might be perceived as a "take it orleave it" offer.795 Cabinet authorised Sir Douglas to put his proposal before iwi andhapū. Michael Dreaver was appointed as the Chief Crown Negotiator.[482] In June 2009, Sir Douglas presented the broad architecture of his proposal toTāmaki iwi at the Ellerslie Racecourse.796 He concluded that the objections to theNgāti Whātua Ōrākei AIP were never going to be withdrawn and it would not bepossible to reach settlements with the other groups without resolving the issues withall groups. The first option he identified was that the Crown could never treat theoverlapping interests as addressed to its satisfaction so would never be able to enter aDeed of Settlement with Ngāti Whātua Ōrākei. The second option was described inthis way:797The second option would require considerable courage, a generosity of spiritand a desire to work together in the common interest. This option entailedgrabbing the bull by the horns and striving to see if the Ngāti Whātua ŌrākeiAIP could be renegotiated to take account of the 'layers of interest'. At thesame time, the Crown would negotiate now with all tangata whenua groups inTāmaki Makaurau and also in the Kaipara and the Coromandel because manygroups have interests in one or more and sometimes all three regions.[483] Sir Douglas' report said:798It follows that the Crown will have to put on the table for all to see just how itproposes to resolve issues around the sensitive cultural redress items such asthe maunga, and the right of first refusal part of the commercial redresspackage. There will be many groups that will be affected. The only realisticway forward, if decades of negotiations are to be avoided, is to suggest thatthe issue of manawhenua is put to one side for the purposes of thesenegotiations, and instead regard is had to interests in the whole. After all theCrown is in a difficult position when two iwi contest who has manawhenua.It is not for the Crown to determine. Only Māori can give such recognition.If there is no such recognition it is pointless expecting the Crown to rule onthe matter. The Crown has to act with integrity to all iwi/hapū at all times and794 Affidavit of Christopher Finlayson, 8 October 2020 [Finlayson Affidavit 2020] at [10].795 Dreaver Affidavit at [23]; Memorandum for Treaty of Waitangi Committee "Crown Offer forSettlement of Treaty Claims to Kaipara, Tāmaki Makaurau and Coromandel-Hauraki", 27 May2009.796 Douglas Graham "Report by the Facilitator to the Minister for Treaty of Waitangi Negotiationsand to the iwi/hapū of the Kaipara, Tāmaki Makaurau and the Coromandel" (The Office for MāoriCrown Relations, 24 June 2009) at 5. And see Dreaver Affidavit at [25].797 At 5.798 At 5.206must not prefer one over another. Any discretionary redress has to reflect any'layers of interests'.[484] In relation to the maunga he said:The objection here is that Ngāti Whātua Ōrākei is offered exclusive rights tosome of the maunga. It cannot be disputed that over the centuries variousgroups exercised ahi kaa over many of the maunga. Kiwi Tāmaki of Te Ākitaiand Waiohua for example, lived in a pa on Maungakiekie at the time of the TeTaoū/Ngāti Whātua invasion in the mid 1700s. Waiohua descendents todayinclude Ngāti Te Ata, Ngāti Tamaoho, Ngāi Tai and Te Ākitai who, althoughstaunch members of the Kingitanga, advise me that they regard the maungaon Tāmaki Makaurau as spiritually very important. So the deeply feltassociation of the other groups to the maunga is understandable and continuesto this day. It is true of course that the antecedents of Ngāti Whātua o Ōrākeiundoubtedly had a strong association with many of the maunga for most ofthe century prior to their sale in the early 1840s. Today all groups thereforeclaim past associations which to each are extremely important and can neverbe extinguished. The maunga remain visible to all groups and always will be.A structure which recognises shared interests is clearly desirable. Onepossible way this could be done is presented in this paper.[485] In relation to the RFR, Sir Douglas said:799The objection here is that, despite Ngāti Whātua o Ōrākei properlyacknowledging the interests of other tangata whenua groups in TāmakiMakaurau and restricting their exclusive RFR area to the CBD, other groupsmaintain that they have interests in the CBD too and that, looking at theisthmus as a whole and the various iwi interests in it, it is still quite unfair thatNgāti Whātua o Ōrakei should be able to pick the plums of the CBD leavingless valuable areas to the others. It is highly likely the Right of First Refusal(RFR) area has better prospects for capital gains than properties further afield.This objection is unlikely to be satisfied unless the provision is varied and Isuggest a shared RFR over the whole Tāmaki Makaurau RFR area as defined.[486] Accordingly, and impressively in terms of the negotiations that must have beenrequired, on 12 February 2010 the Crown and 13 iwi and hapū entered into the NgāMana Whenua o Tāmaki Makaurau and Crown Framework Agreement (the CollectiveAgreement). The iwi and hapū grouped into three rōpū:(a) the Ngāti Whātua rōpū of hapū with interests in any of the maunga(including Ngā Oho, Te Uringutu and those Te Taoū who descend fromTuperiri as well as Ngāti Whātua o Kaipara and Te Rūnanga o Ngāti799 At 10.207Whātua which includes those Te Taoū who do not descend fromTuperiri);(b) the Tāmaki rōpū (Te Kawerau ā Maki, Ngāti Te Ata, Ngāti Tamaoho,Te Ākitai Waiohua and Ngāi Tai ki Tāmaki); and(c) the Marutūāhu rōpū (composed of four Marutūāhu iwi, Ngāti Maru,Ngaati Whanaunga, Ngāti Pāoa and Ngāti Tamaterā).[487] Somewhat jarringly, given the contested nature of mana whenua in theseproceedings, the iwi and hapū were collectively known in the Collective Agreement,and in the subsequent Deed and Act, as Ngā Mana Whenua o Tāmaki Makaurau (NgāMana Whenua). They are now known as the Tāmaki Collective. Clause 2 of theCollective Agreement stated:The iwi/hapū members of Ngā Mana Whenua o Tāmaki Makaurau (or othername chosen by the iwi/hapū) recognise that they each have legitimatespiritual, ancestral, cultural, customary and historical interests within TāmakiMakaurau.[488] The essence of the Collective Agreement was that the Crown-owned parts ofspecified maunga and motu of Tāmaki Makaurau would be vested in Ngā ManaWhenua. The maunga would be co-governed by an entity comprising equalmembership from Ngā Mana Whenua and Auckland Council. The Crown would offerNgā Mana Whenua a RFR for 170 years over all land held by core Crown agencies,and possibly others, in Tāmaki Makaurau.[489] The mandated negotiators for each iwi prepared a ratification booklet whichmade clear that the collective RFR would not apply to any property required to be usedfor individual settlements.800 In the advisory to Ngāti Whātua Ōrākei, Grant Hawkenoted:801We have had to accept the compromise of dealing and sharing the platform ofmana whenua status with our tribal colleagues to the west and east perimetersof our southern borders. This has presented many challenges to our way of800 Ngā Mana Whenua o Tāmaki Mkaurau The Collective Deed of Settlement & PSGE Proposal 2012Ratification (2012) at 16.801 Ngāti Whātua o Ōrākei Māori Trust Board Ngāti Whātua Ōrākei Supplement to the Ngā ManaWhenua o Tāmaki Makaurau Collective (2 July 2012) at 1.208thinking and to our spiritual well-being so we have resolved in ourselves thatlike WAI 388 this is the best we can get for a deal wrought with culturalsensitivities.[490] In December 2012, the Crown and the Tāmaki Collective, with the addition ofTe Patukirikiri in the Marutūāhu rōpū, entered into the Collective Deed. It providedthat the individual claims of each iwi would be addressed through iwi-specificsettlements (and a collective settlement for the Marutūāhu iwi). The shared redresswould be provided through the Ngā Mana Whenua o Tāmaki Makaurau CollectiveRedress Act 2014 (the Collective Act), which provides for:(a) The restoration of ownership and "mechanisms by which the iwi andhapū may exercise mana whenua and kaitiakitanga" over specifiedmotu and 14 specified maunga in s 3(b) (including the maunga in thearea over which Ngāti Whātua Ōrākei claims mana whenua). It doesnot identify any individual iwi as having mana whenua over particularareas. The motu and maunga are managed by the Tūpuna Maunga oTāmaki Makaurau Authority (composed of two members appointed byeach rōpū entity and six members appointed by the Auckland Counciland one non-voting member appointed by the Minister for Arts, Cultureand Heritage).(b) A collective RFR for all iwi, through the Whenua Haumi Roroa oTāmaki Makaurau Limited Partnership (the Partnership) covers landfrom Muriwai to the Waikato River, including the area over whichNgāti Whātua Ōrākei claim mana whenua. Section 3(c) expresses thepurpose of the RFR to be "to enable those iwi and hapū to build aneconomic base for their members".(c) A collective right to purchase any deferred selection properties, that areincluded in the individual iwi settlements of the members of the NgāMana Whenua, but not ultimately selected or acquired by the individualiwi or hapū concerned.209[491] The operation of the collective RFR is provided for in the Collective Act andin a separate agreement between the Tāmaki Collective iwi (and not the Crown) knownas the "carousel", according to which:802(a) section 118 defines certain land (generally land of the Crown andspecified Crown bodies) to be RFR land;(b) section 121 requires a RFR landowner to first offer land to thePartnership or to a rōpū entity before disposing of it;(c) when a property worth over $5 million becomes available, thePartnership can exercise the RFR for itself or through a special purposevehicle in which each rōpū can fund up to a third of the purchase cost;(d) when a property is worth less than $5 million, the rōpū take it in turnsto exercise the collective RFR if they wish (with the rōpū having firstpick rotating in sequence);(e) under s 120 "[t]he Minister for Treaty of Waitangi Negotiations must,for RFR land required for another [historical] Treaty settlement, givenotice to both the RFR landowner and the Limited Partnership that theland ceases to be RFR land"; and(f) in addition to the RFR, the Partnership has a second right to purchaseany deferred selection properties offered to, but not selected by, anyindividual Tāmaki iwi or hapū.803[492] Michael Dreaver's evidence, as Chief Crown Negotiator, is that each iwimember of the Tāmaki Collective "was clear that their willingness to enter intocollective redress was contingent on their being able to secure acceptable individualredress".804 He also gives evidence that "during Tāmaki Collective negotiations, alliwi, including Ngāti Whātua Ōrākei, agreed that properties required for use in another802 Dreaver Affidavit at [45].803 At [46].804 At [47].210Treaty settlement would be able to be removed from the RFR".805 He considers that"[w]ithout that assurance, it is my view that the Tāmaki Redress deed would not havebeen agreed by the iwi of the collective".806 Sections 118 and 120 of the Act wereforeshadowed in the Deed and in the draft Bill that was supplied to the parties by thetime the Deed was signed.807[493] On 12 February 2010, the date the Collective Agreement was signed, theCrown and Ngāti Whātua Ōrākei also entered into a supplementary agreement to their2006 AIP. They agreed to amendments to the AIP:(a) the preambular statement in the agreed Historical Account was turnedinto a statement of the situation of Ngāti Whātua Ōrākei before 1840;(b) the cultural redress provisions, other than in relation to Pūrewa Creek,were deleted and references were made to redress relating to maungaand motu and harbours under the Collective Agreement;(c) the financial redress was changed from $10 million to $18 million (plusinterest). It included Ngāti Whātua Ōrākei receiving the right to buyDefence Force housing land blocks; and(d) the Ngāti Whātua Ōrākei RFR was substituted by the collective RFRunder the Collective Agreement.[494] Michael Dreaver's evidence is that a significant issue arose during negotiationsthat impacted on the "fairness between groups of the iwi specific settlements".808 Inlate September 2011, Marutūāhu raised concerns with Michael Dreaver aboutlandbank allocations and wanted to ensure there would be a "parity of approach"between Marutūāhu and Ngāti Whātua Ōrākei with regard to certainty of propertyselection.809 On 27 September 2011, two days before Ngāti Whātua Ōrākei initialled805 At [48].806 At [48].807 At [50].808 At [118].809 Email from Counsel for Marutūāhu to Other Counsel and Chief Crown Negotiator, 26 September2011.211its Deed of Settlement, Michael Dreaver sent a memorandum to Marutūāhu, NgātiWhātua Ōrākei and Ngāi Tai ki Tāmaki that included this paragraph:810I have been asked whether the Crown would agree to a veto right for othergroups over redress offered to Ngāti Whātua o Ōrākei; or to a veto right infavour of Ngāti Whātua o Ōrākei over redress to be offered to other groups.The Crown is not prepared to offer such a right to any iwi. Instead, the Crownwill continue to make a careful assessment of appropriate iwi-specificsettlement offers, and will consider the views of all other groups with aninterest when developing those offers and reaching any settlement agreements.[495] In a subsequent meeting with Marutūāhu, Michael Dreaver reiterated that noiwi would have a veto right. His evidence is that this was not the first time that suchassurances had been sought and rejected.811[496] On 5 November 2011, the Crown and Ngāti Whātua Ōrākei signed a Deed ofSettlement which also included additional Defence properties, a property on the NorthShore and a property on the slopes of Maungawhau (Mt Eden). An initialled versionof the Deed was approved by a vote of 89 per cent of the voting members of NgātiWhātua Ōrākei. The first of the Crown's acknowledgements were:3.1 The Crown acknowledges that Ngāti Whātua Ōrākei endeavoured toestablish a relationship with the Crown from 1840 and sought tostrengthen this relationship, in part, by transferring lands for settlementpurposes. These lands have contributed to the development of NewZealand and Auckland in particular. The Crown also acknowledges thatNgāti Whātua sought to strengthen the relationship by expressingloyalty to the Crown.3.2 The Crown acknowledges that the benefits and protection that NgātiWhātua Ōrākei expected to flow from its relationship with the Crownwere not always realised.3.3 The Crown acknowledges that a large amount of Ngāti Whātua Ōrākeiland was alienated from 1840 by way of Crown purchase and pre-emption waiver transactions, including the acquisition of "surpluslands" by the Crown. The Crown's failure to protect lands and provideadequate endowments for the future use or benefit of Ngāti WhātuaŌrākei was a breach of the Treaty of Waitangi and its principles.3.4 The Crown acknowledges that land alienation has diminished theability of Ngāti Whātua Ōrākei to exercise mana whenua.810 At [118] and Memorandum from Chief Crown Negotiator to Marutūāhu, Ngāi Tai ki Tāmaki andNgāti Whātua o Ōrākei, 27 September 2011.811 Dreaver Affidavit at [67].212[497] The Crown's apology at cl 3.10 was:The Crown recognises that from 1840, Ngāti Whātua Ōrākei sought a closeand positive relationship with the Crown and, through land transactions andother means, provided lands for European settlement.The Crown profoundly regrets and is deeply sorry for its actions which leftNgāti Whātua Ōrākei virtually landless by 1855. This state of landlessness hashad devastating consequences for the social, economic and spiritual well-being of Ngāti Whātua Ōrākei that continue to be felt today.The Crown unreservedly apologises for not having honoured its obligations toNgāti Whātua Ōrākei under the Treaty of Waitangi. By this settlement theCrown seeks to atone for its wrongs, so far as that is now possible, and beginthe process of healing. The Crown looks forward to repairing its relationshipwith Ngāti Whātua Ōrākei based on mutual trust, co-operation and respect forthe Treaty of Waitangi and its principles.[498] The Deed was given legislative effect by the Ngāti Whātua Ōrākei ClaimsSettlement Act 2012. That includes setting out, in te reo Māori and English, the textof the Crown's acknowledgements and apology in ss 6 and 7. Michael Dreaver'sevidence is:81238. The Ngā Mana Whenua o Tāmaki Makaurau deed and legislation gaveeach iwi/hapū the opportunity to record their name on the title to eachof the maunga and motu. The iwi/hapū could also choose to havestatements of association with the maunga and motu recorded in thecollective deed or in the individual iwi deed of settlement.39. No iwi or hapū, including Ngāti Whātua Ōrākei, objected to any ofthose iwi/hapū having their interests recorded in relation to the centralmaunga (including Maungakiekie, Maungawhau, Ōhinerau, TeKopuke and Puketapapa).[499] Meanwhile, negotiations progressed between the Crown and other iwi inTāmaki Makaurau:(a) Ngāti Whātua o Kaipara and the Crown signed an AIP in December2009 and a deed of settlement in September 2011. Settlementlegislation was enacted in June 2013. Te Rūnanga o Ngāti Whātua andthe Crown signed an agreement in principle in August 2017.812 At [38]–[39] (footnotes omitted).213(b) Te Kawarau ā Maki and the Crown signed an AIP in February 2010 anda deed of settlement in February 2014. Settlement legislation wasenacted in September 2015.(c) Ngāi Tai ki Tāmaki and the Crown signed an AIP in November 2011and a deed of settlement in November 2015. Settlement legislation wasenacted in July 2018.(d) The Crown and each of the iwi in the Marutūāhu Collective entered aRecord of Agreement (equivalent to an AIP) in May 2013. TheMarutūāhu Iwi Collective Redress Deed was initialled on 27 July 2018by the Crown and by four of the Marutūāhu iwi (but not by Ngāti Pāoa,who had entered the Kawenata Tapu in January 2017). Four of the fiveMarutūāhu iwi initialled their individual deeds of settlement with theCrown in August or September 2017. The fifth, Te Patukirikiri, signedan AIP in July 2011 and a deed of settlement in October 2018. Withinthe area over which Ngāti Whātua Ōrākei claim mana whenua: thecultural redress to Marutūāhu includes an offer to vest land at GladstonePark in the Marutūāhu Rōpū; and the commercial redress includesoffers to Marutūāhu Rōpū to select various property in centralAuckland.(e) In late 2012, the Crown and Te Ākitai Waiohua entered negotiations forsettlement of their Treaty claims. An agreement in principle was signedin December 2016. A deed of settlement was initialled in December2020 and signed in November 2021. Within the area over which NgātiWhātua Ōrākei claim mana whenua, two properties are to be transferredas commercial redress: a landbank property (no longer needed by agovernment agency); and Mt Eden Normal School.[500] Other settlements are yet to be negotiated. For example, witnesses referred toWaikato-Tainui negotiating with the Crown regarding their remaining historical214claims, which include issues in Tāmaki Makaurau.813 Terms of Negotiation weresigned on 14 December 2020.D The Crown's policy on overlapping interests[501] At the heart of the issues that give rise to these proceedings is how, innegotiating the settlement of historical claims under the Treaty of Waitangi with oneiwi, the Crown should approach the overlapping interests of other iwi. These issueshave been apparent from the beginning of the contemporary Treaty settlements. Theyhave been known by various labels such as cross-claims, overlapping claims or, now,overlapping interests. I use the last of these terms because, as evident here, the issuesarise from interests, whether or not there are unresolved Treaty claims.[502] The Crown's approach to overlapping interests needs to be seen in the contextof its wider processes, policies and practices for negotiating the settlement of historicalTreaty claims. Since the Treaty settlement negotiation process started, the Crown hasdeveloped policies and practices to guide its approach to negotiations. In October1999 the Crown published a detailed guide about that, known as the Green Book.814In 2000, a new government reviewed the Treaty settlement processes and policies andpublished a further iteration of the guide, known since then as the Red Book.815 TheCrown emphasises in its closing submissions that the Red Book is a general guide only.[503] Lil Anderson, the current Chief Executive of Te Arawhiti, the Office for MāoriCrown Relations (and previously the Director of the Office of Treaty Settlements(OTS) from August 2016) was an impressive witness. She says:816[I]t is not just the Red Book, the Red Book is a summary of policy, practiceand process, and a group in negotiations is well-informed about policies,processes and practices in more detail than we put in the Red Book. There arewhole processes around the management of overlapping claims, includingtools like overlapping claims registers, and so I think from that perspective theCrown cannot be measured against the Red Book, because it is not the sumtotal of the Crown's policy, process and practice.813 NOE 578/1–5 (Blair), 1484/30–32 (Macky), 1695/32–1696/2 (Campbell)814 Affidavit of Lilian Anderson, 13 October 2020 [Anderson Affidavit] at [15]. Office of TreatySettlements Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and DirectNegotiations with the Crown Ka Tika ā Muri, Kā Tika ā Mua (October 1999).815 Office of Treaty Settlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past, building a future(June 2018) [Red Book 2018].816 NOE 847/18–25.215[504] In terms of process, on the Crown side, settlement negotiations involve anintense series of interactions between the Minister in charge of Treaty of WaitangiNegotiations, a Chief Crown negotiator, and officials from OTS, known since 2018 asTe Arawhiti. They work with the claimant iwi as well as all other relevant departmentsand Crown entities, and with the Cabinet which approves the Crown's position. LilAnderson notes that "[c]ertain milestones are common to all negotiation processes,namely achieving a deed of mandate, the ratification and signing of deeds of settlementand, then, enactment of legislation".817 In 2000, the Crown adopted six negotiatingprinciples, of: good faith; restoration of relationship; just redress; fairness betweenclaims; transparency; and government-negotiated.818[505] Lil Anderson says the Crown's objective is "to provide redress inacknowledgement of the Crown's past wrongs and, in the process, restore and enhancerelationships as best it can".819 The Crown guidelines for settlements are:820• the Crown will explicitly acknowledge historical injustices – that is,grievances arising from Crown actions or omissions before 21 September1992• Treaty settlements should not create further injustices• the Crown has a duty to act in the best interests of all New Zealanders• as settlements are to be durable, they must be fair, achievable and removethe sense of grievance• the Crown must deal fairly and equitably with all claimant groups• settlements do not affect Māori entitlements as New Zealand citizens, nordo they affect their ongoing rights arising out of the Treaty or under thelaw, and• settlements will take into account fiscal and economic constraints and theability of the Crown to pay compensation.[506] According to the Red Book, Lil Anderson's evidence, and the settlementsoutlined above, settlements usually involve three areas of redress:821817 Anderson Affidavit at [18].818 Red Book 2018 at 25–26.819 Anderson Affidavit at [77].820 Red Book 2018 at 24–25.821 Red Book 2018 at 77; and Anderson Affidavit at [18].216• the Crown recognises the wrongs done – it does this through the historicalaccount, Crown acknowledgements and apology• the Crown provides financial and commercial redress, in recognition ofbreaches by the Crown of the Treaty of Waitangi and its principles, whichcan be used to build an economic base for the claimant group, and• the Crown provides redress recognising the claimant group's spiritual,cultural, historical or traditional associations with the naturalenvironment, sites and areas within their area of interest – often calledcultural redress.[507] Regarding cultural redress, Lil Anderson says:82248. For cultural redress to be considered for a site, area or resource, theCrown requires there to be an association with that specific site, areaor resource.49. Such associations might be of various kinds. The Crown does notrequire these to be established as a matter of tikanga or even based intikanga. An item of redress might carry importance by virtue of acultural practice or because of a particular historical event thatimpacted the group or possibly due to a broken promise of the Crown.What matters to the Crown is establishing the importance of theassociation to the settling group.54. The Crown seeks to understand all associations of all groups. As Iexplain below, the Crown does not consider that it can or shouldadjudicate upon matters of tikanga or mana whenua. Rather, theCrown considers the nature of associations to be relevant todetermining redress that is fair and appropriate. Fairness requires theCrown to consider consistency across settlements. This requires morethan simply considering kinds of associations and related redressitems across settlements. As I set out further below, a range of factorsaffect what is appropriate redress in any context.55. The Crown does not accept mere assertions of associations. TheCrown will consider evidence provided by the settling group of theirasserted associations with particular sites or areas so as to understandthe basis of those assertions and the importance of the associations tothe group. As I explain below, the Crown will also seek informationconcerning associations of other groups with those sites or areas so asto understand, as far as possible, the full range of groups' associationswith those places. I have read the affidavit that the Hon ChristopherFinlayson has prepared for this hearing and agree with his explanationthat the purpose of the Crown's historical inquiry is to ensure there isa "principled historical basis" for redress."56. As I have noted, the strengthening of relationships between the Crownand Maori is an important principle underlying all Treaty settlements.822 Anderson Affidavit (footnotes omitted).217It applies to all Maori, not just the group in negotiations, hence thesettlement guideline that Treaty settlements should not create furtherinjustices to the group seeking redress or others. In seeking tounderstand all the different associations with a site, the Crownconsiders its obligations to the settling group and other groups. Afailure to consider all associations may cause harm to relationshipswith and between groups and thereby undermine the Crown'sobjective of securing durable settlements.[508] Financial and commercial redress can include a cash payment and/or transferof commercial properties, Crown forest licensed land and operational sites such asschools that are generally leased back to the Crown.823 They can also include rightsand opportunities to purchase properties for a specified time after settlement, such asdeferred selection properties and rights of first refusal.824 Together, financial andcommercial redress is known as the redress quantum or amount.825[509] Lil Anderson's evidence is that:82669. There is a key difference between the Crown's approach to identifyingpotential commercial redress items and that taken with respect tocultural redress items. Commercial redress requires an association inthe general area in which the redress item is located but does notrequire an association with the redress item itself. As with culturalredress, the Crown will inform itself as to the settling group'sassociations in the relevant area. The kinds of associations the Crownwill consider for this purpose are the same as those considered inrelation to cultural redress.70. A negotiating group will be invited to select which (if any)commercial redress properties it would like to "purchase" from itsfinancial and commercial redress amount and which it might like theopportunity to purchase after settlement. A group might makeselections based on commercial considerations or because the land hascustomary or historical significance or a combination of these factors.71. In a highly overlapped area, such as Tāmaki Makaurau, Crowndecisions to offer commercial redress include consideration ofdistributing assets across overlapping groups in a way that bothcontributes to the economic and social development of each group andis fair to each group. Fairness requires consideration of matters suchas the value of properties, their location, how many groups there areand how many properties are available.72. The Crown generally considers commercial properties to besubstitutable in that the negotiating group can take the financial and823 Anderson Affidavit at [65].824 At [66].825 At [59].826 (Footnotes omitted).218commercial redress amount as cash, rather than as commercialproperty. If a commercial property is not available or consideredinappropriate for some reason (including for example, in light of theconcerns of overlapping groups), a property of a similar value andnature may be negotiated into the commercial redress package insubstitution.[510] Michael Dreaver's evidence is that there a cap on how much the Crown isprepared to gift as part of a settlement and that the Crown takes into account the effectof each settlement's financial redress on the relativity clauses in the Crown'ssettlements with Waikato-Tainui and Ngāi Tahu.827 It seems clear that, for the Crown,cultural redress requires particular site significance to the claimant group butcommercial redress does not.828 But the Crown acknowledges that commercial redressmay nevertheless be sought by a claimant group because of its cultural significance tothe group, which may not be because they claim mana whenua there.829[511] In summary, the Red Book 2018 said:(a) Only the claimant groups can decide their boundaries or resolve thequestion of who has the predominant interest in a general area. TheCrown does not intend to determine either of those issues by engagingin the settlement process.830(b) Where there are overlapping claims:831the Crown encourages claimant groups to discuss theirinterests with neighbouring groups at an early stage in thenegotiation process and establish a process by which they canreach agreement on how such interests can be managed.(c) Overlapping claims must be substantially resolved before an AIP isfinalised and signed and "provision of settlement redress in the AIP willremain subject to the satisfactory resolution of overlapping claims priorto the Deed of Settlement being signed".832827 NOE 1545/12–14 and 1552/20–34.828 NOE 1544/1–31 (Dreaver).829 NOE 1545/4-27 (Dreaver); NOE 1551/13–19 (Dreaver); and Crown Closing at [102].830 Red Book 2018 at 53.831 At 54.832 At 59.219(d) If the claimant groups are unable to come to an agreement, the Crownmay have to "make a decision", in which it will be guided by its wishesto:833(i) "reach a fair and appropriate settlement with the claimant groupin negotiations"; and(ii) "maintain, as far as possible, its capability to provideappropriate redress to other claimant groups and achieve a fairsettlement of their historical claims".(e) Consistent with the Treaty of Waitangi, as determined by the WaitangiTribunal in the Ngāti Awa report in relation to forest land, "[w]herethere are valid overlapping claims to a site or area, the Crown will onlyoffer exclusive redress in specific circumstances", such as afterconsidering:834(i) whether "a threshold level of customary interest beendemonstrated by each claimant group";(ii) if so, the potential availability of other land for each group, therelative size of likely redress and the "relative strength of thecustomary interests in the land" (which is "only likely to be theprimary factor when there is limited forest land available"); and(iii) "the range of uncertainties involved".[512] The Hon Christopher Finlayson, Minister for Treaty of Waitangi Negotiationsfrom 2008 to 2017, explained the Crown's approach in an affidavit for theseproceedings in 2016, and adopts that explanation in his 2020 affidavit:835833 At 54.834 At 54; and Waitangi Tribunal Ngāti Awa Cross-Claims.835 Affidavit of Christopher Finlayson, 8 July 2016 [Finlayson Affidavit 2016] and see FinlaysonAffidavit 2020 at [4].22035. The Crown prefers that disagreements about redress between aclaimant group and neighbouring groups are settled by mutualagreement between the groups. The Crown's practice is therefore toencourage the claimant group to discuss its interests with theneighbouring groups at an early stage in the negotiation process andto establish a process by which they can reach agreement on how suchinterests can be managed. However, if the groups are unable to agree,the Crown may have to decide whether it is satisfied that theoverlapping claims have been addressed to the point that I am willingto include the redress in any settlement. In reaching such a decisionon whether to offer a particular property as redress, the Crown isguided, among other things, by three general principles:35.1 its wish to reach a fair and appropriate settlement with theclaimant group in negotiations;35.2 its wish to maintain, as far as possible, its capability to provideappropriate redress to other claimant groups and achieve a fairsettlement of their historical claims; and35.3 the Crown's wish to ensure the redress offered to the claimantgroup in negotiations strikes a balance between the Crown'sobligations to that group and its ongoing obligations andrelationships with overlapping settled groups.36. As noted above, when assessing whether to use particular property ina settlement, including assessing the impact of overlapping claims, Imust also consider a range of fiscal matters, such as the financial costof the settlement to the Crown, the management of the overallfinancial cost of Treaty settlements more broadly, and a number of(confidential) decisions by Cabinet setting policy and financialparameters for particular iwi negotiations or negotiations in particularareas.37. The Treaty settlement process is not intended to, and does not,establish or definitively recognise claimant group boundariesaccording to tikanga. Settlements may recognise areas of interest, butiwi and/ or settling groups may have overlapping areas of interest.Most settlements are entered into with "large natural groups" that arenot necessarily the same as, or are often a confederation of, traditionalgroupings. Redress is provided to the post-settlement entity selectedby the large natural group. Further, the settlement process does notcreate or confirm any exclusive status, such as exclusive manawhenua or ahi kā. Such matters can only be decided between claimantgroups themselves.38. The vesting of a particular site as redress should not be seen as a signalthat the Crown is making such a determination. Rather, it is simply arecognition that the Crown accepts that a claimant group has a levelof interest that the Crown considers makes the particular grant ofredress appropriate in light of all other circumstances.39. Where a settlement involves the transfer of Crown-owned property tothe claimant group, the Crown's practice generally is to transferproperty that is in the claimant's area of interest and not property that221is outside that area of interest. The Crown has sometimes madeexceptions to this approach.[513] In his 2020 affidavit, Mr Finlayson expands on this in one respect:9. I said at [40] in that affidavit that assessing which redress to use ina settlement is often a "highly political and intensely negotiated aspectof the Treaty settlement process" and that Treaty negotiations are"difficult and quintessentially political processes requiringcompromises on all sides". This remains my view. Treaty settlementsengaged my political judgement constantly, but I always considered itwas necessary to have a principled historical basis on which to provideredress to a group.[514] The Hon Andrew Little, Minister for Treaty of Waitangi Negotiations sinceOctober 2017, reinforces that approach:8365. The Treaty settlement process is intended to achieve a settlement of asettling groups' historical Treaty claims. The Crown provides redressfor its previous breaches, including an apology. It is not the purposeof Treaty settlements to resolve disputes between groups overinterests, nor is it the Crown's objective to bestow mana whenua orcustomary authority. The settlement process does require the Crownto consider groups' connections with particular areas and places, andthe customary interests that they assert in relation to those places. TheCrown must have regard to the relationships it wishes to repair andmaintain with all settling groups - but ultimately it is for Ministers todetermine what redress proposals they are prepared to support,particularly where that redress will only be put in place if and whenParliament passes legislation to do so.[515] Lil Anderson's evidence also expands on the Crown's approach to overlappinginterests:83785. The Crown also encourages groups to discuss overlapping claimstogether at an early stage and to establish a process by which theymight reach agreement. The Waitangi Tribunal's Hauraki SettlementsOverlapping Claims Inquiry Report has recently re-emphasised theutility of tikanga processes in allowing affected groups to themselvesresolve overlapping interests. As noted, the Crown prefers that anyissues relating to overlapping interests are settled by mutualagreement between affected groups. Crown policy ensures thattikanga concepts and processes can be utilised by groups at any stageof negotiations. The Crown can likewise support engagement betweengroups at any stage of the process by providing information or fundingresearch, mediation or facilitation.836 Affidavit of Andrew Little, 7 October 2020 [Little Affidavit] at [5].837 Anderson Affidavit (footnotes and italics of Māori words omitted).22286. The Crown does not, however, require that tikanga processes be used,or purport to adjudicate on the appropriate tikanga by whichoverlapping interests are addressed. Groups do not always agree onthe concepts and processes to be used. What is considered tika by onegroup may not be considered tika by another. The Crown seeks to besatisfied that there has been proper opportunity for engagementbetween groups. The Crown considers the nature of that engagementto be appropriately a matter for the affected groups.90. Of course, agreement is not always achieved and the Minister forTreaty of Waitangi Negotiations may need to make a decision as towhat redress is appropriate in the context. This is really a last resort.Agreement between groups - as opposed to a potentially divisivedecision by the Crown - is always to be preferred. However, whereagreement is not possible, the Crown must take decisions. As the RedBook states, the Crown has "accepted a moral obligation to resolvehistorical grievances in accordance "with the principles of the Treatyof Waitangi".838[516] In relation to the Waitangi Tribunal's 2007 Tāmaki Makaurau Report, MinisterFinlayson says "when dealing with any Tāmaki issues in subsequent years I wasmindful of the Tribunal's views on predominance of interests".839 Lil Andersonexplains the change in the Crown's approach to overlapping interests following the2007 Report this way:105. To avoid the consequences identified by the Tribunal of "pickingwinners" and to allow for a fuller understanding of inter-relationshipsbetween claimants, the Crown moved to a regional approach wherebythe Crown seeks to engage simultaneously with multiple claimantgroups in a common geographic area. By engaging in this way, theCrown seeks to consider overlapping interests earlier in negotiations.Pre-mandate claimant funding is available for groups to engage inoverlapping interests discussions with neighbouring groups beforetheir negotiations have commenced. The approach of simultaneousnegotiations and co-ordinated redress offers also aims to supportoverlapping interests engagement by giving groups a sense of whatthey will receive in comparison to their neighbours. The Crown hasalso increased the use of facilitators to work with groups towardsresolution.[517] The Tribunal's criticism led to a significant revision of the approach of Crownhistorians to their advice regarding Treaty settlements. Michael Macky is PrincipalHistorian at Te Arawhiti/OTS. Michael Macky provided two affidavits on which he838 Red Book 2018 at 54.839 Finlayson Affidavit 2020 at [15].223was cross-examined.840 His evidence traces the evolution in thinking of the OTShistorians, and the Crown's positions in relation to mana whenua, in relation to thetribal histories in Tāmaki Makaurau. He says, of the reaction to the 2007 Report:841Instead of drawing conclusions about predominant or customary interests,OTS historians have since focused on summarising the available evidence inrelation to customary interests of different groups in sites being considered asredress. Historians generally seek to avoid weighing different groups'interests against each other. Rather the focus is on identifying andsummarising information from primary or secondary sources about known iwiinterests in an area. This includes, for example, interests or associations thata group might have asserted in Native Land Court hearings, or in dealing withgovernment officials. Historians have developed an approach of summarisingthe evidence in relation to all groups and all associations with a site. This wasinformed by the Tribunal's approach, but, as noted, does not involve thehistorian reaching his or her own conclusions about the status of interests as amatter of tikanga.[518] Under cross-examination by Mr Hodder, Michael Macky explains:842I don't think that we're in a position of rejecting particular versions of tikangaas being invalid. OTS' position as I understand it is that in Treaty settlements,it will not adjudicate or it will not be the video referee in cases where there iscontested mana whenua and will be extremely cautious about the provision ofor historians need to be very cautious about in drawing conclusions that groupshave mana whenua or exclusive interests in overlap areas.[519] In closing, Dr Ward summarised the Crown's evidence about the role of Crownhistorians since 2007 in this way, which I consider is fair:843132.1 OTS/Te Arawhiti historians prepare memoranda on customaryinterests to assist negotiations teams in preparing redress packages,and to understand the interests of overlapping claimants in particularsites or areas where redress may be offered. They may be drawn onwhen officials are preparing briefings to the Minister that recommendpreliminary and final decisions are taken in respect of overlappingclaims and interests.132.2 OTS/Te Arawhiti historians are also almost always consulted bypolicy analysts if reports to the Minister with recommendations aboutredress items include historical analysis. The historians advise onwhether the discussion of interests and associations in these reportsreflects the historical evidence available to the Crown.840 Michael Macky, affidavits of 13 October 2020 [Macky Affidavit] and 15 January 2021 [MackyReply].841 Macky Affidavit at [21] (footnote omitted).842 NOE 1447/18–24.843 Crown's Closing at [132] (footnotes omitted).224132.3 In preparing customary interests memoranda, the kind of evidencethat historians consider may relate to a range of types of evidence ofoccupation, use, control over, or access to an area, including wāhi tapuand rāhui. A range of sources is consulted by historians, includingWaitangi Tribunal reports, research reports on Tribunal records ofinquiry, and research reports commissioned by OTS/Te Arawhiti.132.4 Particular guidelines for the preparation of customary interestsmemoranda are set out in an internal "historians' toolbox", andinclude the following:A customary interests memo should summarise the availableevidence and note possible limitations or flaws of the sourcematerial. It should also note the inherent limitations of thedocumentary record.[520] Lil Anderson's evidence is that "the Crown has been really clear that it doesnot wish to make decisions based on tikanga, because it doesn't have tikanga, if that'sa way to put it, it has a clearly articulated policy framework that has been used in over90 Treaty settlements".844 She explains that:845When it comes to a, let's take a site of cultural redress instrument, a culturalredress site where a group is seeking to have that site vested in it, in advice toMinisters or in advice that we collect we would normally go through theprocess of identifying the groups interest and the history of the site as well asother iwi that may have interests. We will often note what that association orinterest is for each of those groups and we will tell Ministers that based on astrength of interest that customary or that cultural redress site should be vestedin the iwi that is settling. So in that way I think we are giving Ministers adviceabout the strength, that it is strong enough to vest in the iwi that we are vestingit in, but we are not weighing up other people's interests.[521] She says the question of whether OTS stops short of assessing whichcustomary interests hold predominance is more a matter for Michael Macky.846 Hisevidence is that historians could not assess customary interests of ahi kā roa based onmana whenua and that where advice of that nature ought to come from is more a matterfor Lil Anderson and other leaders.847 Michael Macky explains that "[i]f the evidencein front of you was really clear [about the relative strength of competing interests] youmight [consider it] but I think you'd approach it with considerable care".848 Heexplains:849844 NOE 866/32–867/2.845 NOE 890/17–27.846 NOE 914/13–915/15.847 NOE 1451/12–20.848 NOE 1460/32–34.849 NOE 1471/27–30.225[I]t is standard in customary interest memos to have a disclaimer saying thatyou are not an expert in the tikanga of the local district and that acomprehensive understanding of customary interests in that district wouldrequire consultation with local experts.[522] Michael Macky says a historian working in Treaty issues for any length of timewould have to engage with ahi kā roa and the Crown has had to engage with conceptssuch as take raupatu and tuku whenua.850 He says that Crown historians do not take aPākehā or Māori view but rather a "negotiated view of history between the Crown andthe settling groups that it's negotiating with".851[523] Under cross-examination Michael Macky said that "OTS has accepted" theWaitangi Tribunal's view that, "if there are dense layers of interest, then that's an areawhere there can't be exclusivity".852 Michael Macky said he sees the OTS historiansas "trying to ensure that . . . there is a principled historical basis for redress to beconsidered" but is not aiming at the "highest possible bar" which would involve theTribunal's warnings about exclusive redress in areas where there are layers ofinterest.853[524] In February 2017, Te Arawhiti started reviewing the Crown's overlappinginterest policy documentation, guidance and practices. This was informed byengagement with the Iwi Chairs Forum, which criticised the Crown's approach tooverlapping claims and interests and called for a new approach. In May 2018, the IwiChairs Forum suggested to the Crown that:854• Rather than focusing on classes of redress, there needs to be focus onimplications for iwi mana of any redress.• Whether it be commercial or cultural. Ownership of property impliesmana whenua. This point seems to be lost on OTS and theGovernment.• A possible way to fix this, could be to ask the settled iwi (with strongerties to whenua) to take part in gifting the land to the outside iwi. That850 NOE 1419/9–34.851 NOE 1489/8–9.852 NOE 1456/8–14.853 NOE 1455/25–1456/6.854 Iwi Chairs Forum, Iwi Working Group (Treaty Cross Claims) New approach to overlapping claims(May 2018) at 45. (I note that Ngarimu Blair and Charlie Tawhiao have been involved with theIwi Chairs Forum).226way they retain their mana and the relationship with the settling iwi ismaintained.• The tikanga-based agreements between Ngāti Whātua Ōrākei andNgāti Pāoa is another proven way forward where iwi settle theirdifferences, not the Crown.• Ideally, the Crown would identify up front what redress it intends tomake available to iwi and then invite affected iwi (neighbouringsettled and unsettled) to identify mana impacts for them.• The current process doesn't involve other iwi until the negotiationsare progressed, and the redress is not made public until the settlementis initialled. This means affected iwi have little other option thanlitigation.[525] The Forum also suggested change is needed from iwi:855• Current approach encouraging some iwi to turn their back onrelationships simply to get best deal.• We need to start by showing confidence in our own tikanga basedprocesses to resolve the real issue at the heart of overlapping interests,iwi mana.• Showing confidence in our own processes means excluding Crowninvolvement altogether (unless the disputing parties agree otherwise).• This means removing the Crown as the final arbiter in the event of animpasse (again, unless the parties agree to Crown making the decisionfor them).• The Crown role in the process of determining iwi mana, should be theprovider of resources only.• We know where we can legitimately claim iwi mana. This should bedebated on the marae or in our environment not the courts or Beehive.[526] The Iwi Chairs Forum proposed an independently-facilitated tikanga-baseddispute resolution process to the resolution of issues caused by overlapping interestsin Treaty settlements. It noted that the process closest to the way their tipuna resolvedthese matters was for the groups to keep talking until they reached consensus. Butthey noted another example of a tikanga-based approach would be for an independentpanel of tikanga experts helping to make a determination, similar to the statutoryprocess used in the Central North Island. They also pointed to the process resulting inthe Kawenata Tapu between Ngāti Whātua Ōrākei and Ngāti Pāoa, and a possible855 At 78.227"sphere of influence" model of ahi kā roa, an area of interest and an area ofassociation). The Forum suggested the following principles:856• At the outset, settling group to identify their interests in an area.• Identify areas of overlapping or shared interests. Consultation thentakes place with other iwi.• Tikanga-based engagement between iwi (both the settling iwi andthose identified as having overlapping/shared interests).• If Iwi reach agreement it should become binding on the Crown tofollow/implement in the settlement negotiations• Aim: To agree a process for engagement and dispute resolution (iwito iwi).[527] It recommended:857• Any redress ultimately provided by the Crown within an area ofidentified overlapping/shared interest:• being commensurate with the relative customary interests ofthe iwi involved;• being consistent with, and not prejudicial to, the rights andinterests of the iwi; and• not undermining the value and integrity of any existingsettlements.[528] In response, in March 2019, Minister Little said:858(a) the current policy is for overlapping claims to be addressed as early aspossible in the negotiation process;(b) the Crown considers evidence of interests, including the rights andinterests of settled groups, before making redress offers, though thatwas not properly reflected in the policy; and:While I cannot accept the proposal to remove the Crown as a finaldecision maker on the redress the Crown is prepared to offer to settlea group's historical Treaty claims, I can provide an assurance the856 At 10.857 At 23.858 Letter from Minister Little to Iwi Chairs Forum (13 March 2019); and Anderson Affidavit at [108].228Crown will seek to give effect to any agreement between iwi subjectto consideration of Treaty settlement policy implications.The Crown and settling iwi are putting redress ahead of relationshipsYour paper states the Crown prioritises reaching settlement overrelationships. I can assure it does not. This issue sits at the heart ofthe tension between the Crown's objective to settle with groups asefficiently as possible so as not to deprive them of the benefits of theirsettlement while not adversely affecting other iwi interests.Ultimately time does need to be built into negotiations from the startto allow for proper resolution of issues through iwi led engagement.This is, however, a fine balance as delays will prejudice unsettledgroups by denying them the advantages settled groups already have.[529] The Minister's evidence is that the Crown continued to engage with the IwiChairs Forum in 2019 and 2020.859 In closing, Dr Ward said as a result of thatengagement, and the Waitangi Tribunal's Hauraki Report (which is outlined below),Te Arawhiti was in the process of updating the sections of the Red Book relating tomandate, overlapping interests and cultural redress.860[530] On 21 December 2021, after the hearing in these proceedings, the Crownadvises that Te Arawhiti has now completed its review, the product of which is anupdated edition of the Red Book replacing sections of the 2018 version relating tooverlapping interests and exclusive and non-exclusive redress. The Crowncharacterises the new statement as providing "a fuller explanation" which is a"refinement of the 2018 policy – it does not represent new policy".861 The other partiesand interested parties, who have had the opportunity to make submissions on the 2021policy, submit it makes little difference to their concerns. The 2021 statement states,most relevantly:862The Crown's understanding of customary interests and associations14. Where interests and associations are disputed by overlapping groups, theCrown does not consider that it can or should determine or adjudicate whethera group has a predominant interest or any exclusive status in an area. TheCrown's role is to support groups to address these issues themselves. TheCrown's approach to redress will be informed by the dialogue between groups859 Little Affidavit at [37].860 Crown Closing Submissions at [144].861 Memorandum of Counsel for the Attorney-General, 21 December 2021, at [3.2] and [3.3].862 New Zealand Government "Overlapping interests" (21 December 2021) [Red Book 2021].229on these issues. Where groups are unable to reach agreement about how toaddress overlapping interests, the Crown may need to decide on the redress itis willing to offer the claimant group.Customary interests or associations demonstrated by the claimant group is onefactor informing the Crown's decision to offer redress (as identified in thesections 'How do overlapping interests influence the redress offered by theCrown?', 'Consideration of exclusive and non-exclusive cultural redress' and'Consideration of exclusive commercial redress').15. It is acknowledged however, that overlapping groups may see the Crown'soffer of redress as a statement or recognition of mana whenua. This is not thepurpose or the effect of Treaty settlements. Although the Crown will take intoaccount groups' statements about their interests, the settlement process is notintended to establish or recognise boundaries between groups or makedeterminations of mana whenua.How does the overlapping interests process work?22. It is vital the Crown is properly informed of the interests of all groups inan area before making an offer to a claimant group. The Crown will not initiala deed of settlement until it is satisfied overlapping interests have beenaddressed. 33. The Crown's preference is that the claimant group and overlapping groupsagree solutions to address any issues relating to overlapping interests directly,in accordance with appropriate tikanga. If the groups seek it, the Crown cansupport engagement between groups at any stage of the overlapping interestsprocess by funding research for groups, mediation or facilitation. Groups cancontact Te Arawhiti directly for support.How do overlapping interests influence the redress offered by the Crown?53. Exclusive cultural redress is generally considered where a claimant grouphas expressed a strong customary interest or association (spiritual, cultural,historical and traditional association) or relationship to a site of specialsignificance, that warrants exclusive cultural redress (taking intoconsideration any information about the customary interest or association ofoverlapping groups with that site). An example of exclusive cultural redress isthe vesting of cultural redress properties in a single claimant group.58. In developing the commercial redress package, consideration at a highlevel is given to whether there is a customary interest or association in the areathat warrants the commercial redress. For example, if several groups seekredress for Crown Forest licensed land (CFL land) in the same area and claim230an interest in that land, the Crown will first consider whether each group hasdemonstrated a customary interest or association in that land. If a customaryinterest or association is demonstrated, the Crown then considers:o the potential availability of other CFL land for each group;o the relative size of likely redress for the Treaty claims, given thenature and extent of likely breaches;o the nature of the customary interests or associations in the land; ando what uncertainties are involved.59. Where uncertainties exist, such as conflicting historical accounts ofassociation with the land, the Crown is likely to take a cautious approach tooffering CFL land redress.60. The relative weightings given to each of these considerations will dependon the precise circumstances of each CFL land case. Broadly, a claimant groupwould only have to show an interest or association in the CFL land to beeligible to receive that land as redress. The nature of relative customaryinterests or association in the land is only likely to be the primary factor whenthere is limited CFL land available.61. The Waitangi Tribunal has found that this approach to addressingoverlapping interests in CFL land is consistent with the Treaty of Waitangi andits principles.What happens if overlapping interests can't be resolved by agreement?62. Sometimes it is not possible for groups to reach agreement about how toresolve their overlapping interests in redress offered by the Crown, despite theundertaking of processes by the claimant group and the Crown described inthe section 'How does the overlapping interests process work?'63. If there is no prospect of agreement within reasonable timeframes, theCrown may, as a last resort, have to make a decision about whether to maintainthe offer of the redress. Any such decision is guided by the Crown settlementprinciples and guidelines (pages 24–26 of the 2018 Red Book), Treatyprinciples described in the section 'Treaty of Waitangi' and is also informedby consideration of the factors outlined in the section 'How do overlappinginterests influence the redress offered by the Crown?', including theoverlapping interests process undertaken to date and the views andinformation shared by groups with the Crown.64. If such a decision is required, the Crown will invite the claimant group andoverlapping groups to provide comment and information on the issue and theCrown's proposal for resolution. In general, the Crown will allow at leastthree weeks for formal responses to Crown requests for comment andinformation. However, timeframes will depend on the specific negotiationsand agreed process. Meetings may be arranged between the Crown (theMinister for Treaty of Waitangi Negotiations and/or officials from TeArawhiti) and affected groups to discuss the issue, interests and the Crown'sproposal.23165. The comments and information provided by groups will inform Crowndecision-making on whether to amend or confirm the redress for inclusion inthe agreement in principle or the deed of settlement. Sometimes the Crownmay seek independent advice from individuals or groups with expertise in thehistory and traditions of the relevant groups before making a decision.66. The Crown's approach to addressing overlapping interests recognises thatoverlapping groups will not always be able to reach agreement and thesettlement process cannot be held in hiatus indefinitely due to stalemate. Thiswould not be fair to the claimant group, depriving them of the benefits ofsettlement. The Crown seeks to ensure a fair, robust and transparentoverlapping interest process is undertaken that is consistent with Treatyprinciples and provides for the best opportunity for the resolution of issuesraised by overlapping groups.Questions and AnswersDoes the Crown require a tikanga-based process of engagement by theclaimant group?The Crown's preference is that the claimant group and overlapping groupsagree solutions to address any issues relating to overlapping interests directly,in accordance with appropriate tikanga. However, it is the decision of iwi andhapū to choose to engage in a process based on their tikanga.Does the Crown consider tikanga when making decisions about redressto offer to a claimant group?Yes, the Crown will take into account groups' statements about their interests,including tikanga, when making decisions about redress to offer. This is inthe context of a number of factors being considered (some factors are listedunder the heading 'How do overlapping interests influence the redress offeredby the Crown?' in the 2021 policy).Any decision is guided by the Crown settlement principles and guidelines,Treaty principles, the overlapping interests process undertaken to date, and theviews and information shared by groups with the Crown. Sometimes theCrown may seek independent advice from individuals or groups withexpertise in the history and traditions of the relevant groups before making adecision.E Illustrative examples of the application of Crown policy[531] These proceedings were sparked by the Crown's intention to transferproperties, in the area over which Ngāti Whātua Ōrākei claims mana whenua, to NgātiPāoa as part of their Treaty settlement in 2015. The proceedings were amended toencompass proposed transfer of other properties to Marutūāhu Rōpū in 2016 and TeĀkitai Waiohua in 2018. In 2018, the Supreme Court ruled that Ngāti Whātua Ōrākeicould pursue its claim for declarations as to its rights, but it could not challenge the232proposed transfers of specific properties to other iwi, which would be implemented bylegislation.[532] Ngāti Whātua Ōrākei do not now seek to challenge the transfers. They pleadthat the Crown's offers of Treaty redress to the Marutūāhu Collective and to Te ĀkitaiWaiohua, in the area over which Ngāti Whātua Ōrākei claim mana whenua, areexamples of the Crown's policy. Crown witnesses Lil Anderson, Michael Dreaver andLeah Campbell confirm that they consider they were following and applying theCrown's policy in their work on those offers.863 They have been treated in theseproceedings as illustrative examples of the application of the Crown's overlappinginterests policy. I therefore outline here how the transfers to Ngāti Pāoa, Marutūāhuand to Te Akitai played out. Because they are only illustrative examples, I do not delveas far into the blow by blow details as the evidence makes possible. I then outline theWaitangi Tribunal's 2019 report regarding the application of the Crown's policy inHauraki.1 Ngāti Pāoa and Marutūāhu Rōpū[533] Minister Finlayson's evidence is that, in November 2014, Ngāti Whātua Ōrākeiapproached him with concerns about the Crown's offer of redress to Marutūāhu.864 Heand OTS officials met with Ngāti Whātua Ōrākei. They offered to organise adiscussion with an independent facilitator but Marutūāhu would not agree.865 Theysuggested Marutūāhu meet directly with the Chief Crown Negotiator with NgātiWhātua Ōrākei, but Ngāti Whātua Ōrākei did not agree. During a further series ofdiscussions, Minister Finlayson understood Ngāti Whātua Ōrākei to have concerns"about any and all redress offered to Marutūāhu within the area that had been proposedin a 2006 Agreement in principle between the Crown and Ngāti Whātua Ōrākei".866[534] Minister Finlayson met Ngāti Whātua Ōrākei again on 3 March 2015 andsuggested the parties' historians meet to identify points of agreement and863 NOE 929/9–15 (Anderson); NOE 1562/20—1563/4 (Dreaver); NOE 1736/14–34 (Campbell).864 Finlayson Affidavit 2020 at [20].865 At [22].866 At [23].233disagreement.867 His evidence is that he was unable to arrange a meeting withMarutūāhu in 2015.868 Ngāti Whātua Ōrākei applied for interim orders preventingtransfers to Ngāti Pāoa and Marutūāhu but withdrew the application by consent. On17 August 2015, the Minister notified Ngāti Whātua Ōrākei that:869(a) the Minister wanted to discuss further with Ngāti Whātua Ōrākei theirconcerns about the Crown's application of the "layers of interest"concept referenced in the Waitangi Tribunal's 2007 Tāmaki MakaurauReport; but(b) the Crown had determined that Ngāti Pāoa have interests in the centralTāmaki region; and(c) the Minister had made a preliminary decision to confirm the redressoffer of two properties, at 71 Grafton Road and 136 Dominion Road, toNgāti Pāoa.[535] The response of Ngāti Whātua Ōrākei was to issue these proceedings. On 25September 2015, senior Crown Counsel relayed the instructions of the Attorney-General (also Minister Finlayson) that the Crown would not make a final decision onthe relevant Ngāti Pāoa redress while the proceeding remained on foot.870[536] On 4 March 2016, the Lead Negotiator for the Crown, the Hon Rick Barker,advised Ngāti Whātua Ōrākei that:871(a) the Crown had recommenced settlement negotiations with theMarutūāhu Collective, and individual Marutūāhu iwi, subject to theresolution of overlapping claims to the Crown's satisfaction; but(b) he had withdrawn the Crown's offer over Gladstone Park and said:867 At [24].868 At [24].869 Letter from Minister Finlayson to Ngāti Whātua Ōrākei Trust, 17 August 2015.870 Email from Senior Crown Counsel to other counsel, 25 September 2015.871 Letter from Lead Negotiator, Hauraki to Ngāti Whātua Ōrākei Trust, 4 March 2016.234It is the Crown's preference for iwi to engage directly on proposedredress and resolve any issues themselves. If Ngāti Whātua Ōrākeiand the Marutūāhu Collective cannot reach agreement the Minister forTreaty of Waitangi Negotiations will make a preliminary decision.The types of information that would assist in a preliminary decisionare:a. information Ngāti Whātua Ōrākei has provided to date for theCrown to take into account;b. historical and cultural information as to your interests in the areasproposed as redress to the Marutūāhu Collective;c. whether and how you consider your interests (including cultural andcommercial) might be affected by the proposals; andd. any other information you consider may assist the Crown inassessing the appropriateness, or otherwise, of the offer to theMarutūāhu Collective, when balanced with your interests.[537] On 11 March 2016, Minister Finlayson met with Marutūāhu. In a letter dated13 May 2016, he confirmed that the Marutūāhu Collective was to be offered 10properties in its settlement in the area over which Ngāti Whātua Ōrākei claim manawhenua.872 Nine would be commercial redress and one would be cultural redress.They included the iconic sites of Auckland Grammar School, Epsom Girls GrammarSchool, three other schools and the Fred Ambler Lookout at Gladstone Park.[538] On 22 March 2016, Ngāti Whātua Ōrākei advised that negotiations withMarutūāhu should be treated the same as that for Ngāti Pāoa, since Marutūāhu Rōpūhad now been joined to these proceedings. Accordingly, Ngāti Whātua Ōrākei advisedit did not intend to further discuss overlapping concerns with the Marutūāhu Collectiveand/or Crown while the matter was before the Court, as its position in the proceedingsmay be compromised.873 It considered it was premature and inappropriate for thenegotiations to be progressed.[539] On 24 March 2016, OTS advised the Minister to offer Marutūāhu and NgātiWhātua Ōrākei a further opportunity to resolve overlapping claims before he made apreliminary decision.874 The Minister disagreed with the recommendation.875 He872 Letter from Minister Finlayson to Chair of the Marutūāhu Collective (13 May 2016).873 Letter from Ngāti Whātua Ōrākei Trust to Lead Crown Negotiator (22 March 2016).874 Aide Memoire from Deputy Director OTS to Minister Finlayson (24 March 2016).875 Finlayson Affidavit 2020 at [29].235"considered that sufficient opportunities to resolve overlapping claims had beenprovided and [he] was satisfied that reasonable steps had been taken".876 MinisterFinlayson continues to stand by that decision. On 31 March 2016, the Minister advisedNgāti Whātua Ōrākei that he had decided to make a preliminary decision.877 On 22April 2016, he made a preliminary decision on the basis of advice from OTS.878Minister Finlayson's evidence is:33. In reaching that decision, I took into account that Ngāti Whātua Ōrākeihad been consulted over the proposal, including in face-to-facediscussions with me, and that historical research and negotiationdiscussions had been conducted over a number of years about theinterests of various groups, including Ngāti Whātua Ōrākei. Further, Inoted that Marutūāhu had sought, in March 2016, to meet directly withNgāti Whātua Ōrākei, and Ngāti Whātua Ōrākei had declined to meet dueto their commencement of the present High Court proceedings.34. I considered the proposed redress was "commensurate" with Marutūāhu'sinterests in the central Tāmaki isthmus, based on the Crown's assessmentof their associations with the area. This was raised with me by officialsin briefings to me and through my discussions directly with Marutūāhu,including on 11 March 2016 (see [27] above). I turned my mind to thatvery carefully. The language of "commensurate" needs further comment.By "commensurate", I meant I was satisfied that there was a principledhistorical basis for the redress being proposed, and that the redress wasreasonable and fair in all the circumstances, including the nature of theredress.35. Ngāti Whātua Ōrākei's concerns were a very important consideration. Iknew Ngāti Whātua Ōrākei considered they had ahi ka over the disputedredress items and saw the redress as quite inappropriate. Officials advisedme that the Crown had not recognised an exclusive area of interest forNgāti Whātua Ōrākei and had not given undertakings that redress wouldnot be provided to other iwi in the area. I asked for (and received) a copyof the memorandum that the former Chief Crown Negotiator sent toMarutūāhu and Ngāti Whātua Ōrākei on 27 September 2011, whichconfirmed this. A copy of that memorandum is attached to this affidavitand marked "CFF-3".36. I was concerned that Ngāti Whātua Ōrākei's position had the effect ofrestricting the ability of the Crown to provide redress to Marutūāhu (orother claimant groups) unless Ngāti Whātua Ōrākei gave theirpermission. This was not an approach I thought was appropriate in theTāmaki context, especially in light of the Tribunal's comments onpredominance.37. I also took into account that Ngāti Whātua Ōrākei had already received asettlement of their historical claims and had received a relatively876 At [29].877 Letter from Minister Finlayson to Ngāti Whātua Ōrākei Trust, 31 March 2016.878 Finlayson Affidavit 2020 at [29]236substantial area of land in cultural redress. This was relevant because theCrown must be fair between groups. If the Crown was providingsubstantial property to a group where none had been provided to NgātiWhātua Ōrākei, that would have required further consideration, becauseNgāti Whātua Ōrākei's continuing interests were well known andsignificant. I considered all parties to the Tāmaki Collective understoodthat property subject to the RFR mechanism could be considered for iwispecific settlements. I did not consider this meant that "all interests wereequal"; rather, I had to be satisfied that, in all the circumstances, I felt itwas appropriate to offer the proposed redress. I did not consider NgātiWhātua Ōrākei were entitled to prevent or veto redress for Marutūāhu orany other group (just as no group had been entitled to prevent or vetoredress for Ngāti Whātua Ōrākei).38. I therefore agreed to maintain the redress offer to Marutūāhu and to signletters to Marutūāhu and Ngāti Whātua Ōrākei advising them of mypreliminary decision.[540] On 12 May 2016, the Minister made a final decision on overlapping claimsbetween Marutūāhu and Ngāti Whātua Ōrākei, on the basis of a report from OTS.879In her report of four pages, the Deputy Director of OTS advised:8808. Officials do not consider Ngāti Whātua Ōrākei's objections justifiedbecause the Crown considers other iwi have interests in central TāmakiMakaurau, and do not recognise the "2006 proposed RFR area" asestablishing an exclusive area of Ngāti Whātua Ōrākei interests orgenerating a substantive fetter on your decisions about redress to othergroups. The Crown does not need to determine Ngāti Whātua Ōrākeimana whenua in order to maintain this position, nor does it make redressdecisions based on mana whenua. The "2006 proposed RFR area" wasnever part of a final deed of settlement between Ngāti Whātua Ōrākei andthe Crown. Further, as previously discussed, the "layers of interest"approach discussed in the Waitangi Tribunal's 2007 Tāmaki MakaurauSettlement Process Report was used in relation to maunga, but not inrelation to the commercial redress discussed here.9. In considering the provision of redress in Tāmaki Makaurau, the Crownis entitled to consider the interests of other relevant iwi who are yet tosettle. If the Crown excluded all redress within the area Ngāti WhātuaŌrākei say is their exclusive area of interest it would prejudice other iwiin future settlements given the commercial value of land in this area: theCrown would adversely affect the cultural and economic opportunities itcould offer to those iwi who have interests in central Tāmaki Makaurauin a way officials consider is inequitable.13. The Crown considers the impact of the proposed redress on overlappingsettled groups and this is often a wide-ranging consideration. The Crowndoes not assess or determine a group's mana whenua as part of that879 Finlayson Affidavit 2020 at [39].880 Briefing from Deputy Director OTS to Minister Finlayson, 12 May 2016.237process. In this case, officials have considered the impact of the redresson Ngāti Whātua Ōrākei, the interests of the Marutūāhu Collective, andthe Crown's wish to achieve a fair and appropriate settlement, the abilityto provide appropriate redress, and ensure the redress strikes a balancebetween these obligations.14. The Crown accepts the Collective has interests within Tāmaki Makaurau.The redress offer provided to the Collective is commensurate with theCollective's interests. The redress is provided on the basis of assessmentsof interests, not on the basis of assessments of mana whenua. Thisapproach was taken when developing Ngāti Whātua Ōrākei's Treatysettlement and Ngāti Whātua Ōrākei were aware of this approach.15. Accepting Ngāti Whātua Ōrākei's position would prevent the Crownfrom providing a settlement that is fair and appropriate and restricts theability of the Crown to provide redress to the Collective (or otherclaimant groups with interests) without the express permission of NgātiWhātua Ōrākei.[541] From the perspective of Ngāti Whātua Ōrākei, the Crown then altered itsdecision-making process. On 21 May 2016, the Minister revised his preliminarydecision to propose Ngāti Pāoa would be given a right to purchase the properties atsettlement date from private funds. That decision would be "implemented only bysettlement legislation and any right for Ngāti Pāoa to purchase these properties will beconstituted by Parliament".881 Ngāti Whātua Ōrākei would be given four weeks'notice of any deed initially.[542] Crown Counsel advised Ngāti Whātua Ōrākei that the previous assurance, thatthe Crown would not make final decisions on Ngāti Pāoa properties before thelitigation was complete, had been superceded because "[n]o 'final decision' would bemade in relation to that decision".882 The Crown applied to strike out the proceedingsas inconsistent with Parliamentary privilege. It succeeded in the High Court and Courtof Appeal, but not the Supreme Court. Hence this judgment.[543] Ngāti Pāoa and the Crown signed a deed of settlement on 18 August 2017. Atthis time, Ngāti Whātua Ōrākei and Ngāti Pāoa had entered into the Kawenata Tapu.Mr Hodder submits that Ngāti Whātua Ōrākei took a generous approach towards NgātiPāoa's settlement by allowing properties in their rohe to be given to Ngāti Pāoa,provided they were acknowledged in the process.881 Letter from Deputy Director OTS Ngāti Whātua Ōrākei Trust, 2 June 2016.882 Letter from Senior Crown Counsel to Ngāti Whātua Ōrākei solicitor, 21 June 2016 at [5].238[544] The Hon Andrew Little became Minister in October 2017. His evidence is that"[i]n broad terms, the approach [Minister Finlayson] describes is also the approach Ihave taken to overlapping interests".883 Minister Little's evidence is that Ngāti WhātuaŌrākei contacted him soon after he took office in October 2017, regarding theirconcerns about the Crown's approach to overlapping claims.884 His preference was toawait the then-pending decision of the Court of Appeal on the strike-out of theseproceedings. He also considered the Iwi Chairs Forum to be an appropriate channelto discuss the concerns raised. Eventually, the Minister met Ngāti Whātua Ōrākei on23 February 2018.[545] In April and May 2018, Ngāti Whātua Ōrākei wrote to the Minister expressingconcerns about the prospect of the Crown and Marutūāhu initialling the MarutūāhuIwi Collective Redress Deed.885 On 1 June 2018, the Minister wrote to Ngāti WhātuaŌrākei to say no date had been set and Ngāti Whātua Ōrākei would be notified shoulda date be set. He also said the Crown's assurance regarding Ngāti Pāoa did not applyto the Marutūāhu Collective settlement and that, as with the Ngāti Pāoa properties,none of the properties disputed by Ngāti Whātua Ōrākei would be transferred toMarutūāhu unless Parliament authorised it.886[546] On 6 June 2018, Ngāti Whātua Ōrākei wrote to the Minister saying that theCrown was not giving a tikanga-based process an opportunity to work because theCrown was providing no incentive for the settling party to engage in it.887 The lettercomplained about the Crown acting "aggressively and stubbornly" in relation to thelitigation by creating the conditions to strike out the claim and never accommodatingany alternative. The letter referred to Ngāti Whātua Ōrākei attempting to engage withMarutūāhu and Hauraki in a tikanga process hosted by Ngāti Pāoa, but noted thatHauraki and Marutūāhu did not attend. It also referred to the Iwi Chairs' proposal. Iturged the Minister to stand by his commitment to seeing a tikanga-based processtaking place.883 Little Affidavit at [4].884 At [6].885 At [9].886 Letter from Minister Little to Ngāti Whātua Ōrākei Solicitor, 1 June 2018.887 Letter from Chair of the Ngāti Whātua Ōrākei Trust to Minister Little, 6 June 2018.239[547] On 10 June 2018, the Minister agreed to initial the Marutūāhu Collective deedon a conditional basis (neither condition relating to the concerns of Ngāti WhātuaŌrākei).888 He also agreed to re-instate redress of an expanded area of GladstonePark.889 He considered the concerns of Ngāti Whātua Ōrākei had been addressed bythe process undertaken by Minister Finlayson and he was conscious that the redresswould only be transferred if and when Parliament legislation to permit that.890[548] On 11 June 2018, in a further letter to Ngāti Whātua Ōrākei, the Ministerrepeated the Crown's position that claimant groups should resolve who haspredominant interests in any area. Otherwise, he said, the Crown may have to make adecision, guided by two principles it had previously identified. On 22 June 2018,Ngāti Whātua Ōrākei sought the Crown's response to their 6 June 2018 letter, notedthe Minister's description on TV of the overlapping claims process, with which hecontinued to require compliance, as "clumsy and blunt" and expressing their grievanceby the Crown's position.891[549] On 24 July 2018, the Minister wrote to Ngāti Whātua Ōrākei to say thatinitialling the Marutūāhu deed did not remove the scope for making changes takinginto account the outcome of any tikanga-based process, led by iwi not the Crown, towhich he was open. The Marutūāhu deed was initialled on 26 July 2018.8922 Te Ākitai Waiohua[550] On 16 September 2016, the Chief Crown Negotiator made Te Ākitai Waiohuaan offer including potential commercial redress of three properties, including Mt EdenSchool. There is dispute as to whether one of them (at 101A Hillsborough Rd) iswithin the area over which Ngāti Whātua Ōrākei claims mana whenua.893 The offerwas conditional on, among other things, "the resolution of overlapping claims to theCrown's satisfaction".894888 Little Affidavit at [11]889 At [13]–[15].890 At [15]–[16].891 Letter from Ngāti Whātua Ōrākei Trust to Minister Little, 22 June 2018.892 Little Affidavit at [22].893 Letter from Chief Crown Negotiator to Te Ākitai Waiohua Iwi Authority, 16 September 2016.894 At 2.240[551] On 4 October 2016, the Deputy Director of OTS advised Ngāti Whātua Ōrākeithat the Crown was working towards signing an agreement in principle with Te ĀkitaiWaiohua in the last quarter of 2016, subject to the resolution of overlapping claims.895She said:896The Crown's preference is for overlapping claims to be resolved by discussionbetween groups. The Crown acknowledges that such discussions cansometimes be difficult. Should the need arise the Crown is able to assist insuch discussions if both parties agree. The Office of Treaty Settlements is alsoavailable at any time during this process to meet with you directly to discussyour interests and any issues.Process and timeframes for engagementOnce we have your feedback, we will then assess this information alongsideany additional information the Te Ākitai Waiohua lwi Authority provides usresulting from their engagement with you. Following this, we will report tothe Minister for Treaty of Waitangi Negotiations on overlapping claimsmatters based on our assessment of information received from the Te Ākitailwi Authority and neighbouring groups. The Minister will then adviseclaimant groups of his initial views on any unresolved overlapping claims andwhether any of the redress proposals may need to be amended based on theinformation he has received to date.Should there remain outstanding matters between iwi, the Crown may have tomake a decision. In reaching decisions on overlapping claims the Crown isguided by three principles:• reaching a fair and appropriate settlement with the claimant group innegotiations;• maintaining, as far as possible, its capability to provide appropriateredress to other claimant groups and achieve a fair settlement of theirhistorical claims; and• the Crown's duty to ensure the redress offered to the claimant group innegotiations doesn't cause prejudice to a settled group and has nounintended inferences about the mana of other groups.You will have an opportunity, if need be, to respond to the Minister'spreliminary decisions on unresolved overlapping claims. The Minister willthen make final decisions on unresolved overlapping claims matters.[552] On 7 October 2016, the solicitors for Ngāti Whātua Ōrākei responded, seekingurgent confirmation as to whether any redress was within the area over which theyclaim mana whenua, referring to these proceedings.897 They concluded:895 Letter from Deputy Director OTS to Ngāti Whātua o Ōrākei Trust Board, 4 October 2016.896 At 2.897 Letter from Ngāti Whātua Ōrākei solicitor to Deputy Director OTS, 7 October 2016.241Te Ākitai Waiohua6 Ngāti Whātua Ōrākei intends to meet with Te Ākitai Waiohua to discuss,by way of kōrero pono, the Crown's redress proposal.7 However, Ngāti Whātua Ōrākei considers that these discussions could bemuch more fruitful if the two groups were able to discuss the "full TeĀkitai Waiohua package as it relates to [Ngāti Whātua Ōrākei's] area ofinterest". It is not realistic for Ngāti Whātua Ōrākei to assess anyoverlapping claims it might have with Te Ākitai Waiohua discrete fromthe overall redress proposals.[553] On 30 November 2016, the Deputy Director of OTS providing Ngāti WhātuaŌrākei with a summary of the full redress package in an AIP with Te Ākitai Waiohuawhich they were scheduled to sign in December 2016.898 She advised none of theexclusive cultural redress were located within the Ngāti Whātua Ōrākei area of interestbut the three commercial redress properties were. She requested comments no laterthan 13 December 2016 if Ngāti Whātua Ōrākei wished to provide comments on theredress prior to the signing. Following the signing, OTS would write to all overlappinggroups again providing them with the AIP "and seeking formal views on the redressoffered". The AIP was signed on 16 December 2016.[554] In September 2018, Minister Little obtained Cabinet approval for a revisedredress package for Te Ākitai Waiohua.899 He says he was conscious that regardlessof the changes to details, which is not unusual, he was aware the Crown needed to besatisfied that overlapping interests had been addressed.900 On 25 February 2019, theMinister agreed to "close the overlapping claims process" with nine groups, other thanNgāti Whātua Ōrākei, who had raised concerns about the proposed redress to Te ĀkitaiWaiohua.901 He encouraged Te Ākitai to meet with Ngāti Whātua Ōrākei to discussoverlapping interests. They met on 1 May 2019 but the objections of Ngāti WhātuaŌrākei were not resolved.[555] On 18 November 2019, the Minister accepted Te Arawhiti's recommendationto make a preliminary decision to maintain the offer of the disputed properties to TeĀkitai Waiohua notwithstanding the objections of Ngāti Whātua Ōrākei.902 Te898 Letter from Deputy Director OTS to Ngāti Whātua o Ōrākei Trust Board, 30 November 2016.899 Little Affidavit at [23].900 At [24].901 At [25].902 At [29];242Arawhiti's advice to the Minister noted that the courts had allowed Ngāti WhātuaŌrākei's proceeding about mana whenua to proceed, but not the challenge to specificproperties that will be transferred by legislation.903 It advised that "[w]e consider thebetter approach is to maintain consistency with our overall overlapping interestsapproach and continue to defend our position in the courts".904 The Minister says hewas familiar with Ngāti Whātua Ōrākei's objections to the overlapping interestspolicy, which appeared to him to be a general objection rather than relating to theparticular properties.905 The Minister's evidence is that he took into account officials'summaries of historical evidence and Waitangi Tribunal research regarding Te Ākitai'shistorical connections to the proposed commercial redress sites.906 The Minister wasconcerned about the impact the decision would have for the Crown's relationshipswith Te Ākitai and Ngāti Whātua Ōrākei. He considered the objections had beenaddressed to his satisfaction and no further processes were required. But the decisionwas preliminary. Lil Anderson's evidence under cross-examination is:907A long drawn-out process between iwi along the lines of where thatconversation was heading may not have been in the best interests ofrelationships between those two iwi. It could've caused more damage thanthis would've and you know, given I think the conversation they had, it wasvery likely to have not just affected their relationship but affected relationshipsacross Tāmaki Makaurau.[556] On 19 November 2019, the Minister wrote to Ngāti Whātua Ōrākei to say hehad been advised Ngāti Whātua Ōrākei and Te Ākitai Waiohua had met but did notagree on how their overlapping interests can be addressed.908 He said:This means I must make, on behalf of the Crown, a decision on the proposedredress.Factors taken into account by the CrownThe Crown is guided by two general principles when considering overlappinginterests:903 Deputy Director Te Arawhiti to Minister Little, 7 November 2019 at [9].904 At [12].905 Little Affidavit at [30].906 At [31].907 NOE 879/32—880/3.908 Letter from Minister Little to Ngāti Whātua Ōrākei Trust Board, 19 November 2019.243• the Crown's wish to reach a fair and appropriate settlement with theclaimant group in negotiations; and• the Crown's wish to maintain its capability to provide appropriate redressto other claimant groups who have yet to enter negotiations, and toachieve a fair settlement of their historical claims.In making my preliminary decision I have also taken into account:• relevant historical evidence on customary interests and Waitangi Tribunalresearch;• the information Te Ākitai Waiohua have provided on their interests in theproposed redress;• the information you have provided about the proposed redress and yourinterests;• the commercial nature of the redress; and• fairness between claims (including between settled groups and non-settled groups).Preliminary decisionI am satisfied there is evidence that Te Ākitai Waiohua have historicalconnections to the areas in which the properties lie through their Te Waiohuaancestors. The properties are also within Te Ākitai Waiohua's area of interest.I understand you may not agree with my preliminary decision. I have beenreluctant to make a decision but in the absence of agreement between TeĀkitai Waiohua and Ngāti Whātua Ōrākei I am obliged to act in good faithtoward Te Ākitai Waiohua so they may progress their Treaty settlement. Iassure you I have considered your perspective, but in weighing the variousconsiderations the Crown must take into account I am comfortable with mypreliminary decision.I also note the proposed redress will not be available to Te Ākitai Waiohuaunless and until Parliament has enacted legislation that authorises it.3 Waitangi Tribunal's Hauraki Report[557] Another example of the application of the Crown's policy on overlappinginterests, that was canvassed by the parties in evidence and submissions, is theWaitangi Tribunal's report on its urgent inquiry into the Hauraki Settlement244Overlapping Claims, issued on 13 December 2019.909 The Tribunal was composed ofJudge Miharo Armstrong, David Cochrane, Dr Rawinia Higgins, and Dr RuakereHond. It inquired into whether the application of the Crown's policies in the Treatysettlements with Ngāi Te Rangi, Ngāti Ranginui, Ngātiwai, and Ngāti Porou kiHauraki, breached the principles of the Treaty of Waitangi. The Tribunal's summaryin their letter of transmittal to the Minister is, relevantly:910Throughout this inquiry, the claimants gave powerful evidence of beingexcluded or sidelined from negotiations over redress proposed to Hauraki.They told us of 'consultation' between parties that was cursory or came far toolate; of repeated and ultimately fruitless requests for information that theCrown should have provided without being asked; of the Crown's indifferenceto the use of tikanga-based processes; of their dismay at discovering deedscontaining redress that had not been through a proper overlapping engagementprocess; and of relationships that have been left in tatters. The prejudice theyhave experienced, the claimants say, is neither short-lived nor abstract: it issignificant, lasting, and its day-to-day effects are already apparent.For the most part, we agree. At a general level, we find the Crown's policies,processes, and practices for dealing with groups with overlapping interestsduring settlement negotiations are inadequate and inconsistent with its Treatyobligations, in many respects. The shortcomings of the Red Book, the onlystatement of Crown settlement policies and processes available to claimants,have been well-rehearsed in many Tribunal reports; we reiterate them here.Moreover, we find that the sometimes undocumented and often opaquepractices the Crown adopts in circumstances that the Red Book does notaddress (and there are many) also breach Treaty principles and the Crown'sduties and obligations.As for the way the Crown applied those policies, processes and practices whenawarding redress in the Hauraki settlement negotiations, here too we identifydeficiencies and Treaty breaches in respect of Tauranga Moana iwi andNgātiwai. We consider their claims to be well-founded, and make severalrecommendations, which we urge the Crown to act on without delay to removethe prejudice to these groups. In particular, we call for the Crown to activelydemonstrate its commitment to tikanga when dealing with overlappinginterests, including by facilitating the use of tikanga-based processes. While itis not the Crown's role to devise such processes itself, it needs to do muchmore to provide space for them to operate as a means of testing overlappinginterests, resolving conflict, and repairing relationships. Regrettably, in thissettlement, the Crown prioritised speed over due process. The Crown'sresponse to a failure of tikanga process should not be binary; making unilateraldecisions by itself is not the only option. As the full title of the Red Book itselfacknowledges, 'Ka tika a muri, ka tika a mua – Healing the past, building afuture'; the Crown must now turn this admirable sentiment into practicalaction.909 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauraki Settlement OverlappingClaims Inquiry Report (Wai 2840, 2020) [Waitangi Tribunal Hauraki Overlapping ClaimsReport].910 At xvi.245[558] Particularly relevantly, the Tribunal said:911Ms Anderson told us that the Red Book did not reflect some significantchanges in practice that had happened on the ground. But this is preciselywhat concerns us: the Crown does not necessarily apply the principles,policies, and processes set out in the Red Book. Thus, the Red Book ismisleading, at least by omission. Unable to rely on the Red Book, the claimantsin this inquiry - and, we suspect, all non-settling and already settled groupswith overlapping interests - found themselves subject to a mysterious andever-changing pool of Crown practices, decisions, and personnel. These were,variously, at odds with the Crown's own stated policies, and/ or inconsistentwith Treaty principles and the Crown's corresponding duties.For example, we heard compelling evidence of the Crown failing to engagewith or consult non-settling groups sufficiently early in negotiations (as theRed Book exhorts). We also heard that the Crown failed to share informationwith non-settling groups about other groups' interests and proposed redressitems, and did not respond adequately when non-settling groups expressedconcern over redress proposals. Claimants also told us of the Crown havingoffered redress items without properly determining the extent of customaryinterests or associations, and more. That evidence will be discussed more fullyin chapter 5, and specific findings made.Of course, the Crown has multiple Treaty obligations it must take into accountwhen undertaking settlement negotiations and, at times, these may come intoconflict. For example, the Crown's duty to avoid unreasonably delayingsettlement may clash with its obligation to avoid creating new grievances.Where such duties or obligations collide, we consider the Crown's over-arching duty must to be to avoid creating new grievances. This duty must beat the forefront of Crown policy, practice, acts, and omissions when the Crownfinds itself in such circumstances. This did not happen here. An absence ofrobust, well-documented policies and processes meant non-settling groups inparticular did not know what they could expect of the Crown. Instead, theCrown adopted an array of ad hoc practices that were neither consistent withits own policies and principles nor Treaty compliant - including at one point aproposition that deeds be signed, then amended later if necessary. In the nextchapters, we examine these matters in more detail, along with theconsequences for the claimants.[559] The Tribunal's summary of findings, and recommendations, include:9127.1.2 Consultation on redress proposalsIn failing to carry out a proper consultation process, we find that the Crownbreached its partnership obligation to Tauranga Moana iwi and Ngātiwai. Italso breached its duty to consult by excluding Ngātiwai from discussions overAotea until late in the negotiations, despite them having clearly expressed aninterest very much earlier.911 At 32.912 At 117–118.2467.1.3 Transparency: disclosing and sharing informationIn failing to communicate openly with Ngāti Ranginui, Ngāi Te Rangi, andNgātiwai, and in failing to share information with and between all groups, wefind that the Crown has breached:> the principles of partnership and active protection;> its duty to act honourably and in good faith to all iwi and not just thesettling group;> its obligation to protect or preserve amicable tribal relationships.The Crown's conduct has created fresh grievances, fractured relationships, andcaused further delays to the settlement process.7.1.4 The use of tikanga-based processesWe find that, by failing to properly promote, allow for, and facilitate tikanga-based processes, at the appropriate times and especially at the start ofnegotiations, the Crown has breached its duty to avoid creating freshgrievances. As a result, it has prejudicially affected iwi with overlappinginterests and breached the principles of partnership, good faith, and activeprotection.7.1.5 Protecting all parties and maintaining relationshipsIn respect of Ngāi Te Rangi, Ngāti Ranginui, and Ngātiwai, we find that theCrown acted in a way that damaged relationships between iwi and with theCrown. This breached the Treaty principles of partnership and activeprotection, and caused fresh grievances.7.1.6 Providing additional redress after reaching initial agreementsWe find that the Crown's actions in providing Hauraki iwi with additionalredress, without undertaking a robust overlapping redress process, havecreated fresh grievances for the claimants. This is another breach of theprinciple of active protection, and the duty to avoid creating fresh grievances.7.2 RECOMMENDATIONS we also address broader issues raised by what we have seen in this inquiryof the Crown's policies, processes, and practices when dealing with groupswith overlapping interests. Accordingly, we further recommend:> that the Crown, when undertaking overlapping engagement processesduring settlement negotiations, fully commits to and facilitatesconsultation, information-sharing, and the use of tikanga-based resolutionprocesses that reflect the principles we have identified in chapters 3 and 5above; and> that the Crown amends the Red Book to record its current policies,processes, and practices, and in particular to:247> explicitly acknowledge the Crown's commitment to consultation,information-sharing, and tikanga-based resolution processes at theappropriate times, and> include the principles on which those processes should be based, takinginto account the findings in this report, and other Waitangi Tribunalreports, concerning overlapping interest claims.VIII Tikanga obligations in settling Treaty claims in Tāmaki MakaurauA An overview of the submissions[560] Ngāti Whātua Ōrākei claims that the evidence clearly establishes that insettling Treaty of Waitangi claims, the Crown has a policy not to resolve questions ofcontested group boundaries, nor which group has a predominant customary interest,unless the relevant groups agree. In the absence of such agreement, Ngāti WhātuaŌrākei submits the Crown uses non-tikanga criteria, including its assessment of "fairand appropriate settlement" in determining overlapping interests. The policydisregards the rights of a group with mana whenua over a core rohe or heartland. NgātiWhātua Ōrākei submits it is unlawful for the Crown to refuse to engage in ameaningful assessment of competing customary interests and to refuse to engage withtikanga-based objections to proposed transfers. That is because:913(a) There is a solemn compact in the settlement deed, about the observanceof Treaty principles in the relationship between the Crown and NgātiWhātua Ōrākei, that creates a direct obligation akin to contract. Theterms of the settlement reinforce, clarify and restate the relationship.The Settlement Act adds a layer of statutory recognition to thatrelationship, akin to a statutory duty.(b) In the Treaty settlement environment, Treaty principles and tikanga areincorporated into the relevant common law and public law, amountingto mandatory relevant considerations or matters the Court can considerin assessing a decision for unreasonableness.913 Notes of Closings 541/27–542/24.248[561] Ngāti Pāoa, Ngāti Kuri and Ngāi Te Rangi generally support the submissionsof Ngāti Whātua Ōrākei.[562] Te Toru oppose the declarations sought by Ngāti Whātua Ōrākei, as premisedon a conception of mana whenua with which they disagree:(a) Marutūāhu Rōpū denies that the Crown determines mana or tikanga,including in Treaty settlements, denies that Ngāti Whātua Ōrākei hasthe legal rights they claim on the basis of their conception of manawhenua, and opposes the declarations sought.(b) Ngāi Tai ki Tāmaki agrees that the Crown has obligations to tāngatawhenua under the Treaty and at tikanga, whether before or after asettlement, but denies it can deal with just one tribe on overlappingclaim issues or that one tribe can determine whether properties aretransferred or not.(c) Te Ākitai Waiohua submits that the Crown should not be the arbiter ofmana whenua or tikanga in the Treaty settlement process. Te Ākitaisupports judicial comment building on existing jurisprudence tostrengthen the role and place of tikanga, the Treaty, Crown obligationsto Māori, and international obligations such as the Declaration on theRights of Indigenous Peoples. But none of these legal yardsticksjustifies an approach which assesses rights and interests through thelens of one group where there are several groups with overlappingclaims.[563] The Crown's position is that this is not a general inquiry into the OverlappingClaims Policy, Treaty principles or the framework for Treaty settlements but into thespecific legal rights about which Ngāti Whātua Ōrākei seeks declarations. The Crownaccepts Treaty principles are relevant to interpretation of its Overlapping InterestsPolicy. But the particular rights claimed by Ngāti Whātua Ōrākei here are notconsistent with the case law on Treaty principles, are not founded on the Treatysettlement with Ngāti Whātua Ōrākei and have no statutory hook. There is no clear249error or inherent flaw in the policy. The application for declarations should bedeclined.B Jurisdictional parameters[564] The parties made submissions about three parameters of the Court'sjurisdiction in relation to the declarations sought concerning the Crown. First, DrWard submits Treaty settlements involve difficult and quintessentially politicalprocesses requiring compromise on all sides. It is true courts have treated somedecisions about Treaty settlements as inappropriate for judicial review, as the SupremeCourt stated in Ririnui v Landcorp Farming Ltd.914 But the Court went on to say thatdoes not mean any decision having some Treaty context is inappropriate for judicialreview, as the Crown acknowledges.915 The complex multi-faceted nature of Treatysettlements does not necessarily cloak government decisions from the constitutionalprocess of judicial review for unlawfulness or from declarations of legal right.[565] While the form of these proceedings began as a judicial review, it has becomea consideration of the legal status and rights of Ngāti Whātua Ōrākei in relation totikanga and the application of the Crown's overlapping interests policy. Accordingly,no specific decision of the Crown in relation to a particular Treaty settlement issusceptible to judicial interference here. The desirability of judges making declaratoryorders about complex multi-factored decision-making bears on the exercise ofdiscretion as to whether relief should be granted, rather than whether the Court is ableto consider the issues.[566] Second, I accept Dr Ward's submission that the Supreme Court's finding, thatNgāti Whātua Ōrākei cannot challenge the decisions to legislate to transfer particularproperties, is important in these proceedings.916 Ngāti Whātua Ōrākei amended theirstatement of claim accordingly. This judgment does not transgress that finding, or theunderlying constitutional principle of non-interference in parliamentary proceedings,clarified by the Supreme Court consistently with constitutional principle. Rather, thisjudgment discharges "the function of the courts to make declarations as to rights"914 Ririnui at [89].915 At [90].916 Ngāti Whātua Ōrākei (SC) at [66].250concerning the "live issues as to the nature and scope of the rights claimed by NgātiWhātua Ōrākei".917 I detect little difference between the parties regarding this.[567] Third, Dr Ward submits the Supreme Court also made clear that Ngāti WhātuaŌrākei would have to establish that the Crown's overlapping interests policy providesa basis for a reviewable decision.918 He submits that is only available in a narrowrange of circumstances, on the basis of cases identified by the Supreme Court. Butthe primary authority he identifies, Lord Bridge's speech in 1985 in Gillick v WestNorfolk and Wisbech Area Health Authority, is more in the nature of an understandablecaution to courts to use their jurisdiction with restraint.919 As the Woolfs say in theirtext, The Declaratory Judgment, Lord Bridge and Lord Templeman in Gillick"considered that the court had jurisdiction to correct errors of law in memoranda issuedby public bodies even though the bodies were not acting pursuant to a statutory powerin issuing the guidance and even though it had no legal force".920[568] The jurisdiction to correct errors of law in guidance, and to correct manifestlyunreasonable decisions to issue guidance, has also been accepted in other cases inEngland, though the Woolfs consider the jurisdiction is "probably confined todetermining issues of law".921 Indeed, as Professors Elliot and Varuhas point out, itmay be more important for a court to exercise the jurisdiction to review a policy, ifmany people are likely to rely on a policy containing a legal error.922 In the Treatycontext in Ririnui, the New Zealand Supreme Court noted that declaratory relief hasbeen granted even though there is no "decision" directly impacting rights.923[569] Of more weight is the point made by Elliot and Varuhas that "courts arereluctant to assess the legality of guidance in contexts where determinations as tolegality are heavily fact dependent".924 The related point, made by the majority of afull Court of Appeal in Attorney-General v Refugee Council of New Zealand, is that917 At [46] and [48].918 At [59].919 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL) at 193–194.920 Woolf and Woolf The Declaratory Judgment at 123.921 At 123.922 Mark Elliot and Jason Varuhas Administrative Law: Text and Materials (5th ed, Oxford UniversityPress, Oxford, 2017) at 526.923 Ririnui at [91](a).924 At 527.251individual examples of the application of a policy are not the policy itself.925 Here,examination of the illustrative examples adds richer factual context to understandingthe Crown's policy, and how the Crown has understood and applied it in somecircumstances; but these points remains valid. They bear particularly on the exerciseof the Court's discretion to grant the relief sought.C Tikanga and the Crown's prerogative or residual powers[570] Part V.C explains that tikanga is a pre-existing free-standing legal frameworkrecognised by New Zealand statutes and common law. Tikanga governs and binds iwiand hapū and is developed over time by iwi and hapū. The Crown is not an iwi orhapū. The Crown does not have tikanga, as Lil Anderson stresses in her evidence.926The Crown is not bound to follow tikanga in and of itself and does not develop tikanga.Neither does tikanga directly modify the common law or statutes which bind theCrown. In turn, common law and statutes do not directly modify tikanga, though theycan provide for its effects and incidents in New Zealand's legal system.[571] While the Crown does not share tikanga Māori, the Crown is subject tounwritten constitutional conventions which bind the exercise of many of its powers.And it has its own traditions and practices, some of which are recognised by thecommon law as the law of the royal prerogative. The Crown's power to entersettlements with iwi and hapū of its breaches of the Treaty of Waitangi does not reston statute. Dr Ward submits it is primarily a prerogative power.927 This is arespectable argument. The Crown's settlement of its breaches of the Treaty is linkedto the Crown's exercise of its prereogative power to enter the Treaty of Waitangi in1840. Similarly, the usual process of implementing a Treaty settlement by legislationhas similarities with the incorporation of international treaties and their amendmentsinto New Zealand law by legislation. I note that the fact a decision is made under theprerogative does not exempt it from judicial review.928925 Attorney-General v Refugee Council of New Zealand [2003] 2 NZLR 577 (CA) at [30]–[32].926 NOE 866/32–867/2.927 Notes of Closings 39/26–30 and 64/2–17.928 Burt v Governor-General [1992] 3 NZLR 672 (CA) at 678.252[572] There is also academic debate about whether the Crown's prerogative is thesole source of its legal power or whether there is a further residual source. There is arobust line of United Kingdom and New Zealand authority, particularly in thejudgments of McGrath J in New Zealand, that conceptualises the Crown as having therights and powers of a natural person.929 Professor Bruce Harris has alsoconceptualised a similar "third source" of power of government, after statute and theprerogative, to do anything that is not prohibited by law.930[573] If the natural person and third source theories are alternatives to each other, Iprefer the conception of the Crown having the rights and powers of a natural person.It is better established in New Zealand law. The extent of the legal powers of theCrown is a more natural corollary of its status as a legal entity than a reflection of anewly discovered source of power. But I agree with Dr Ward that there is a point atwhich such arguments about categorisation lose their utility. The distinction betweenthe prerogative, natural person and third source of power does not matter for thepurposes of this judgment. No party submits that it does; most submit it does not.[574] Mr Hodder submits that the Crown's power to settle, whether a prerogative orresidual power, is subject to and informed by the common law which includes tikangaMāori. He submits that exercises of the prerogative are subject to tikanga. The tikangaof mana whenua constitutes a set of rights and rules that are recognised at commonlaw and enforceable against the Crown in the exercise of its prerogative powers. MrMahuika submits the third source of power must give way to statutory or common lawand would not discount that tikanga is also law for that purpose. Mr Smith submitsthat any third source or residual common law freedom is informed by tikanga as avalue of the common law which may not be encroached upon. He submits tikangaconstrains the prerogative, as it did in Baldick v Jackson, and that entry into a contractthat is offensive to, or inconsistent with, tikanga is outside the scope of the Crown's929 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [93]–[99].930 See for example: B V Harris "The 'third source' of authority for government action" (1992) 108LQR 626; B V Harris "The "third source" of authority for Government action revisited" (2007)123 LQR 225; and B V Harris "Recent Judicial Recognition of the Third Source of Authority forGovernment Action" (2014) 26 NZULR 60.253power.931 Dr Ward submits the Crown's prerogative or residual powers are not subjectto tikanga.[575] Whether the Crown enters Treaty settlements by way of the prerogative, as anatural person or by the third source, it exercises a power that cannot override rightsand liberties prescribed by law, whether they be conferred by statute, common law ortikanga. That was made clear in principle as far back as the Case of Proclamations in1610, where Coke CJ held that "the King by his proclamation or other ways cannotchange any part of the common law, or statute law, or the customs of the realm".932As McGrath J said in R v Ngan in New Zealand in 2007:933It is, however, a residual form of authority which is subject to statutory andcommon law constraints. It does not permit government officials to act inconflict with the rights and liberties of citizens. In particular the residualfreedom of officials is constrained by the Bill of Rights Act. Residual freedomto act can never justify a breach of protected rights. Wherever residualfreedom conflicts with a statutory or common law rule it must give way to thatrule. No balancing of the relevant interests is permitted because the residualfreedom only exists to the extent that there is no other positive law that dealswith the circumstances in question.[576] Tikanga and the Crown's residual or prerogative power are mutually exclusive.Neither interferes with the legal effect of the other. Both are systems of internal self-regulation. The Crown's power to act does not override or change tikanga without afurther statutory or common law basis. Neither does tikanga govern or bind the Crownwithout a statutory or common law basis. But tikanga can be the source of legallybinding obligations on the Crown, where the Treaty of Waitangi is relevant to Crowndecisions.D Tikanga and the Treaty of Waitangi[577] The overwhelming majority of rangatira who signed te Tiriti o Waitangi signedthe te reo Māori version. The certified te reo Māori version was published in 1841 by931 Baldick v Jackson.932 Case of Proclamations [1610] EWHC KB J22, (1611) 12 Co Rep 74 at 76. See Paul Craig"Prerogative, Precedent and Power" in Christopher Forsyth and Ivan Hare (eds) The GoldenMetwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC(Oxford University Press, Oxford, 1998) 65 at 68.933 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [97]; and see Television New Zealand Ltd vRogers [2007] NZSC 91, [2008] 2 NZLR 277 at [110].254the House of Commons in London labelled "Treaty.", followed by the English versionunder the heading "(Translation.)".934 The texts of article two, as incorporated intoNew Zealand law by the Treaty of Waitangi Act 1975 are, relevantly:Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapū-ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratoukāinga me o ratou taonga katoa Her Majesty the Queen of England confirms and guarantees to the Chiefs andTribes of New Zealand and to the respective families and individuals thereofthe full exclusive and undisturbed possession of their Lands and EstatesForests Fisheries and other properties which they may collectively orindividually possess so long as it is their wish and desire to retain the same intheir possession [578] Sir Hugh Kawharu's authoritative re-translation of this text from te reo Māoriinto English, recorded in the Deed of Settlement between the Crown and Ngāti WhātuaŌrākei in 2011, is:935The Queen of England agrees to protect the chiefs, the subtribes and all thepeople of New Zealand in the unqualified exercise of their chieftainship overtheirs lands, villages and all their treasures.[579] The Waitangi Tribunal has consistently found that article two of the Treatyincludes the protection of Māori custom and cultural values.936 In its Ōrākei Reportin 1987 the Tribunal said:937(c) In Māori thinking "rangatiratanga" and "mana" are inseparable. Onecannot have one without the other. The Māori text of the Treaty conveyedto the Māori people that, amongst other things, they were to be protectednot only in the possession of their lands but in the mana to control themin accordance with their own customs and having regard to their owncultural preferences.934 Matthew S R Palmer The Treaty of Waitangi in New Zealand's Law and Constitution (VictoriaUniversity Press, Wellington, 2008) at 56–57.935 Ngāti Whātua Ōrākei Deed; and Michael Belgrave, Merata Kawharu and David Williams (eds)Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Melbourne, Oxford UniversityPress, 2005) at 390. This retranslation was set out and referred to approvingly by the Court ofAppeal in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at662–663 and 713.936 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Motunui-Waitara Report (Wai 6,1983) at 51. See also Waitangi Tribunal Ōrākei Report at 134–135; Te Rōpū Whakamana i teTiriti o Waitangi | Waitangi Tribunal Ngai Tahu Land Report (Wai 27, 1991) at 824; and Te RōpūWhakamana i te Tiriti o Waitangi | Waitangi Tribunal The Mohaka River Report (Wai 119, 1992)at 63.937 Waitangi Tribunal Ōrākei Report at 209.255(d) The lands owned by the Māori were held by them tribally andcommunally. The communal right so existing was recognised by theCrown in the Treaty. The conferral in the Māori text of "te tinorangatiratanga" of their lands on the Māori people carries with it, giventhe nature of their ownership and possession of their land, all theincidents of tribal communalism and paramountcy. These include theholding of land as a community resource and the subordination ofindividual rights to maintaining tribal unity and cohesion.(e) In recognising the "tino rangatiratanga" of their lands the Crownacknowledged the right of the Māori people for as long as they wished,to hold their land in accordance with long standing custom on a tribal andcommunal basis.[580] In its Hauraki Overlapping Claims Report in 2020, the Tribunal said:938The Tribunal has noted that it is mana or authority that enables the exercise oftino rangatiratanga: "Rangatiratanga signifies the mana of Māori not only topossess what they own but to manage and control it in accordance with theirpreferences. That is, in accordance with Māori customs and culturalpreferences".If the Crown is to work with Māori communities in a way that allows them toexercise tino rangatiratanga, it must therefore "be able to identify andunderstand the customs and cultural preferences of those communities". Thisrequires the Crown to understand, respect. and engage with the tikanga of thevarious iwi and hapū it works with.[581] In 2021, Cooke J held in Mercury NZ Ltd v The Waitangi Tribunal that"tikanga Māori is an important aspect of the principles of the Treaty of Waitangi".939In Trans-Tasman the Supreme Court unanimously held that it followed from astatutory Treaty of Waitangi clause that tikanga-based customary rights and interestswere encompassed within the relevant statutory protection.940 William Young andEllen France JJ held that followed from the guarantee in article two of the Treaty oftino rangatirantanga over taonga katoa, in the context of the marine environment.941Williams J agreed, adding that the question must not only be viewed through a Pākehālens.942[582] There can be little doubt that article two of the Treaty encompasses the Crown'sprotection of tikanga. Tikanga could be seen as a taonga, analogously to te reo Māori,938 Waitangi Tribunal Hauraki Overlapping Claims Report at 11 (citations omitted).939 Mercury (HC) at [111].940 Trans-Tasman (SC) at [8].941 At [154] and n 287.942 At [297].256which the Privy Council has agreed is a taonga.943 But I prefer Sir Joe Williams' extra-judicial observation that "it is better to think of customary law as a necessary andinevitable expression of self-detetermination".944 As I canvassed in part V, tikangaconstitutes an iwi or hapū and is essential to their identity. Tikanga is integrally wovenwith rangatiratanga; the two dimensions give life to each other. The Crown'sundertaking to protect rangatira, hapū and tāngata katoa in the exercise of tinorangatiratanga in article two inherently extends to their operation of tikanga.[583] The nature of the Crown's obligations in relation to tikanga, when they ariseunder the Treaty, are the orthodox obligations as held by the Courts since the Landscase in 1987 and accepted and endorsed by successive executive administrations andParliaments.945 As the Privy Council confirmed in the Broadcasting Assets case:946[T]he "principles" are the underlying mutual obligations and responsibilitieswhich the Treaty places on the parties. They reflect the intent of the Treaty asa whole and include, but are not confined to, the express terms of the Treaty.[584] I identify three orthodox principles of the Treaty as particularly relevant to theTreaty settlements context here. First, the Court of Appeal in Lands held that "actingreasonably and in good faith" was an essential aspect of the Treaty relationship.947Justice Richardson described it as the "paramount principle", saying:948I think the better view is that the responsibility of one treaty partner to act ingood faith fairly and reasonably towards the other puts the onus on a partner,here the Crown, when acting within its sphere to make an informed decision,that is a decision where it is sufficiently informed as to the relevant facts andlaw to be able to say it has had proper regard to the impact of the principles ofthe Treaty. In that situation it will have discharged the obligation to actreasonably and in good faith. In many cases where it seems there may beTreaty implications that responsibility to make informed decisions will requiresome consultation. In some extensive consultation and co-operation will benecessary. In others where there are Treaty implications the partner may havesufficient information in its possession for it to act consistently with theprinciples of the Treaty without any specific consultation.943 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting Assets]at 514.944 Williams "Lex Aotearoa" at 9.945 Lands; New Zealand Māori Council v Attorney-General [1989] 2 NZLR 142 (CA) [Forests];Tainui Māori Trust Board v Attorney-General [1989] 2 NZLR 513 (CA), Attorney-General v NewZealand Maori Council [1991] 2 NZLR 129 (CA) [Radio Frequencies]; Broadcasting Assets; andNew Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31.946 At 513.947 At 664.948 At 680 and 683.257[585] In the Forests case, the Court of Appeal said it was "clear beyond argument"that "the good faith owed to each other by the parties to the Treaty must extend toconsultation on truly major issues".949 A fait accompli would "[a]ssuredly notrepresent the spirit of the partnership which is at the heart of the principles of theTreaty of Waitangi".950 As the Privy Council said in Broadcasting Assets, "[t]hisrelationship the Treaty envisages is founded on reasonableness, mutual cooperationand trust".951[586] Second, the Court of Appeal held in the Lands case that the duty of the Crown"is not merely passive but extends to active protection to the fullest extentpracticable".952 The duty of active protection of what is guaranteed under article twoextends to the exercise of tikanga, just as it extends to the exercise of rangatiratanga.[587] It therefore follows from both the terms and the principles of the Treaty that,where Treaty obligations legally bind the Crown, the Crown will have legalobligations in relation to tikanga, to act reasonably and in good faith, with mutualcooperation and trust, and to actively protect tikanga. Whether there are such legalobligations, and what exactly they require, depends on the statutory and factual contextin which the issue arises. As the Privy Council said in Broadcasting Assets:953It is therefore accepted by both parties that the Crown in carrying out itsobligations is not required in protecting taonga to go beyond taking suchaction as is reasonable in the prevailing circumstances. While the obligationof the Crown is constant, the protective steps which it is reasonable for theCrown to take change depending on the situation which exists at any particulartime.[588] The context of Treaty settlements also directly invokes the third relevantprinciple of the Treaty, the duty to provide redress, and right to receive redress, forbreaches of the Treaty — which Somers J described in Lands as "fair and reasonablerecognition of, an recompense for, the wrong that has occurred".954 Contrary to MrHodder's submission that it has no place, the duty to provide redress for breaches of949 Forests at 152.950 At 152–153.951 Broadcasting Assets at 517.952 Lands at 664 per Cooke P, 673 per Richardson J, and 703 per Casey J. See also Waitangi TribunalŌrākei Report at 190–191.953 Broadcasting Assets at 517 per Lord Woolf.954 Lands at 693.258the Treaty is directly relevant to the Crown in a Treaty settlement context. It is theprimary reason for the Crown's Treaty settlement endeavours. And it may cut againstaspects of the other duties, as explored below.E The Treaty and the law[589] The Treaty of Waitangi is still currently thought not to give rise to free-standingobligations in and of itself in New Zealand law. This reflects the orthodox legaltreatment of an international treaty by the Privy Council in 1941 in Te Heuheu Tūkinov Aotea District Māori Land Board.955 That decision appears to have been based onan inaccurate understanding of the terms of the Treaty of Waitangi, referring to theEnglish version alone. In Lands in 1987, Cooke P characterised Te Heuheu Tūkino as"[b]y past standards the leading case on the Treaty of Waitangi", representing"wholly orthodox legal thinking, at any rate from a 1941 standpoint".956 Similarcharacterisations have been repeated since, but no New Zealand court has had todirectly consider the issue.957 I am not called on, and do not, do so here. In the contextof this case, whether the Treaty is incorporated into law by legislation makes littledifference, due to the principles of statutory interpretation and administrative law.[590] As Ms Coates submits, the Courts have moved on from the position that theTreaty is only relevant when legislation incorporates it.958 In 1987, in a resourcemanagement context in Huakina Development Trust v Waikato Valley Authority,Chilwell J noted that the Treaty was part of the "fabric of New Zealand society" andshould form part of the context for interpreting relevant legislation "when it is proper,in accordance with the principles of statutory interpretation, to have resort to extrinsicmaterial".959 In 1997, in Barton-Prescott v Director General of Social Welfare, in achild custody appeal context, Gallen and Goddard JJ held that the general applicationof the Treaty "must colour all matters to which it has relevance, whether public or955 Te Heuheu Tūkino v Aotea District Māori Land Board [1939] NZLR 107 (SC and CA). See alsoAlex Frame "Hoani Te Heuheu's Case in London 1940-1941: An Explosive Story" (2006) 22NZULR 148 at 168.956 At 667.957 For example, the Court of Appeal in Takamore (CA) described it at [240] as the "traditionalposition" but referred to the courts' willingness to have regard to international instruments indeveloping the common law.958 Notes of Closings 220/2–18.959 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) [HuakinaDevelopment Trust] at 210.259private and that for the purposes of interpretation of statutes, it will have a directbearing whether or not there is a reference to the [T]reaty in the statute".960 The Courtheld that familial organisation must be seen as a taonga and all Acts dealing with thestatus, future and control of children are to be interpreted as coloured by the principlesof the Treaty.961 This approach to statutory interpretation was endorsed by the Courtof Appeal in 2017 in Ngaronoa v Attorney-General which said:962[46] Today it can be stated with confidence that, even where the Treaty isnot specifically mentioned in the text of particular legislation, it may, subjectto the terms of the legislation, be a permissible extrinsic aid to statutoryinterpretation.[591] In addition, in Lands, Cooke P adopted the submission, now known as theprinciple of legality, that "the Court will not ascribe to Parliament an intention topermit conduct inconsistent with the principles of the Treaty."963 In Trans-Tasman in2021, the Supreme Court elaborated. William Young and Ellen France JJ, with thegeneral agreement of Winkelmann CJ and Glazebrook J, said:964The courts will not easily read statutory language as excluding considerationof Treaty principles if a statute is silent on the question. It ought to followtherefore that Treaty clauses should not be narrowly construed. Rather, theymust be given a broad and generous construction. An intention to constrainthe ability of statutory decision-makers to respect Treaty principles should notbe ascribed to Parliament unless that intention is made quite clear.[592] Williams J was in broad agreement with their reasoning and conclusionsregarding the Treaty and added:965 the constitutional significance of the Treaty means that Treaty clauses willbe generously construed. If Parliament intends to limit or remove the Treaty'seffect in or on an Act, this will need to be made quite clear.960 Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) [Barton-Prescott]at 184.961 At 184.962 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 [Ngaronoa], citingTakamore (CA) at [248] as citing Huakina Development Trust and Barton-Prescott.963 At 656.964 Trans-Tasman (SC) at [151] (citations omitted). The first sentence quoted cited: HuakinaDevelopment Trust at 210 and 233; Barton-Prescott at 184; Tukaki v Commonwealth of Australia[2018] NZCA 324, [2018] NZAR 1597 at [36]–[37]; and Ngaronoa at [46]. The last sentencecited Lands at 655–656 per Cooke P. The whole Court endorsed the last sentence at [8]; and seeat [332] per Winkelmann CJ and [237] per Glazebrook J.965 At [296] (citation omitted).260[593] Similarly to the effect of those principles of statutory interpretation, the Treatymay be able to sustain judicial review of public law decisions, depending on thecontext. Again, this can be true whether or not there is governing legislation thatmentions the Treaty, such as where the Crown is exercising a prerogative or residualpower. As Professor Joseph's text states, "mandatory considerations might also arisesimply from the context of the decision-making", giving as an example that "[t]heprinciples of the Treaty of Waitangi might materially impinge on decision-making,requiring decision-makers to weigh the principles in the exercise of discretion".966That makes sense given the status of the Treaty of Waitangi as a constitutionalfoundation in New Zealand and as an international treaty.[594] For example, the Radio Frequencies case was decided on administrative lawgrounds. Heron J held in the High Court that the Crown has embarked on theallocation of radio frequencies as a Treaty partner and the course of negotiations hadbeen conducted against the background that Treaty considerations would apply.967 Amajority of the full Court of the Court of Appeal upheld his decision to grant an interimdeclaration for failing to await a report by the Waitangi Tribunal.968 Cooke P, in themajority, held that:969To the extent that any prerogative powers are involved, Treaty of Waitangiobligations would be at least as relevant to them as to statutory powers, for theTreaty was entered into by the Crown under prerogative powers.[595] Against the background of government policy about te reo Māori, the Crownaccepted the Waitangi Tribunal's findings and recommendations were mandatoryrelevant considerations at administrative law. The New Zealand Māori Councilsubmitted the principles of the Treaty apply if not excluded. Cooke P considered therewas little or no practical difference between the two approaches, noting that "[i]f theGovernment, giving due weight to the Treaty principles, elects between the availableoptions reasonably and in good faith, it seems to me that the Treaty is compliedwith".970 Casey and Bisson JJ considered the Minister had failed to take into account966 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at [23.2.3(4)].967 New Zealand Maori Council v Attorney-General HC Wellington, CP 785/90, 21 September 1990.968 Radio Frequencies.969 At 133.970 At 135.261relevant considerations. Richardson J, dissenting on the result on the facts, noted theCrown's acceptance that the promotion of Māori language and culture reflected thelegislative recognition of its important role in New Zealand society.971 Cooke P alsoheld that no reasonable Minister could do other than allow the Tribunal a reasonabletime for carrying out their inquiry.972[596] So, depending on the context, the Treaty of Waitangi can potentially beardirectly on the interpretation of a statute and can sustain judicial review of thetreatment of tikanga on the grounds, for example, of illegality, failure to consider arelevant consideration, or unreasonableness.973 Whether those grounds would beavailable in any particular case depends crucially on the context. The parties heredisagree about what obligations are imposed by the Treaty regarding tikanga in thecontext of Treaty settlements in Tāmaki Makaurau.F Tikanga obligations in Treaty settlements[597] If there is any bare context in which it is apt for the Treaty of Waitangi to be amandatory relevant consideration for the Crown, it is where the Crown seeks to fulfilits duty under the Treaty of Waitangi to provide redress for its own past breaches ofthe Treaty of Waitangi. Mr Hodder, Mr Mahuika, Mr Smith, Ms Coates and Mr Warrenall make submissions to that effect. Treaty obligations in relation to rangatiratangaunder article two of the Treaty are intimately bound up with tikanga. Tikanga is at theheart of overlapping customary interests between iwi. So, when the Crown makesdecisions in redressing its own wrongs in relation to the Treaty that impact on thetikanga or interests at tikanga of an iwi, the Crown will have a duty to take tikangainto account. As Mr Hodder submits, the decision-maker in Takamore, in a privatelaw context, was effectively required by the Supreme Court to take tikanga intoaccount as a mandatory relevant consideration.974 Dr Ward submits, responsibly, thatthe Crown does not disagree with the general proposition that Treaty principles may971 At 140.972 At 139.973 See Matthew S R Palmer "Indigenous Rights, Judges and Judicial Review in New Zealand" inJason N E Varuhas and Shona Wilson Stark (eds) The Frontiers of Public Law (Hart, Oxford,2020) 123.974 Takamore (SC) at [156], 164] and [168].262give rise to an obligation on the Crown to take reasonable steps to actively protecttikanga Māori.975[598] Similarly, as Mr Mahuika and Ms Coates also submit, it is likely that the Crownwill not be able to make a reasonable decision to engage with interests derived fromtikanga Māori without understanding and engaging with tikanga.976 A reasonabledecision-maker making decisions on rights and interests derived from tikanga musthave regard to tikanga, whether the legal tests in Wednesbury, Wolf v Minister ofImmigration, or Hu v Immigration and Protection Tribunal are applied.977 As Dr Wardacknowledges, an irrationality standard could apply if a Minister, having issued theoverlapping interests policy, then completely disregards Treaty principles.978[599] I do not accept Dr Ward's submissions that the policy, political and financialconsiderations of Treaty settlement decisions mean the language of mandatoryrelevant considerations are inapt. A statutory hook is not a prerequisite for mandatoryconsiderations and unreasonableness to apply. The Crown often inherently deals withtikanga interests when it settles Treaty claims. That infuses what the Crown must haveregard to, and what is unreasonable in that general context. More precise details ofcontext, of course, can make a difference as to what exactly is required of the Crown.[600] As the Waitangi Tribunal rightly reiterated in the Hauraki Overlapping ClaimsReport, the duty to act honourably and in good faith requires the Crown to be fullyinformed, which requires it to "have a sound understanding of 'the historical, political,and tikanga dimensions of mandate and overlapping [groups] and their interests'".979That reflects the Crown's responsibility to make a decision that is "sufficientlyinformed as to the relevant facts and law to be able to say it has had proper regard tothe impact of the principles of the Treaty", as discussed by Richardson J in Lands.980975 Notes of Closings 85/18–22.976 Notes of Closings 308/12–17.977 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA); Wolf vMinister of Immigration [2004] NZAR 414 (HC); and Hu v Immigration and Protection Tribunal[2017] NZHC 41, [2017] NZAR 508.978 Notes of Closings 65/10–13.979 Waitangi Tribunal Hauraki Overlapping Claims Report at 12, citing Te Rōpū Whakamana i teTiriti o Waitangi | Waitangi Tribunal The Te Arawa Settlement Process Reports (Wai 1353, 2007)at 26–27.980 Lands at 683.263Depending on the situation, that will require consultation with other iwi whose tikangainterests are affected by a contemplated decision of the Crown. As Mr Smith submits,engaging with an iwi or hapū about their tikanga interests requires the Crown toascertain and recognise tikanga. And, as Mr Warren puts it, the Crown will need toengage in good faith with iwi and hapū where its decisions may impact on customaryor tikanga interests. The Waitangi Tribunal put it well in characterising the Crown asacting as an "honest broker" to effect reconciliation and build bridges whereever andwhenever the opportunity arises.981 As Sir Douglas Graham said in proposing theCollective Agreement in Tāmaki, "[t]he Crown has to act with integrity to all iwi/hapūat all times and must not prefer one over another".982[601] As Ms Coates submits, these duties do not mean that tikanga determinesdecisions about whether to transfer a property as Treaty redress, but simply requirethat tikanga must be considered.983 The Crown ultimately makes its own decisionabout whether to transfer redress. There may be circumstances in which the balanceof Treaty considerations means the Crown has to make a decision in relation to Treatysettlements that is inconsistent with the tikanga of one iwi or another. As Ms Coatessubmits, it would likely be impracticable or unworkable for the Crown to have to giveeffect to tikanga in absolute terms, in a context of contested overlapping interests.That is particularly so where there are deeply disputed views as to the appropriatetikanga, or the manner in which interests should be recognised at tikanga.[602] However, at administrative law, it must not be unreasonable for the Crown totransfer, or for an iwi to receive, properties as settlement redress, having regard totikanga interests and any other relevant circumstances of context. Because of thepotential impact of particular contexts, I do not accept Ms Coates' further, moredetailed submissions that would necessarily require the recipient group to have atikanga-based relationship to the land or that the redress must not be expressed to981 Waitangi Tribunal Hauraki Overlapping Claims Report at 13, citing Waitangi Tribunal Ngāti AwaCross-Claims at 88.982 Douglas Graham "Report by the Facilitator to the Minister for Treaty of Waitangi Negotiationsand to the iwi/hapū of the Kaipara, Tāmaki Makaurau and the Coromandel" (The Office for MāoriCrown Relations, 24 June 2009 at 5.983 Notes of Closings 222/23–223/6.264represent exclusive tikanga interests. The context of any given fact situation mayotherwise require.[603] In summary, the duties of active protection of tikanga and of acting reasonablyand in good faith, with mutual cooperation and trust in relation to tikanga, will bearon Crown decisions affecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will need to take reasonable stepsto understand, recognise and respect the tikanga of iwi or hapū, and the Crown willneed to actively protect the ability of iwi and hapū to exercise their tikanga.[604] But the way this principle manifests in practice derives from the context of theparticular decision at issue, as all administrative law obligations do and as the PrivyCouncil emphasised in a Treaty context in Broadcasting Assets.984 The general contextof Treaty settlement negotiations is ripe for tikanga to have legal effect on Treatyobligations. But what that means must be explored in the context of each particulardecision at issue.[605] There is nothing in the analysis above that suggests that Treaty obligationsrelating to tikanga in a Treaty settlement context apply only to the Crown. This is apoint that is sometimes lost from sight. It is the Crown which has the obligation toactively protect the exercise of rangatiratanga, and therefore tikanga. However, iwiand hapū can also owe obligations under the Treaty of Waitangi, as the languagequoted above in the Lands and other judgments makes clear. The Court of Appealstated in Lands, the duty of acting reasonably and in good faith applies to all partiesto the Treaty.985 Cooke P said in that case that "[t]he duty to act reasonably and in theutmost good faith is not one-sided" and "[t]he parties owe each other cooperation".986[606] The corollary of good faith that the Court found in Forests, requiringconsultation on truly major issues rather than a fait accompli, also applies to allparties.987 Dr Ward's submits, admittedly in response to my questions, that the Crown,iwi and hapū all owe each other duties of good faith, reasonableness and reasonable984 At 517.985 Lands at 680–681.986 Lands at 664 and 666.987 Forests at 152.265compromise and cooperation as discussed in Lands.988 It is but a small step fromLands and Forests to acknowledge that, depending on the context, the Treaty ofWaitangi may require iwi and hapū to assist the Crown to discharge its Treaty duty toother iwi and hapū to provide redress for Treaty breaches, by engaging in tikanga-consistent processes with those iwi and hapū about the status of relevant properties attikanga.[607] I did not hear argument about the legal basis of such duties of iwi and hapū.But if my analysis that the Crown's obligations arising from the context of Treatysettlements is correct, a similar analysis may apply to iwi and hapū. After all, theTreaty and Treaty settlements are quintessentially matters of public law. Thoseparticipating in them, or refusing to participate, could be held to be exercising publiclaw powers. That may be enough to sustain declarations by a Court about theresponsibilities of iwi and hapū under the Treaty. Or it may be that particular iwi andhapū would simply accept that they have such responsibilities. But these issues werenot fully argued before me by all parties, and no declarations have been sought inrelation to the obligations of iwi and hapū. I do not make direct findings about them.G Other sources of legal duties[608] I agree with the submissions of virtually all counsel that the notion of thehonour of the Crown and the United Nations Declaration on the Rights of IndigenousPeoples do not add materially to the Crown's duties under the Treaty of Waitangi inrelation to tikanga as outlined above.[609] Mr Hodder must be right that the Court is entitled to, and should, assume theCrown's honour should be upheld in its dealings with its Treaty partners. The same ispresumably true of the mana of iwi and hapū. But, as Mr Hodder, Ms Coates and DrWard submit, its effect is already incorporated into the principles of the Treaty. AsCasey J said in Lands, the Treaty principles are no more than the maintenance of thehonour of the Crown underlying all its Treaty relationships.989 It is not a separatesource of legal obligation in New Zealand. The effect of the notion of the honour of988 Notes of Closings 21/23–22/20 and 54/8–25.989 Lands at 703 per Casey J; and see at 682 per Richardson J.266the Crown is likely to be primarily political. Only in extreme circumstances, whereother constitutional principles are at play, might the honour of the Crown assist aCourt. For example, I would not rule out the hypothetical possibility of a Courtinvoking the honour of the Crown if the Crown were to attempt to cloak its actions inParliamentary proceedings for the deliberate purpose of avoiding judicial review ofactions it knew were inconsistent with the Treaty of Waitangi.[610] Similarly, as an expression of soft international law, the Declaration informsand reinforces the rights and responsibilities of the parties to the Treaty.990 As Dr Wardsubmits, the Declaration may be relevant to interpretation of the Treaty of Waitangibut it seems unlikely to add significantly to the developed jurisprudence of Treatyprinciples.991 As he also submits, the Crown endorsed the Declaration on the basis itdoes not intend to supplant Treaty principles as the way in which New Zealandattempts to settle grievances. That adds further weight to the above interpretation ofthe context of Treaty settlements as requiring consistency with Treaty principles. Butit does not add substantively to the content of those principles in relation to the issuesconsidered in these proceedings.H Tikanga and the Crown's Overlapping Interests Policy[611] Mr Hodder acknowledges that in reaching a Treaty settlement, it makes senseto look at the position of all groups to make sure the Crown is not disrespecting thecustomary interests and rights of other groups.992 He accepts that was not done whenthe 2006 AIP was reached between the Crown and Ngāti Whātua Ōrākei so theTribunal was right that the process was flawed. I agree. And I agree with Mr Hodderthat the Tribunal's identification that there are historical layers of customary interestsis unexceptional.993[612] I am not persuaded by Mr Hodder's submission that the Tribunal went furtherthan it needed to by not acknowledging that Ngāti Whātua Ōrākei had the predominantcultural and customary authority of mana whenua across Tāmaki Makaurau.994 Such990 Notes of Closings 565/18–31.991 New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] NZLR 31 at [92].992 Notes of Closings 485/32–486/5.993 Notes of Closings 487/27–30.994 Notes of Closings 487/27–488/22.267a substantive finding, which was the subject of so much argument and evidence over11 weeks in these proceedings, was not the point of the Tribunal's urgent processinquiry. Rather, as Ms Hauraki submits for Ngāti Pāoa, the Tribunal said:995The need for officials in the Office of Treaty Settlements to be aware of, andcomply with, tikanga Māori in their dealings with Māori is another aspect ofpartnership under the Treaty.It is vitally important that cultural redress not be deployed in a mannercontrary to tikanga Māori.[613] The Tribunal considered the Crown had not taken adequate account of tikangain offering exclusive redress to Ngāti Whātua Ōrākei on the basis of a predominanceof interests when other iwi had demonstrable tikanga interests that not had not beenproperly investigated. I cannot fault the Tribunal's assessment that OTS determiningthat the tikanga interests of only one group should be recognised, and the others put toone side, was contrary to tikanga. Rather than ignoring them, the Tribunalrecommended that the Crown engage with concepts of layers of interest.996[614] The Crown took the Tribunal's report seriously. But, as Ms Hauraki submits,it appears to have responded primarily to what it saw as the Tribunal's rejection ofassessing relative weighting of tikanga interests, rather than the more general messageof the importance of it understanding tikanga. The evidence is clear that what theCrown took from the Tāmaki Makaurau Report had a significant effect on the wayCrown historians approached their role. As Michael Macky said, rather than drawingconclusions about customary interests, they focussed on summarising the availableevidence in relation to customary interests in sites being considered as redress, andthey avoided weighing different groups' interests against each other.997[615] That was an understandable reaction by the Crown historians, who are notexpert in tikanga, as their standard disclaimer states.998 It also states that "acomprehensive understanding of customary interests in that district would requireconsultation with local experts". But assessing historical customary associations ofiwi and hapū with land inherently requires considering tikanga. As Mr Hodder995 Waitangi Tribunal Tāmaki Makaurau Report at 19 and 105. See Notes of Closings 296/27–297/32.996 At 109.997 Macky Affidavit at [21].998 NOE 1471/27–30.268submits, you cannot extricate custom from history in relation to an iwi. The problemwith the overall Crown reaction to the Tribunal's 2007 Report was that it did not adopta practice or policy of assigning anyone with expertise to understand and advise it onthe tikanga implications of its decisions.[616] The Crown properly took the position that it was not for it to adjudicate or actas video referee in contests of mana whenua. It is not. And, as Dr Ward submits, theCrown is entitled to consider a range of financial, economic, social and cultural mattersin deciding on its position in negotiating Treaty settlements. It requires flexibility toengage with the particular issues and concerns of each iwi and hapū to whom it hasobligations.[617] But that does not prevent the Crown from taking reasonable steps tounderstand, recognise and respect the tikanga interests of iwi and hapū that areimplicated by its proposed Treaty settlements, and to actively protect their ability toexercise their tikanga. In the Red Book, three of the six negotiating principles theCrown adopted in 2000 and still holds to are good faith, restoration of relationship andfairness between claims.999 Three of the Crown's adopted guidelines are that "Treatysettlements should not create further injustices", that "the Crown must deal fairly andequitably with all claimant groups", and that "settlements do not affect ongoingrights arising out of the Treaty or under the law".1000 Lil Anderson's evidence is thatthese guidelines are "especially relevant in the context of overlapping interests".1001This context cements the Crown's general legal Treaty obligations in relation totikanga in dealing with overlapping interests in Treaty settlements.[618] The Red Book, in both its 2018 and latest versions, contains much usefulguidance for the Crown. It recognises the importance of addressing overlappinginterests. It effectively recognises that it is iwi and hapū, and not the Crown, who canresolve the question of who has mana whenua as Ngāti Whātua Ōrākei conceive of it.It states that the Crown encourages claimant groups to discuss overlapping interests atan early stage and that the Crown will assist that process by providing information. It999 Red Book 2018 at 25–26.1000 Red Book 2018 at 24–25.1001 Anderson Affidavit at [24].269recognises that exclusive redress may not be appropriate where there are overlappinginterests and that non-exclusive redress allows the interests of different groups to berecognised and accommodated. As Minister Little assured the Iwi Chairs Forum in2019, the Crown "will seek to give effect to any agreement between iwi" albeit"subject to consideration of Treaty settlement policy implications".1002 It would bedifficult to imagine a context where it would be consistent with the Treaty for theCrown not to give effect to a genuine agreement between iwi and hapū about who hasa greater association at tikanga with a property which the Crown proposes to use insettlement.[619] It is also clear that the Red Book, and the Crown's practice, envisages theCrown making assessments of the implications of tikanga interests. The Red Bookand Crown witnesses state that, "as a last resort", in the absence of agreement aboutoverlapping interests, "the Crown may have to make a decision".1003 This is supposedto be guided by the Crown settlements principles and guidelines, and Treatyprinciples.1004 The Red Book 2018 envisages that, if a claimant group identifies a"threshold level of customary interest", the Crown will consider "what is the relativestrength of the customary interests in the land" and that:1005Exclusive redress may also be considered where a claimant group has a strongenough association with a site to justify this approach (taking into account anyinformation or submissions about the association of overlapping claimantswith that site). This exception would apply to sites, such as wāhi tapu, whereno other site could be used as alternative redress.[620] Under cross-examination, Lil Anderson acknowledges that, in applying itspolicies, the Crown makes a decision about whether a threshold level of customaryinterests is met by a claimant group and about the relative strength of customaryinterests.1006 She agrees that the Crown makes a judgment on the nature of theassociations that have been asserted, having considered all the evidence before it.1007As she says, "[a] failure to consider all associations may cause harm to relationships1002 Letter from Minister Little to Iwi Chairs Forum, 13 March 2019.1003 Red Book 2018 at 54; and Red Book 2021 at 63. And see Finlayson Affidavit 2016 at [35], affirmedin Finlayson Affidavit 2020 at [4]; and Anderson Affidavit at [90].1004 Red Book 2021 at [63].1005 Red Book 2018 at 55; and Finlayson Affidavit 2016 at [35], affirmed in Finlayson Affidavit 2020at [4].1006 NOE 832/19–833/19.1007 NOE 890/17–27 and NOE 934/21–935/9.270with and between groups and thereby undermine the Crown's objective of securingdurable settlements".1008 Her account of the Crown's approach to cultural redress alsomakes clear that the Crown considers the nature of interests in particular sites.1009These are likely to be grounded in tikanga.[621] These assessments and judgements inherently require understanding oftikanga. They are tikanga interests. As Minister Little says, "[t]he settlement processdoes require the Crown to consider groups' connections with particular areas andplaces, and the customary interests that they assert in relation to those places".1010 AsMr Mahuika submits, even though the Crown does not confer mana whenua, transfersof properties matter because they are seen as putting the footprint of an iwi in thatplace as part of righting the wrongs of the past under the Treaty of Waitangi.1011 Yetthe language of the Red Book 2018 is striking in its determined avoidance of referencesto tikanga or tikanga interests. It did not mention the word tikanga or tikanga conceptssuch mana whenua. No doubt that is because the Crown has been determined not toget involved in arguments about tikanga, in which it is inexpert and to which it cancontribute little.[622] The 2021 version of the Red Book, approved after argument in theseproceedings concluded, is more explicit. It acknowledges it is vital for the Crown tobe "properly informed of the interests of all groups in an area before making an offer"and that overlapping groups may see the offer as a recognition of mana whenua.1012 Itstates that customary interests or associations are "one factor informing the Crown'sdecision to offer redress".1013 An answer to a question at the end of the documentmakes explicit that "interests" include tikanga. The Red Book 2021 identifies theCrown's preference that claimant and overlapping groups agree on solutions "inaccordance with appropriate tikanga" and that the Crown may fund research,1008 Anderson affidavit at [56].1009 Anderson Affidavit at [54]–[56].1010 Little Affidavit at [5].1011 Notes of Closings 263/15–34.1012 Red Book 2021 at [15] and [22].1013 At [14].271mediation or facilitation.1014 It identifies that the Crown may seek independent advicefrom those with expertise "in the history and traditions of the relevant groups".1015[623] The Red Book 2021 pays greater attention to tikanga than did its predecessor.That would not be difficult. But it does not explicitly acknowledge the legalrequirement on the Crown to consider tikanga, including the implications of manawhenua or other tikanga-based interests, and that it may not act unreasonably havingregard to tikanga, in order to act consistently with the Treaty of Waitangi. AsMr Mahuika submits, the Crown must deliberately turn its mind to tikanga. Ignoringtikanga when it is relevant in a Treaty settlement context would be unlawful. Andgiven the necessary intense focus by officials and Ministers on the settlements at handat any given time, not spelling out that requirement in the Crown's policy runs the riskof prejudicing overlapping tikanga interests of iwi and hapū.[624] The implications of time are difficult for everyone in this process. If the Crownhas breached the Treaty, its obligation is to provide redress. The sooner that isprovided, the sooner the relationship between the Crown and the wronged iwi or hapūcan be restored. That is a key point of settling breaches of the Treaty. It is a duty ofthe Crown. It is certainly a relevant consideration for the Crown. And negotiationsacquire their own dynamics, often with deadlines for reasons internal to the Crown orthe claimant iwi or hapū. It would be easy for the tikanga interests of other iwi or hapūto be regarded by the negotiators on both sides as annoying obstacles or as bids forleverage.[625] But, as the evidence in this case demonstrates, time has a different significancein tikanga. It is clearly important for the future of relationships between iwi and hapū,as well as between them and the Crown. to have a tika outcome. As Charlie Tawhiaosays, "I don't accept unfairness is fixed by allowing more unfairness".1016 One of theCrown's guidelines is that Treaty settlements should not create further injustices. Timeneeds to be taken for that.10171014 At [33].1015 At [66].1016 NOE 1306/7.1017 NOE 1315/13–34.272[626] The Crown is obliged by the Treaty to allow reasonable time for disputesregarding overlapping tikanga interests in Treaty settlement negotiations to beresolved. That does not appear to me likely to be reckoned in generations, as Dr Wardsubmits. But what is reasonable will be informed by tikanga. It may be longer thanPākehā would usually accept and may be longer than the claimant iwi or hapū wouldlike. As Tāmati Kruger says, "we live in a different time zone to Pākehā culture We think and operate in generations. That's how long these things take."1018 And atikanga-consistent process "cannot be exhausted".1019[627] The Red Book 2021 suggests that in general "the Crown will allow at leastthree weeks for formal responses to Crown requests for comment and information".1020Three weeks may or may not be reasonable, having regard to the significance of theissue. The Kawenata Tapu was agreed between Ngāti Whātua Ōrākei and Ngāti Pāoain January 2017, one year and four months after Ngāti Whātua Ōrākei joined NgātiPāoa to these proceedings. There are examples in the evidence of the Crown pausingfor, and providing opportunities for, tikanga-based resolution of overlapping interestsunder the current policy.[628] But in the end, the extent of time and effort that is reasonable to allow fortikanga-based resolution of overlapping interests depend on the particularcircumstances of a particular settlement, having regard to tikanga. What is reasonableis inherently difficult to provide for in a policy. Engaging as early as practicable withthe overlapping iwi or hapū would help, as the Crown's policy says. So wouldengaging before a commitment has been made to a particular property by thenegotiating parties. Inventive negotiators may be able to devise ways of parkingparticular disputed properties pending future tikanga-consistent resolution, whileallowing the wider settlement to proceed. Dr Ward's closing includes the responsiblesubmission that the Crown is willing to facilitate discussions, act as observers, andprovide logistical support to iwi negotiations if that is what iwi want.1021 A process,such as that proposed by the Iwi Chairs Forum, that involves independent facilitationby pūkenga, might be promising. The Waitangi Tribunal's recommendations in the1018 NOE 1842/16–19.1019 NOE 1922/15–20.1020 Red Book 2021 at [64].1021 Notes of Closings 53/9–18.273Hauraki Report should be taken seriously. And, no doubt, the Court would beavailable to assist with such processes, if the parties so wish.[629] I also return to the notion that iwi and hapū have responsibilities under theTreaty to assist the Crown to discharge its Treaty duty to other iwi and hapū to provideredress for Treaty breaches, by engaging in tikanga-consistent processes with thoseiwi about the status of relevant properties at tikanga. Depending on the context,refusing to do so may breach the Treaty of Waitangi.I Tikanga and Treaty settlements in Tāmaki Makaurau[630] At last I reach tikanga and Treaty settlements in Tāmaki Makaurau. Therelevant legal principles are largely spelled out above. Little more is needed to dealwith the declarations sought by Ngāti Whātua Ōrākei. No particular Crown (or iwi)decisions are formally challenged in these proceedings. I do not wish to stray too closeto the constitutional line of interfering in Parliamentary proceedings. But muchevidence of illustrative examples of context was put before me and I have consistentlyemphasised the importance of context. Accordingly, I briefly outline my keyobservations about what difference the legal and factual context of Treaty settlementsin Tāmaki Makaurau makes to the application of the principles identified above, ifany.[631] First, I accept that the context of the 2011 Treaty settlement between the Crownand Ngāti Whātua Ōrākei, and the 2012 Act, affirm and reinforce their obligations toact consistently with the Treaty of Waitangi. There are technically no legal operativeclauses in the Deed or Act to that effect. But the Crown and Ngāti Whātua Ōrākeiexpressly state in the Deed their intention to enhance their ongoing relationship interms of the Treaty and its principles. That includes acting reasonably and in goodfaith, with mutual cooperation and trust. Ngāti Whātua Ōrākei relies on that. TheCrown accepts it.1022 Parliament has effectively confirmed it in the Settlement Act.As explained above, that duty extends to the Crown taking reasonable steps tounderstand, recognise and respect the tikanga of iwi or hapū, and the Crown activelyprotecting the ability of iwi and hapū to exercise their tikanga. Ngāti Whātua Ōrākei1022 Notes of Closings 19/11–20/28.274and other iwi may have a duty under the Treaty to engage in tikanga-consistentprocesses with each other about the status of relevant properties at tikanga.[632] The Court will not attribute to the Crown, to Ngāti Whātua Ōrākei or other iwiand hapū, or to Parliament, in this context, an intention to permit further breaches ofthe Treaty of Waitangi or to act inconsistently with its principles. As outlined above,the general context of the Treaty relationships and settlement negotiations is sufficientto establish those obligations. Absent context to the contrary, that is the same for iwiand hapū who have settled and who have not yet settled with the Crown. The contextof the settlements in Tāmaki Makaurau affirms and reinforces that. That makes it evenmore difficult to argue that administrative law obligations do not bring the Treaty tobear on public law decisions in this context.[633] Second, I do not consider the context of the 1840s gifting of land by NgātiWhātua Ōrākei to the Crown adds materially to the legal duties of the Crown. TheCrown submits: 1023The Crown accepts that Ngāti Whātua Ōrākei intended the 1840 transfer tocreate a relationship with the Crown. That relationship was intended toprovide a platform for the development of Auckland and New Zealand, andengage Ngāti Whātua Ōrākei in a relationship with the Crown, one which(today) the Crown says is encompassed in the Treaty and its principles.[634] There may be circumstances in which that history is a relevant considerationfor future Crown decisions involving that land (unless it constitutes a claim settled bythe 2011 Deed and 2012 Act). The gifts may also reinforce the claim of Ngāti WhātuaŌrākei to mana whenua in terms of their own tikanga though, of course, other iwidispute that. But the only matter on which the pūkenga recorded disagreement was asto whether the nature of the 1840 Transfer was a tuku or hoko or what it entailed.1024And I have held above that the Crown is not bound by tikanga. That extends to anarguable obligation of tuku whenua at tikanga. The Crown's duty to understand andrespect the tikanga of Ngāti Whātua Ōrākei (rather than its history) is not materiallyenhanced by the 1840s gifting of land by Ngāti Whātua Ōrākei to the Crown.1023 Crown's Closing at [402]–[403].1024 Ngāti Whātua Ōrākei Pūkenga Summary and Te Toru Pūkenga Summary, point 8.275[635] Third, the Collective Agreement, Collective Deed and Collective Act do notaffect who has mana whenua, or what that means, at tikanga in Tāmaki Makaurau.Neither the Crown nor Parliament determines mana, mana whenua or ahi kā roa. Manawhenua is a matter of tikanga which was explicitly put to one side for the purposes ofthe Collective settlement by the parties, with considerable courage, generosity ofspirit, and a desire to work together in the common interest, on the recommendationof Sir Douglas Graham. It did not resolve or waive or override the tikanga of the iwiand hapū in Tāmaki Makaurau. Ngāti Whātua Ōrākei are not prevented by theCollective settlement from arguing it has mana whenua in Tāmaki Makaurau. Otheriwi are not prevented from arguing it does not. As they have. I note Mr Hodder'ssubmission in closing that, where ownership of maunga and motu was transferredunder the collective settlement or where land is dealt through the collective RFRcarousel regime, Ngāti Whātua Ōrākei do not claim mana whenua.1025[636] Fourth, given my findings about the contest between iwi over the nature andextent of mana whenua in Tāmaki Makaurau, I do not need to comment on the Crown's"no veto" position communicated to iwi before the Collective settlement was agreed.The Collective settlement itself does not confer a veto. The way the individualsettlement processes work may mean one iwi disagrees with redress proposed to beprovided to another. Iwi can exercise their rangatiratanga by participating in tikanga-consistent processes to agree amongst themselves about such things. Perhaps theyhave a duty under the Treaty to do so. The Crown is required by the Treaty to haveregard to the tikanga of all affected iwi and hapū.[637] Fifth, the illustrative examples of the process of settling Treaty claims inTāmaki Makaurau suggest that the Crown has made efforts to understand the positionof iwi and hapū regarding the history, but not the tikanga, of their overlapping interests.Overlapping interests could have been addressed earlier in some of the processes. Attimes the Crown appears to have been rather quick to require responses fromoverlapping iwi before reaching for its own unilateral decisions of last resort. TheCrown has not sought expert advice from pūkenga to enable it to fully understand andconsider the tikanga dimensions of those interests. Accordingly, the Crown has not1025 Notes of Closings 546/30–547/16.276taken into account a fully informed understanding of the implications of its decisionsfor the tikanga interests of all iwi and hapū. The Waitangi Tribunal's Hauraki Reportsuggests these are not isolated features of Crown Treaty settlement negotiations.[638] Sixth, the Crown would be well advised to seriously consider the constructiverecommendations of the Waitangi Tribunal in the Hauraki Report and the Iwi ChairsForum about how to improve its approach to overlapping interests in Treatysettlements, if it has not already done so.[639] Finally, the illustrative examples suggest to me that the Crown as well as iwiand hapū, would also be well-advised to establish mutual relationship managementprocesses and structures to enhance the health of their ongoing relationships, to theextent their resources permit. Te Arawhiti has a mandate to do so for the Crown. Icannot tell from the evidence whether its origins of Te Arawhiti in OTS yet enable itto focus on that. Neither do I have information about the relationship managementprocesses that iwi and hapū have adopted with the Crown.[640] It is clear that the relationships between Ngāti Whātua Ōrākei and the Crown,Ngāti Whātua Ōrākei and several other iwi, and other iwi and the Crown have sufferedfrom tensions throughout the Treaty settlement process in Tāmaki Makaurau. This hasnot been uncommon. Perhaps those tensions, played out in these proceedings from2015, have been brought to a head. My hope is that this will now enable all parties topursue healthier ongoing relationships with each other, which are at the heart of whatwas and continues to be envisaged by the Treaty of Waitangi, paying due regard totikanga.J Declarations about Crown obligations regarding tikanga[641] I summarised the Court's jurisdiction to grant declarations in Part VI.D. Thedeclarations sought by Ngāti Whātua Ōrākei that relate to the Crown, as set out longago at the beginning of this judgment, are:(b) When applying the Overlapping Claims Policy in a way which relatesto and/or may affect any land within the area of the 2006 RFR Landand the 1840 Transfer Land, the Crown must act in accordance withtikanga, and in particular Ngāti Whātua Ōrākei tikanga.277(c) Crown development of Proposals to include the land in the 2006 RFRLand and the 1840 Transfer Land in a proposed settlement with iwiwho do not have ahi kā in respect of that land, must be made inaccordance with tikanga, and in particular Ngāti Whātua Ōrākeitikanga.(d) In order to comply with tikanga in that situation when contemplatingor developing Proposals, or making decisions under its OverlappingClaims Policy to offer any interest in land within the 2006 RFR Landor the 1840 Transfer Land as part of a proposed Treaty settlement withan iwi other than Ngāti Whātua Ōrākei, and whether involving s 120of the Collective Act or not, the Crown must:(i) appropriately consult with Ngāti Whātua Ōrākei as the iwihaving ahi kā;(ii) acknowledge the ahi kā of Ngāti Whātua Ōrākei as the iwihaving ahi kā;(iii) decline to include the land in the proposed settlement if thereis evidence that the transfer of the land would unjustifiablyerode the mana whenua of Ngāti Whātua Ōrākei as the iwihaving aki kā; and(iv) decline to include the land or recognise an interest in land inthe proposed settlement where the land has previously beenthe subject of a gift to the Crown, unless Ngāti WhātuaŌrākei, the gifting iwi, have provided its consent to thetransfer.[642] Mr Majurey, Mr Warren and Ms Coates submit that these declarations arepremised on mana whenua and ahi kā as Ngāti Whātua Ōrākei conceive of it. Theysubmit these declarations fall, as a suite, with that premise. These submissions haveforce.[643] I concluded in Part VI that the application of tikanga including the nature andextent of mana whenua in Tāmaki Makaurau, is contested between different iwi. Themana whenua of Ngāti Whātua Ōrākei, as they conceive it, is not accepted byMarutūāhu (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki or Te Ākitai Waiohua. Giventhat, making the declarations sought by Ngāti Whātua Ōrākei would provide amisleading impression of what the Court considers is a proper understanding oftikanga in Tāmaki Makaurau or with the implications of tikanga for Treaty settlementsin Tāmaki Makaurau.278[644] In Part VIII I find that tikanga interests do bear on the Crown's legalobligations in dealing with overlapping interests in Treaty settlements. But I find thattikanga does not legally bind the Crown in itself. And I find the Crown is notnecessarily required to "act in accordance with", or "comply with", the tikanga of oneiwi when the tikanga of other iwi and hapū may also bear, and bear differently, on theCrown's decisions.[645] It follows that I do not consider declarations (b), (c) or (d) would be accuratestatements of the law. Accordingly, I decline to make those declarations as sought.[646] In Part VIII, I have stated a number of aspects of the legal obligations inrelation to tikanga in the context of Treaty settlements. I am inclined to consider thatit speaks for itself and that there would be little utility in making declarations basedon it. However, I have reserved leave for the parties and interested parties to makefurther submissions on whether the Court should issue alternative declarations inrelation to tikanga. It may be that the alternative declarations I have identified havenatural corollaries in terms of Treaty settlements that would be suitable alternatives tothe declarations sought. Such a declaration might be phrased along the followinglines:The duties of active protection of tikanga and of acting reasonably and in goodfaith, with mutual cooperation and trust in relation to tikanga, will bear onCrown decisions affecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will need to takereasonable steps to understand, recognise and respect the tikanga of iwi orhapū, and the Crown will need to actively protect the ability of iwi and haputo exercise their tikanga.Depending on the context, the Treaty of Waitangi may also require iwi andhapū to engage in tikanga-consistent processes with other iwi and hapū aboutthe status of relevant properties at tikanga.[647] The parties and interested parties seek the opportunity to make submissions onalternative declarations. Perhaps everyone will agree with these(!) Accordingly, Ireserve leave for the parties and interested parties to make submissions on whether theCourt should make such alternative declarations about legal obligations in relation totikanga in the context of Treaty settlements, if they wish to do so.279Result[648] I decline to make the declarations as sought by Ngāti Whātua Ōrākei.[649] I reserve leave for any of the parties or interested parties, if they wish:(a) to make submissions on whether the Court should make a declarationalong the lines that:Ngāti Whātua Ōrākei currently have ahi kā and mana whenuain relation to the area identified in Map 1 of this judgment incentral Tāmaki Makaurau, with all the obligations at tikangathat go with that, according to the tikanga and historical tribalnarrative and tradition of Ngāti Whātua Ōrākei.(b) to make submissions on whether the Court should make a declarationalong the lines that:The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki,and Te Ākitai Waiohua do not currently recognise that NgātiWhātua Ōrākei have ahi kā and mana whenua, as thoseconcepts are conceived of by Ngāti Whātua Ōrākei, in relationto the area identified in Map 1 of this judgment in centralTāmaki Makaurau.(c) to make submissions on whether the Court should make any alternativedeclarations about legal obligations in relation to tikanga in the contextof Treaty settlements, along the lines that:The duties of active protection of tikanga and of actingreasonably and in good faith, with mutual cooperation andtrust in relation to tikanga, will bear on Crown decisionsaffecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will needto take reasonable steps to understand, recognise and respectthe tikanga of iwi or hapū, and the Crown will need to activelyprotect the ability of iwi and hapu to exercise their tikanga.Depending on the context, the Treaty of Waitangi may alsorequire iwi and hapū to engage in tikanga-consistentprocesses with other iwi and hapū about the status of relevantproperties at tikanga.280(d) to apply jointly for the Court's assistance to facilitate a tikanga-basedresolution process to address any of the disputed issues of applyingtikanga canvassed in this judgment or to apply jointly for a declarationby the Court to reflect a joint position about any of these disputedissues, reached by a tikanga-consistent process.[650] Any further submissions under subparagraphs (a), (b) or (c) of the aboveparagraph should be filed and served within three months of the date of this judgment.I reserve leave for any of the parties or interested parties to request a teleconference todiscuss any issues arising before that. There is no time limit on the leave reserved insubparagraph (d).[651] Costs are reserved until after the Court has dealt with any such furthersubmissions or the deadline for filing those submissions has expired.[652] I close this judgment by quoting the Waitangi Tribunal in the Ngāti Awa RaupatuReport:1026In seeking solutions, it is important to bear in mind that Māori society isfundamentally about relationships. It is not enough to resolve the immediateproblem. The people must continue to live together, and the more importanttask is to rebuild the relationships based upon whakapapa and respect for themana of each group.Palmer JCounsel/Solicitors:J E Hodder QC, WellingtonG H Allan, Barrister, WellingtonChapman Tripp, AucklandCrown Law, WellingtonAtkins Holm Majurey, AucklandMcCaw Lewis, HamiltonKahui Legal, WellingtonChapman Tripp, WellingtonWalters Law, Auckland1026 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāti Awa Raupatu Report(Wai 46, 1999) at 136.281ANNEX OF SHORT FORM REFERENCE TAGSI Judgments and MinutesA Aotearoa New Zealand[Baldick v Jackson] Baldick v Jackson (1910) 30 NZLR 343 (SC).[Barton-Prescott] Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC).[Broadcasting Assets] New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC).[Forests] New Zealand Māori Council v Attorney-General [1989] 2 NZLR 142 (CA)[Huakina Development Trust] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR188 (HC).[Kamo] Kamo v Minister of Conservation [2020] NZCA 1, [2020] 2 NZLR 746.[Lands] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).[Mercury (HC)] Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142.[Ngaronoa] Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643.[Ngāti Apa] Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).[Ngāti Whātua Ōrākei (HC strike out)] Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC389, [2017] 3 NZLR 516.[Ngāti Whātua Ōrākei (issues and pūkenga)] Ngāti Whātua Ōrākei Trust v Attorney-General (No 1)[2020] NZHC 3120[Ngāti Whātua Ōrākei (SC)] Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019]1 NZLR 116.[Ngawaka] Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021]2 NZLR 1.[Public Trustee v Loasby] Public Trustee v Loasby (1908) 27 NZLR 801 (SC).[Radio Frequencies] Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA).[Re Edwards] Re Edwards (No 2) [2021] NZHC 1025.[Ririnui] Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.[Takamore (CA)] Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573.[Takamore (SC)] Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 (SC).[Trans-Tasman (SC)] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board[2021] NZSC 127.B Nigeria[Amodu] Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC).II Land Court Judgments and Minute Books[Native Land Court Ōrākei Decision 1866] Ōrākei Block (1866) Native Land Court as reported in TheDaily Southern Cross (New Zealand, 10 December 1866).[Native Land Court Ōrākei Decision 1869] Ōrākei Block (1869) as reported in Important JudgmentsDelivered in the Compensation Court and the Native Land Court 1866-1879 (Southern Reprints,1994).[Native Land Court Ōrākei MB 1] Native Land Court Ōrākei Block (1869) 1 Ōrākei MB, TranscribedVersion.[Native Land Court Ōrākei MB 2] Native Land Court Ōrākei Block (1869) 2 Ōrākei MB, TranscribedVersion.[Ōrākei Claim Notes 1866] Notes taken in hearing the First Ōrākei Claim (1866) Native Land Court.III Waitangi Tribunal Reports[Waitangi Tribunal Hauraki Overlapping Claims Report] Te Rōpū Whakamana i te Tiriti o Waitangi |Waitangi Tribunal Hauraki Settlement Overlapping Claims Inquiry Report (Wai 2840, 2020).[Waitangi Tribunal Hauraki Report 2006] Te Rōpū Whakamana i te Tiriti o Waitangi | WaitangiTribunal The Hauraki Report (Wai 686, 2006).282[Waitangi Tribunal Ngāti Awa Cross-Claims] Te Rōpū Whakamana i te Tiriti o Waitangi | WaitangiTribunal Ngāti Awa Settlement Cross-Claims Report (Wai 958, 2002).[Waitangi Tribunal Ōrākei Report] Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi TribunalReport of the Waitangi Tribunal on the Ōrākei Claim (Wai 9, 1987).[Waitangi Tribunal Rēkohu] Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Rēkohu –A Report on Moriori and Ngāti Mutunga Claims in the Chatham Islands (Wai 64, 2001).[Waitangi Tribunal Tāmaki Makaurau Report] Te Rōpū Whakamana i te Tiriti o Waitangi | WaitangiTribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007).IV Books and Chapters in Edited Books[Ballara Taua] Angela Ballara Taua: 'Musket Wars', 'Land Wars' or Tikanga? Warfare in MāoriSociety in the Early Nineteenth Century (Penguin Books, Auckland, 2003).[Boast Māori Land Law] Richard Boast and others Māori Land Law (2nd ed, LexisNexis NZ,Wellington, 2004).[Elder Marsden] JR Elder (ed) The Letters and Journals of Samuel Marsden, 1765-1838 (Coulls,Somerville, Wilkie and AH Reed for Otago University Council Dunedin, 1932).[Hickford Lords of the Land] Mark Hickford Lords of the Land: Indigenous Property Rights and theJurisprudence of Empire (Oxford University Press, New York, 2011).[McHugh Aboriginal Societies] Paul McHugh Aboriginal Societies and the Common Law: A Historyof Sovereignty, Status, and Self-determination (Oxford University Press, New York, 2004).[McHugh The Māori Magna Carta] Paul McHugh The Māori Magna Carta: New Zealand Law andthe Treaty of Waitangi (Oxford University Press, Auckland, 1991).[Mead Tikanga Māori] Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, HuiaPublishers, Wellington, 2016).[Smith The Peopling of the North] S Percy Smith The peopling of the North: notes on the ancientMāori history of the Northern Peninsula and sketches of the History of Ngāti-Whātua tribe ofKaipara, New Zealand (Kiwi Publishers, Christchurch, 1998).[Stone From Tamaki-Makau-Rau] RCJ Stone From Tamaki-Makau-Rau to Auckland (AucklandUniversity Press, Auckland, 2001).[Te Mātāpunenga] Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendiumof References to the Concepts and Institutions of Māori Customary Law (Victoria University Press,Wellington, 2013).[Woolf and Woolf The Declaratory Judgment] Lord Woolf and Jeremy Woolf The DeclaratoryJudgment (4th ed, Sweet & Maxwell, London, 2011).V Journal Articles[Dorsett "Since Time Immemorial"] Shaunnagh Dorsett "'Since Time Immemorial': A Story ofCommon Law Jurisdiction, Native Title and the Case of Tanistry" (2002) 26 MULR 32.[Tūhaere "The Conquest"] Paul Tūhaere "An Historical Narrative Concerning the Conquest ofKaipara and Tāmaki by Ngāti Whātua" (1923) 32 JPS 229.[Williams "Lex Aotearoa"] Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the MāoriDimension in Modern New Zealand Law" (2013) 21 Wai L Rev 1.[Williams "McLiver v Macky"] David V Williams "The Pre-History of the English Laws Act 1858:McLiver v Macky (1856)" (2010) 41 VUWLR 361 at 377.VI Documents Created for Hearings[Anderson Affidavit] Affidavit of Lilian Anderson, 13 October 2020.[Andrews and Tupuhi Brief] Brief of Evidence of Ted Andrews and Glen (Joe) Tupuhi, 13 October2020.[Belgrave Brief] Brief of Evidence of Michael Belgrave, 13 October 2020.[Blair Brief] Brief of Evidence of Ngarimu Alan Huiroa Blair, 2 June 2020.[Blair Reply] Brief of Evidence of Ngarimu Blair in Reply, 4 December 2020.[Brown Brief] Brief of Evidence of James Brown, 13 October 2020.[Compain Brief] Brief of Evidence of Tipa Compain, 13 October 2020.[Crown Closing] Attorney-General Closing Submissions, 19 April 2021.283[D Wilson Brief] Brief of Evidence of David Wilson, 13 October 2020.[Denny Brief] Brief of Evidence of Nigel Denny, 13 October 2020.[Dreaver Affidavit] Affidavit of Michael Dreaver, 14 October 2020.[Finlayson Affidavit 2016] Affidavit of Christopher Finlayson, 8 July 2016.[Finlayson Affidavit 2020] Affidavit of Christopher Finlayson, 8 October 2020.[Hawke Brief] Brief of Evidence of Taiaha (Lance) Joseph Hawke, 2 June 2020.[K Wilson Brief] Brief of evidence of Karen Wilson, 13 October 2020.[Kapea Brief] Brief of Evidence of Te Kurataiaho Lonoholoihaiki Kapea (English translation), 2 June2020.[Kawharu Affidavit Ngā Uri o Te Taoū] Affidavit of Ian Kawharu, 9 December 2002, in Ngā Uri o TeTaoū Tribe Inc v Attorney-General HC Auckland M.1079-00 and the Wai 388 claim at the WaitangiTribunal.[Kawharu Brief] Brief of Evidence of Margaret Kawharu, 2 June 2020.[Kruger Brief] Brief of Evidence of Vivian Tāmati Kruger, 2 June 2020.[Kruger Reply] Brief of Evidence of Tāmati Kruger in Reply, 4 December 2020.[Little Affidavit] Affidavit of Andrew Little, 7 October 2020.[M Wilson Brief] Brief of Evidence of Morehu Wilson, 13 October 2020.[Macky Affidavit] Affidavit of Michael Macky, 13 October 2020.[Macky Reply] Affidavit of Michael Macky in Reply, 15 January 2021.[Marutūāhu Closing] Marutūāhu Rōpū Closing Submissions, 19 April 2021.[Maxwell Brief] Brief of Evidence of Dr Te Kahautu Maxwell, 13 October 2020.[McBurney Brief] Brief of Evidence of Peter McBurney, 13 October 2020.[Meredith Brief] Brief of Evidence of Paul Meredith, 2 June 2020.[Meredith Reply] Brief of Evidence of Paul Meredith in Reply, 4 December 2020.[Mikaere Brief] Brief of Evidence of Harry Mikaere, 13 October 2020.[Ngāi Tai ki Tāmaki Closing] Ngāi Tai ki Tāmaki Closing Submissions, 19 April 2021.[Ngāpō Brief] Brief of Evidence of Korohere Ngāpō, 13 October 2020.[Ngāti Kuri and Ngāi Te Rangi Closing] Ngāti Kuri and Ngāi Te Rangi Closing, 19 April 2021.[Ngāti Pāoa Closing] Ngāti Pāoa Closing Submissions, 19 April 2021.[Ngāti Whātua Ōrākei Closing] Ngāti Whātua Ōrākei Closing Submissions, 19 April 2021.[Ngāti Whātua Ōrākei Pūkenga Summary] Tikanga summary attached to Ngāti Whātua ŌrākeiMemorandum of Counsel, 17 February 2021.[O'Malley Brief] Brief of Evidence of Dr Vincent O'Malley, 2 June 2020.[Rawiri Brief] Brief of Evidence of Hauāuru Rawiri, 13 October 2020 (English).[Solomon Brief] Brief of Evidence of Hayden Solomon, 13 October 2020.[Taipari Brief] Brief of Evidence of David Taipari, 13 October 2020.[Taua Brief] Brief of Evidence of Te Warena Taua, 14 October 2020.[Tawhiao Brief] Brief of Evidence of Charles Tawhiao, 2 June 2020.[Tawhiao Reply] Brief of Evidence of Charles Tawhiao in Reply, 4 December 2020.[Te Ākitai Waiohua Closing] Te Ākitai Waiohua Closing Submissions, 19 April 2021.[Te Toru Pūkenga Summary] Tikanga summary attached to Te Toru Memorandum of Counsel, 22February 2021.[W Ngamane Brief] Brief of Evidence of Walter Ngamane, 13 October 2020.[Williams Brief] Brief of Evidence of David Williams, 2 June 2020.[Williams Reply] Brief of Evidence of David Williams in Reply, 4 December 2020.VII Iwi-Crown Agreements[Ngāti Whātua Ōrākei AIP] Ngāti Whātua o Ōrākei Māori Trust Board Agreement in Principle for theSettlement of the Historical Claims of Ngāti Whātua o Ōrākei (9 June 2006).[Ngāti Whātua Ōrākei Deed] Ngāti Whātua Ōrākei Deed of Settlement of Historical Claims, 5November 2011.VIII Reports and Other Materials[Alemann "Early Land Transactions"] Maurice Alemann "Early Land Transactions in theNgatiwhatua Tribal Area" (MA Dissertation, University of Auckland, 1992).[Derby and Rother "Te Ākitai Waiohua Customary Interests"] Mark Derby and Tanja Rother "TeĀkitai Waiohua Customary Interests in three Auckland sites" (August 2020).284[Kawharu Dimensions] I H Kawharu Dimensions of Rangatiratanga (Hodge Fellowship, 1995–1996).[Kawharu Ko te Mana Whenua] I H Kawharu Ko te Mana Whenua o Ngāti Whātua o Ōrākei (Wai388 Draft, paper presented to the Crown, May 2003).[Land Deed, 20 October 1840] Land Deed signed by George Clarke (Chief Protector of theAborigines) and Kawau, Tinana, Reweti Tamaki and others (Chiefs of Ngāti Whātua) in respect of3,000 acres between Mataharehare, Opou and Maungawhau (20 October 1840).[Law Commission Māori Custom and Values] Te Aka Matua o te Ture | Law Commission MāoriCustom and Values in New Zealand Law (NZLC SP9, 2001).[Law Commission Succession Issues Paper] Te Aka Matua o te Ture | Law Commission Review ofSuccession Law: Rights to a person's property on death | He arotake i te āheinga ki ngā rawa a tetangata ka mate ana (NZLC IP46, 2021).[Law Commission Succession Report] Te Aka Matua o te Ture | Law Commission He arotake i teāheinga ki ngā rawa a te tangata ka mate ana | Review of Succession Law: Rights to a person'sproperty on death (NZLC R145, 2021).[McBurney Mahurangi Report] Peter McBurney Traditional History Overview of the Mahurangi andGulf Islands Districts (Commissioned by the Mahurangi and Gulf Islands District CollectiveCommittee, March 2010).[O'Malley Te Wherowhero] Vincent O'Malley Pōtatau Te Wherowhero and Tāmaki Makaurau(Waikato-Tainui College for Research and Development, October 2014).[Red Book 2018] Office of Treaty Settlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past,building a future (June 2018)[Red Book 2021] New Zealand Government "Overlapping interests" (21 December 2021).[Tūhaere Ancestors] Paul Tūhaere A Paper Giving an Account of the Genealogy of the Ancestors ofNgāti Whātua (undated) handwritten version.[Walzl Te Ākitai Waiohua] Tony Walzl Te Ākitai Waiohua Customary Interests Report (presented andabridged by Te Ākitai Waiohua Iwi Authority).[Williams He Aha Te Tikanga Māori] Joseph Williams He Aha Te Tikanga Māori (Law Commission,1998).