WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) & ORS v TE KĀHUI AND WHAKATŌHEA MĀORI TRUST BOARD & ORS [2023] NZCA 504

WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) & ORS v TE KĀHUI AND WHAKATŌHEA MĀORITRUST BOARD & ORS [2023] NZCA 504 [18 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA303/2021CA314/2021CA326/2021CA327/2021CA330/2021CA332/2021CA339/2021[2023] NZCA 504BETWEEN WHAKATŌHEA KOTAHITANGAWAKA (EDWARDS)TE ŪPOKOREHE TREATY CLAIMSTRUSTTE RŪNANGA O NGĀTI AWANGĀI TAI AND RIRIWHENUA HAPŪLANDOWNERS COALITIONINCORPORATEDTE KĀHUI AND WHAKATŌHEAMĀORI TRUST BOARDNGĀTI MURIWAI AND KUTAREREMARAENGĀTI RUATAKENGANGĀTI PATUMOANAAppellantsAND TE KĀHUI AND WHAKATŌHEAMĀORI TRUST BOARDNGĀI TAI AND RIRIWHENUA HAPŪTE ŪPOKOREHE TREATY CLAIMSTRUSTTE RŪNANGA O NGĀTI AWARespondentsAND ATTORNEY-GENERALTE WHĀNAU-Ā-APANUISEAFOOD INDUSTRYREPRESENTATIVESCROWN REGIONAL HOLDINGSLIMITED, ŌPŌTIKI DISTRICT COUNCILAND BAY OF PLENTY REGIONALCOUNCILWHAKATĀNE DISTRICT COUNCILInterested PartiesHearing: 27 February 2023 – 3 March 2023Court: Cooper P, Miller and Goddard JJCounsel: M J Sharp for Ngāti Muriwai and Kutarere Marae (ChristinaDavis and Barry Kiwara)T C Waikato for Crown Regional Holdings Ltd, Ōpōtiki DistrictCouncil and Bay of Plenty Regional CouncilT H Bennion and O Ford Brierley for Ngāti Patumoana (TeRingahuia Hata)DTK Ketu for Te Uri o Whakatōhea Rangatira Mokomoko (KarenMokomoko and Pita Biddle)D M Salmon KC, H K Irwin-Easthope and K J Tarawhiti for TeRūnanga o Ngāti AwaE S Greensmith-West for Whakatāne District CouncilJ M Pou for Whakatōhea Māori Trust BoardR L Roff and C C Barnett for Attorney-GeneralJ S Cooper KC, B R Lyall and HLB Swedlund for Te ŪpokoreheTreaty Claims TrustRJB Fowler KC, A J Sinclair and B M Cunningham forEdwards/Whakatōhea Iwi, Pākōwhai Hapū, Hiwarau C,Turangapikitoi, Waiōtahe and Ōhiwa of Whakatōhea (ClaudeEdwards, Adriana Edwards, Dean Flavell and Larry Delamere),Collectively Whakatōhea Kotahitanga WakaB R Arapere, A E Gordon and E K Rongo for Ngāi Tai andRiriwhenua (Muriwai Jones)J E Hodder KC, B K McLay and B E Morten for LandownersCoalition IncorporatedK S Feint KC and SWH Fletcher for Ngāti RuatakengaATI Sykes and TMM P Rurehe for Ngāti Ira o Waiōweka (Te RuaRakuraku)CMT Panoho-Navaja for Ngāi Tamahaua Hapū and Te HapūTitoko o Ngai Tama (Tracy Hillier)B A Scott and S Cvitanovich for Seafood IndustryRepresentativesM Mahuika and N R Coates for Te Rūnanga o Te WhānauJudgment: 18 October 2023 at 2.00 pmJUDGMENT OF THE COURTA The Edwards appeal is dismissed, as are those of Kutarere Marae andNgāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwaifrom participating in any recognition order for customary marine title (CMT)granted, following rehearing, to the Whakatōhea applicant groups.B The appeals of Te Ūpokorehe, Ngāti Awa and the Landowners Coalition Inc areallowed in part. CMT Orders 1 and 3 are set aside. LCI's appeal against CMTOrder 2 is dismissed.C The cross-appeals of Te Kāhui and Ngāi Tai are dismissed so far as they seek arecognition order for CMT over the common marine and coastal area aroundWhakaari and Te Paepae o Aotea.D Te Kāhui's cross-appeal is allowed in part. CMT may extend to the beds ofnavigable rivers which form part of the common marine and coastal area asMACA defines that term.E We order a rehearing of the applications for CMT recognition orders over thearea covered by Orders 1 and 3. The rehearing will not extend to the commonmarine and coastal area around Whakaari and Te Paepae o Aotea.F The appeal of Ngāti Ruatakenga against the granting of recognition orders forprotected customary rights (PCR) to Ngāti Muriwai is dismissed.G The appeal of Ngāti Patumoana against the refusal to grant a recognition orderfor PCRs is allowed to the extent set out at [350]. The form of the orders is to besettled in the High Court.H Costs will lie where they fall.___________________________________________________________________REASONSMiller J [1]Cooper P and Goddard J [360]MILLER JTABLE OF CONTENTSIntroduction [1]Parties [11]The area affected by the appeals [25]Te Whakatōhea [29]Overview of the legal issues [36]MACA [38]Legislative history and purpose [39]The legislation [61]The marine and coastal area [70]Protected customary right [72]Customary marine title [75]Recognition orders [80]Applicant group [84]Process and proof [86]The Judge's CMT analysis [89]Submissions on s 58, in brief [96]The Canadian and Australian authorities on customary title to land [104]The Canadian cases [105]The Australian cases [114]MACA: a different approach [118]Tikanga and mana tuku iho [123]Tikanga [124]Ascertaining tikanga [125]Relational values of tikanga [127]Mana tuku iho [129]Analysis of s 58(1) [134]A composite test intended to reconcile customary and common law [136]The elements of s 58(1) [140]Exclusivity as a matter of tikanga [144]Externally manifested intention to control [165]Capacity to exclude [167]Substantial interruption [173]Points of difference with the majority [184]The "applicant group" and shared exclusivity [197]No overlapping CMT [208]Process and proof [210]Pleadings [211]The burden of proof [223]The dual pathway [232]Navigable rivers: is customary title extinguished in law? [239]The pūkenga report [245]The pūkenga process and the hearing [246]The pūkenga report [251]Changes in position following the report [259]The Judge's findings about the pūkenga report [261]Observations [266]WKW: the Edwards priority application [272]WKW: Ngāti Muriwai and Kutarere Marae [277]Te Ūpokorehe [284]Ngāti Awa [289]Te Kāhui and the Board [295]Rehearing [295]Navigable rivers [297]Whakaari and Te Paepae o Aotea [298]Ngāi Tai and Ririwhenua [316]LCI [322]The Attorney-General [325]CRHL [326]Seafood Industry Representatives [327]PCRs [331]Ngāti Ruatakenga's appeal against a PCR for Ngāti Muriwai [335]Ngāti Patumoana appeal against refusal of a PCR [343]Disposition [351]Introduction[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) recognisescertain Māori customary interests in the marine and coastal area,1 meaning the areabetween high-water springs and the 12 nautical mile limit of the territorial sea.2MACA creates three new species of legal interest: a right to participate in conservationprocesses,3 a customary marine title (CMT) and a protected customary right (PCR).4These legal interests may be granted to iwi, hapū or whānau groups.5 Grants are madeby agreement with the Crown or, alternatively, on application to the High Court for arecognition order.61 Marine and Coastal Area (Takutai Moana) Act 2011 [MACA], s 7.2 Section 9(1).3 These are not in issue before us.4 MACA, pt 3.5 Section 9(1) definition of "applicant group".6 Sections 94–96 and 100. See also s 9(1), which defines "Court" as the High Court.[2] Some 200 applications for recognition orders have been filed in theHigh Court. Several have been decided there and the others are pending.7 The presentappeals concern the first substantive judgment to reach this Court. It was also the firstcase to confront competing applications for CMT over the same area.[3] These appeals are almost entirely concerned with CMT, which the High Courtmay recognise if satisfied that the applicant group holds a specified area in accordancewith tikanga,8 and that they have "exclusively used and occupied" that area from1840 to the present day "without substantial interruption".9 The Court may, and in thiscase did, take non-binding advice on questions of tikanga from a court-appointedexpert (pūkenga).10[4] The judgment under appeal was delivered by Churchman J on 7 May 2021after an eight-week hearing conducted under difficult COVID-19-disruptedconditions.11 It contains much detail and analysis which we gratefully adopt, includinga detailed account of whakapapa connections. Many of his findings are not now indispute.[5] The Judge found that applicants had met the criteria for CMT recognitionorders in three areas but failed in others.12 He also found that the applicants had metthe criteria for specific PCRs.13[6] Churchman J has since delivered a further judgment (No 7 judgment) workingout some details of the orders made in the judgment under appeal; in particular,determining areas of wāhi tapu,14 and identities of those who are to hold CMT and7 The cases decided so far are: Re Tipene [2016] NZHC 3199, [2017] NZAR 559; Re Clarkson[2021] NZHC 1968; Ngā Pōtiki Stage 1 — Te Tāhuna o Rangataua [2021] NZHC 2726, [2022] 3NZLR 304; and Re Ngāti Pāhauwera [2021] NZHC 3599.8 MACA, s 9 defines tikanga as Māori customary values and practices.9 MACA, ss 58(1) and 98(2)(b).10 Section 99(1)(b).11 Re Edwards Whakatōhea [2021] NZHC 1025, [2022] 2 NZLR 772 [judgment under appeal].12 At [660]–[661].13 At [669].14 MACA, s 9(1) definition of "wāhi tapu" and "wāhi tapu area", which refers to s 6 of the HeritageNew Zealand Puhere Taonga Act 2014. Wāhi tapu means a place sacred to Māori in the traditional,spiritual, religious, ritual, or mythological sense. Wāhi tapu area means land that contains one ormore wāhi tapu.PCRs.15 The findings made in the No 7 judgment are the subject of separate appealswhich have not yet been set down.[7] I observe that the High Court has employed staged hearings in other MACAcases.16 This has been done for good reason. Among other things, staged hearingsmay better accommodate tikanga processes, as we explain later. However, appellatereview is constrained if the case is part-heard at first instance and closely related issuesare likely to become the subject of future appeals. It has been sensible to addressquestions of principle in this case, the first MACA appeal, but this Court will need toconsider in future cases whether to delay setting appeals down until final orders havebeen made at first instance.[8] The specified area under appeal comprises a tract of the marine and coastalarea between Maraetōtara, which is west of Ōhiwa Harbour, and Te Rangi to the east.It extends seaward to the 12 nautical mile limit, and it includes the marine and coastalarea around Whakaari (White Island, 48 kilometres offshore) and Te Paepae o Aotea(formerly called the Volkner Rocks, five kilometres from Whakaari).17 It also includesthe Ōhiwa Harbour. It is said to represent the rohe moana of Te Whakatōhea and partof the rohe moana of Ngāi Tai. Neighbouring iwi appear to contest the boundaries ofthe specified area to the west and to contest Whakatōhea claims to CMT at Whakaariand Te Paepae o Aotea.[9] Other appellants and interested parties pursue a wider interest in the legislation;they include the Attorney-General, the Landowners Coalition Inc (LCI) and theSeafood Industry Representatives (SIR).1815 Re Edwards (Whakatōhea Stage Two) No 7 [2022] NZHC 2644 [No 7 judgment]. We note thatthe No 7 judgment left some loose ends which are to be the subject of further judgment.16 Ngā Pōtiki Stage 1, above n 7; and Re Ngāti Pāhauwera, above n 7.17 The 12 nautical mile limit from Whakaari overlaps the 12 nautical mile limit from the mainland:Toitū Te Whenua Land Information New Zealand "12 Mile Territorial Sea Outer Limit" (26 July2011, updated on 29 June 2022) LINZ Data Service <https://data.linz.govt.nz/layer/50846-12-mile-territorial-sea-outer-limit/>.18 Any person interested in an application for a recognition order may be heard under s 104 of MACAif that person has, by the due date, filed a notice of appearance. This Court ruled in Te KāhuiTakutai Moana o Ngā Whānui Me Nga Hapū v Landowners Coalition Inc [2022] NZCA 27 thatinterested parties in the High Court might bring appeals in this Court. A number have done so inthis proceeding.[10] Almost all of the 27 PCRs recognised by the Judge are uncontroversial, asidefrom two which are the subject of appeal.Parties[11] I begin by listing those heard on the appeal.19 Whakatōhea Kotahitanga Waka(WKW) are an umbrella group comprising five parties who failed below, essentiallyfor want of mandate, to establish their claim to CMT on behalf of the iwi ofWhakatōhea. The members are:(a) Claude Augustin Edwards (deceased) and Adriana Edwards (claimingto act on behalf of Te Whakatōhea iwi);(b) Christina Davis for Ngāti Muriwai hapū;(c) Dean Flavell for Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwa oWhakatōhea;(d) Larry Delamere for Pākōwhai Hapū; and(e) Barry Kiwara for Kutarere Marae.Among other things, WKW say that the "iwi tipuna" application filed byClaude Edwards was first in time and must have priority, that the pūkenga appointedby the High Court to advise on questions of tikanga went well beyond their remit andthat the Judge erred by deferring to them.[12] Te Kāhui are an umbrella group who succeeded below in establishing theirjoint claim to CMT as hapū of Whakatōhea, which has been described as a19 The judgment under appeal is reported as Re Edwards Whakatōhea, above n 11. In the interestsof clarity, we have chosen to intitule this judgment using group names, rather than those ofindividual applicants representing those groups, and we have grouped the appellants,cross-appellants and respondents according to the substantive part they played in the appeals, withinterested parties listed separately. Our approach reflects the status of Te Ūpokorehe, Ngāti Awa,Ngāi Tai and Te Kāhui as principal protagonists. The individual applicants are however named inthis section of the judgment. We have excluded Te Whānau a Harāwaka, who elected not toparticipate in the hearing before us but assumed a watching approach.hapū-centric iwi. They are the principal respondents and also appear ascross-appellants. The four hapū comprising Te Kāhui in these appeals are:20(a) Ngāi Tamahaua Hapū (represented by Tracy Francis Hillier);(b) Ngāti Ruatakenga (also referred to as Ngāti Rua);(c) Ngāti Ira o Waiōweka (represented by Te Rua Rakuraku); and(d) Ngāti Patumoana (represented by Te Ringahuia Hata).Their cross-appeal contends that the Judge was wrong to refuse them CMT for thecommon marine and coastal area surrounding Whakaari and Te Paepae o Aotea. Theyalso contend that CMT may extend to the mouths of navigable rivers.[13] The PCR appeals are also brought by two of these hapū. Ngāti Patumoana saythe Judge erroneously denied them PCRs for taking kaimoana, taking aquatic plantsand seabirds, navigation and passage, for collection of sand, stones, shingle anddetritus, and for cultural practices associated with these uses, on the ground that therewas insufficient evidence of these activities.21 Ngāti Ruatakenga say the Judge waswrong to grant recognition of PCRs (for the collection of firewood, fish and stones,and fishing for whitebait) to Ngāti Muriwai.22 They contend that Ngāti Muriwai aremerely a "subdivision" of Ngāti Ruatakenga and as such disentitled, as a matter oftikanga, to a separate recognition order.[14] Although not an applicant below or a party to the appeals, a fifth hapū ofWhakatōhea, Ngāti Ngāhere, were found entitled to CMT as part of the Te Kāhuiclaim.23 Their case was advanced by Whakatōhea Māori Trust Board (the Board),which is a hapū-based organisation established in 1952 (originally under theMaori Purposes Act 1949 and later the Maori Trust Boards Act 1955) to represent the20 Te Kāhui also includes two respondent whānau, te Uri o Whakatōhea Rangatira Mokomoko,represented by Karen Stefanie Mokomoko and Pita Tori Biddle, and Te Hapū Titoko o Ngāi Tama,represented by Tracy Francis Hillier.21 Judgment under appeal, above n 11, at [521]–[534].22 At [512].23 At [660(a)]iwi of Whakatōhea.24 Its members comprise six hapū: Ngāi Tamahaua, NgātiRuatakenga, Ngāti Ira o Waiōweka, Ngāti Patumoana, Ngāti Ngāhere and TeŪpokorehe. The Board is a respondent, appearing to oppose the appeals and to supportTe Kāhui's cross-appeal.[15] Te Ūpokorehe, who are represented by Te Ūpokorehe Treaty Claims Trust, area cross-appellant and respondent. Te Kāhui and the Board recognise them as a sixthhapū of Whakatōhea, as just noted, and the High Court found that they are entitled toshare in the CMT granted to Whakatōhea hapū. However, Te Ūpokorehe say they arean iwi entitled to CMT of their own which encompasses much of the area claimed byTe Whakatōhea hapū. They say the Judge erred by ruling that MACA does notcontemplate overlapping CMT;25 alternatively, that a much more "granular" approachought to have been taken to defining CMT boundaries. They also dispute therecognition of Ngāti Ngāhere as a joint holder of a CMT on evidential and proceduralgrounds.[16] Te Rūnanga o Ngāti Awa are a neighbouring iwi to the west. They did not askthe High Court to determine their own CMT claim but opposed territorial claims thatoverlap with it. They now appear as a cross-appellant, saying the Judge was wrong toextend a Whakatōhea CMT to the area between Maraetōtara Stream and the entranceof Ōhiwa Harbour (we will call this the Disputed Area).26 Ngāti Awa ask that the orderbe set aside to that extent, allowing them to pursue CMT in negotiations with theCrown, or, alternatively, that they be included in joint CMT with Whakatōhea over theDisputed Area.[17] Ngāi Tai and Ririwhenua Hapū, represented by Muriwai Maggie Jones, are aneighbouring iwi and a hapū to the east. They succeeded in obtaining an award ofCMT for the area from Tarakeha to Te Rangi. LCI challenges that award and theAttorney-General submits that the evidence was not sufficient to justify CMT out tothe 12 nautical mile limit. Ngāi Tai also appear as cross-appellants, saying the Judge24 The Board made an application for CMT on behalf of Ngāti Ngāhere, Ngāti Patumoana andNgāti Ruatakenga, but the latter two hapū were separately represented.25 Judgment under appeal, above n 11, at [169].26 Ngāti Awa were included in CMT over Ōhiwa harbour and so are also respondents in thisproceeding.was wrong to find they did not meet the tests for CMT at Whakaari andTe Paepae o Aotea.[18] Te Whānau-ā-Apanui are an iwi represented by Trustees of Te Rūnanga oTe Whānau. They participate as an interested party to oppose others' claims to CMTaround Whakaari and Te Paepae o Aotea.[19] Ngāti Muriwai and Kutarere Marae appeal, saying the High Court was wrongto deny them recognition as applicant groups and they ought to have been included inthe Whakatōhea CMT.27 As noted above, Ngāti Muriwai and Kutarere Marae areamong the parties comprising WKW. Indeed, Ngāti Ruatakenga claim that"Ngāti Muriwai" is, in reality, a name adopted by the Edwards whānau. It will be seenthat Ngāti Muriwai accordingly seek, with the other WKW parties, to obtain CMT onbehalf of the entire iwi and, should that claim fail, to participate formally in arecognition order granted to hapū of Whakatōhea.[20] The Attorney-General appears as an interested party to address the Court'sapproach to interpreting the legislation and applying the tests for CMT or PCRs. Hetakes a neutral position on whether applicants have met those tests. He maintains thatthe Judge was correct to find that CMT over navigable rivers has been extinguishedby statute.28[21] LCI appeared as an interested party in the High Court but is now an appellant.It contends that the Judge misinterpreted the criteria for the existence of CMT,29 erringto such an extent that the entire exercise must be redone in the High Court.[22] SIR appear as an interested party. They support LCI's approach to thelegislation and also contend that, on the evidence, commercial fishing has substantially27 Kutarere Marae also advance a process complaint, saying that because they had not applied forCMT, the Judge could not make his findings.28 Judgment under appeal, above n 11, at [361].29 LCI contend that this misinterpretation arises from the adoption of a tikanga-based interpretationof s 58(1) (at [120], [129], [142], [161] and [168]) and conflation of s 58(1)(a) and (b) such thatsubs 58(1)(b) was no longer a separate and standalone requirement (at [57]–[58], [111], [142],[149]–[152], [174], and [264].interrupted applicant groups' exclusive use and occupation of marine areas, with theresult that CMT recognition orders could not be granted.[23] Crown Regional Holdings Ltd (CRHL) is an interested party. It appears toprotect the Crown's interest in the Ōpōtiki Harbour Redevelopment Project, whichincludes a new port entrance adjacent to the mouth of the Waiōweka River. Its stance,supported by the Ōpōtiki District Council as an interested party, is that the High Courtwas premature and wrong to find that applicants made out the grounds for CMT whichincludes the Harbour Redevelopment Project area. Churchman J decided in hisNo 7 judgment that resource consents had substantially interrupted the applicants' use,precluding the issue of CMT.30 CRHL maintains its present appeal against thepossibility that the substantial interruption finding will be reversed on appeal from theNo 7 judgment.[24] The Bay of Plenty Regional Council and the Whakatāne District Councilappear as interested parties and assumed a watching role in this Court.The area affected by the appeals[25] The areas over which CMT recognition orders were granted are shown on planA (attached):31(a) The area from Maraetōtara to Tarakeha is the subject of the first CMTorder made (Order 1). It extends out to the 12 nautical mile limit andis said to correspond to the Whakatōhea rohe moana, being that part ofthe coastal marine area associated with the Whakatōhea iwi. In largemeasure the appeals and cross-appeals reflect disagreement amonggroups affiliated with Whakatōhea about which of them ought to haveor be included in a recognition order over this area and who may applyon their behalf.30 No 7 judgment, above n 15, at [28].31 The two plans attached were supplied by counsel at our request. They were agreed by all partiesexcept WKW, who argued that the Judge's CMT Order 1 extended to the common marine andcoastal area around Whakaari. We do not find that an available reading of the judgmentunder appeal.(b) The Ōhiwa Harbour is the subject of Order 2, recognising shared CMTbetween Ngāti Awa and the six Whakatōhea hapū. The order is not nowin dispute among applicant groups, but as noted above, LCIchallenges it.(c) The area between Tarakeha and Te Rangi is the subject of Order 3, therecognition order granted to Ngāi Tai.32 As noted above, LCI alsochallenges that order.[26] Plan B identifies the Disputed Area from Maraetōtara to the mid-mouth of theŌhiwa Harbour, in which Ngāti Awa say their rights are superior to those ofWhakatōhea. It also shows the area which is the subject of Te Ūpokorehe's claim toCMT; it will be seen that the application covers much of Order 1 but does not extendto the east of Waiōweka river mouth.33[27] Those parts of Whakaari and Te Paepae o Aotea that lie above mean high watersprings cannot be the subject of a recognition order, but the common marine andcoastal area around them is contested. That area is also shown on plan B. The Judgedeclined to make any CMT orders for the area around Whakaari and Te Paepae oAotea, and everyone except Te Whānau-ā-Apanui says he was wrong:(a) Te Kāhui agree among themselves that they share exclusivity withNgāti Awa, Ngāi Tai and Te Whānau-ā-Apanui and accordingly shouldparticipate with them in CMT over the entire common marine andcoastal area around Whakaari and Te Paepae o Aotea.(b) Ngāti Awa agree that they hold Whakaari on a shared exclusivity basiswith Whakatōhea and Te Whānau-ā-Apanui, and Te Paepae o Aoteawith Whakatōhea only, but they say the collective interest does notextend to Ngāi Tai.32 We recognise that Ngāi Tai also claim areas to the east of Te Rangi. That claim is pending and weexpress no view about it.33 We recognise that Ngāti Awa also claim over an area to the west of Maraetōtara. That claim ispending (it may be resolved in negotiation or in recognition proceedings) and we express no viewabout it.(c) Ngāi Tai say their claim ought also to have been recognised on a sharedexclusivity basis. They do not specify with whom it would be sharedand have proposed a tikanga process to decide that issue.(d) Te Whānau-ā-Apanui recognise shared interests in the area but say thatthese are usage rights only; mana rests with them and no other groupmeets the criteria for CMT.[28] Not shown on these large-scale plans are many specific locations which are thesubject of evidence from witnesses deposing to practices carried out there by theirwhānau, hapū or iwi, including the exercise of kaitiakitanga.34 There is much evidencethat particular hapū or whānau had recognised rights at particular places.Te Whakatōhea[29] Accounts of the iwi's history can be found in Ranginui Walker's book,Ōpōtiki-Mai-Taiwhiti: Capital of Whakatōhea,35 and A C Lyall's book,Whakatōhea of Opotiki.36 For our purposes a concise summary suffices.Te Whakatōhea are a small iwi based in the Eastern Bay of Plenty.37 In pre-Europeantimes, the iwi comprised as many as 22 hapū and had a population of perhaps 2000.38The early 19th century saw the iwi go into decline, principally through the arrival ofEuropean settlers and devastating intertribal warfare in the 1820s during which theiraggressors had the advantage of muskets.39 But the iwi prospered in the two decadesfollowing the signing of Te Tiriti o Waitangi | the Treaty of Waitangi.40 Fertile land inthe area provided a strong base for agriculture.41 The iwi established their own flour34 MACA, s 9(1) definition of "kaitiakitanga", which refers to s 2(1) of the Resource ManagementAct 1991. Kaitiakitanga means the exercise of guardianship by the tangata whenua of an area inaccordance with tikanga Māori in relation to natural and physical resources.35 Ranginui Walker Ōpōtiki-Mai-Tawhiti: Capital of Te Whakatōhea (Penguin Group, London,2007).36 A C Lyall Whakatohea of Opotiki (AH & AW Reed Ltd, Wellington, 1979).37 Walker, above n 35, at 9.38 At 141.39 At 141.40 Waitangi Tribunal Raupatu and Compensation in the North-Eastern Bay of Plenty 1865-1874(Wai 1750 #A3, 2020) [Waitangi Tribunal raupatu report] at 2.3; and Walker, above n 35, at 65.41 Walker, above n 35, at 59.mill and acquired ships which they used to ship goods to markets in Auckland andelsewhere.42[30] In 1865 the missionary Carl Völkner was killed by a group of Māori atŌpōtiki.43 The murder led to a declaration of martial law.44 It is accepted now thatthe principal instigator was not from Whakatōhea, but the iwi were blamed.45Whakatōhea suffered significant casualties at the hands of colonial forces and on theground that they were in rebellion they were subjected to raupatu (land confiscation)which destroyed their economic wealth and severed their connection with much oftheir ancestral land.46 In January 1866, some 448,000 acres of land, amounting to thewhole of the Ōpōtiki district, were confiscated by the Crown.47[31] Some compensation for the raupatu was made to some members of the iwishortly afterward.48 It mostly took the form of reserves of second-rate land which, in1867, became home to the displaced hapū.49 Five of the hapū lived at Ōpape reserve,which was within the rohe of Ngāti Ruatakenga.50 Te Ūpokorehe were separated fromthe rest of the iwi in a separate reservation to the west of the iwi boundaries.51[32] The effects of raupatu on Whakatōhea were devastating.52 Among otherthings, the loss of productive land and separation from customary food gatheringlocations much affected their ability to provide for themselves.53 It made the peoplemore dependent on the resources of the sea, to which they were not denied access.54[33] Throughout the first half of the 20th century members of Te Whakatōhearepeatedly petitioned the government for compensation. In 1946 the Crown and thesix hapū reached a settlement, consisting of a £20,000 lump sum payment with £6,00042 At 67.43 At 85–86.44 Waitangi Tribunal raupatu report, above n 40, at 62.45 At 61.46 Walker, above n 35, at 100; and Waitangi Tribunal raupatu report, above n 40, at 140.47 Waitangi Tribunal raupatu report, above n 40, at 80–81.48 Walker, above n 35, at 125–135.49 Waitangi Tribunal raupatu report, above n 40, at 97; and Walker, above n 35, at 174.50 Walker, above n 35, at 128.51 At 127–128.52 At 172.53 Waitangi Tribunal raupatu report, above n 40, at 140.54 As explained in the report of historian Tony Walzl for WKW.of accumulated interest.55 The Whakatōhea Māori Trust Board was established underthe Māori Purposes Act to administer these funds.56 Its members comprisedrepresentatives of the six hapū.[34] Some customary rights lost through past breaches of the Treaty/Te Tiriti arenow addressed through the negotiated Treaty settlement process. After these appealswere argued Te Whakatōhea and the Crown settled the iwi's claim for redress. Counseldid not suggest that the settlement is relevant to these appeals and we have notconsidered it. MACA is concerned with customary rights which are said to remainextant.[35] I need not recount the whakapapa of the Whakatōhea parties. Churchman Jdiscussed whakapapa linkages at [301]–[307] and in a lengthy appendix to hisjudgment.57 He concluded that, although they might choose to emphasise one line ofdescent over another, the hapū of Whakatōhea (including Te Ūpokorehe) sharecommon whakapapa which gives rise to obligations of whanaungatanga. He alsofound that the hapū share whakapapa with Ngāti Apa, Te Whānau-ā-Apanui andNgāi Tai.58 There was no challenge to this material before us and I respectfullyadopt it.59 It is significant because, as I explain below, whakapapa linkages maysustain shared exclusivity as a matter of tikanga. It is also clear what while TeŪpokorehe whakapapa, through their shared ancestor Muriwai, to the five groupswhich identify as hapū of Whakatōhea, they are also a substantial group withwhakapapa linkages that are not shared with the other hapū. I acknowledge that theymaintain they are not a hapū but an iwi. Like Churchman J,60 we need not classifythem as one or the other.55 Walker, above n 35, at 194–195.56 Lyall, above n 36, at 184.57 Judgment under appeal, above n 11, at Appendix B.58 At [307(c)].59 Although no counsel drew our attention to any errors in the Judge's analysis, there were narrowareas of dispute about whakapapa linkages. On the view we take of the outcome, nothing turnson this.60 Judgment under appeal, above n 11, at [313].Overview of the legal issues[36] The appeals concern the statutory requirements for recognising CMT; inparticular, what it means to hold an area in accordance with tikanga and what must beshown to satisfy the Court that an applicant group has exclusively used and occupiedit from 1840 to the present day without substantial interruption.61 There is a questionwhether the Act admits shared exclusivity, in which several applicant groups mayjointly hold share CMT, or overlapping CMTs held by different groups. There arerelated issues of process under the Act. The burden of proof is contested. There iscontroversy about the High Court's reliance on a report of pūkenga appointed to offerthe Court their opinion on questions of tikanga. An issue arises about whether CMTis extinguished by law in the mouths of navigable rivers which were vested in theCrown under older legislation. There is a question whether PCRs may be recognisedfor applicant groups which were not in existence in 1840.[37] When addressing these questions of law, I bear in mind that many applicationsremain to be heard in other High Court proceedings and outcomes depend heavily onfindings of fact about the circumstances of the particular area and applicants. As willbe seen, the factual record does not permit us to find which applicant groups, if any,hold the areas covered by CMT Orders 1 and 3 in accordance with tikanga, or whetherthey exclusively use and occupy those areas and have done so continuously since1840. And substantial interruption strictly arises on the present appeals only to theextent that lawful commercial fishing is said to have had that effect. For these reasonsI consider we cannot reach a final conclusion on the central question in these appeals:what intensity of use and occupation is needed to meet the statutory requirement forexclusivity in the present day.MACA[38] I begin with a very brief survey of the legislative history to put the issues incontext and to explain how some of the language of MACA came to be adopted.61 MACA, s 58(1)(a).Legislative history and purpose[39] In its well-known 2003 decision, Attorney-General v Ngāti Apa, this Courtheld that customary property rights to the foreshore and seabed might survive theCrown's acquisition of radical title on cession of sovereignty under the Treaty ofWaitangi, with the result that the Māori Land Court had jurisdiction to determineclaims to customary ownership.62[40] The Court explained that at common law all the customary rights of anindigenous community continued to exist following acquisition of sovereignty by theBritish Crown, unless and until those rights were lawfully extinguished.63 Englishcommon law principles relating to ownership of the foreshore and seabed had noapplication in New Zealand: the common law of England was received inNew Zealand subject to recognised Māori customary property interests. If suchcustoms provide for interests in the foreshore and seabed, there is no room for acontrary presumption derived from English common law.64 The common law ofNew Zealand is (in this respect, among others) different from English common law.65It followed that no New Zealand court could properly extinguish Māori customarytitle. That could only be done by legislation which made clear that such wasParliament's intention.[41] The Court's reasoning is helpfully summarised in the judgment of Tipping J:[185] It follows that as [Māori] customary land is an ingredient of thecommon law of New Zealand, title to it must be lawfully extinguished beforeit can be regarded as ceasing to exist. In this respect [Māori] customary titleis no different from any other common law interest which continues to existunless and until it is lawfully abrogated. In the case of [Māori] customaryland the only two mechanisms available for such abrogation, short ofdisposition or lawful change of status, are an Act of Parliament or a decisionof a competent Court amending the common law. But in view of the natureof [Māori] customary title, underpinned as it is by the Treaty of Waitangi, andnow by Te Ture Whenua Maori Act 1993, no Court having jurisdiction inNew Zealand can properly extinguish [Māori] customary title. UndoubtedlyParliament is capable of effecting such extinguishment but, again in view ofthe importance of the subject matter, Parliament would need to make its62 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) at [31] and [91] per Elias CJ.63 At [34] and [47] per Elias CJ.64 At [49] per Elias CJ.65 At [86] per Elias CJ.intention crystal clear. In other words Parliament's purpose would need to bedemonstrated by express words or at least by necessary implication. [42] As the Court explained, the proposition that the common law recognisesMāori customary interests was not novel.66 In 1872, in Re Lundon and WhitakerClaims Act 1871, this Court had reaffirmed that all forms of customary property rightsare recognised as a matter of common law:67 The Crown is bound, both by the common law of England and by its ownsolemn engagements, to a full recognition of Native proprietary right.Whatever the extent of that right by established Native custom appears to be,the Crown is bound to respect it. [43] However, courts long failed to recognise that Māori customary interestsextended to intertidal land and it had long been understood that territorial seaslegislation had vested title to the seabed in the Crown.68 In its 1963 decision inRe the Ninety-Mile Beach, which concerned customary title to land in the intertidalzone, this Court held that customary rights to land did not survive the Crown'sassumption of sovereignty.69 Ngāti Apa reversed that error.[44] The Court in Ngāti Apa confined itself to holding that because customary rightshad not been extinguished, the definition of "land" in Te Ture Whenua Maori Act 1993did not necessarily exclude foreshore and seabed.70 The Court held that the content ofa customary interest is a question of fact, discoverable by evidence. It recognised thepossibility that such customary rights might not survive in fact, and also that theymight be limited to use or occupation rights.71[45] The Court was concerned with a question of jurisdiction. It did not find itnecessary to consider to what extent customary territorial rights might entail exclusivecontrol over the foreshore and seabed, nor did it consider whether any claimedcustomary rights were compatible with, and hence recognisable by, the common law.It did not cite Commonwealth v Yarmirr, a 2001 judgment in which the High Court of66 At [143]–[148] per Keith and Anderson JJ.67 Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41 at 49.68 RP Boast "Foreshore and Seabed, Again" (2011) 9 NZJPIL 271 at 273.69 Re the Ninety-Mile Beach [1963] NZLR 461 (CA).70 Attorney-General v Ngāti Apa, above n 62, at [55] per Elias CJ, [110] per Gault P, [176]–[179] perKeith and Anderson JJ and [187]–[188] per Tipping J.71 At [31] per Elias CJ, [129] per Keith and Anderson JJ and [184] per Tipping J.Australia had addressed the latter question.72 The High Court held that the commonlaw recognised limits upon the Crown's sovereignty over the foreshore and territorialsea, in the form of public rights of navigation and fishing, that international lawrecognised a right of innocent passage, and that those rights could not co-exist with acustomary right to exclude all others from those areas.73 Kirby J dissented, pointingout that the legislation admitted the possibility of customary title to the "sea country"and reasoning that the common law recognised a right to exclude others for uses otherthan navigation and innocent passage; this would preclude fishing, resource extractionand tourist activities.74[46] By recognising the possibility that there might remain extant customary rightsto the foreshore and seabed Ngāti Apa unsettled an assumption that such rights couldbe recognised only through claims for redress for historic Treaty breaches. Concernthat the decision might lead to public rights of access to the foreshore being curtailedled the Government of the day to propose legislation.75 That in turn led to the WaitangiTribunal holding an urgent hearing to report on the Crown's foreshore and seabedpolicy.[47] For purposes of our survey of the legislative history the Tribunal's report,Wai 1071, is notable for three things.76[48] First, the Tribunal considered whether the common law doctrine of aboriginaltitle might recognise customary rights equivalent to ownership in the foreshore andseabed. The Tribunal heard expert evidence from Professor Paul McHugh, whoexpressed the opinion, citing Yarmirr, that the common law could only recognise rightsthat intersect with, or can co-exist with, its own norms.77 A right to exclude otherswas not consistent with those norms. It is a question of sovereignty; although theCrown was the presumptive owner of the foreshore and seabed at English common72 Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1.73 At [61], [94], [182] and [210] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.74 At [259], [272], [279], [285]–[288] and [299] per Kirby J. Kirby J also suggested at [281] that itwould be unsurprising if the common law recognised a public right of access in certain commonlaw land tenures.75 Waitangi Tribunal Report on the Crown's Foreshore and Seabed Policy (Wai 1071, 2004)[Foreshore and Seabed Report] at xii and 83.76 The Foreshore and Seabed Report was issued on 4 March 2004.77 Foreshore and Seabed Report, above n 75, at 50.law, it never enjoyed the right to exclude all comers.78 Rather, the common law alwaysrecognised public rights of fishing and navigation. The common law would reach asimilar position in New Zealand if it were left to develop following Ngāti Apa. TheTribunal thought it arguable that claims to exclusivity might succeed, pointing out thatthe common law had been received in New Zealand so far as it was applicable to localcircumstances and citing the dissenting judgment of Kirby J in Yarmirr, but iteventually concluded that the majority approach in Yarmirr likely would be followedin New Zealand.79[49] Second, the Tribunal recognised that the Crown has provided for publicinterests in the foreshore and seas.80 It divided those into rights derived from thecommon law (navigation and fishing) and long-standing privileges that did not amountto rights (access and recreational uses).81[50] Third, the Tribunal accepted that as a matter of Māori custom the open sea wasseen as a free highway for all groups, but authority extended as far from the beach asit could be enforced, and in some cases that could be far indeed.82[51] The government withdrew its original proposals in response to the Report, butswiftly introduced the Foreshore and Seabed Bill, which was enacted inNovember 2004.83 The 2004 Act, as I will call it, extinguished customary rights andvested the foreshore and seabed in the Crown.84 It made provision for recognition of"territorial customary rights" in tightly circumscribed circumstances: in particular, thegroup must have had customary title or an aboriginal title that could have been78 At 51.79 At 60. I observe that this conclusion remains controversial. See notably Jacinta Ruru "WhatCould Have Been? The Common Law Doctrine of Native Title in Land Under Salt Water inAustralia and Aotearoa/New Zealand" (2006) 32 Monash LR 116. I need not explore it here; asexplained below, MACA both guarantees public rights and presumes that they are compatiblewith exclusivity.80 Foreshore and Seabed Report, above n 75, at 31.81 At 31; and see also PG McHugh "Aboriginal Title in New Zealand: A Retrospect and Prospect"(2004) 2 NZJIPL 139 at 161, noting that while rights of navigation, landing and fishing have beenrecognised rights at law, recreational use has been more problematic and referencing authoritiesthat, apart from navigation and landing there are no general public rights over the foreshore.Professor McHugh at 142 explained that he briefed the Select Committee tasked with consideringthe Foreshore and Seabed Bill, and that this article contains the substance of that presentation.82 Foreshore and Seabed Report, above n 75, at 19–20.83 Foreshore and Seabed Act 2004, s 284 Section 13(1).recognised at common law,85 founded on exclusive use and occupation of an area,86and the group must have had continuous title to contiguous land from 1840 to thepresent day.87 It is not in dispute that the concept of exclusive and continuous use andoccupation was drawn from Canadian law, but the legislation left its development tothe courts. No claim under the 2004 Act had been heard by the time of its repealin 2011.[52] As MACA's preamble acknowledges, the 2004 Act was found to be unfair anddiscriminatory not only by the Waitangi Tribunal but also by the United NationsCommittee on the Elimination of Racial Discrimination and the United NationsSpecial Rapporteur.88 In 2009 a ministerial review panel was appointed to provideindependent advice on the 2004 Act.89 The Panel comprisedSir Taihākurei Edward Durie, Richard Boast and Hana O'Regan. Their report is alsoreferenced in MACA's preamble.[53] The Panel concluded that the ultimate apportionment of customary and publicinterests should not be left to the courts.90 Doubt was expressed about what legal ruleswould govern the process of litigation.91 The Panel favoured a mixed model that bothrecognised customary rights which would attach to the hapū and iwi whose rights theywere, rather than to Māori generally, and secured reasonable public access.92The regime would require new legislation providing mechanisms for allocating rightsand interests to groups who would then be entitled to particular rights of consultationand input into coastal management, provision for co-management at a local level, andability to gain more specific access and use rights.9385 Section 32(1).86 Section 32(1)(a).87 Section 32(2)(b).88 Foreshore and Seabed Report, above n 75, at 123–124; Committee on the Elimination of RacialDiscrimination Decision 1 (66) on Foreshore and Seabed Act LXVI, UN DocCERD/C/66/NZL/Dec.1 (11 March 2005); and Rodolfo Stavenhagen Report of the SpecialRapporteur on the situation of human rights and fundamental freedoms of indigenous people UNDoc E/CN.4/2006/78/Add.3 (13 March 2006) at [51] and [55].89 Taihākurei Edward Durie, Richard Boast and Hana O'Regan Pākia ki uta pākia ki tai: Report ofthe Ministerial Review Panel — Ministerial Review of the Foreshore and Seabed Act 2004Volume 1 (30 June 2009) [Ministerial Review Panel report].90 At 13.91 At 149–150.92 At 13. See also 152–153.93 At 150.[54] Following consultation with iwi representatives and other interested partiesthe Government published a consultation document in 2010 proposing repeal andreplacement of the 2004 Act.94 The Consultation Document offered assurances, andset out principles on which any new legislation would be based:95Assurances and principlesThe government gives all New Zealanders these assurances:» Public access for all – access will be guaranteed for all New Zealanderssubject to certain exceptions, for example, for health and safety reasons inport operational areas, or protection of wāhi tapu such as urupā(burial grounds);and» Respect for rights and interests, in particular:› recognition of customary rights and interests – any newlegislation will include recognition of customary rights andinterests in order to address the disproportionate impact of the2004 Act on customary interests;› protection of fishing and navigation rights – fishing rightsprovided under fishing legislation will be protected and rights ofnavigation in the foreshore and seabed will be protected, subject tocertain exceptions such as in harbours; and› protection of existing use rights to the end of their term –existing use rights (eg, coastal permits and marine reserves) thatoperate in the foreshore and seabed will be protected to the end oftheir term, including any existing preferential right or rights ofrenewal or process right.Any new legislation will be based on the following principles:» Treaty of Waitangi – it must reflect the Treaty of Waitangi, its principlesand related jurisprudence;» Good faith – it must achieve a good outcome for all following fair,reasonable and honourable processes;» Recognition and protection of interests – it must recognise and protectthe rights and interests of all New Zealanders in the foreshore and seabed;» Equity – it must provide fair and consistent treatment for all;» Access to justice – it must provide an accessible framework forrecognising and protecting rights in the foreshore and seabed;94 Ministry of Justice Reviewing the Foreshore and Seabed Act 2004: consultation document (March2010) [consultation document].95 At 7–8.» Certainty – there must be transparent and precise processes that provideclarity for all parties, including for investment and economicdevelopment; and» Efficiency – there must be a simple, transparent and affordable regime thathas low compliance costs and is consistent with other natural resourcemanagement regulation and policies.[55] The Consultation Document proposed that rather than leaving it to the courtsto develop the tests for recognition of different types of customary interest, newlegislation should set out the tests to be applied and the awards that would be made.96The new legislation would recognise two types of customary interest:97» Non-territorial – customary uses, activities and practices» Territorial – customary interests that are territorial in nature and extent(otherwise known as 'customary title').[56] The Consultation Document proposed to adopt a test for customary title thatwas "based on tikanga Māori and common law".98 A territorial interest would berecognised where the following elements were proven:» in order to establish the necessary connection/interest the relevantforeshore and seabed area must be held in accordance with tikanga Māori;» this connection/interest must be of a level that accords with the applicantgroup having 'exclusive use and occupation' of the relevant foreshore andseabed area; and» this 'exclusive use and occupation' must date from 1840 until the presentwithout substantial interruption.[57] The legislation would incorporate criteria to guide the courts:» the court may take into account (but not require):› ownership of abutting land;› customary fishing;» fishing and navigation by third parties does not preclude a finding that agroup has had exclusive use and occupation from 1840 until the presentwithout substantial interruption;96 At 32.97 At 32 (footnote omitted).98 At 36.» customary transfers of territorial interests between hapū and iwi post-1840(eg, tuku or gifting) will be recognised; and» 'shared' exclusivity between coastal hapū/iwi as against third parties willbe allowed for.[58] These criteria differed from those in the 2004 Act:Although the elements of this test are similar to the elements in the 2004 Act,there are five significant differences. The proposed test:» uses tikanga Māori;» removes 'continuous title to contiguous land' as a requirement that mustbe met;» clarifies that fishing (in addition to rights of navigation) by third partiesdoes not prevent a finding of 'exclusive use and occupation';» ensures that customary transfers of territorial interests between hapū andiwi post-1840 are recognised as legitimate; and» allows for 'shared' exclusivity between coastal hapū/iwi as against otherthird party interruptions.[59] The Consultation Document recorded that the Government believed that usinga test based entirely on the legal experience of another country (Canada) wasinappropriate.99 The Government also rejected a test based solely on the test in Te TureWhenua Maori Act — the land is held by Māori in accordance with tikanga Māori —on the basis that the test lacked the necessary clarity.100 Regarding the proposed test,the Consultation Document did not explain how the three proposed limbs of theproposed new test had been developed, or how they were intended to operate. Thefirst limb is explicitly tikanga-based, drawing on the language used in Te Ture WhenuaMāori Act. The second limb would reflect the common law as developed in Canadaprovided it was applied as at 1840, in a manner sensitive to the relationship betweenMāori and the land. The third limb is novel: it is not expressed to be based on tikanga,and does not reflect the common law as it has developed in Canada or (so far as weare aware) anywhere else.[60] The resulting Bill closely followed the proposals in the Consultation Documentand the Māori Affairs Committee recommended that it be passed without99 At 35.100 At 35, citing Te Ture Whenua Maori Act 1993, s 129(2)(a).amendment.101 It was. MACA received Royal Assent on 31 March 2011 and cameinto force the following day.102The legislation[61] MACA's preamble recites that it is the product of engagement with Māori andthe public generally about their interests in the foreshore and seabed. It states thatMACA:(4) takes account of the intrinsic, inherited rights of iwi, hapū, andwhānau, 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 rightsand interests that are inalienable, enduring, and able to be exercisedso as to sustain all the people of New Zealand and the coastal marineenvironment for future generations[62] The purpose provision is s 4:(1) The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of thelegitimate interests of all New Zealanders in the marine andcoastal area of New Zealand; and(b) recognise the mana tuku iho exercised in the marine andcoastal area by iwi, hapū, and whānau as tangata whenua; and(c) provide for the exercise of customary interests in the commonmarine and coastal area; and(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).(2) To that end, this Act—(a) repeals the Foreshore and Seabed Act 2004 and restorescustomary interests extinguished by that Act; and(b) contributes to the continuing exercise of mana tuku iho in themarine and coastal area; and(c) gives legal expression to customary interests; and(d) recognises and protects the exercise of existing lawful rightsand uses in the marine and coastal area; and101 Marine and Coastal Area (Takutai Moana) Bill (201–1) (select committee report) [report of theselect committee] at 2.102 MACA, s 2.(e) recognises, through the protection of public rights of access,navigation, and fishing, the importance of the commonmarine and coastal area—(i) for its intrinsic worth; and(ii) for the benefit, use, and enjoyment of the public ofNew Zealand.[63] MACA accordingly repealed the 2004 Act,103 restored any customary rights inthe common marine and coastal area,104 and gave those rights expression throughrecognition of protected customary rights and customary marine title.105 Theseinterests are recognised under agreements with the Crown or recognition orders madeby the High Court.106[64] Section 7 is a so-called Treaty clause. It recites that, through MACA's rightsand processes, Parliament intends to take account of the Crown's obligations underthe Treaty of Waitangi:1077 Treaty of Waitangi (te Tiriti o Waitangi)In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi),this Act recognises, and promotes the exercise of, customary interestsof Māori in the common marine and coastal area by providing,—(a) in subpart 1 of Part 3, for the participation of affected iwi,hapū, and whānau in the specified conservation processesrelating to the common marine and coastal area; and(b) in subpart 2 of Part 3, for customary rights to be recognisedand protected; and(c) in subpart 3 of Part 3, for customary marine title to berecognised and exercised.103 Section 5.104 Section 6(1).105 Sections 51 and 58. MACA also creates rights of participation in conservation processes, s 47;these are not in issue in these appeals.106 Section 94. We are not concerned with recognition agreements but note that the applicant groupmust satisfy the Crown that it meets the requirements of a PCR or CMT, as the case may be: s 95.107 Matthew Palmer "The Treaty of Waitangi in Legislation" (2001) NZLJ 207.[65] In s 11, MACA divests the Crown of title to the common marine and coastalarea and provides that neither the Crown nor any other person owns or is capable ofowning it:11 Special status of common marine and coastal area(2) Neither the Crown nor any other person owns, or is capable of owning,the common marine and coastal area, as in existence from time to timeafter the commencement of this Act.(3) On the commencement of this Act, the Crown and every localauthority are divested of every title as owner, whether under anyenactment or otherwise, of any part of the common marine and coastalarea.The Crown's radical title is unaffected by these provisions.108[66] Section 11(5) states that the special status accorded to the common coastal andmarine area by MACA does not affect certain interests and activities. These areextensive; they include any lawful use and any statutory power to control or permituses:(5) The special status accorded by this section to the common marine andcoastal area does not affect—(a) the recognition of customary interests in accordance with thisAct; or(b) any lawful use of any part of the common marine and coastalarea or the undertaking of any lawful activity in any part ofthe common marine and coastal area; or(c) any power to impose, by or under an enactment, a prohibition,limitation, or restriction in respect of a part of the commonmarine and coastal area; or(d) any power or duty, by or under an enactment, to grant resourceconsents or permits (including the power to impose charges)within any part of the common marine and coastal area; or108 Recognition of the radical title is not inconsistent with recognition of customary rights whichpredated the acquisition of sovereignty: see Mabo v State of Queensland (No 2) (1992) 175 CLR 1at 50 per Brennan J with whom Mason CJ and McHugh J agreed at 7, cited in Attorney-General vNgāti Apa, above n 62, at [30] per Elias CJ.(e) any power, by or under an enactment, to accord a status of anykind to a part of the common marine and coastal area, or toset aside a part of the common marine and coastal area for aspecific purpose; or(f) any status that is, by or under an enactment, accorded to a partof the common marine and coastal area or a specific purposefor which a part of the common marine and coastal area is, byor under an enactment, set aside, or any rights or powers thatmay, by or under an enactment, be exercised in relation to thatstatus or purpose.[67] Although MACA restores any former customary interests that wereextinguished by the 2004 Act, it provides for their recognition only through legalorders (relevantly, for PCRs and/or CMT) granted under MACA itself. These legalinterests are unique. In s 98(4), MACA states that the jurisdiction of the High Courtto hear and determine any aboriginal rights claim is fully replaced by the jurisdictionunder MACA.109 We note, as did Churchman J,110 that it is argued in other proceedingsbefore the Waitangi Tribunal that MACA continues to derogate from customary rightsand so breaches the Treaty. That question is not before us. Our task is to implementMACA, which strikes a balance between customary rights and the rights of others inrelation to the marine and coastal area.[68] Section 26 provides for public rights of access:26 Rights of access(1) Every individual has, without charge, the following rights:(a) to enter, stay in or on, and leave the common marine andcoastal area:(b) to pass and repass in, on, over, and across the common marineand coastal area:(c) to engage in recreational activities in or on the commonmarine and coastal area.109 MACA, s 98(5) provides: aboriginal rights claim means any claim in respect of the commonmarine and coastal area that is based on, or relies on, customary rights, customary title, aboriginalrights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or duties of a similarnature, whether arising before, on, or after the commencement of this Act and whether or not theclaim is based on, or relies on, any 1 or more of the following: (a) a rule, principle, or practice ofthe common law or equity: (b) the Treaty of Waitangi: (c) the existence of a trust: (d) anobligation of any kind.110 Judgment under appeal, above n 11, at [56].(2) The rights conferred by this section are subject to any authorisedprohibitions or restrictions that are imposed under section 79, or by orunder any other enactment.(3) A prohibition or restriction of the kind described in subsection (2)may, subject to the enactment in which it is contained or by which itis authorised, apply to—(a) any or all of the rights conferred by this section:(b) 1 or more ways of exercising those rights:(c) 1 or more defined periods, or an indefinite period, or recurringperiods of a stated kind:(d) 1 or more specified areas.(4) In this section, enactment includes bylaws, regional plans, anddistrict plans.We observe that these rights are subject to s 79, which relates to wāhi tapu conditionsand establishes an exception to the rule that anyone may access, navigate and use themarine and coastal area.111[69] Similarly, s 27(1) provides that every person may enter by ship, navigatethrough, temporarily anchor and ground within the marine and coastal area.Section 28 provides that nothing in MACA prevents the exercise of any fishing rightsconferred or recognised by law.The marine and coastal area[70] The area over which customary rights may be recognised under MACA isessentially an area comprising (a) the intertidal zone which is wet by the tide and (b)the seabed out to the territorial limit. It is defined as follows:112marine and coastal area—111 MACA, in s 9(1) definition of "wāhi tapu", which refers to s 6 of the Heritage New ZealandPouhere Taonga Act 2014, s 6(1). Wāhi tapu means "a place sacred to Māori in the traditional,spiritual, religious, ritual, or mythological sense". Under s 79(2)(a) of MACA, wāhi tapuconditions in a CMT order may prohibit fishing or access. Under s 81(2), intentional breach ofany such condition is an offence. The threshold for establishing that specified areas are wāhi tapuwas addressed by Churchman J in the No 7 judgment, above n 15, at [110]–[115]; and in Re NgātiPahauwera, above n 7, at [74]–[76]. We do not address wāhi tapu in this judgment.112 MACA, s 9(1) definition of "marine coastal area", para (b) (footnote added); and ResourceManagement Act, s 2(1) definition of "coastal marine area", para (b). We have referred to MACAas it stood prior to the enactment of the Natural and Built Environment Act 2023. See sch 1,cls 83–84 of that Act for the relevant transitional provisions.(a) means the area that is bounded,—(i) on the landward side, by the line of mean high-watersprings; and(ii) on the seaward side, by the outer limits of the territorialsea;113 and(b) includes the beds of rivers that are part of the coastal marine area(within the meaning of the Resource Management Act 1991); and(c) includes the airspace above, and the water space (but not the water)above, the areas described in paragraphs (a) and (b); and(d) includes the subsoil, bedrock, and other matter under the areasdescribed in paragraphs (a) and (b)[71] It will be seen that with respect to riverbeds, MACA incorporates the definitionof "coastal marine area" in the Resource Management Act 1991. That definition isrelevantly identical to MACA's except that it defines the landward boundary at a pointupstream from the point where the line of mean high-water springs crosses a river:11411 Interpretationcoastal marine area means the foreshore, seabed, and coastal water,and the air space above the water—(a) of which the seaward boundary is the outer limits of theterritorial sea; and(b) of which the landward boundary is the line of meanhigh-water springs, except that where that line crosses a river,the landward boundary at that point shall be whichever is thelesser of—(i) 1 kilometre upstream from the mouth of the river; or(ii) the point upstream that is calculated by multiplyingthe width of the river mouth by 5113 Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 3, provides that theouter limit of the territorial sea is 12 nautical miles from the nearest point of the baseline. Section 5provides the baseline from which the breadth of the territorial sea of New Zealand is measuredshall be the low-water mark along the coast of New Zealand.114 Resource Management Act, s 2(1) definition of "coastal marine area", para (b).Protected customary right[72] A PCR recognises an activity, use or practice. The term is defined initially ins 9(1) of MACA:protected customary right means an activity, use, or practice—(a) established by an applicant group in accordance with subpart 2 ofPart 3; and(b) recognised by—(i) a protected customary rights order; or(ii) an agreementIt will be seen that this definition addresses process and form. The activity, use orpractice must both be established by the applicant group in accordance with otherprovisions of MACA and recognised by a PCR order or an agreement.[73] In subpt 2 of pt 3 the term is given content:51 Meaning of protected customary rights(1) A protected customary right is a right that—(a) has been exercised since 1840; and(b) continues to be exercised in a particular part of the commonmarine and coastal area in accordance with tikanga by theapplicant group, whether it continues to be exercised inexactly the same or a similar way, or evolves over time; and(c) is not extinguished as a matter of law.(2) A protected customary right does not include an activity—(a) that is regulated under the Fisheries Act 1996; or(b) that is a commercial aquaculture activity (within the meaningof section 4 of the Maori Commercial Aquaculture ClaimsSettlement Act 2004); or(c) that involves the exercise of—(i) any commercial Māori fishing right or interest, beinga right or interest declared by section 9 of theTreaty of Waitangi (Fisheries Claims) Settlement Act1992 to be settled; or(ii) any non-commercial Māori fishing right or interest,being a right or interest subject to the declarations insection 10 of the Treaty of Waitangi(Fisheries Claims) Settlement Act 1992; or(d) that relates to—(i) wildlife within the meaning of the Wildlife Act 1953,or any animals specified in Schedule 6 of that Act:(ii) marine mammals within the meaning of theMarine Mammals Protection Act 1978; or(e) that is based on a spiritual or cultural association, unless thatassociation is manifested by the relevant group in a physicalactivity or use related to a natural or physical resource (withinthe meaning of section 2(1) of the Resource Management Act1991).(3) An applicant group does not need to have an interest in land in orabutting the specified part of the common marine and coastal area inorder to establish protected customary rights.[74] A PCR may be exercised without a resource consent.115 The existence of aPCR must be taken into account when considering any application for a resourceconsent in the area if the relevant activity is likely to have adverse effects on the PCRthat are more than minor.116 A PCR must be exercised in accordance with anyconditions imposed on its scale, extent and frequency:54 Limitations on exercise of protected customary rights(1) A protected customary right does not include any right or title over thepart of the common marine and coastal area where the protectedcustomary right is exercised, other than the rights provided for insection 52.(2) A protected customary right must be exercised in accordance with—(a) any terms, conditions, or limitations on the scale, extent, andfrequency of the activity specified in the order or in theagreement; and(b) any controls imposed by the Minister of Conservation undersection 56.115 MACA, s 52(1).116 Section 55.Customary marine title[75] CMT means customary interests that are established by an applicant group overan area of the common marine and coastal area and recognised by a customary marinetitle order or an agreement with the Crown.117 The term is defined in s 9(1) and insubpt 3 of pt 3. The definition in s 9(1) is:customary marine title means the customary interests—(a) established by an applicant group in accordance with subpart 3 ofPart 3; and(b) recognised by—(i) a customary marine title order; or(ii) an agreement[76] The common marine and coastal area is defined as:118common marine and coastal area means the marine and coastal area otherthan—(a) specified freehold land located in that area; and(b) any area that is owned by the Crown and has the status of any of thefollowing kinds:(i) a conservation area within the meaning of section 2(1) of theConservation Act 1987:(ii) a national park within the meaning of section 2 of theNational Parks Act 1980:(iii) a reserve within the meaning of section 2(1) of theReserves Act 1977; and(c) the bed of Te Whaanga Lagoon in the Chatham IslandsThis definition operates to exclude certain areas, principally comprising freehold landand conservation areas, national parks and reserves.[77] "Customary marine title" is given content in s 58:58 Customary marine title117 Section 9(1), definition of "customary marine and coastal area".118 Section 9(1), definition of "common marine and coastal area".(1) Customary marine title exists in a specified area of the commonmarine and coastal area if the applicant group—(a) holds the specified area in accordance with tikanga; and(b) has, in relation to the specified area,—(i) exclusively used and occupied it from 1840 to thepresent day without substantial interruption; or(ii) received it, at any time after 1840, through acustomary transfer in accordance with subsection (3).(2) For the purpose of subsection (1)(b), there is no substantialinterruption to the exclusive use and occupation of a specified area ofthe common marine and coastal area if, in relation to that area, aresource consent for an activity to be carried out wholly or partly inthat area is granted at any time between—(a) the commencement of this Act; and(b) the effective date.(4) Without limiting subsection (2), customary marine title does not existif that title is extinguished as a matter of law.I draw attention to subs (4) in passing. It is said that the Judge erred by holding thatthe beds of navigable rivers cannot be the subject of CMT because they were vestedin the Crown under the Coal Mines Act 1979.119[78] Section 59 identifies certain matters that may be considered when determiningwhether CMT exists in a specified area of the common marine and coastal area:59 Matters relevant to whether customary marine title exists(1) Matters that may be taken into account in determining whethercustomary marine title exists in a specified area of the common marineand coastal area include—(a) whether the applicant group or any of its members—(i) own land abutting all or part of the specified area andhave done so, without substantial interruption, from1840 to the present day:119 Judgment under appeal, above n 11, at [361], following Paki v Attorney-General [2012] NZSC50, [2012] 3 NZLR 277 [first Paki judgment].(ii) exercise non-commercial customary fishing rights inthe specified area, and have done so from 1840 to thepresent day; and(b) if paragraph (a) applies, the extent to which there has beensuch ownership or exercise of fishing rights in the specifiedarea.(2) To avoid doubt, section 10 of the Treaty of Waitangi (FisheriesClaims) Settlement Act 1992 does not limit subsection (1)(a)(ii).(3) The use at any time, by persons who are not members of an applicantgroup, of a specified area of the common marine and coastal area forfishing or navigation does not, of itself, preclude the applicant groupfrom establishing the existence of customary marine title.(4) For the purpose of subsection (1)(a)(i), land abutting all or part ofthe specified area means—(a) land that directly abuts the specified area; or(b) land that does not directly abut the specified area, but doesdirectly abut any of the following:(i) a marginal strip (as defined in section 2(1) of theConservation Act 1987) that directly abuts thespecified area:(ii) an esplanade reserve (as defined in section 2(1) of theResource Management Act 1991), but only to theextent that it directly abuts the specified area:(iii) a reserve (as defined in section 2(1) of theReserves Act 1977), but only to the extent that itdirectly abuts the specified area:(iv) a Māori reservation (as defined in section 2(1) of theReserves Act 1977) that directly abuts thespecified area:(v) a road that directly abuts the specified area:(vi) a railway line that directly abuts the specified area.[79] The rights conferred by CMT are defined in s 60 and expressly confined tothose that are listed in s 62 and described in succeeding provisions:60 Scope and effect of customary marine title(1) Customary marine title—(a) provides an interest in land, but does not include a right toalienate or otherwise dispose of any part of a customarymarine title area; and(b) provides only for the exercise of the rights listed in section 62and described in sections 66 to 93; and(c) has effect on and from the effective date.(2) A customary marine title group—(a) may use, benefit from, or develop a customary marine titlearea (including derive commercial benefit) by exercising therights conferred by a customary marine title order oragreement, but is not exempt from obtaining any relevantresource consent, permit, or approval that may be requiredunder another enactment for the use and development of thatcustomary marine title area; and(b) is not liable for payment, in relation to the customary marinetitle area, of—(i) coastal occupation charges imposed undersection 64A of Resource Management Act 1991; or(ii) royalties for sand and shingle imposed by regulationsmade under the Resource Management Act 1991.(3) A customary marine title group may—(a) delegate the rights conferred by a customary marine title orderor an agreement in accordance with tikanga; or(b) transfer a customary marine title order or an agreement inaccordance with tikanga.62 Rights conferred by customary marine title(1) The following rights are conferred by, and may be exercised under, acustomary marine title order or an agreement on and from theeffective date:(a) a Resource Management Act (RMA) permission right (seesections 66 to 70); and(b) a conservation permission right (see sections 71 to 75); and(c) a right to protect wāhi tapu and wāhi tapu areas (see sections78 to 81); and(d) rights in relation to—(i) marine mammal watching permits (seesection 76); and(ii) the process for preparing, issuing, changing,reviewing, or revoking a New Zealand coastal policystatement (see section 77); and(e) the prima facie ownership of newly found taonga tūturu(see section 82); and(f) the ownership of minerals other than—(i) minerals within the meaning of section 10 of theCrown Minerals Act 1991; or(ii) pounamu to which section 3 of the Ngai Tahu(Pounamu Vesting) Act 1997 applies (see section 83);and(g) the right to create a planning document (see sections 85 to 93).(2) Subsection (3) applies if a person applies for a resource consent,a permit, or an approval in relation to a part of the common marineand coastal area in respect of which—(a) no customary marine title order or agreement applies; but(b) either—(i) an applicant group has applied to the Court undersection 100 for recognition of customary marine titleand notice has been given in accordance withsection 103; or(ii) an applicant group has applied to enter negotiationsunder section 95.(3) Before a person may lodge an application that relates to a rightconferred by a customary marine title order or agreement, thatperson must—(a) notify the applicant group about the application; and(b) seek the views of the group on the application.Recognition orders[80] Section 9(1) defines recognition order as a PCR order or a CMT order madeby the High Court under s 98(1):12098 Court may recognise protected customary right or customarymarine title(1) The Court may make an order recognising a protected customary rightor customary marine title (a recognition order).(2) The Court may only make an order if it is satisfied thatthe applicant,—120 Footnote added.(a) in the case of an application for recognition of a protectedcustomary right, meets the requirements of section 51(1); or(b) in the case of an application for recognition of customarymarine title, meets the requirements of section 58.(3) No other court has jurisdiction to make a recognition order.121[81] Section 101 envisages that recognition orders will describe the area and thegroup to which they apply. The section provides that a PCR order must describe theright with any limitations imposed on it and a CMT order must include a survey planand description of the area:101 Contents of applicationAn application for a recognition order must—(a) state whether it is an application for recognition of a protectedcustomary right, or of customary marine title, or both; and(b) if it is an application for recognition of a protected customary right,describe that customary right; and(c) describe the applicant group; and(d) identify the particular area of the common marine and coastal area towhich the application relates; and(e) state the grounds on which the application is made; and(f) name a person to be the holder of the order as the representative of theapplicant group; and(g) specify contact details for the group and for the person named to holdthe order; and(h) be supported by an affidavit or affidavits that set out in full the basison which the applicant group claims to be entitled to the recognitionorder; and(i) contain any other information required by regulations made undersection 118(1)(i).[82] Section 109 specifies what must be contained in a recognition order:109 Form of recognition order121 Section 112 sets out that this is subject to a right of appeal to this Court on matters of fact and law.(1) An applicant group in whose favour the Court grants recognition of aprotected customary right or customary marine title must submit adraft order for approval by the Registrar of the Court.(2) Every recognition order must specify—(a) the particular area of the common marine and coastal area towhich the order applies; and(b) the group to which the order applies; and(c) the name of the holder of the order; and(d) contact details for the group and for the holder.(3) A protected customary rights order must also include—(a) a description of the right, including any limitations on thescale, extent, or frequency of the exercise of the right; and(b) a diagram or map that is sufficient to identify the area.(4) Every customary marine title order must include—(a) a survey plan that sets out the extent of the customary marinetitle area, to a standard of survey determined for the purposeby the Surveyor-General; and(b) a description of the customary marine title area; and(c) any prohibition or restriction that is to apply to a wāhi tapu orwāhi tapu area within the customary marine title area.[83] Tikanga is defined as Māori customary values and practices.122 Under s 99,the Court may refer "a question of tikanga" to the Māori Appellate Court,123 whoseanswer is binding,124 or obtain the advice of a pūkenga with knowledge and experienceof tikanga.125 A pūkenga's advice is not binding.126 Their status is that of an expertwitness.122 Section 9(1) definition of "tikanga".123 Section 99(1)(a). Referral must accord with Te Ture Whenua Maori Act, s 61.124 Section 99(2).125 Section 99(1)(b). Appointment of a pūkenga must accord with the High Court Rules 2016.126 Section 99(2).Applicant group[84] Recognition orders or agreements may be sought by an applicant groupcomprising one or more iwi, hapū or whānau groups. Section 9(1) defines "applicantgroup":127applicant group—(a) means 1 or more iwi, hapū, or whānau groups that seek recognitionunder Part 4 of their protected customary rights or customary marinetitle by—(i) a recognition order; or(ii) an agreement; and(b) includes a legal entity (whether corporate or unincorporate) or naturalperson appointed by 1 or more iwi, hapū, or whānau groups to be therepresentative of that applicant group and to apply for, and hold, anorder or enter into an agreement on behalf of the applicant group[85] Applications to the High Court for recognition orders had to be made withinsix years of the day after MACA's commencement; that is, by 1 April 2017.128Process and proof[86] There are provisions for form, content, service and public notification. Anyinterested person who has filed a timely notice of appearance may be heard.129 TheCourt may receive as evidence any oral or written statement, document, matter, orinformation that it finds reliable.130 MACA distributes the burden of proof in s 106:106 Burden of proof(1) In the case of an application for recognition of protected customaryrights in a specified area of the common marine and coastal area, theapplicant group must prove that the protected customary right—(a) has been exercised in the specified area; and(b) continues to be exercised by that group in the same area inaccordance with tikanga.127 Section 9(1) definition of "applicant group".128 Section 100(2).129 Section 104.130 Section 105.(2) In the case of an application for the recognition of customary marinetitle in a specified area of the common marine and coastal area, theapplicant group must prove that the specified area—(a) is held in accordance with tikanga; and(b) has been used and occupied by the applicant group, either—(i) from 1840 to the present day; or(ii) from the time of a customary transfer to thepresent day.(3) In the case of every application for a recognition order, it is presumed,in the absence of proof to the contrary, that a customary interest hasnot been extinguished.[87] Trial judges, including Churchman J, have found that the burden of proofextends to the elements of a PCR or CMT, as the case may be.131 They have held thatapplicants for CMT recognition orders must show that their customary rights have notbeen extinguished through proving, in accordance with s 58(1), that they haveexclusively used and occupied the area from 1840 to the present day withoutsubstantial interruption.132[88] The court is given flexibility in dealing with applications; it may treat a PCRapplication as an application for CMT and vice versa, and it may also strike outapplications that disclose no reasonably arguable case or are likely to cause prejudiceor delay or are an abuse of process.133The Judge's CMT analysis[89] Churchman J commenced his analysis of s 58 by considering the phrase"[h]olds the specified area in accordance with tikanga".134 He surveyed and acceptedauthorities emphasising that it is an error to adopt assumptions drawn from English131 Judgment under appeal, above n 11, at [99], citing Re Tipene, above n 7. See also Ngā PōtikiStage 1, above n 7, at [21].132 Re Tipene, above n 7, at [39].133 MACA, s 107(1)–(3).134 At [119]–[120].legal tradition when dealing with customary property interests.135 He accepted,following the judgment of the Māori Land Court in da Silva v Aotea Māori Committee,that "held" connotes not that land is owned but that it is retained or kept in accordancewith tikanga, which is to be assessed from a Māori perspective, not by reference toEuropean legal concepts.136[90] The Judge did not accept an argument for the Attorney-General and LCI thatthe applicant must prove an "intention and ability to 'control'" an area that they claimto hold in accordance with tikanga.137 He observed that the Canadian authorities onwhich this argument was based concerned the ability to exercise exclusive possessionof land at common law,138 while MACA is concerned with the takutai moana and aspecified set of statutory rights that do not allow the owner to exclude others who areusing it for access, fishing or navigation.139 He accepted that an applicant must showmore than that a system of tikanga existed in relation to the takutai moana.140But whether a specified area is held in accordance with tikanga is ultimately a questionof fact, informed by tikanga.141[91] Turning to s 58(1)(b), the Judge did not expressly discuss the requirement for"exclusive" use and occupation, though he surveyed the arguments of counsel.142 Weinfer that he did not accept an applicant must show an intention and ability to excludeothers; he had rejected that argument when addressing s 58(1)(a). He made it clearthat he saw the ability to exclude others, in the sense argued for by theAttorney-General and LCI, as incompatible with whanaungatangaand manaakitanga.143135 Judgment under appeal, above n 11, at [121]–[128], citing Attorney-General v Ngāti Apa, aboven 62, at [33] per Elias CJ, endorsing Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399(PC) at 404; Re Tipene, above n 7, at [15], citing Waitangi Tribunal Te Whanganui a Tara me onaTakiwa: Report on the Wellington District (Wai 145, 2003) at 2.2; Te Ture Whenua Maori Act,s 129(2)(a); and da Silva v Aotea Māori Committee (1998) 25 Tai Tokerau MB 212 (25 TTK 212)at 215, 217 and 238.136 Judgment under appeal, above n 11, at [125]–[131] citing da Silva v Aotea Māori Committee,above n 135, at 217.137 Judgment under appeal, above n 11, at [133]–[139].138 At [134], referring to Tsilhqot'in Nation v British Columbia 2014 SCC 44, [2014] 2 SCR 257; andDelgamuukw v British Columbia [1997] 3 SCR 1010.139 Judgment under appeal, above n 11, at [137] and [139].140 At [131].141 At [131] and [140]–[141].142 At [145]–[160].143 At [142].[92] The Judge discussed shared exclusivity, accepting that it is available underMACA.144 On this issue he chose to follow Canadian authority, which we examinebelow. He appears to have adopted the Canadian authorities for two propositions.First, shared exclusivity is available in customary law just as it is at common law: twoor more groups may have occupied the same territory and used it communally as partof their traditional way of life, such that they jointly occupied it to the exclusion ofothers.145 Second, we infer that he accepted that shared exclusivity does not or maynot exist where one group has merely used the area with the other's permission.146[93] Churchman J held that the Act does not contemplate overlapping CMT forpractical reasons:147[169] I have concluded that the structure of the Act is consistent with ajointly held CMT rather than two overlapping CMTs for the same area eachheld by different parties. If there were multiple CMTs for the same area thenthere would be practical problems with the exercise of the rights which flowfrom the grant of CMT. CMT confers on an applicant group the right to use,benefit from or develop a CMT area including deriving a commercial benefit.CMT rights can also be delegated and transferred. There would also bepractical problems if two groups held CMT and wanted to exercise the variousrights conferred by s 62.[170] Jointly holding CMT avoids some of these problems. There willclearly need to be co-operation and agreement between the holders of jointCMT but these are not insurmountable issues. Tikanga has in the pastprovided for the exercise of a complex web of overlapping rights. It shouldbe able to assist in parties holding CMT on a joint or shared exclusive basisworking out how to jointly exercise the rights conferred by a grant of CMT.[94] The Judge rejected a submission that the ownership of abutting land is animportant, and not merely a relevant, consideration under s 59.148 He also rejected anargument that shared exclusivity requires evidence of an express agreement inexistence in 1840.149 Neither of these contentions is pursued on appeal.[95] The Judge next turned to substantial interruption. He approached this questionlargely as one of fact and discussed it under headings suggested by the144 At [168]–[169].145 At [162]–[163], citing Delgamuukw v British Colombia, above n 138, at [158] per Lamer CJ, Coryand Major JJ and [196] per La Forest and L'Heureux-Dubé JJ.146 Judgment under appeal, above n 11, at [163] and [179].147 (Footnote omitted).148 Judgment under appeal, above n 11, at [172]–[173].149 At [182].Attorney-General: raupatu, resource consents granted prior to 1 April 2011,permanent structures, and third-party use and occupation.150 He considered evidenceof duration, frequency, overall extent, and nature of any activity said to constitute asubstantial interruption.151 Most of his findings under this head are not nowcontentious. In particular, no one disputes his finding that the extensive raupatusuffered by Whakatōhea in 1866 did not amount to substantial interruption;152 heaccepted evidence that the iwi were more dependent on coastal and marine area, fromwhich they were never excluded, after the confiscation of their cultivated land andother assets.153 Nor is there any disagreement with his conclusions that: (a) nothingin the Resource Management Act 1991 shows an intention to extinguish the customaryrights of Māori;154 (b) reclaimed land ceases to be part of the common coastal marinearea and vests in the Crown;155 and (c) third-party structures may amount to substantialinterruption, reserving for future determination whether any did so in fact.156 Withrespect to other third party use and occupation, the Judge held that substantialinterruption is a question of fact and found that there was insufficient evidence to showthat third-party use had amounted to substantial interruption.157 The Judge reservedfor future decision the question whether other activities such as the operation of marinefarms amount to substantial interruption.158Submissions on s 58, in brief[96] Mr Hodder KC, for LCI, led the argument challenging the Judge's reasoningon the interpretation of s 58(1). Counsel commenced by reminding us that Parliamentset out to create a durable scheme that protects the rights of all New Zealanders, andthat our task is to faithfully implement Parliament's intent as expressed in the statutorylanguage. These submissions I readily accept.150 At [189].151 At [190].152 At [204].153 At [202].154 At [227], referring to Attorney-General v Ngāti Apa, above n 62.155 At [234].156 At [255]. As noted above, in the No 7 judgment, above n 15, at [28] the Judge held that the ŌpōtikiHarbour Redevelopment Project does amount to substantial interruption. That finding is notpresently before us, but there is a question of whether the Judge ought to have decided the issueof substantial interruption before finding that CMT would be granted.157 Judgment under appeal, above n 11, at [256].158 At [258].[97] Counsel contended that as a matter of construction the two limbs of s 58(1) areseparate. The first limb, s 58(1)(a), adopts from Te Ture Whenua Maori Act theconcept of holding an area in accordance with tikanga. The second, s 58(1)(b)(i),reflects a parliamentary decision not to leave development of the law to the courts butrather to establish specific criteria to guide them. That limb makes no reference totikanga. It incorporates criteria deliberately drawn from Canadian law on aboriginaltitle at common law. It also employs language which is intended to be accessible andclear and is well understood by laypeople. Those criteria require evidence ofexclusivity and continuity since 1840.[98] In support of this argument, counsel drew our attention to matters of legislativefact,159 notably the report of the Ministerial Review Panel,160 the ConsultationDocument,161 a departmental report prepared by the Ministry of Justice,162 threeregulatory impact statements,163 the report of the Māori Affairs Select Committee,164and statements made by the then Attorney-General and other Members of Parliamentduring debate on the Bill.165 These were said to confirm that the first limb was drawnfrom customary law and the second limb was drawn from the common law and wasintended to set a high threshold for CMT. This was deliberate, and any disagreementabout it must be settled in the political arena.[99] This is valuable background material.166 I bear in mind that Parliament spokethrough the legislation itself and its thinking should not lightly be attributed to other159 The term "legislative fact" was used in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [9] perElias CJ and [230] per McGrath J to describe material going to the content of law anddetermination of policy; see also Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR24 at [128].160 Ministerial Review Panel report, above n 89.161 Consultation document, above n 94.162 Ministry of Justice Marine and Coastal Area (Takutai Moana) Bill: Departmental Report(4 February 2011) [departmental report].163 Ministry of Justice Regulatory Impact Statement: Disclosure Statement: Review of the Foreshoreand Seabed Act 2004: Analysis of Replacement Regimes (September 2010); Ministry of JusticeRegulatory Impact Statement: Review of the Foreshore and Seabed Act 2004: Post ConsultationDecisions (September 2010); and Ministry of Justice Regulatory Impact Statement: Review of theForeshore and Seabed Act 2004: Outstanding Policy Matters (September 2010).164 Report of the select committee, above n 101.165 Marine and Coastal Area (Takutai Moana) Bill 2010 (201–1); (15 June 2010) 664 NZPD 11644;(22 June 2010) 664 NZPD 11880; (21 July 2010) 665 NZPD 12517; (15 September 2010) 666NZPD 13999; and (8 March 2011) 670 NZPD 16981.166 Attorney-General v Taylor, above n 159, at [126] citing Wilson v First County Trust Ltd (No 2)[2003] UKHL 40, [2004] 1 AC 816 at [64] per Lord Nicholls of Birkenhead.materials. But I accept that policy decisions identified in report of the MinisterialReview Panel and the Consultation Document have been carried through to thelegislation.[100] Mr Hodder next contended that Churchman J collapsed the two limbs of s 58(1)into one by confining his inquiry to whether applicant groups held specified areas inaccordance with tikanga. Counsel characterised this as a serious error. The Judgerejected the very notion of exclusivity by reasoning (mistakenly) that it wasinconsistent with tikanga, and he erroneously discounted the Canadian authorities onthe ground that they dealt with title to dry land, while MACA establishes a limitedsuite of rights in relation to marine and coastal areas the use of which is naturallytransitory.167 This led the Judge into error when he came to substantial interruptionand exclusive use and possession;168 these he ought to have treated as matters ofhistorical fact, provable by evidence. He treated the report of the pūkenga as if it coulddetermine whether the second limb had been satisfied, but that was not a decision forthe pūkenga to make and, in any event, they did not address it directly. As a result, aninsufficiently rigorous approach was taken to the test for CMT and there is noalternative to a full rehearing in the High Court. The Judge also erred by discountingMACA's treatment of ownership of abutting land and the exercise of non-commercialcustomary fishing rights; these reflect the importance of a tangible connection to thespecified area.[101] Ms Roff, for the Attorney-General, did not agree with LCI that the appeal oughtto be allowed, but she acknowledged that the Judge twice enquired whether holdingin accordance with tikanga had been interrupted when he ought to have asked whetherexclusive use and occupation had been interrupted. She submitted that Parliamentrelied on Canadian jurisprudence when adopting the second limb. She argued, citingthe judgment of Powell J in Ngā Pōtiki Stage 1,169 that the applicant must possess theintention and ability to control the specified area. She invited the Court to elaborateon the requirements for proof of exclusivity out to the 12 nautical mile limit,submitting that the evidence for Ngāi Tai on this point was inadequate.167 Judgment under appeal, above n 11, at [174]. As noted above at [92], the Judge did adopt thoseauthorities when dealing with shared exclusivity at [162]–[163] and [168]–[169].168 At [264]–[265].169 Ngā Pōtiki Stage 1, above n 7, at [38].[102] Ms Waikato, for CRHL, argued that tikanga is relevant to both limbs of thes 58(1) test and that the second requires a closer look at the relevant tikanga toascertain whether it extends to the right to exclude others, which need not have beenexercised so long as it is found to be latent.[103] The argument for the respondents to LCI's appeal was led by Ms Feint KC, forTe Kāhui. She described MACA as constitutional legislation intended to strike apolitical compromise and redress the Crown's breaches of Treaty obligations, hencethe restoration of customary title. She agreed that MACA incorporates a reconciliationor balancing between customary rights and the birthright of all New Zealanders, andshe accepted that Parliament chose not to leave it to the courts to control thereconciliation. But she argued that if LCI is correct, the test for CMT would never bemet, and that is something Parliament cannot have intended. English common lawaffecting title to land cannot sensibly be applied to the sea. Properly understood, thesecond limb adds three things: (a) customary title as at 1840 must still be extant (soexcluding dormant hapū); (b) substantial interruption amounts to extinguishment andso sets a high threshold; and (c) exclusive use and occupation serves a qualitativepurpose, requiring that the court decide who holds the mana in relation to the area.This is a question of tikanga which must be assessed from a perspective reflective ofte ao Māori. She described the right required by s 58 as the strongest in a complextaxonomy. In her submission, exclusivity serves not to add an additional requirement,but to identify the iwi or hapū who "belong" to that area by whakapapa and has themana tuku iho to act as kaitiaki in relation to it. MACA accommodates lesser rightsthrough PCRs.The Canadian and Australian authorities on customary title to land[104] I have noted that the Ministerial Review Panel stated that a solution forNew Zealand should be based on domestic historical experience and legaldevelopment; it should not be governed by legal solutions from other jurisdictionswhose experience and legal development has been different from our own, such asAustralia and Canada.170 The legislative history nonetheless indicates that the secondlimb was derived from Canadian jurisprudence on aboriginal title to land at common170 Ministerial Review Panel report, above n 89, at 7.6.3.law,171 and it also indicates that the drafter took Australian law into account. We didnot understand any counsel to dispute this. Counsel drew our attention to authoritiesfrom both jurisdictions. They are instructive, substantially because they serve tohighlight the distinctive nature of New Zealand legislative policy toward the impactof colonisation on customary title and the carefully circumscribed role to be played bycourts in defining customary title and prescribing requirements for proof.The Canadian cases[105] The Canadian cases rest on s 35(1) of the Constitution Act 1982, which statesthat "the existing aboriginal and treaty rights of the aboriginal peoples of Canada arehereby recognized and affirmed".172 The Supreme Court of Canada has held that thisbare provision "at the very least, constitutionalized those rights which aboriginalpeoples possessed at common law", since those rights existed when the legislation waspassed.173 It has been left to the courts to decide what rights existed and how they maybe established. They have done so by looking to the period before colonisation.174 TheSupreme Court reasoned that it is necessary to focus on that period because aboriginalrights depend on practices, customs and traditions that existed prior to Europeancontact.175 It follows that it is not necessary to distinguish distinctive indigenouspractices, customs and traditions from those influenced or introduced byEuropean contact.176171 Departmental report, above n 162, at [1425] indicates that the requirement for exclusive use andoccupation was drawn primarily from Canadian case law. See also the speech of theAttorney-General at the Bill's third reading: (22 March 2011) 671 NZPD 17650.172 Section 35(1).173 Delgamuukw, above n 138, at [133] per Lamer CJ, Cory and Major JJ.174 In R v Van der Peet [1996] 2 SCR 507 at [60] per Lamer CJ, La Forest, Sopinka, Gonthier, Cory,Iacobucci and Major JJ, which concerned protected rights rather than aboriginal title, the SupremeCourt held that it was necessary to look to the "period prior to contact between aboriginal andEuropean societies". It has since been held that in relation to aboriginal title to land, theappropriate point in time is the Crown's assertion of sovereignty: Delgamuukw, above n 174, at[145] per Lamer CJ, Cory and Major JJ.175 Van der Peet, above n 174, at [60]–[63] per Lamer CJ, La Forest, Sopinka, Gonthier, Cory,Iacobucci and Major JJ.176 Delgamuukw, above n 138, at [145] per Lamer CJ, Cory and Major JJ.[106] The requirements of customary title were settled by a pair of Supreme Courtdecisions: Delgamuukw v British Columbia and Tsilhqot'in Nation vBritish Columbia:177(a) Customary title is a right in land, not merely a right to use it forcustomary purposes.178 It encompasses the right to exclusive use andoccupation.179(b) Customary title has distinctive characteristics which distinguish it fromfee simple titles derived from the Crown:(i) it is communal (meaning that it is held collectively);180(ii) it is inalienable (because alienation would sever the attachmentof people to land on which customary title rests);181(iii) it can be used for non-traditional purposes,182 but it cannot beused in a way which is irreconcilable with the nature of theindigenous group's attachment to the land;183(c) Customary title is based on occupation at the time Europeansovereignty was asserted, and occupation has three characteristics: itmust be sufficient to establish title at the time of colonisation,continuous (where present occupation is relied on to prove occupationat that time), and exclusive.184177 Delgamuukw, above n 138; Tsilhqot'in Nation, above n 138; and see for example R v Marshall2003 NSCA 105, 2018 NSR (2d) 78.178 Delgamuukw, above n 138, at [111] per Lamer CJ, Cory and Major JJ.179 At [117] per Lamer CJ, Cory and Major JJ.180 At [115] per Lamer CJ, Cory and Major JJ.181 At [113] per Lamer CJ, Cory and Major JJ.182 At [119] per Lamer CJ, Cory and Major JJ.183 At [128] per Lamer CJ, Cory and Major JJ. For example, if a group claims a bond with the landbecause of its ceremonial or cultural significance, it may not use the land in such a way as todestroy that relationship.184 Tsilhqot'in Nation, above n 138, at [25], citing Delgamuukw, above n 138.[107] Sufficiency must be considered from both the indigenous and the common lawperspective.185 The former focuses on laws, practices, customs and traditions of thegroup, taking into account the group's size, manner of life, material resources andtechnological abilities, and the character of the lands claimed.186 The latter importsthe idea of possession and control of land, which may extend at common law beyondplaces that are physically occupied to surrounding lands that are used and over whicheffective control is exercised.187 The Supreme Court has adopted generally theproposition that the appropriate standard of occupation needed to establish possession,from the common law perspective, is:188 the middle ground between the minimal occupation which would permit aperson to sue a wrong-doer in trespass and the most onerous standard requiredto ground title by adverse possession against a true owner[108] Sufficiency calls for a context-specific and culturally sensitive inquiry.189Regular use is enough.190 But the applicant group must show that it has historicallyacted in a way that would communicate to third parties that it held the land for its ownpurposes.191 The group's occupation cannot be purely subjective or internal:192 There must be evidence of a strong presence on or over the land claimed,manifesting itself in acts of occupation that could reasonably be interpreted asdemonstrating that the land in question belonged to, was controlled by, or wasunder the exclusive stewardship of the claimant group. The kinds of act necessary to indicate a permanent presence and intention to hold anduse the land depend on the manner of life of the people, who may have been nomadic,and the nature of the land.193 Such acts may include the taking of plants and fish, and185 Tsilhqot'in Nation, above n 138, at [34]; and Delgamuukw, above n 138, at [147] per Lamer CJ,Cory and Major JJ.186 Tsilhqot'in Nation, above n 138, at [35], citing Delgamuukw, above n 138, at [148]–[149] perLamer CJ, Cory and Major JJ, quoting Brian Slattery "Understanding Aboriginal Rights" (1987)66 Can Bar Rev 727 at 758.187 Tsilhqot'in Nation, above n 138, at [36].188 At [40] quoting Marshall, above n 177, at [138].189 Tsilhqot'in Nation, above n 138, at [37] and [41], citing Delgamuukw, above n 138, at [149] perLamer CJ, Cory and Major JJ.190 Tsilhqot'in Nation, above n 138, at [54].191 At [38].192 At [38].193 At [38].even walking, with the weight given to such acts depending partly on the nature of theland and the uses to which it can be put.194[109] Because it would be next to impossible to produce conclusive evidence frompre-contact times, an applicant group may demonstrate historic occupation by provingpresent occupation and inviting the court to draw an inference that it has beencontinuous.195 Continuity does not require an unbroken chain of occupation.196 Itrequires only that present occupation be rooted in pre-colonial times.197 A change inthe nature of occupation need not preclude a claim for aboriginal title, so long as asubstantial connection between the people and the land is maintained.198[110] Exclusivity requires "the intention and capacity to retain exclusive control".199In Delgamuukw, Lamer CJ explained that:200 The requirement for exclusivity flows from the definition of aboriginal titleitself, because I have defined aboriginal title in terms of the right to exclusiveuse and occupation of land. Exclusivity, as an aspect of aboriginal title, vestsin the aboriginal community which holds the ability to exclude others fromthe lands held pursuant to that title. The proof of title must, in this respect,mirror the content of the right. Were it possible to prove title withoutdemonstrating exclusive occupation, the result would be absurd, because itwould be possible for more than one aboriginal nation to have aboriginal titleover the same piece of land, and then for all of them to attempt to assert theright to exclusive use and occupation over it.[111] Exclusivity must also be approached from the perspective of both the commonlaw and the aboriginal society, placing equal weight on each.201 The common lawplaces a premium on the factual reality of occupation, but the test must take intoaccount the context of the aboriginal society at the time of sovereignty. Exclusivity isa question of fact for the trial judge, depending on factors such as characteristics ofthe claimant group, the nature of other groups in the area, and the characteristics of194 At [39], citing Marshall, above n 177, at [136] quoting Kent McNeil Common Law AboriginalTitle (Clarendon Press, Oxford, 1989) at 198–200.195 Van der Peet, above n 174, at [62]–[63] per Lamer CJ, La Forest, Sopinka, Gonthier, Cory,Iacobucci and Major JJ.196 At [65] per Lamer CJ, La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.197 Tsilhqot'in Nation, above n 138, at [46].198 Delgamuukw, above n 138, at [151] per Lamer CJ, Cory and Major JJ.199 At [156] per Lamer CJ, Cory and Major JJ, citing McNeil Common Law Aboriginal Title,above n 194, at 204; and Tsilhqot'in Nation, above n 138, at [47].200 Delgamuukw, above n 138, at [155] per Lamer CJ, Cory and Major JJ.201 At [156] per Lamer CJ, Cory and Major JJ.the land. It can be proved by evidence that others were excluded or were present withpermission.202 There may be customary laws under which other groups may use ortemporarily occupy land.203[112] Although none of the cases dealt with shared claims to title, the topic wasaddressed in Delgamuukw. Lamer CJ observed that the possibility had beenrecognised by American courts and suggested that joint title could arise from sharedexclusivity, a concept which is well known to the common law.204 Exclusivepossession is the right to exclude others, and shared exclusive possession is the rightto exclude others except those with whom possession is shared. There might be casesin which two groups lived on a particular piece of land and recognised each other'sentitlement to it but nobody else's.[113] The Supreme Court of Canada has cited the work of Professor Kent McNeil, aleading academic in the law of customary title.205 He has examined cases from theUnited States, which typically involve compensation for past wrongs rather than theissue of title but do recognise shared exclusivity.206 The ordinary rule is that wherepossession is shared by tribes who are rivals or have no connection with one another,neither can prove title. Where they have connection and use the land in an amicablemanner to the exclusion of other groups, they may claim joint title notwithstandingthat they do not constitute a single political unit.The Australian cases[114] In Mabo v State of Queensland (No 2), the High Court of Australia held thatnative title was not extinguished by the Crown's acquisition of sovereignty.207 TheNative Title Act 1993 (Cth) was enacted in the aftermath, to create a process for therecognition of customary title.208 It defines native title as the communal, group or202 Tsilhqot'in Nation, above n 138, at [48]; and Delgamuukw, above n 138, at [157] per Lamer CJ.203 Delgamuukw, above n 138, at [157] per Lamer CJ, Cory and Major JJ.204 At [158] per Lamer CJ, Cory and Major JJ, citing United States v Santa Fe Pacific Railroad Co314 US 339 (1941).205 See Delgamuukw, above n 138, at [156] per Lamer CJ, Cory and Major JJ, citing McNeil CommonLaw Aboriginal Title, above n 194, at 204.206 Kent McNeil "Exclusive Occupation and Joint Aboriginal Title" (2015) 48 UBC Law Rev 821 at839 and 842–844.207 Mabo, above n 108.208 Yarmirr, above n 72, at [323]–[324] per Callinan J.individual rights and interests of Aboriginal peoples or Torres Strait Islanders inrelation to land or waters, where the rights and interests are possessed under theirtraditional laws and customs, and they have, by those laws and customs, a connectionwith the land or waters, and the rights and customs are recognised by the common lawof Australia.209 As in Canada, the legislation did not create new rights but ratherrecognised those antecedent to colonisation, and allowed the common law to identifyand protect those pre-existing native rights and interests.210[115] In Mabo the High Court held that the nature and incidents of native title mustbe ascertained as a matter of fact by reference to traditional laws and customs of theindigenous inhabitants of a territory.211 It has since been held that it is necessary toput to one side the impact of people outside "the universe of traditional laws andcustoms":212Insofar as Europeans are concerned, the primary judge engaged inunderstatement at [686] when observing that the ability of the Banjima Peopleto enforce their traditional laws and customs was "inhibited". It would beaccurate to say that the Banjima People had no capacity whatsoever to enforcetheir laws and customs against Europeans because, until Mabo No 2, nativetitle was not recognised in Australia. Moreover, Europeans stood outside theuniverse of traditional laws and customs. As noted in Griffiths at [127]:"traditional law and custom, so far as it bore upon relationships with personsoutside the relevant community at the time of sovereignty, would have beenframed by reference to relations with indigenous people".[116] Exclusivity is necessary, but it is not to be gauged by exclusivity of physicalpossession; rather, it requires an ability or capacity to exclude which is found in thespiritual relationship of indigenous people with the land:213[127] It is not a necessary condition of the exclusivity of native title rightsand interests in land or waters that the native title holders should, in theirtestimony, frame their claim to exclusivity as some sort of analogue of aproprietary right. In this connection we are concerned that his Honour'sreference to usufructuary and proprietary rights, discussed earlier, may haveled him to require some taxonomical threshold to be crossed before a findingof exclusivity could be made. It is not necessary to a finding of exclusivity in209 Native Title Act 1993 (Cth), s 223.210 Members of Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 194 ALR 538at [45] per Gleeson CJ, Gummow and Hayne JJ.211 Mabo, above n 108, at 42 per Brennan J with whom Mason CJ and McHugh J agreed at 7.212 Banjima People v Western Australia [2015] FCAFC 84, (2015) ALR 199 at [21] (citationsomitted), citing Mabo, above n 108; and quoting Griffiths v Northern Territory of Australia [2007]FCAFC 178, (2007) 243 ALR 72 at [127].213 Griffiths, above n 212, at [127], also Banjima People, above n 212, at [34].possession, use and occupation that the native title claim group should asserta right to bar entry to their country on the basis that it is "their country". Ifcontrol of access to country flows from spiritual necessity because of the harmthat "the country" will inflict upon unauthorised entry, that control cannevertheless support a characterisation of the native title rights and interestsas exclusive. The relationship to country is essentially a "spiritual affair". If, according to their traditional law and custom, spiritual sanctions are visitedupon unauthorised entry and if they are the gatekeepers for the purpose ofpreventing such harm and avoiding injury to the country, then they have, inour opinion, what the common law will recognise as an exclusive right ofpossession, use and occupation. [117] The Australian cases employ the concept of substantial interruption but, asPowell J noted in Ngā Pōtiki Stage 1, they do so to address loss of cultural connectionwith an area, as opposed to interference with the group's use and occupation.214 InMembers of Yorta Yorta Aboriginal Community v Victoria, a majority in the High Courtof Australia explained that substantial interruption recognises that proof of continuousobservation of customary oral traditions over many years is very difficult.215 It is aquestion of proof of traditional norms and the possibility that they may not havesurvived European settlement.216MACA: a different approach[118] This brief survey of the Canadian and Australian authorities highlights severalfeatures of the New Zealand legislation which show that, while MACA owes much tothose authorities, they should be applied with care. The first is that Parliament has notleft it to the Courts to work out the incidents of CMT (or PCRs), or the criteria underwhich recognition orders are granted. Rather, MACA recognises, and protects theexercise of, customary interests of Māori by providing for specified rights.217 Thoserights are subject to the public rights of navigation and fishing which were recognisedat common law,218 to the international law right of innocent passage,219 and also to214 Ngā Pōtiki Stage 1, above n 7, at [43], citing Members of Yorta Yorta Aboriginal Community,above n 210 and Mabo, above n 108.215 Members of Yorta Yorta Aboriginal Community, above n 210, at [89] per Gleeson CJ, Gummowand Hayne JJ.216 At [89], per Gleeson CJ, Gummow and Hayne JJ.217 MACA, s 7.218 Sections 27 and 28. See Yarmirr, above n 72, at [60] per Gleeson CJ, Gaudron, Gummow andHayne JJ.219 United Nations Convention on the Law of the Sea 1833 UNTS 397 (opened for signature on10 December 1982, entered into force 16 November 1994), art 17. MACA, s 27 recognises thatany person may navigate by ship. Section 27 is not co-extensive with innocent passage as definedin Article 19 of the Convention.public rights of access and recreational use.220 MACA establishes criteria whichcourts must apply to CMT and PCR applications, prescribes procedures, anddistributes the onus of proof.[119] The second feature is that MACA deals with the impact of colonisation in aradically different way. Unlike Canadian law, it does not provide that CMT is to beassessed solely by reference to pre-colonial practices, customs and traditions. Rather,an applicant group must have held an area, exclusively using and occupying it, from1840 until the present day. Unlike Australian law, MACA does not envisage that theimpact of colonisation will be essentially ignored either. For example, it envisagesthat CMT may be extinguished by resource consents granted since 1840.[120] At the same time, MACA states emphatically that it seeks to remedy aninjustice done to Māori by the 2004 Act. It seeks to give effect to the Treaty byrecognising intrinsic, inherited rights and translating them into legal rights andinterests. The Act's very existence supposes that customary territorial and use rightsmay subsist in fact.221 Indeed, it assumes, unlike the 2004 Act, that territorial rightsmay subsist although the applicant group no longer holds contiguous land. It employstikanga when assessing whether an applicant group holds a specified area, and alsowhen deciding whether the group's use and occupation is exclusive. It provides thatany interruption to a group's exclusive use and occupation must be substantial if it isto preclude CMT. It specifies that use of the common coastal and marine area byothers for fishing or navigation does not, of itself, preclude CMT. The same must betrue of rights of public access and recreational uses, because MACA presumes theymay co-exist with exclusivity.222 And it presumes, in the absence of proof to thecontrary, that a customary interest has not been extinguished.[121] By treating the concepts of holding an area in accordance with tikanga,exclusive use and occupation, and substantial interruption as substantially questionsof fact, MACA also anticipates that courts will decide, on a case-by-case basis, whatthese concepts mean in practice. It is by reference to local practice and circumstances220 MACA, s 26.221 Professor McHugh made this point in connection with the 2004 Act: Paul McHugh "Setting theStatutory Compass: The Foreshore and Seabed Act 2004" (2005) 3 NZJIPL 255 at 257.222 Boast, above n 68, at 281.that courts will decide what intensity of use and occupation is needed to establishexclusivity.[122] There is another reason why the Canadian and Australian caselaw must beapplied to MACA with care. The context may differ in ways which matter a greatdeal. For example, Professor David Williams, an expert witness called by the Board,spoke of the "pervasive" importance of whanaungatanga in Māori culture and theimportance of whakapapa linkages. These values may facilitate shared exclusivityamong related but politically separate groups, as I explain below.Tikanga and mana tuku iho[123] Before examining the elements of s 58(1), I address MACA's use of the definedterms "tikanga" and "mana tuku iho".Tikanga[124] MACA employs tikanga in connection with both PCRs and CMT: in s 51 itdefines a PCR as a right exercised in a particular area by the applicant group inaccordance with tikanga, and in s 58(1)(a) it provides that CMT exists in a specifiedarea if the applicant group holds the area in accordance with tikanga. So a court mustascertain what tikanga applies to that part of the rohe moana which is the subject of anapplication for a recognition order.Ascertaining tikangaWhakahokia mai te mana o te iwi ki te iwi, o te hapū ki te hapū, o te whānauki te whānau, o te tangata ki te tangata, me tana rau kotahiReturn the authority of the tribes to the tribes, of the hapū to the hapū, of thewhānau to the whānau, of the individuals to the individuals representing asthey do, the generations of the past and the present[125] The pūkenga commenced their report with this whakatauaki, lamenting thathad the parties adopted a perspective reflective of te ao Māori the High Court processcould have been avoided. The pūkenga also explained that while there are nuances intikanga according to iwi rohe, much is applicable to all. There is (as Churchman Jrecorded in the judgment under appeal) little dispute about the applicable tikanga inthe rohe moana of Te Whakatōhea iwi.223[126] MACA contemplates that the parties to litigation may disagree about tikanga,and in particular about what must be shown to establish that an applicant group holdsan area in accordance with it or exercises a customary right there. In the absence ofconsensus on a question of tikanga that is relevant to the grant of a recognition order,the High Court must decide that question for purposes of the litigation. When doingso the Court will exercise care, recognising the warning of Professor Williams, thatcodification is the antithesis of tikanga and that:The selective application of aspects of custom law by cultural outsiders(however well-meaning) who operate within the state legal system may turnout to be just as subversive for the ongoing vitality and potency of tikangaMāori as attempts in the past at direct suppression or extinguishment.Pūkenga have an important role to play in ensuring that the courts' treatment of tikangaretains the respect of those who remain the custodians of mātauranga Māori orcustomary knowledge.Relational values of tikanga[127] There is no disagreement about the central relational values of tikanga. Theywere explained by Professor Williams:Whanaungatanga: the centrality to Māori life of relationships between people,between people and the physical world, and between people and the atua (spiritualentities). Whanaungatanga means that rights depend on the mutuality and reciprocityof responsibilities among a collective and the responsibility of the community for itsmembers. It stresses commonality and interconnectedness between groups.Interconnectedness is traced through whakapapa links (descent lines) between Māori,the land, the sea and other physical features. Neat lines cannot be drawn among kingroups, or between people and the physical world. Churchman J acknowledged thatgiving evidence of whakapapa is tapu for applicants,224 whose prerogative it is to223 Judgment under appeal, above n 11, at [308].224 At [302].define and describe it for themselves,225 and he recognised that applicants have sharedit with the Court only because they must do so to uphold their rights.226 They must doso because whanaungatanga and whakapapa linkages determine who is eligible toshare in a CMT recognition order, whether by holding the title or being the beneficiaryof obligations owed by those who do.Mana: authority, control, influence, prestige or power which has been described ashaving three dimensions: mana atua (God-given power), mana tūpuna (power fromthe ancestors) and mana tangata (authority derived from personal accomplishments).It is spiritual in nature and is acquired through whakapapa and personalaccomplishment. It is characterised by both respect and a high level of accountability,exercised through hui and rūnanga.Manaakitanga: the reciprocal process of showing and receiving care and hospitality.It is a dimension of mana because the ritual exchange confers mana on both parties.227Utu: the principle of balance and reciprocity. The essence of utu is the maintenanceof relationships by striving for balance of contribution. Key accompanying values arearoha and manaakitanga, which require respect, empathy and generosity.Kaitiakitanga: the obligation of stewardship and protection of one's own. It is closelylinked to mana, which supplies authority for the exercise of stewardship, and tapu,which recognises the special or sacred character of all things. MACA adopts adefinition from the Resource Management Act:228kaitiakitanga means the exercise of guardianship by the tangata whenua ofan area in accordance with tikanga Māori in relation to natural andphysical resources; and includes the ethic of stewardship225 At [301].226 At [302].227 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) at 205.228 MACA, s 9(1) definition of "kaitiakitanga"; and Resource Management Act, s 2(1) definition of"kaitiakitanga".Tapu: respect for the spiritual character of all things. Tapu is a religious observanceor spiritual mechanism for reinforcing mana and protecting the sanctity of things,including appropriate respect for hapū and iwi leadership.[128] Expressed at this level, these values may be universal and uncontroversial. Thecases decided to date tend to demonstrate that.229 But it is their specific localapplication that matters, 230 and that may be closely fought and fact-specific, as theseappeals illustrate.Mana tuku iho[129] I have explained that one of MACA's purposes is to recognise the mana tukuiho — defined as inherited right or authority derived in accordance withtikanga — exercised by tangata whenua in the marine and coastal area.231[130] Dr Margaret Wilkie, an expert witness for WKW, prepared a kaupapa Māorianalysis of MACA in which she examined the concept of mana, identifying sixdimensions: manaakitanga, mana atua, mana tūpuna, mana whenua, mana tangata andmana moana. With respect to manaakitanga, she emphasised the traditionalresponsibilities of tangata whenua (hosts) to look after their manuhiri (visitors),upholding the prestige of both groups. She defined mana whenua as territorial rights,power or authority over tribal land, and mana moana as authority over the seaand lakes.[131] Several counsel spoke of mana whenua or mana moana when addressing CMT.So did the pūkenga. In its report, the Ministerial Review Panel noted that:232In Māori tradition, hapū and iwi also asserted mana or authority over coastalmarine territories and presumed the right to control and exclude others. Today,the terms "mana whenua" and "mana moana" serve to capture this concept.The practical assertion of such political authority was probably more realistic229 Ngā Pōtiki Stage 1, above n 7, at [52]–[53]; and judgment under appeal, above n 11, at[282]–[288].230 The Supreme Court took the same view, in a case dealing with riparian rights:Paki v Attorney-General [2014] NZSC 118, [2015] 1 NZLR 67 at [17], [86], [110], and [135]per Elias CJ.231 MACA, s 9(1) definition of "mana tuku iho"; and s 4(1)(b).232 Ministerial Review Panel report, above n 89, at 72.in enclosed waters like harbours, inlets, sounds or lagoons but could equallyapply to seas beyond the horizon or to sparsely populated areas.Consistent with this usage, in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd,Williams J explained that mana whenua "refers to traditional authority (mana) over alandscape (whenua). It is the right to speak for the land and the people of it".233[132] However, there was some controversy before us about these terms. Ms Sykes,for Te Kāhui, cautioned that mana whenua is a controversial concept. It has beencriticised as an attempt to frame customary Māori authority in terms of English legalconcepts of imperium and dominium, so linking mana with ownership of land ratherthan the authority of chiefs.234 The particular concern underlying counsel'ssubmission, as I understood it, was that the Court should remain open to the conceptof shared exclusivity derived from traditional authority over activities in therohe moana.[133] MACA does not speak of mana whenua or mana moana. But it is expresslyconcerned with mana tuku iho over defined parts of the common coastal and marinearea, and mana unmistakeably lies at the heart of this case for the iwi and hapū parties.I find it apt to think of mana tuku iho as the inherited right or authority to speak for aspecific part of the common coastal and marine area. As Ms Feint put it in furthersubmissions, the mana with which MACA is concerned is political in nature andderives from belonging to the land so as to have the right and the obligation toprotect it. By definition it excludes others who lack that authority. As I will explain,this does not preclude the possibility that mana over a given place may be sharedamong groups which are politically separate but together control an area to theexclusion of others. I also accept that MACA contains its own requirements for proof.Analysis of s 58(1)[134] CMT is the most extensive form of statutory right provided for under MACA.CMT is a (non-alienable) interest in land.235 It is a territorial right, not merely a usage233 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767at [75] per Winkelmann CJ, Glazebrook and Williams JJ.234 Waitangi Tribunal Rekohu: A Report on the Moriori and Ngāti Mutanga Claims in the ChathamIslands (Wai 64, 2001) at 28.235 MACA, s 60(1).right. A group which holds CMT over a specified area does not have the right toexclude people from that area: public rights of access, navigation and fishing are, asalready mentioned, expressly carved out and protected by ss 26–28. But the group hascertain rights set out in ss 60 and 62 of MACA including permission rights under theResource Management Act (RMA permission right),236 and certain conservationstatutes;237 a right to protect wāhi tapu and wāhi tapu areas;238 prima facie ownershipof newly found taonga tūturu;239 ownership of certain minerals;240 and the right tocreate a planning document for the area.241 The group may use, benefit from ordevelop a customary marine title area, but is not exempt from obtaining any relevantresource consent, permit, or approval that is required under another enactment for theuse and development of that customary marine title area.242[135] The RMA permission right referred to in s 62(1)(a) is specified in more detailin ss 66–70. In short, a group that holds CMT for an area may give or declinepermission to a person who wishes to carry out an activity in that area for whichpermission is required under the RMA.243 The person who wishes to carry out theactivity must obtain both the consent of the CMT group and necessary resourceconsent.244 If the CMT group owned the area, any activity by a third party within thatarea would of course require their permission. The RMA permission right regimeeffectively restores some of that control, but only in relation to activities that wouldotherwise require a resource consent (such as removing sand or shingle, orconstructing a structure such as a shed or wharf).A composite test intended to reconcile customary and common law[136] I repeat for convenience that s 58(1) provides that CMT exists in a specifiedarea of the common marine and coastal area if the applicant group:(a) holds the specified area in accordance with tikanga; and236 Sections 66–70.237 Sections 71–75.238 Sections 78–81.239 Section 82.240 Section 83.241 Sections 85–93.242 Section 60(2).243 Section 66(2).244 There are certain exceptions for accommodated activities and deemed accommodated activities:see ss 64, 65 and 66(4).(b) has, in relation to the specified area,—(i) exclusively used and occupied it from 1840 to thepresent day without substantial interruption;[137] Mr Hodder contended that the two limbs are essentially independent, the firstone drawn from customary law and the other from the common law of England. I donot accept that the legislature intended to adopt this stark dichotomy, for two reasons.First, the legislature was plainly aware that the Court in Ngāti Apa had explained thatthe common law as received in New Zealand was modified by recognised Māoricustomary property interests.245 The Court had also urged care when applying Englishlegal concepts to customary property interests, which do not necessarily align withestates recognised in English law.246 The risk of such assumption may cut both ways,either discounting customary interests or inflating them to conform to Englishlegal estates.[138] Second, the section establishes a single test which must be interpreted as awhole. In particular, as I explain below, the concept of exclusive use and occupationmust be viewed through the lens of tikanga, and not that of the common law alone.Speaking of comparable tests:(a) the Canadian Supreme Court has said that:247 the court must be careful not to lose or distort theAboriginal perspective by forcing ancestral practices into thesquare boxes of common law concepts, thus frustrating thegoal of faithfully translating pre-sovereignty Aboriginalinterests into equivalent modern legal rights. 245 Attorney-General v Ngāti Apa, above n 62, at [86].246 At [33], citing Amodu Tijani v Secretary, Southern Nigeria , above n 135, at 403.247 Tsilhqot'in Nation, above n 138, at [32].(b) the High Court of Australia has said that the test is:248 a composite expression directed to describing a particularmeasure of control over access to land. To break theexpression into its constituent elements is apt to mislead. .the relevant task, is to identify how rights and interestspossessed under traditional law and custom can properly findexpression in common law terms.[139] The s 58 test for the existence of CMT is intended both to recognise extantterritorial rights and to reconcile them with the public and private rights of others inthe common marine and coastal area. The criteria are strict and not easy to reconcile.Professor Boast, who was a member of the Ministerial Review Panel, described s 58as an improvement on the "well-nigh impenetrable" equivalent provision ofthe 2004 Act but found the exclusivity requirement still "intractable".249 I agree.Relevantly for these appeals, difficulties are not confined to deciding when thestatutory criteria for recognition orders are met. They also arise when deciding whichgroup, among a number of applicant groups, is entitled to hold a CMT or PCR.The elements of s 58(1)[140] With that introduction, I turn to the language of s 58(1). A court must inquirewhether the applicant group holds the specified area in accordance with tikanga. It isa contemporary inquiry; "holds" is in the present tense. "[H]olds" appears to reflectthe definition of Māori customary land in Te Ture Whenua Maori Act: "land that isheld by [Māori] in accordance with tikanga [Māori]".250 In relation to this provisionthe Māori Land Court has observed that: "[t]here is no connotation of ownership butrather that it is retained or kept in accordance with tikanga [Māori]."251 The test looksto tikanga that is local, directed to the area concerned.252 Evidence of activities thatshow control or authority over the area, as opposed to simply carrying out a particularactivity in that area, will be of particular relevance in distinguishing "holding" the areafrom use of it to gather a particular resource.248 Western Australia v Ward [2002] HCA 28, (2002) 191 ALR 1 at [89] per Gleeson CJ, Gaudron,Gummow and Hayne JJ.249 Boast, above n 68, at 276 and 282.250 Te Ture Whenua Maori Act, s 129(2)(a).251 da Silva v Aotea Māori Committee, above n 135, at 217.252 PG McHugh "The Crown's Relationship with Tribal Peoples and the Legal Dynamics for theResolution of Historical and Contemporary Claims" (2015) 46 VUWLR 875 at 903.[141] The group's use and occupation must be exclusive. That is, as all counselappearing before us accepted, a high standard. It is not synonymous with possessionat common law, but it is concerned with the intention and ability to exclude othersfrom the specified area. This distinguishes areas held by the group at that time fromareas in respect of which the group held only specific resource rights. Use rights whichare not accompanied by territorial control cannot sustain CMT.[142] The court must further inquire into the group's past use and occupation, askingwhether exclusivity has been continuous from 1840 to the present day. Anyinterruption during that period must have been substantial if it is to defeat the group'sclaim to continuity of use and occupation. Resource consents granted betweenMACA's commencement and its effective date are deemed not to amount to substantialinterruption (by implication, other resource consents may do so).253[143] When deciding whether CMT exists in a specified area, relevant considerationsinclude ownership by the applicant group or any of its members of abutting landwithout substantial interruption since 1840, and the exercise of non-commercialcustomary fishing rights in the area since 1840.254 Use of the area by others, not beingmembers of the applicant group, of a specified area for fishing or navigation does not,of itself, preclude the applicant group from establishing CMT; that is to say, suchactivities do not mean, of themselves, that the area is not held in accordance withtikanga or that the applicant group's exclusive use and occupation has beensubstantially interrupted.255Exclusivity as a matter of tikanga[144] As noted, Churchman J had reservations about exclusivity. He expressed themwhen responding to the submission, made by counsel for LCI and theAttorney-General that exclusivity introduces European proprietorial concepts.256 Hefound that the concept of exclusion was fundamentally inconsistent with the values ofmanaakitanga and whanaungatanga.257253 MACA, s 58(2). We are not concerned here with customary succession or transfer.254 Section 59(1)(a).255 Section 59(3).256 Judgment under appeal, above n 11, at [168].257 At [174].[145] I have explained that s 58(1) establishes a single composite test. It draws fromthe common law of aboriginal title and it conceives of property not as a thing orresource but as consisting primarily in control over access to things and resources.258MACA defines CMT by reference to holding, use and occupation.[146] I consider that the Judge was wrong to discount exclusivity on the ground thatit is inconsistent with manaakitanga and whanaungatanga. On the contrary, s 58(1)assumes that exclusive use and occupation may be a customary entitlement. If it wereotherwise, few if any applications would be granted.[147] I have mentioned that the Ministerial Review Panel stated that in traditionalMāori society, hapū and iwi presumed the right to control and exclude others.259 Thisclearly referred to physical exclusion. The evidence in this case confirms it, showingthat the applicant groups assert the right to exclude others and recognise that othergroups enjoy corresponding rights over other parts of the marine and coastal area. Thename given to such areas is takutai moana (literally, "it's my sea"). There arenumerous references. I cite a number to make the point. David Te Marama Peters,from Ngāi Tai, said:Everybody would stick to their own areas when they went fishing andgathering kai from the moana. You wouldn't have people coming in fromoutside to fish in our area. We would stay in our area to leave that area forthat whanau. This was our cupboard and that was theirs. If we took from theircupboard then there wouldn't be enough in their cupboard for them. That wasour tikanga.[148] Jospeh Hohepa Te Kahika, for Pākōwhai, expressed a similar sentiment:You only ever took from where you belong. You never ventured unless you'vegone down there for a holiday and the people from that area take you to wheretheir sources are. That's respect for another iwi or hapū.[149] Muriel Ngahiwi Smith Kelly, from Ngāti Patumoana, spoke about access toŌhiwa that was granted to a Tūhoe hapū:We hosted other iwi, Tūhoe for instance, it was never Tūhoe that was alloweda passage of right though the Ōhiwa, it was Waimana Kaaku who are a258 See Banjima People, above n 212, at [38] in which the Full Federal Court approach native title inthis way, citing Kevin Gray "Property in Thin Air" (1991) 50 CLJ 252 at 299.259 Ministerial Review Panel report, above n 89, at 72.subsidiary of Tūhoe. They were given that passage of right. A passage(corridor) was given so Tuhoe could get the kaimoana of the season, to takeinland. The one thing Tūhoe was deprived of was a regular supplyof kaimoana.[150] Carlo Hemoana Gage, from Ngāti Ira, explained the arrangement betweenWhakatōhea and Te Whānau-ā-Apanui:It was considered a privilege each time we went out of our rohe (Whakatōhea)to Te Whānau a Apanui to gather kaimoana. We acknowledged and respectedthe shared tikanga associated with fishing and diving within the respectivehapū and iwi of Te Whānau a Apanui.There was always a mutual understanding and respect between Whakatōheaand Te Whānau a Apanui in regards to mana moana (in terms of gatheringshellfish and fishing) and mana whenua in terms of rohe whenua (boundaries).It was clear and understood by both sides.Before going to the coast to gather kaimoana, we would always make contactwith our whānau or kaumātua living within Te Whānau a Apanui. We wouldcheck the weather and/or moana conditions and also if there were any specialcircumstances we needed to know about, for example, a rāhui (restrictions) ortangihanga in the area.[151] Such rights include the exercise of kaitiakitanga. An example of this is theplacing of rāhui. Donald Ati Kurei, of Ngāti Ira, explains:We as Tohunga Tikanga in Whakatōhea all make decisions together on Rāhuifor the benefit and safety of all. We have always asserted our mana moanaand kaitiakitanga and that will never change.We would never place a rāhui on areas we do not govern, manage or look after.For example, Ngāti Ira would not go and place a Rāhui in areas that belong toWhānau Apanui and vice versa. However, when one has been placed, werespect it and let all the people know where it has been placed.[152] The witnesses explained that others were permitted to enter their area and useresources, as a matter of whanaungatanga and whakapapa. Te Riaki Amoamo, ofNgāti Rua, explained that:We have the right to exercise our customary authority (mana andrangatiratanga) in relation to our own seascape. For the same reason, wewould not go into other tribal (iwi) seascapes because we would bechallenged. Our customary areas are not as rigid as Western boundarieshowever. Other Whakatōhea hapū can come into our sector, for instance, wewouldn't stop Ngāti Patu coming to fish in our area. The tikanga is that weshare the kai because our hapū of Whakatōhea are related to each other bywhakapapa, and it is part of our collective responsibility to care for ourwhanaunga, as they do for us (this is known as manaakitanga). In that respectwe are a tribal collective. The practice of sharing the kai continues today, soif someone goes out fishing then they will bring me and other kaumātua somefish if they catch some. I will come home from the marae and find a bucketof fish or watercress sitting on my back step.However, there is a distinction between permitting access to our sea territoryas a matter of manaakitanga and having the customary authority to act as thekaitiaki. Ngāti Rua holds the mana in Ngāti Rua's sea territory. For instance,if somebody drowns out there in our rohe, Ngāti Patu would not do the karakia,I would, because it's my customary area.[153] Te Kou Rikirangi Gage, for Te Whānau-ā-Apanui, made the same point,speaking of fishing for moki:Other iwi, including Ngāti Porou and Te Whakatōhea, because of theirwhakapapa connections, would come to our rohe when the Moki wererunning. However, this was always done with Whānau a Apanui permissionand under Whānau a Apanui authority and control. It was a granted privilege,not a right. As mana whenua of the area, Whānau a Apanui retains the rightto implement a prohibition that stops the taking of Moki, including placinga rāhui.[154] Perhaps the best example is the evidence of sharing of tītī (sooty shearwater ormuttonbirds) on Whakaari.260 Heremaia Warren, for Pākōwhai, explained that:The iwi of the waka Mataatua had a system. We had Te Whānau a Apanui,Te Whakatōhea, Ngāti Awa, Tūhoe, and Ngai Te Rangi. Those five iwi madeup Mātaatua waka.We all had rights in the Bay of Plenty and different iwi had different islandsto collect birds from. Some islands have been closed for one reason or other.Now, we had two islands that we gathered our mutton birds from, White Islandand Whale Island.We had a circuit. The first iwi to go over to White Island was Te Whānau aApanui. They would go over; get their birds and then come back and reportto Whakatōhea. They'd say, "we've been to Pākihikura." (That's the name ofa ground), plenty of birds but this one has been worked".Whakatohea would go over next. Each of these iwi had their favourite ground.We'd go over there and work the Matawiwi ground. We'd come back and letTūhoe know next.Tūhoe would go over and they might go to Poroporo[,] another ground andthey'd work that one. When they finished, they would let Ngai Te Rangi(Tauranga) know, Ngai te Rangi would go over and work their ground.260 The practice ceased in 1968 after officials realised that, as Whakaari had been declared a privatescenic reserve in 1953, tītī harvesting was illegal under the Reserves and Domains Act 1953.The first round, we missed out Ngāti Awa (Whakatane)[,] but it was deliberate,because Ngāti Awa had the right to be the first to go to Whale Island. No oneelse went to Whale [I]sland in the first round.So, that's the first round. The second round we'd go again dependent on birdnumbers or weather. Ngai Te Rangi would tell Te Whānau a Apanui, if therewere still plenty of birds there. They'd go around a second time.The second time round, Ngāti Awa were now allowed to go over toWhite Island. On the second time round, anybody could now go toWhale Island. This was never written down, but it was understood.Everybody all just worked together.[155] Muriel Ngahiwi Smith Kelly, for the Edwards application, also discussed thegathering of tītī:Pre-1960s you went over to Whakaari and got your tītī. The closest point toWhakaari from the mainland was launching off Te Kaha, in Whānau Apanui.Te Whānau ā Apanui would get first pick then Whakatōhea and thenNgāti Awa were the third partners in sharing the resources of Whakaari. Itwas natural for Whakatōhea to get tītī from Whakaari. For those who couldn'tget there for whatever reason, they were fed by those that could. Tuhoe alsohad their tītī gathering time.[156] Minna Biddle Roache, for Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa ofWhakatōhea, spoke about arrangements with Tūhoe:Ngai Tūhoe they used to come down to Kutarere or Waiotahi and get pipi andwhat have you. It must have been an arrangement because when they did thatwe did not go to the beach. And that might be a week I'm not sure how longit was. I forget because we used to go to school. We used to go up there(Tūhoe) after pigeons, by mutual arrangement. The Waiotahi bowl. Only thetribes around close. You wouldn't get Taupo coming.[157] Roka Hurihia Cameron, for the Edwards application, explained that:So if another iwi comes to gather pipi which they did, they were respectful interms of bringing and asking. They knew the tikanga. They would go to thechiefs who were available then, of the different hapū around that kai bed, andbe respectful. I believe there were certain ceremonies carried out atthose times.Those are the values we have to correct and get right. The kai is there for allof us. If you come from another area, be respectful. Ask first so the people incharge give that permission to go in and take whatever and in return maybethe people may bring some manu or whatever they have, whatever it is theyhave from their rohe they have plentiful of.[158] To similar effect is the evidence of Arapeta Mio, for Ngāi Tai:Normally if people from outside of our rohe want to fish here then we have totake them out ourselves. It's not a case of sending them on their way, we can'tdo that. Sometimes if you take them out then they'll come back another timeand go out by themselves, that's not how it works. They still have to showrespect and come in to see us.[159] There is a strong reciprocal character to these rights. Indeed, continuedrecognition of one group's control of a given resource may depend on their willingnessto allow others to share it. Nonetheless, such access is formally by permission of thehost, granted because they acknowledge their relationship to the group requestingaccess, and permission may be subject to the host group's own needs being met.Te Kou Rikirangi Gage, for Te Whānau-ā-Apanui said:Resource use by others may be permitted. However, in the area within whichWhānau a Apanui exercise mana, this permission is a privilege and does notestablish a right. The hapū of Whānau a Apanui maintain the authority andright to retract this permission at any point.[160] The view that the power to exclude others from land of the coastal marine areais a dimension of tikanga is reflected in what we were told is the only decision of theMāori Land Court to discuss land "held in accordance with tikanga" under what isnow s 129(2)(a) of the Te Ture Whenua Māori Act. In Wharo Oneroa a Tohe (90 MileBeach), a 1957 decision, the Māori Land Court found that, immediately before 1840,Te Aupori and Te Rarawa occupied their respective portions of the intertidal zonealong 90 Mile Beach and did so to the exclusion of other tribes.261 It is also consistentwith the expert evidence. Professor Williams explained in his evidence that whilerights in land were complex and interlinked, and a given type of right might be heldby more than one group at a time, all rights derived from the collective landholdingunit, usually the hapū.[161] What must be shown to satisfy a court that an applicant group uses andoccupies a specified area to the exclusion of others? I have explained that theCanadian authorities require intention and capacity to control the land. Ms Roff261 Wharo Onoroa a Tohe (90 Mile Beach) (1957) 85 Northern MB 126 (85 N 126). Section 161(2)of the Maori Affairs Act 1953 provided that "Every title to and interest in customary land shall bedetermined according to the ancient customs and usages of the Maori people, as far as the samecan be ascertained."submitted that evidence of intention and ability to control the specified area againstothers is necessary under MACA. Counsel cited Ngā Pōtiki Stage 1, in which Powell Jheld that what is required is:262 evidence of authority giving rise to an ability or intention to exclude others,noting that tikanga may not in fact require the actual exclusion of third partiesat any point.I observe that the tests adopted by Powell J and contended for by the Attorney-Generalare not identical: Powell J's test is disjunctive and aimed at exclusion of others, whilethe Attorney's is conjunctive and aimed at control as against others.[162] In my view exclusivity of use and occupation requires both anexternally-manifested intention to control the area as against other groups and thecapacity to do so. Exclusivity is a question of fact, heavily dependent on thecharacteristics of the specified area, the kinds, frequency and intensity of use, and thecircumstances of claimant groups. The inquiry must be sensitive to the methods thatwere and are available to assert mana. It must also be sensitive to the practice ofwhanaungatanga and the existence of whakapapa linkages which mean that othergroups may not have been physically excluded from the specified area but rather usedits resources with permission of the applicant group.[163] It should not be assumed that exclusivity has everywhere been lost, for tworeasons. First, the mere existence and exercise of public rights secured under MACAis not inconsistent with exclusivity; put another way, Māori groups have not lostexclusive use and occupation merely because they cannot in law prevent public accessto and use of the common marine and coastal area for purposes of recreation, fishingand navigation.263[164] Second, Māori did not abandon their claims to exclusivity followingRe Ninety-Mile Beach and their claims may have been respected in some areas.Professor McHugh has argued that Māori practice carried on regardless and tikanga262 Ngā Pōtiki Stage 1, above n 7, at [41].263 Professor Boast has argued that for this reason the legislation leans toward the dissenting judgmentin Yarmirr, above n 7, in which Kirby J held that public navigation rights are not destructive ofexclusivity: Boast, above n 68, at 281.continued to operate in all its regional and historical variations along the coastline,except to the extent loss of control was legally enforced against Māori, as underfisheries legislation.264 The Waitangi Tribunal has found that the acquisition, exerciseand impact of public rights of access and use has been uneven and Māori authority hassubsisted in some areas.265 To some extent use of the foreshore by non-Māori mayhave been permitted in the exercise of manaakitanga.266Externally manifested intention to control[165] The applicant group must intend to control the area and must manifest thatintention externally, through acts consistent with exclusive use and occupation. Thereis evidence that this is regularly done through cultural exchanges or practices. Forexample, the evidence indicates that the placing or declaration of a rāhui is a rightreserved to the group controlling the area concerned. Te Riaki Amoamo, of Ngāti Rua,supplied an example:More recently, the eruption at Whakaari in December 2019 resulted in a rāhuibeing imposed on the ocean for some weeks afterwards, extending from thetribal areas of Te Whānau a Apanui and Whakatōhea across to Ngāti Awa. Thekarakia to lift the tapu were performed on 27 December 2019, and I was askedto lead the karakia for Whakatōhea. We were taken out to sea in a boat. I wasasked to say a karakia on the wharf at Whakatāne before we left, and I said nobecause we were within Ngāti Awa's rohe. I waited until everyone was on theboat and because it was a Whakatōhea boat I was able to commence mykarakia. From there we went out to the Whakatōhea mussel farm within ourtribal area where I performed further karakia.[166] Speaking of the same event, Robert Edwards, for Ngāti Muriwai,explained that:In immediate response to the tragedy on Whakaari the Rūnanga o Ngati Awachairman Dr Mason placed a rāhui on their rohe moana. Ngati Awaencompasses Whakatane, Ohope, Ohiwa coastline. On December 9th I aschairman of the Whakatōhea Māori Trust Board and Taumata trust in supportand respect to the deceased requested Whakatohea people to observe andrespect a temporary resource limitation rāhui placed on the Whakatoheacustomary boundaries, Ohiwa, Waiotahe, Ōpape, Waiaua andŌpape Te Rangi. All marine activities along and above the shoreline will beobserved during this time of bereavement and will continue until allmovement of persons from Whakaari ceases.264 PG McHugh "Aboriginal Title in New Zealand: A Retrospect and Prospect" (2004) 2 NZJPIL 139at 140.265 Foreshore and Seabed Report, above n 75, at 31–32.266 At 25.Capacity to exclude[167] With respect to historic methods of controlling an area, Mr Hodder drew ourattention to a chapter of a book by Tā (Sir) Hirini Mead.267 The author identified15 elements of mana over land and its occupants.268 They begin with military action(take raupatu, take ringa kaha, take pakihiwi kaha) to displace existingoccupants — said to be a necessary requirement unless the land was unoccupied orwas gifted — and include subsequent occupation, intermarriage with tangata whenuawomen, the marking out in some way of rohe which the group is capable of defending,the naming of places, the establishment of urupā, tūaha (shrines) and kāinga andplacing of wāhi tapu, the adoption of a group name, and the approval and acceptanceof neighbouring iwi.269 A court's inquiry into exclusivity as at 1840 will focus on theserequirements to the extent applicable in the particular case.[168] Not all of the requirements of mana identified by Professor Mead arepre-colonial. His list included the inclusion of an iwi's name in the historical recordof the Māori Land Court and other institutions of Aotearoa.270 That method, it seemsto us, may include representation on institutions such as the Trust Board or recognitionin Treaty settlements. The record confirms that mana may be asserted through thepursuit of redress and use of statutory processes to limit incursions into the customaryuses of resource, and further that these methods have assumed great importance in themodern era. They are not merely claims to compensation or resources. They aremeans by which mana is asserted as against the Crown or non-Māori and also, as theseappeals demonstrate, within Māori society. We were told that a number of applicantgroups filed separate but parallel applications because they were exercising their rightto speak for their own areas.[169] Some of the historical means of establishing control of an area have been lost.The Crown assumed authority (through the exercise of kawanatanga) to prohibit theuse of force to prevent incursions into a group's territory.267 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers,Wellington, 2016) at 303.268 At 314–315.269 At 314–315.270 At 315.[170] Further, traditional methods were not replaced or supplemented by effectivelegal rights. The common law could not come to the aid of Māori seeking to exercisecustomary rights over land, notwithstanding that it recognised the existence of theserights. As the Chief Justice observed in Ngāti Apa, from the enactment of theNative Lands Act 1909 Māori owners have been prevented from suing for recovery ofcustomary land or damages for trespass.271 Under the 1909 Act proceedings might bebrought by or on behalf of the Crown for the owners, but so far as we aware the Crownnever did so. In my opinion MACA's objective requires that this legal disability beset aside when considering capacity to exclude.[171] Some means of establishing control of an area do survive as a set of culturalnorms which are constantly reinforced through ritual engagement betweentangata whenua and manuhiri. I have noted that the acceptance or acquiescence ofneighbouring tribes was identified as a feature of customary title in the Canadiancases.272 It assumes importance under MACA because there is much evidence thatgroups recognise the rights of other groups to control their own areas. The recordconfirms that mana is constantly reinforced through ritual exchanges and the practiceof manaakitanga over long periods of time. It follows that acceptance by other iwi,hapū or whānau groups of an applicant group's right to speak for a specified part ofthe common coastal and marine area is powerful evidence of exclusivity. In theabsence of consensus, the area may have remained whenua tautohetohe(contested ground) as at 1840 or subsequently.273[172] As Ms Roff and Ms Feint submitted, the approval of neighbouring groups isnot a prerequisite to CMT. Nor, since claimant iwi, hapū and whānau groups are notthe only parties affected by a recognition order, can it be conclusive. Nonetheless, acourt may not be satisfied of exclusivity in the absence of evidence that other groupsrecognise an applicant group's rights (or a satisfactory account of why such evidenceis lacking). Consensus is even more important for shared exclusivity, which rests onevidence that the groups concerned shared control of an area to the exclusion of others.271 Attorney-General v Ngāti Apa, above n 62, at [41] referring to the Native Lands Act 1909, s 88and Te Ture Whenua Maori Act, s 144. Under the latter Act such proceedings may be broughtonly by the Māori Trustee on behalf of the owners: s 144(2).272 Delgamuukw, above n 138, at [158] per Lamer CJ, Cory and Major JJ.273 Mead, above n 267, at 311.Substantial interruption[173] That bring me to continuity of use and occupation, and substantial interruption.With respect to continuity, inferences may be drawn from evidence of presentoccupation and the persistence of cultural practices which maintain connection to aspecified part of the marine and coastal area.[174] Substantial interruption requires that the court consider the nature, extent,duration and cause of any interruption to the applicant group's exclusive use andoccupation of the specified area. I make several points about this.[175] First, the requirement that interruption be substantial recognises that MACAexpressly takes account of the Treaty, in which the Crown promised that Māori wouldcontinue to enjoy the full exclusive and undisturbed possession of their lands andestates, forests, fisheries and other properties.274 As Lamer CJ put it in Delgamuukw,to insist on an unbroken chain of continuity would be to perpetuate injustice causedby people who did not recognise aboriginal rights to land.275[176] Second, the most common forms of incursion in the nature of trespass willinvolve use of the marine and coastal area for public access, recreation, fishing andnavigation. Under MACA these uses are not incompatible with CMT.[177] Third, as I have explained, the presence of others is not inconsistent withexclusive possession, at least when their use of the area is in accordance with tikanga.It may reflect the exercise of manaakitanga by the group which controls the area. Thatmight be so, for example, where European settlers accessed a coastal area with theacquiescence of a Māori group who held the area in accordance with tikanga.[178] I accept the argument, made by a number of counsel, that the Judge was wrongto hold that substantial interruption applies to the applicant group's holding of an areain accordance with tikanga.276 It applies to the group's exclusive use and occupation.274 Treaty of Waitangi 1840, art 2.275 Delgamuukw, above n 138, at [153] per Lamer CJ, Cory and Major JJ, citing R v Côté [1996] 3SCR 139 at [53] per Lamer CJ, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.276 Judgment under appeal, above n 11, at [204] and [264].Because the Judge held that holding with tikanga is a question of fact and does notimply exclusivity, he set a more rigorous standard for substantial interruption than thelegislation permits. Ms Roff argued that he directed himself correctly on exclusivityelsewhere and contended that he did not rely on this error when he turned to theevidence. I am not persuaded. There is force in the submission of Ms Waikato, forCRHL, that the Judge's approach to substantial interruption is connected to his viewof exclusivity.[179] Mr Hodder, and Mr Scott, for SIR, argued that the Judge also erred by holding,in reliance on s 59(3) of MACA, that third-party use of a specified area for fishing ornavigation can never amount to substantial interruption. The Judge stated that:[269] Given the fact that any grant of CMT is expressly subject tothird-party rights of navigation, fishing and access, it is unlikely thatParliament intended the test of "substantial interruption" to have been met ifthe activities said to amount to substantial interruption relate to navigation,fishing or access. That would not be consistent with the purposes of the Actdiscussed above.[180] Section 59(3) provides only that such activities do not of themselves precludeCMT. Put another way, an opponent cannot argue that a recognition order is precludedon the ground that these activities were a form of trespass which the applicant groupdid not or could not resist. That is consistent with what I have said at [170] above; thelegal inability to resist trespass through force or at common law must be set aside whenconsidering capacity to exclude. This answers Mr Scott's submission that the longhistory — more than a century — of iwi and hapū complaints about lawful commercialfishing were met with no success and so evidence substantial interruption (orinterference with holding in accordance with tikanga). As I see it, the significance ofthe evidence to which counsel referred is that it tends to show Māori never surrenderedtheir connection to the area or abandoned their claims to control it.[181] As a matter of construction, s 59(3) admits the possibility that third-party usefor fishing or navigation, though not "of itself" enough to preclude CMT, maycontribute to an applicant group being unable to establish its claim. Again as a matterof construction, the exercise of public rights of access and recreation must also becapable of having that effect. It will depend on the facts. But the mere fact that theseactivities happened is not enough to preclude CMT in law. There will be questions ofscale, extent and duration.[182] I add that even regular commercial fishing is a transitory use. And if theresource is properly managed from a fisheries perspective, it seems unlikely thatfishing would so deplete the resource as to cause an applicant group to abandon thearea indefinitely. Mr Scott did not go quite so far as to argue otherwise, though he didpoint to evidence of complaints that customary fishers often returnedhome empty-handed. An activity that is inconsistent with tikanga, or exclusivity ofuse and occupation, might preclude a recognition order where it occurred with theconsent or participation of an applicant group,277 but our attention was not drawn toany evidence of that in this case.[183] Ms Feint argued that as a matter of policy the court ought to ignore anyincursion that was a breach of tikanga. That would involve assessing exclusive useand occupation from a tikanga perspective only, ignoring the actions of non-Māoriwho did not recognise customary rights. In my view that is not the approach thatParliament took in MACA. The legislation contemplates interruption from lawful useand occupation by third parties, including non-Māori and Māori who are not membersof the applicant group, whose actions were contrary to tikanga. It provides for themby specifying that they do not preclude CMT unless they amount to substantialinterruption of the applicant group's exclusive use and occupation.Points of difference with the majority[184] The Court is agreed that the legislation is difficult and complex. Regrettably,I find myself dissenting from the views of Cooper P and Goddard J on theinterpretation of s 58.[185] I have recounted evidence at [147] – [166] above to show that exclusive useand occupation of land is a characteristic of tikanga Māori, not an additionalrequirement drawn from the common law of England. Mana tuku iho incorporates theintention and ability to exclude others according to the dictates of tikanga. MACA277 R v Symonds (1847) NZPCC 387 at 390.assumes that as a matter of fact applicant groups may have enjoyed exclusive use andoccupation of the common marine and coastal area before 1840.[186] The legislation envisages that the question on which most applications arelikely to turn is whether exclusivity, in this tikanga-consistent sense, has been lost inthe colonial and post-colonial period. It treats this too as a question of fact.[187] I respectfully consider that the majority judgment leaves both the requirementfor exclusive use and occupation since 1840 and the concept of substantial interruptionwith no work to do. The substance of the majority approach is that an applicant groupwho can show that they held an area in accordance with tikanga at 1840 will obtainCMT unless (a) their rights have been extinguished in law through action expresslyauthorised by statute or (b) the group abandoned the area after 1840 or ceded controlof it to another Māori group as a matter of tikanga.[188] The majority approach makes the s 58 test very much easier to meet. But noapplicant group contended for it and I do not find it an available reading of thelegislation. In my opinion the statutory language and the legislative history make clearthat exclusive use and occupation must subsist in fact from 1840 to the present day.[189] The majority's approach rests on two assumptions: first, that there are fewareas of New Zealand in which the exclusivity requirement could be met; and second,that but for MACA and the 2004 Act the common law would have recognisedcustomary title in these areas despite lawful third-party incursions over the last 180years. This leads the majority to discount what we appear to agree is the literalmeaning of s 58 in an attempt to give effect to the purpose statement in s 4. In myview neither of these assumptions is justified. I explain why, briefly.[190] When read with the preamble and s 7, the purpose statement tells us thatParliament has taken account of the Treaty by establishing a durable scheme whichrecognises and promotes the exercise of customary interests while reconciling themwith other lawful rights and uses. The courts' carefully circumscribed task is toimplement that scheme.[191] What would have happened had the common law been left to its own devicesfollowing Ngāti Apa is an interesting and still-important question. The answersupplies a measure of loss experienced by Māori from first the 2004 Act and nowMACA. The academic literature I have cited at [48] and [49] above shows that thequestion whether the common law would have recognised exclusive customary rightsof occupation and use in the marine and coastal area is contestable. The debate turnson the extent to which the common law would have followed the majority judgmentin Yarmirr by recognising that customary title may be subject to public rights ofnavigation, fishing and, arguably, access which affected the Crown's title at Englishcommon law.[192] In Ngāti Apa itself the Court took care not to speculate on the direction thecommon law might have taken. Counsel did not address the topic before us. I havementioned it at [45] above not to take a position on it but because it forms part of thenarrative of the legislation which followed Ngāti Apa. It was common ground amongcounsel that, as explained in my survey of the legislative history, Parliament chose notto leave to the courts either the content of customary rights over the common marineand coastal area or the criteria for their recognition. Rather, the legislature adopted acustomary rights scheme, initially in the 2004 Act and now in MACA, which supplantsthe common law. In my view it is a matter of historical fact that the statutory schemewas largely drawn from Yarmirr. Its common law origins are visible in ss 27 and 28,which correspond to the common law rights of navigation and fishing. Section 26creates new individual rights of access and recreation without charge, but it too maybe said to find a source in Yarmirr.278[193] What Parliament did leave to the courts was the question whether a givenapplicant group held an area in accordance with tikanga as at 1840 and retainedexclusive use and occupation until the present day. This was to adopt the Canadianapproach, in which exclusivity is treated as a question of fact. The legislationenvisages that these case-by-case inquiries will establish the intensity of use andoccupation required for exclusivity, by reference to the particular circumstances of278 The majority in Yarmirr, above n 72, did not hold that customary title was subject to public rightsof access but Kirby J held at [281] that such a right was compatible with customary title at commonlaw and as a matter of policy should be recognised in relation to the sea.applicant groups and the particular characteristics of specified areas. Unfortunately,we are not in a position to offer much guidance on this centrally important issue. Therecord in these appeals contains evidence of practices in particular places. But withrespect to the areas covered by Orders 1 (except Whakaari) and 3, the necessaryfindings were not made in the judgment under appeal and counsel agreed that wecannot make them. It would be premature in the meantime to assume that applicantgroups cannot establish exclusivity in the specified areas.[194] If, as I contend, exclusivity is substantially a question of local fact, it mustfollow that when the evidence is examined the applicant groups may fail to establishthat they continue to hold parts, possibly the entirety, of the specified areas inaccordance with tikanga. But that need not be so, nor (if true) would it show that thestatutory scheme is unfit for purpose. I make two points about this.[195] The first is to reiterate that on the limited evidence so far available from othersources it is not inevitable that applicant groups will fail. I have referred at [164]above to academic literature and Waitangi Tribunal findings suggesting that in practiceMāori authority over the foreshore and sea survived in some areas, notwithstanding reNinety Mile Beach and the Crown's failure to enforce customary rights on behalf ofMāori. The judgment in Ngā Pōtiki Stage 1 is to similar effect and a good example ofthe sort of inquiry that I consider Parliament had in mind. Powell J found thatcustomary authority over the application area had been maintained despite its closeproximity to metropolitan Tauranga.279 That conclusion rested on factual findingsabout the physical characteristics of the area and practical restrictions on access toit.280 We have reached a similar result for the Ōhiwa Harbour.[196] The second point is that MACA must be placed in context as one part of awider scheme to address Treaty obligations. Rights which have been lost to thepractical and legal effects of colonisation may be the subject of redress negotiated andauthorised by the other branches of government through the Treaty settlement process.That process was well established when the Court explained in Ngāti Apa thatcustomary rights to the foreshore and seabed might remain extant as a matter of law.279 Ngā Pōtiki Stage 1, above n 7, at [84].280 At [82]–[88].The hitherto-unrecognised possibility that customary rights might survive led toMACA, which serves the specific purposes of defining customary rights, reconcilingthem with the rights of others, and establishing whether they remain extant in fact.MACA is not concerned with redress, which is why we have not read the recentWhakatōhea settlement. But the availability of redress still matters. It means thatcourts need not interpret the legislation by adopting what amounts to a presumptionthat rights in existence in 1840 have survived to the present day.The "applicant group" and shared exclusivity[197] MACA defines an applicant group as "1 or more iwi, hapū or whānau groupsthat seek recognition under Part 4 of their protected customary rights or customarymarine title".281 The term includes a legal entity or natural person appointed by suchgroup (or groups) to be the representative of that group and to apply for, and hold, arecognition order or agreement on the group's behalf.[198] An application is made by an "applicant".282 The applicant must describe theapplicant group and name a person to be the holder of the recognition order asrepresentative.283 Sections 100 and 101 together envisage that the person who is tohold the order need not be the person who made the application. It follows that a boardmight seek CMT on behalf of constituent hapū whose mandate it holds and on thebasis that the hapū, or some other nominated entity, would hold the title.[199] It is the applicant group who must show that they exercise a customary right ina particular area (for a PCR) or hold a specified area in accordance with tikanga(for CMT) and, in either case, that they have done so continuously since 1840.284The group may rely on the status of any of their members as abutting landowners, orthe exercise by any member of non-commercial customary rights since 1840.285281 MACA, s 9(1) definition of "applicant group".282 Section 100.283 Section 101(c) and (f).284 Sections 51, 58 and 106.285 Section 59(1)(a).[200] The court may exercise flexibility when dealing with applications.286 Thatextends to treating a PCR application as if it were a CMT application and vice versa.287[201] The court having granted a recognition order, a successful applicant groupmust submit a draft order for approval by the Registrar under s 109(1). The fact thatit is the Registrar who approves the order signifies that this is a machinery provision.The draft order must specify the group to which it applies and the name of theholder.288[202] An order may be varied or cancelled on application by the holder of the order,or (where the holder has ceased to exist or no longer has legal capacity) arepresentative of the group to which the order applies.289 The applicant must satisfythe court that they are authorised to make the application and that the applicant groupis aware of it and have had sufficient opportunity to make their views known.290[203] These provisions envisage as follows:(a) An applicant group may comprise a number of distinct iwi, hapū orwhānau groups which have chosen to make a single collectiveapplication.(b) The applicant group may confer on a natural person or legal entity amandate to seek an order on their behalf. Should there be anycontroversy, the court will need to be satisfied that they do representthe applicant group.(c) The applicant group may rely on the status (as landowner) or activity(exercise of customary fishing rights) of any member of the group toprove that CMT exists. Such status or activity of a member or membersmay be relevant to proof of the applicant group's continuous use andoccupation of the area specified in their application.286 Section 107.287 Section 107(1) and (2).288 Section 109(2)(b) and (c).289 Section 111(4).290 Section 111(5).(d) A recognition order will be held by a legal entity (which may be anunincorporated body) on behalf of the group. That person must beidentified in the application and named in the recognition order. It isfor the group to nominate the entity which will hold the order.[204] MACA recognises that members of an applicant group may enjoy differingdegrees or kinds of mana over the area specified in their application. That is implicitin the ability to claim through a member group. They may nonetheless share — if theyso choose — in a single CMT over that area. It is a necessary condition of such arecognition order over a specified area that one or more of the group's member groupshas exclusively used and occupied each part of the area since 1840. Subject to thatrequirement, MACA claims can accommodate changes in iwi, hapū or whānau groupssince 1840.[205] By providing for collective applications, MACA allows groups to claim titleover areas which they share to the exclusion of third parties. It also allows them toavoid fragmentation of title, which might cause conflict and inhibit the effectiveexercise of rights that MACA confers on CMT holders. Mr Pou urged the latter pointon us when contending, for the Board, that an iwi-level title is necessary to avoid whathe described as squabbling. I observe, however, that MACA recognises propertyrights and the autonomy of rights-holders. It is for iwi, hapū and whānau to decidewhether to apply as a collective and who will hold their title. Any applicant groupmay insist, subject to s 107, that the court decide separate claims on their merits.If satisfied that a given applicant group meet the statutory criteria, the court may granta recognition order under s 98. If not satisfied, it must (subject to what I have to saybelow about process) decline the application. I respectfully part company withCooper P and Goddard J on this aspect of shared exclusivity. In my view MACA doesnot envisage that the court will appoint a trustee to hold CMT for separate groups incircumstances where they have not taken the opportunity to agree on shared CMT, andno single group has been able to make out a separate claim. Of course this would notpreclude the recognition of PCRs.[206] Party autonomy extends to the choice whether to pursue an application forCMT and in what forum. Subject to what I say below about the dual pathway, anapplicant group may elect to pursue negotiations with the Crown in preference tocourt proceedings.[207] Nor does MACA envisage that the High Court will settle questions of internalgovernance of the legal entity nominated by a successful applicant group to hold thetitle. Rather, it implicitly adopts the premise that internal governance is a matter forthe group to decide in accordance with tikanga. By definition, they have shown thatthey collectively hold the area in accordance with tikanga. They can continue togovern it as they have always done, recognising among themselves any superior localrights held by group members. We were given to understand that one reason why finalorders have not been made in the High Court is that a tikanga process has beenundertaken to decide how the titles will be administered.No overlapping CMT[208] It will be apparent from what I have said that MACA contemplates sharedexclusivity, meaning one or more groups may apply collectively and secure CMTbased on the claims of their members to exclusive use and occupation of areas held inaccordance with tikanga. Groups which are politically separate entities need not makeseparate applications. A joint application may succeed if they can show they togetherhold the area to the exclusion of others.[209] But MACA does not contemplate overlapping CMT. If two applicant groupswere separately granted recognition orders over the same specified area, neither groupcould meet the s 58(1) criteria for CMT; neither would hold the specified area to theexclusion of the other. As the Waitangi Tribunal has explained, resource rights were"complex, convoluted and overlapping".291 MACA requires that boundaries beprecisely defined not because lines on a survey plan correspond precisely to customaryboundaries but because it is necessary to know who may exercise, in any given place,the rights which MACA confers on the holder of CMT. If CMT could overlap, neithergroup could unilaterally exercise those rights. Neither could effectively givepermission to the Minister of Conversation to consider a conservation activity under291 Waitangi Tribunal Turanga Tangata, Turanga Whenua: The Report on the Turanganui a KiwaClaims (Wai 814(1), 2004) at 18.s 71(1), neither would have the sole right to seek inclusion of a wāhi tapu area in theCMT under s 78(1), neither would control the preparation of planning documentsrelating to the CMT area under s 85(1), and neither could exercise ownership ofminerals within the CMT area under s 83(2).Process and proof[210] I turn to questions of process and proof.Pleadings[211] Applications for recognition orders take the form of originating applicationsunder pt 19 of the High Court Rules 2016.292 This is designed as a relativelyinexpensive procedure for cases in which full pleadings and interlocutory processesare not needed.293[212] MACA specifies that an application must contain the information prescribedby s 101, including the particular area to which the application relates and a descriptionof the applicant group.294 It must be accompanied by affidavit evidence, whichperforms much of the function of pleadings; the affidavits must "set out in full thebasis on which the applicant group claims to be entitled to the recognition order".295Implicit in this latter requirement, as Ms Feint submitted, is a recognition that the basisfor the application and matters in issue may be developed as evidence is filed for theapplicant group and interested parties.[213] The legislature's decision to adopt the originating application procedure isconsistent with Tsilhqot'in Nation, in which the Canadian Supreme Court held that afunctional approach should be taken to pleading, with courts overlooking minordefects in the absence of clear prejudice.296 That is the approach which the High Court292 High Court Rules 2016, r 19.2(na).293 The Court may order under r 19.5A of the High Court Rules that statements of claim and defencebe filed, but it has not been suggested that the High Court ought to have done so in this case. Itwould have been necessary to consider whether formal pleadings were proportionate to the issuesand gave the respondents adequate notice.294 MACA, ss 101(c) and 101(d).295 Section 101(h).296 Tsilhqot'in Nation, above n 138, at [20].has correctly taken under MACA to date.297 In Tsilhqot'in Nation, the Court explainedthat this approach was justified because legal principles might be uncertain at theoutset, the evidence might also be initially uncertain, and a technical approach topleadings would not serve either the goal of reconciliation between Aboriginal groupsand wider society or the interests of justice.298[214] Because the nature of the order sought, the identity of the applicant group, theparticular part of the common coastal and marine area which is the subject of theapplication, the grounds relied on and the identity of the proposed holder of the orderare all matters that must be specified in the application,299 any change to an applicationwill require an amendment. Where the change is material, the court must giveinterested parties an opportunity to be heard on the amendment.[215] The jurisdiction to amend must be exercised with s 100 of MACA in mind. Itprovides that an application "must be filed not later" than six years from MACA'scommencement, 1 April 2011, and the Court "must not accept for filing or otherwiseconsider any application that purports to be filed after that date". This is not alimitation period, to be pleaded or not as a defendant chooses. It is a statutory bar tothe exercise of the High Court's procedural and substantive jurisdiction to consider anew application under MACA.[216] There were amendments made, or not made but said by opposing parties to benecessary, in this case. Churchman J followed his own interlocutory judgment on astrike-out application in Re Ngāti Pāhauwera Development Trust, in which he heldthat where (as in this case) the amendment does not raise new matters of law but ratherintroduces new or additional facts, the Court should apply a high threshold whendeciding that the amendment is out of time.300 In that case, he held, following ISP297 Re Tipene [2015] NZHC 169 at [19]–[24]; Re Clarkson, above n 7, at [237]–[238]; and Re NgātiPāhauwera Development Trust [2020] NZHC 1139 [Ngāti Pāhauwera strike-out application] at[60].298 Tsilhqot'in Nation, above n 138, at [21]–[23], citing Delgamuukw, above n 138.299 MACA, s 101(a)–(f).300 Judgment under appeal, above n 11, at [468], citing Ngāti Pāhauwera strike-out application, aboven 297, at [59].Consulting Engineers Ltd v Body Corporate 89408, that the test is whether theamendment changes the "essential nature" of the application.301[217] Ms Feint argued that Churchman J erred by adopting a test which assumes thatordinary rules for pleadings apply. She submitted that amendments to originatingapplications fall into a separate category, in which the question is whether anyprejudice to an opposing party can be met by notice and an opportunity to respond.She sought to distinguish cases dealing with limitation of action and amendments topleadings on the ground that s 100 is not a limitation provision but rather an ousterclause which must be read strictly.302[218] I do not agree that s 100 is to be treated as if it were a clause ousting judicialreview of administrative decision-making. Its reach is confined to the jurisdictionconferred by MACA. I did not take counsel to contend that the Judge could notconsider s 100 at all when scrutinising amendments, or when considering whetheramendments were necessary. The Court must examine any amended application toascertain whether it must be considered new, and hence out of time. The question isone of substance, not form. If it were otherwise, an applicant who happens to havebrought an application in time might purport to amend it by introducing an unrelatedapplicant group and an entirely new specified area.[219] Nor was the Judge wrong to cite authorities dealing with the question whetheran amendment introduces a new cause of action for limitation purposes. I accept thats 100 should be interpreted strictly. It bars the exercise of MACA's jurisdiction torecognise customary property rights which are the subject of Treaty guarantees.However, the Judge did interpret s 100 strictly by asking whether an amendmentchanges the essential nature of the application.303 He accepted that a flexible approachmust be taken to pleadings under MACA and recognised that it would be wrong totake an unduly strict or narrow approach to amendment.301 Ngāti Pāhauwera strike-out application, above n 297, at [59], citing ISP Consulting Engineers Ltdv Body Corporate 89408 [2017] NZCA 160 at [21]–[25].302 Ms Feint cited H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR433.303 Judgment under appeal, above n 11, at [468] and [473].[220] When considering whether any given amendment changes the essential natureof the application, it is necessary to bear in mind several features of the statutoryscheme:(a) An applicant group may comprise several distinct groups which mayrely on the connection which any member group has to the affectedarea. This suggests that amendments are unlikely to change theessential nature of an application where they introduce member groups,or larger groups of which the applicant group is a member. Indeed,Mr Hodder acknowledged this. Amendments to the specified area arein principle permissible, to incorporate the rohe moana of the applicantgroup.(b) An application must contain the details specified in s 101(a)–(i). Anychange to these matters will likely require an amendment to theapplication. Subject to that, the basis of the application may bedeveloped in the affidavit evidence of the applicant and other interestedparties.(c) The Court may (but need not) treat an application for CMT as if it werean application for PCR, and vice versa. This modifies the legal natureof the application. Its inclusion in the legislation signals thatParliament contemplated a flexible approach to amendment.(d) As Churchman J recognised,304 the Court may accommodate tikangaprocesses in which applicant groups and opposing parties decidewhether to seek shared or separate CMT and agree on who is to hold arecognition order. To permit such processes is consistent with MACA'sobjective of recognising mana tuku iho in the common coastal andmarine area. It allows the Court to accommodate applicants'preferences to structure their holdings so that recognition orders areadministered in accordance with tikanga (and without need for judicialintervention).304 Judgment under appeal, above n 11, at [170].(e) Any amendment may affect interested parties who have an interest inthe exercise of rights that MACA confers on a successful applicantgroup. Those rights are substantive, and the class of interested partiesis not confined to iwi, hapū and whānau groups. Natural justice mustbe observed. It is possible that any prejudice to an interested party fromlate amendment will not be adequately met by an opportunity torespond in the proceeding.[221] These features together indicate that applications may undergo significantmodification as parties join the proceeding and the evidence comes in, provided theresult is not in substance a new application and amendment is not contrary to theinterests of justice vis-à-vis other applicants and interested parties.305 Such a processmay reflect a complex and overlapping distribution of territorial and usage rightsamong whānau, hapū and iwi in traditional Māori society. The Waitangi Tribunal hasexplained that:306To the whanau group usually 'belonged' some fishing grounds andshellfish beds in the immediate vicinity. Though they did not formally 'own'the fishing grounds and beds, at least their prior rights of use were respected.The hapu exercised control over larger fishing or seafaring vessels, andsome specific fishing grounds.The tribal property was made up of the lands of the various hapu, the lakes,rivers, swamps and streams within them and the adjacent mudflats, rocks,reefs and open sea. The tribe, as the greater social group, incorporated therights of the lesser groups. Major fishing expeditions, journeys, tradearrangements, peace pacts and war were undertaken at tribal level. Cohesionwas maintained through an intimate knowledge of bloodlinks, the constantdeference to tribal ancestors on formal occasions and regular tribal gatherings,especially to mourn for the dead.In practice each whanau was self-contained and controlled. The larger groupwould not interfere unless the matter was of wider concern. Territory andresources were jealously and exclusively maintained unless there was goodreason to open these up to the wider community.305 We observe that the Supreme Court held in Tsilhqot'in Nation, above n 138, at [22], citingTsilhqot'in Nation v British Columbia 2012 BCCA 285, (2012) 33 BCLR (5th) 260 at [117]–[118]that an "all or nothing" approach should not be taken to pleadings because evidence as to howland was used may be uncertain at the outset and will be developed as elders come forward andexperts are engaged.306 Waitangi Tribunal Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wai 22,1988) [Muriwhenua fishing report] at 35–37. The evidence of Professor Williams was to similareffect.Boundary marks were common to delimit both land and water areas, but moreusually the knowledge of boundaries was simply passed down. Theboundaries were minutely known and natural features, streams, hills, rocks, orprominent trees, served to define both land borders and the location of fishinggrounds at sea. Smaller and more specific 'private properties' were oftenindicated by a sign or mark of some kind, named and placed by the ownersand sometimes said to carry their mauri (life-force).But the rights of small units were always subject to the overright of the hapuor tribal group on matters affecting the people as a whole. A whanau couldnot vacate its patch for strangers, for example, for the admission of strangersto tribal ranks affects everyone, and it could be calamitous to village life ifthat were done without general assent. fishing grounds were clearly included as part of the Maori asset base andwithin the concept of traditional ownership rights.[222] I accept that amendments to the specified area may be problematic, especiallywhere they are out of time. It may also be, as several counsel contended, thatamendments detract from the credibility of shared exclusivity claims which werepreviously premised on use and occupation of different areas by different groups.But that goes to merits, and a need to hear opponents, rather than jurisdiction.As Churchman J correctly recognised, a contemporary arrangement entered for thepurpose of the litigation will not meet the requirements of MACA,307 and in particulars 58(1).The burden of proof[223] I have quoted the relevant provisions of the legislation above:(a) under s 98 the Court must be "satisfied" that an applicant meets thestatutory requirements of s 51(1) (for a PCR) or s 58 (for CMT), as thecase may be;(b) under s 106(2), an applicant for recognition of CMT must prove thatthe specified area is held in accordance with tikanga and has been usedand occupied by the applicant group from 1840 to the present day (orfrom the time of a customary transfer to the present day); and307 Judgment under appeal, above n 11, at [184].(c) under s 106(3), it is presumed, in the absence of proof to the contrary,that a customary interest has not been extinguished.[224] Section 106 does not specify that the applicant group must prove that its useand occupation since 1840 has been exclusive. Nor does it specify who is to proveabsence of substantial interruption. Both are statutory requirements under s 58(1).[225] The High Court judges who have considered this issue have agreed that theapplicant's burden extends to all the positive elements of s 58(1) but there is noobligation to prove that their customary rights have not been extinguished.308 In thejudgment under appeal, Churchman J reviewed the legislative history and found thatthe legislature intended that the applicant should prove the positive elements.309He characterised the concepts of exclusivity and absence of substantial interruption aspositive elements of s 58(1).310 That was the effect of s 98(2): the Court may make arecognition order only if satisfied that the statutory requirements have been met.311He noted s 106(3) but reasoned that extinguishment is not the same thing as exclusivityand absence of substantial interruption.312[226] Ms Feint contended that this was an error. She accepted that the legislativehistory points to the applicant being required to prove only the positive elements ofthe test, but she submitted that exclusivity (which she defined here as absence ofthird-party use) and absence of substantial interruption are not positive elements. Tosay that the Court must be satisfied that the statutory requirements have been met isnot to convey anything about the burden of proof; it is to say only that the Court mustcome to the required affirmative conclusion. She acknowledged that in practice littlewill turn on the burden of proving exclusivity and substantial interruption; where theseissues are live, an applicant group may face an evidential burden to adduce evidenceto ensure the evidence overall satisfies the statutory tests.308 At [99]; Re Tipene, above n 7, at [39]; and Ngā Pōtiki Stage 1, above n 7, at [22].309 Judgment under appeal, above n 11, at [79]–[99].310 At [98].311 At [99].312 At [98] and [100].[227] Exclusivity is intimately connected with the requirement that the applicantgroup has held the area in accordance with tikanga since 1840. As explained above,to hold a specified part of the common marine and coastal area in accordance withtikanga is to exercise territorial control over it, subject to specified public rights ofaccess and use.313 An applicant group which can show that it holds an area inaccordance with tikanga will possess a sufficient degree of exclusivity of use andoccupation.[228] I accept Ms Feint's submission that the applicant need not prove absence ofsubstantial interruption. On the contrary, if an applicant group can show that it holdsan area in accordance with tikanga, the Court may infer, in the absence of contraryevidence, that it has done so since 1840. This approach is consistent with the Canadianauthorities to which I have referred.314 It also recognises that substantial interruptionmeans that CMT, as defined by MACA, no longer exists in the specified area.[229] This approach is also consistent with s 106(3), which creates a presumptionthat a "customary interest" has not been extinguished in the absence of proof to thecontrary. The concept of extinguishment requires clarification. In Ngāti Apa theChief Justice stated that customary property rights continue until extinguished by saleto the Crown, through investigation of title by the Māori Land Court and subsequentdeemed Crown grant, or by legislation or other lawful authority.315 It is settled lawthat the legislature must speak clearly if it means to extinguish rights that are thesubject of Treaty guarantees.316 The customary interests that MACA restores to Māoriin s 6 could only be extinguished through or under statute.[230] However, a distinction must be drawn between underlying customary interests,which MACA reinstates in s 6 but which remain indeterminate, and the legal interestsinto which those rights may be translated under the legislation. Proof of CMT restson facts about the applicant group's connection with a particular area. The exercise of313 Above at [140]–[141].314 See Van der Peet, above n 174, at [62]–[63].315 Attorney-General v Ngāti Apa, above n 62, at [47] per Elias CJ.316 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] 1 NZLR 801 at [150]–[151] per William Young and Ellen France JJ and [296] perWilliams J. See also New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA)at 655–656 per Cooke P.the lawful rights of others, which is protected under s 11(5), may have so interruptedthe group's exclusive use and occupation so as to defeat their claim to CMT. It neednot follow that underlying customary interests have been extinguished completely.For example, the applicant group might still be entitled to a non-territorial right, in theform of a PCR. MACA recognises this distinction when speaking of extinguishment.In s 106(3) it speaks of customary interests. In s 58(4) it provides that "customarymarine title does not exist if that title is extinguished as a matter of law".[231] It follows that Churchman J misdirected himself with respect to the burden ofproof of exclusivity and absence of substantial interruption. For reasons explainedbelow, this error did not affect the outcome in the High Court.The dual pathway[232] As noted above at [63], s 94 of MACA provides for recognition of PCRs andCMT by agreement with the Crown or by order of the Court. The Crown need notenter into an agreement.317 If it does, the agreement takes effect through an Order inCouncil (for a PCR) or bespoke legislation (for CMT).318[233] Churchman J was faced with two iwi, Te Whānau-ā-Apanui and Ngāti Awa,who had filed applications for recognition orders before the statutory deadline butelected to pursue agreement with the Crown. They were given notice of theWhakatōhea parties' applications and appeared to defend their interests. As noted,Ngāti Awa ultimately agreed to a joint CMT with Whakatōhea for the Ōhiwa Harbour,but they still seek to negotiate CMT with the Crown for the Disputed Area: theircross-appeal is confined to challenging the Judge's finding that Whakatōhea areentitled to CMT in that area. Te Whānau-ā-Apanui maintain that the Judge was rightto reject all applications for Whakaari and Te Paepae o Aotea.[234] The Judge observed that MACA does not specifically explain how to proceedwhen a claim for recognition orders overlaps with a different claim by a different groupwhich is proceeding by direct engagement with the Crown.319 He reasoned that a317 MACA, s 95(3).318 Section 96(1).319 Judgment under appeal, above n 11, at [405].finding that an applicant before him held CMT arguably would prohibit the Crownfrom reaching an agreement with another group for the same area. That might causean injustice for the second group, although it would be lessened if the group hadparticipated as an interested party in the litigation.320 He rejected arguments bycounsel for LCI and the Board that the concern could be met by adjournment, or a stayunder s 107(5).321 He considered that neither option was a durable solution; the partieswho had come to Court were entitled to a decision, which should be delivered withina reasonable time after the hearing.322 He pointed out that the Attorney-General haspromulgated a direct engagement strategy under which agreements may be concludedas far away as 2045.323 In a subsequent judgment, delivered in theRe Ngāti Pāhauwera proceeding, he expanded on this point, declining to make a"preliminary finding" as to exclusivity in an area which was the subject of overlappingclaims, one brought in litigation and the other in negotiations with the Crown.324 Hesaw this as tantamount to a finding that CMT might overlap and therefore inconsistentwith the approach he took in the judgment under appeal.325[235] In her cross-appeal submissions, Ms Feint took issue with these conclusions.Counsel submitted that the Judge's reasons were "largely dictated" by his view, drawnfrom Canadian jurisprudence, that shared exclusivity is not possible where the groupsconcerned deny one another's claims. The Judge accepted that the groups need nothave enjoyed amicable relations but held that they must together have made use of thearea and excluded third parties who did not have their permission to enter.326 Ms Feintcharacterised this as the "consensus principle" and contended that it resulted in theJudge abdicating his responsibility to find that exclusivity was shared and make ordersaccordingly.[236] I explain below that the outcome at Whakaari did not rest principally on theso-called "consensus principle". It rested principally on the evidence. Nor do I acceptthat the Court can force a recognition order on a party which has exercised its right to320 At [406].321 At [407]–[409].322 At [409].323 At [410].324 Re Ngāti Pāhauwera, above n 7, at [298]–[302].325 At [299]–[300].326 Judgment under appeal, above n 11, at [166]–[168] and [467].seek a recognition agreement instead. I observe that under ss 98–109, CMT is awardedto a representative of an applicant group which seeks a recognition order. There areno defendants in such a proceeding, only applicants and interested parties. Counseldid not address the practical issues associated with issuing CMT to a group whichdisclaims it, nor did she explain how that would be an appropriate outcome as a matterof tikanga. Presumably the group's interest in the title would have to be held bysomeone else, appointed by the Court, as a trustee. The underlying assumptionappeared to be that, faced with the Court's insistence on making a recognition order,the non-applicant group would come to their senses and submit to jurisdiction.[237] I do accept that an injustice might result if the Court were to find thatexclusivity was shared by two groups but was forced to dismiss an application madeby one of them on the ground that the other had not submitted to the Court'sjurisdiction, electing instead to pursue agreement with the Crown.[238] However, I am not inclined to think that such an outcome is likely in practice.The second group, which I will call the interested party, will have had an opportunityto resist the applicant's claims to sole or shared exclusivity in the proceeding.The Court will have made findings on the evidence. The Crown need not negotiatea recognition agreement with the interested party, and I doubt it would do so wherethe Court had heard from that party and found that they did not enjoy sole exclusivitybut rather shared it with an applicant group. The Court, having heard evidence, islikely to have been in a better position than the Crown to decide whether the statutorycriteria have been met. Such agreement between the Crown and the interested partymay be even less likely where, as in this case, the interested party had filed its ownapplication before the statutory deadline but not brought it on for hearing. Contraryto the view taken by Churchman J, but subject to what I said above about pleadings,the Court might make findings as to shared exclusivity, then adjourn the proceedingto allow an opportunity for a tikanga process among affected groups and engagementwith the Crown. This process need not cause unreasonable delay.Navigable rivers: is customary title extinguished in law?[239] MACA's definition of marine and coastal area includes the beds of rivers to apoint upstream of mean high-water springs.327 As I explained at [71] above, theResource Management Act defines the landward boundary of the coastal marine areaat a point upstream from where the line of mean high-water springs crosses the mouthof a river. That point is the lesser of one kilometre upstream from the mouth of theriver and the point upstream that is calculated by multiplying the width of the rivermouth by five.328[240] Churchman J identified a jurisdictional issue about recognition of CMT overnavigable rivers. It arises because s 261 of the Coal Mines Act vested the bed ofnavigable rivers in the Crown:329(2) Save where the bed of a navigable river is or has been granted by theCrown, the bed of such river shall remain and shall be deemed to have alwaysbeen vested in the Crown; and, without limiting in any way the rights of theCrown thereto, all minerals (including coal) within such bed shall be theabsolute property of the Crown.[241] The Judge reviewed the legislative history of this provision and the authoritieson navigable rivers and held, following the Supreme Court decision in Paki vAttorney-General,330 that if a river was navigable in 1903 its bed was deemed to havebeen vested in the Crown.331 This affected the Waiōweka and Ōtara rivers at Ōpōtikibecause the evidence showed that the Waiōweka River (into which the Ōtara Riverconverges) was navigated between Ōpōtiki and its mouth at that time.332[242] The Judge noted that under s 58(4) of MACA, CMT does not exist if that titleis extinguished as a matter of law.333 He reasoned that CMT has been extinguished in327 MACA, s 9(1) definition of "marine and coastal area", para (b); and Resource Management Act,s 2(1) definition of "coastal marine area", para (b).328 The Bay of Plenty Regional Council has defined the landward boundaries in relation to rivermouths by agreement with the Minister of Conservation and territorial authorities. See thejudgment under appeal, above n 11, at [338]. The precise location is not in issue.329 Coal Mines Act 1979 has been repealed but under s 354 of the Resource Management Act 1991the repeal did not affect any right, interest or title previously vested in the Crown. See thejudgment under appeal, above n 11, at [346].330 First Paki judgment, above n 119.331 Judgment under appeal, above n 11, at [347]–[361].332 At [361].333 At [342].rivers because riverbeds are already vested in the Crown under the Coal Mines Act.334In the result, he held that the landward boundary of the common marine and coastalarea runs across the river mouth as a continuation of the line of mean high-watersprings on either side of the mouth.335[243] Ms Feint argued that earlier legislation was insufficiently clear to expropriateCMT, and that if it had been extinguished then s 11(3) of MACA reinstated it.[244] I accept the latter submission and can state my reasons shortly. Under s 11(3)of MACA any previous vesting of the common coastal and marine area in the Crownunder the Coal Mines Act was reversed. The Crown was "divested of every title asowner, whether under any enactment or otherwise, of any part of the common marineand coastal area". Under subs (2), "[n]either the Crown nor any other person owns,or is capable of owning, the common marine and coastal area" after MACA'scommencement. The marine and coastal area is defined to include the beds of riversforming part of that area, as well as the airspace above and the water space (but notthe water).336 Section 58(4) contemplates that CMT may be extinguished in law, butthat provision appears to contemplate extinguishment of CMT by means other thanCrown ownership that was subsequently reversed. I observe that, under s 11(5)(c), thespecial status accorded to the common marine and coastal area does not affect certainpowers exercisable by or under an enactment.337The pūkenga report[245] The pūkenga report is controversial, partly for reasons of process, and partlybecause it is said the pūkenga did not answer the questions put to them. It is also saidthat the Judge relied uncritically on their report and assumed, incorrectly, that itaddressed the questions of holding in accordance with tikanga and exclusivity. Thesecontentions require that we survey the process followed, the questions asked, theanswers given by the pūkenga, subsequent changes in the applicants' positions, andthe Judge's treatment of the answers.334 At [343]–[361].335 At [361].336 MACA, s 9(1), definition of "marine and coastal area", paras (b)–(c).337 These include the powers to grant resource consents and to set aside areas for a specific purpose.The pūkenga process and the hearing[246] The hearing took place at an events centre in Rotorua under COVID-19 Level 2restrictions. It began on 17 August 2020. After the first week the Court took aweek-long adjournment for a tikanga process facilitated by the pūkenga. The Courtthen sat from 31 August until 9 October, when it adjourned for one week to allowcounsel to prepare closing submissions. Submissions were delivered from19 to 23 October. Overall, the Court sat for eight weeks, with two week-longadjournments.[247] No one had opposed the appointment of one or more pūkenga. In hisMinute 10, issued on 30 March 2020, the Judge had urged the parties to identifycandidates and seek agreement.338 In his Minute 21, dated 4 August 2020, the Judgerecorded that all applicants supported the appointment of pūkenga, and there was alsosupport for a panel rather than a single appointee.339 He appointed Mr Doug Haurakiand Professor Pou Temara.340 On 13 August, he appointed Dr Hiria Hape to replaceProfessor Temara, who was no longer available.341[248] In his Minute 18, dated 8 July 2020, the Judge proposed four preliminaryquestions for the pūkenga and called for submissions on the nature of questions to beasked.342 The parties agreed with these questions, with only minor rewording.343 Thequestions were:344(a) Question one: what tikanga does the evidence establish applies in theapplication area?338 Re Edwards HC Wellington CIV-2011-485-817, 30 March 2020 (Minute No 10) at [18].339 Re Edwards HC Wellington CIV-2011-485-817, 4 August 2020 (Minute No 21) [Edwards MinuteNo 21] at [3].340 At [10].341 Re Edwards HC Wellington CIV-2011-485-817, 13 August 2020 (Minute No 22) [EdwardsMinute No 22] at [5].342 Re Edwards HC Wellington CIV-2011-485-817, 8 July 2020 (Minute No 18) [Edwards MinuteNo 18] at [21].343 Edwards Minute No 21, above n 339, at [4] and [11].344 Edwards Minute No 18, above n 342, at [21].(b) Question two: which aspects of tikanga should influence theassessment of whether or not the area in question is held in accordancewith tikanga?(c) Question three: which applicant group or groups hold the applicationarea or any part of it in accordance with tikanga?(d) Question four: who, in fact, are the iwi, hapū or whānau groups thatcomprise the applicant group?These are the questions ultimately put to the pūkenga. The Judge envisaged that theywould be refined as the hearing progressed and that the pūkenga themselves would beable to suggest questions, but no further changes were made.345 The Judge also notedon 13 August 2020 that delays in the appointment meant there would now be no timefor the pūkenga to prepare a preliminary report before the hearing.346[249] There is little information about the tikanga process that took place in the weekof 24 August. It is apparent from the report and the cross-examination that the pūkengamet representatives of the applicants and the neighbouring iwi, Ngāti Awa,Te Whānau-ā-Apanui, and Ngāi Tai. They also visited the rohe of the applicants,inspecting some landward boundaries.[250] On the morning of Friday 9 October 2020, the parties received the pūkengareport. They had no prior knowledge of its contents. 9 October was the final day ofevidence. The Court was unable to sit in the morning (due to a fire alarm) butconvened at 1 pm and sat until 3 pm. This gave counsel two hours forcross-examination. Time ran out for all counsel to question the pūkenga, so they werepermitted to ask questions in writing during the week of 12 October. In his Minute 33,the Judge himself asked two further questions of the pūkenga to clarify their opinionon the Disputed Area. These questions concerned the inclusion of the Ōhope Spit inMaraetōtara East, and their conclusions on who had mana whenua over the area345 Edwards Minute No 21, above n 339, at [14]–[15].346 Edwards Minute No 22, above n 341, at [6].between Tarakeha and Te Rangi.347 Ngāti Awa and Te Whānau-ā-Apanui both alsoasked questions in memoranda dated 13 October 2020. The pūkenga provided awritten response to those questions on 15 October 2020.The pūkenga report[251] The report forms an appendix to the judgment under appeal. I summarise thereport, taking into account the responses of the pūkenga to questions asked at and afterthe hearing.[252] The pūkenga answered questions one and two (which tikanga applied in thearea and which aspects of tikanga should influence the assessment of holding inaccordance with tikanga) together. These answers are uncontroversial. They statedthat all of the tikanga relational values which I have listed above apply and by way ofexample listed mana, incorporating tino rangatiratanga, kaitiakitanga, utu, tapu andtake-utu-ea (described as a three-way approach to resolution by agreement). Earlierin their report they explained the sources of tikanga on which they relied andemphasised that a great deal of significance is accorded the moana. They noted adegree of flexibility and fluidity with respect to tikanga existing in the area, instancingthe sharing of various types of kaimoana among all those who whakapapa to theMātaatua waka. That flexibility extended, in their impression, to traditionalgeographical boundaries between the hapū and iwi. They noted that most peopleaffiliated to more than one hapū of Whakatōhea and they went wherever food wasavailable or an event of social significance was to happen.[253] The pūkenga gave examples of tikanga applied to their report, warning by wayof introduction that tikanga is diverse and holistic and its many component partsinteract simultaneously in complex ways. Most of the examples given comprised alist or summary of evidence given by witnesses in the proceeding. The pūkengaoffered their own opinion that tikanga practices included the naming and use of fishinggrounds, the use of Whakaari as a "beacon light" for Te Whānau-ā-Apanui, the practiceof recognising tapu at pā, oven middens and other traditional sites, and land occupation347 Re Edwards HC Wellington CIV-2011-485-817, 12 October 2020 (Minute No 33) [EdwardsMinute No 33] at [11].(we infer, proximate to the sea). In subsequent questions, they identified as crucialtikanga the ability to go offshore and locate taunga ika (fishing grounds) usinglandmarks.[254] The pūkenga added that all the tikanga applies to all iwi involved, with minordifferences in practical application. They gave as an example access to Whakaari forfishing and tītī or kuia (grey petrel) harvesting, explaining that there was an unwrittenacknowledgement of the order of access to those resources. When answeringquestions from counsel, they acknowledged that not all groups shared the same interestin Whakaari and there was tikanga significance in the acknowledgements of mostparticipants that Te Whānau-ā-Apanui were always first to go there for tītī, kuia andother resources. They acknowledged that according to tikanga and in particular utu,Te Whānau-ā-Apanui had mana whenua.[255] Question three asked which applicant group or groups held the application areaor any part of it in accordance with tikanga. The pūkenga responded as follows:1. All groups consider their right according to the tikanga they feelapplies. However, and with more hui between them being essential todetermine and agree on tikanga, it is only sufficient of us to make acommentary on this question. Furthermore, with numerous positivehui still taking place, this aspect may be resolved in a positive andappropriate way. However, and from the papers available to us thefollowing applies:a. Ngati Awai. Whakaari, Maraetotara west, Tauwhare Pa,West Ohiwa harbour,ii. Ngati Awa holds the customary interests forMoutohora (Whale Island), Te Raurima, Turutururoimata (Wairaka rock),iii. Opihi Whanaungakore (cemetery of the un-namedrelatives) , te anga o Muriwai cave of Muriwai), KapuTe Rangi (Toikairakau Pa)b. Upokorehei. Customary interests in Maraetotara East, CheddarValley, Ohiwa Harbour, Waiotahe, Hokianga,Hiwarau C, Waioweka, Paerata, Opotiki mai tawhiti,c. Te Whanau Apanuii. Whakaari, Hawai, Motu river.d. Nga Kāhui Hapu o Te Whakatoheai. One customary and shared customary orders with allhapu in Te Whakatohea. The Kahui is made up ofnominated hapu members from each respective 6hapu of Te Whakatohea that was originallyrecognised as hapu) Ngati Ira, Ngati Patu, NgatiRuatakenga, Ngāi Tamahaua, Ngati Ngahere,Upokohereii. Hiwarau C, Turangapikitoi, Waiotahi, Ohiwa,Pakowhai, Whanau Apanui, Opape Native Reserve,Whakaari, Moutohora, Te Paepae Atea, Kermedicse. Ngai Tai Shared customary interests [with] Te Kahui o ngahapu o Te Whakatohea out to the fishing rocks over toWhakaari and Te Paepae Atea. However, and based onTikanga, our [v]iew is that Ngai Tai have mana whenua fromTarakeha in the west to Taumata o Apanui.[256] In answer to question four (who are the iwi, hapū and whānau groups thatcomprise the applicant group), the pūkenga gave a list compiled from the papers:1. Again this is a response compiled from the papers where again themain applicant iwi, hapū, whānau and groups are:a. Te Whakatōhea (CIV-2011-485-817); Hiwarau C,Turangapikitoi, Waiōtahe, and Ōhiwa of Whakatōhea(CIV-2017-485-375); Pākōwhai Hapū; and Whānau ā Apanui(CIV-2017-485-278) – T Sinclair and B Cunningham:b. Ngāti Muriwai Hapū (CIV-2017-485-269) – M Sinclair,M Sharp and J Waaka:c. Ngāi Tamahaua (CIV-2017-485-262) and; Te Hapū Titoko oNgāi Tamahaua (CIV-2017-485-377) – C Linstead-Panohoand T K Williams:d. Te Whānau a Apanui (CIV-2017-485-318) – M Mahuika andN Coates:e. Ngāi Tai (CIV-2017-485-270) and Ririwhenua Hapū(CIV-2017-485-272) – E Rongo:f. Whānau a Te Harawaka (CIV-2017-485-238) – C Leauga:g. Te Ūpokorehe Trust (CIV-2017-485-201) – B Lyall:h. Whānau a Mokomoko (CIV-2017-485-355) – R Siciliano andK Ketu:i. Te Rūnanga o Ngāti Awa (CIV-2017-485-196) –H Irwin-Easthope:j. Ngāti Ira o Waioweka Rohe (CIV-2017-485-299) – A Sykesand J Chaney:k. Ngāti Patumoana (CIV-2017-485-253) – T Bennion:l. Whakatōhea Māori Trust Board (CIV-2017-485-292) – J Pou:m. Ngāti Ruatakenga ([they] don't have a CIV as they don't haveanother application before the High Court but come under the[ambit] of the application by the Whakatōhea Māori TrustBoard) – K Feint QC:2. Summarised, these are as follows:a. Ngati Awa -Whakaarib. Whakatohea – Maraetotara (West) to Tarakeha (East)c. Ngai Tai – Te Rangi (East) to Tarakeha (West)d. Te Whanau Apanui (Te Whanau a Ehutu) – Whakaari[257] The pūkenga later confirmed that the lists of groups given in answer toquestions three and four were taken from the court papers. The closest they had gotto researching the claims was in the list given in answer to question four. The partieshad presented their claims, but it is evident that the pūkenga had not evaluated theclaims to establish who held the area or any part of it. Rather, they envisaged thatfurther investigation might be required if agreement could not be reached.[258] The pūkenga instead recommended a tikanga-based solution, which was apoutarāwhare (a construct in the form of a symbolic whare which was supported bypou (posts) representing the six hapū of Whakatōhea and accommodating everyoneaffiliated to Whakatōhea). The poutarāwhare covered the rohe from Maraetōtara inthe west to Tarakeha in the east. The pūkenga recommended a single CMT recognitionorder, reasoning that it would exclude no one and would permit future agreementamong all parties about recognition of historic hapū which no longer exist. Theinterests of other applicants, including the WKW applicants, could be accommodatedby the poutarāwhare as they are included within the hapū. In cross-examination theyconfirmed that this meant these other groups were part of the six hapū.Changes in position following the report[259] The pūkenga report resulted in a change of positions. It led the four Te Kāhuihapū and the Board, which it will be recalled represented Ngāti Ngāhere, to pursue asingle hapū-level CMT for the entire rohe moana claimed by the Whakatōheaapplicants, including WKW. This included the area around Whakaari.[260] Previously WKW had been the only Whakatōhea applicant to claim for theentire area, on behalf of the iwi. Five hapū (excluding Te Ūpokorehe) had otherwisepursued separate applications for lesser areas. These five applications were not inconflict; rather, each hapū spoke for their area and acknowledged the interests of theother hapū. The opening submissions of these applicants indicated that where theirclaims overlapped they recognised shared exclusivity. Te Ūpokorehe did not take thatapproach. They pursued their claim to exclusivity as against the other hapūthroughout. Ngāti Muriwai did not join the five hapū in seeking a single hapū-levelCMT; rather, they continued to press their own claim.The Judge's findings about the pūkenga report[261] The Judge discussed the report and summarised the findings of the pūkenga at[308]–[331] of his judgment. He concluded that:348[330] The [pūkenga] concluded that five applicants (Mokomoko Whānau,Hiwarau C Block, Kutarere Marae, Pākōwhai and Ngāti Muriwai) had notestablished that they held a specified area in accordance with tikanga.[331] For the reasons set out at [413]–[465] below, I am satisfied that theevidence supports such a conclusion and I adopt it. I also accept the[pūkenga's] poutarāwhare approach and their conclusions that, in accordancewith tikanga the six Whakatōhea hapū hold the area from Maraetōtara toTarakeha. The findings are expressly subject to the qualification that theinterests of the poutarāwhare were shared with Ngāti Awa in westŌhiwa Harbour. The precise form of the CMTs for this area will bedetermined at the next hearing.[262] It will be seen that the Judge stated that the pūkenga concluded the four namedWKW applicants and Mokomoko Whānau had not shown they held a specified area348 Judgment under appeal, above n 11.in accordance with tikanga. He added that he agreed with the report for reasons hegave subsequently, when reviewing the evidence.[263] The Judge also stated that the pūkenga had concluded that the six Whakatōheahapū held the area from Maraetōtara to Tarakeha. He repeated these conclusions afteraddressing the evidence for the WKW applicants:[465] For the reasons discussed above, I share the conclusions reached bythe [pūkenga] that the claimants Whakatōhea Rangatira Mokomoko,Hiwarau C, Pākōwhai and Ngāti Muriwai have not established that they, alongwith the six hapū of Whakatōhea, held a specified area in accordance with therequirements of s 58(1)(a). I also agree with and adopt the [pūkenga's]conclusions discussed at [311]–[331] above that the six entities who hold thespecified area in accordance with tikanga are [Ngāi] Tamahaua,Ngāti Ruatakenga, Ngāti Ira, Ngāti Ngāhere, Ngāti Patumoana andŪpokorehe.[264] The Judge also relied on the pūkenga when it came to shared exclusivity,stating that:[182] Taking this approach to the concept of shared exclusivity, the"evidence for the arrangement" is that which was accepted by the [pūkenga]in arriving at their conclusions. There is no need for evidence of some formalagreement or understanding that goes beyond the tikanga findings.[265] The Judge did not deal expressly with continuity, but it is implicit in hisadoption of the pūkenga report that he found the six hapū had held the specified areacontinuously since 1840. He also rejected claims of substantial interruption,examining the evidence in some detail.349Observations[266] I accept that the pūkenga answered questions one and two. I also accept thatit was appropriate to ask them which groups, if any, held a specified area in accordancewith tikanga. Mr Fowler KC, for WKW, argued there was no jurisdiction to ask thatquestion, but it is plainly a question of tikanga within s 99(1) of MACA. It is also aquestion upon which a court cannot defer to pūkenga but must reach its ownconclusion if it is to be satisfied that the criteria for a recognition order have been met.I add that it would also have been appropriate to ask the pūkenga whether any applicant349 At [188]–[230] and [251]–[271].group exclusively used and occupied a specified area; as I have explained, that too isin part a question of tikanga.[267] However, the pūkenga did not answer questions three and four at all. Rather,they acknowledged the claims of applicant groups and looked for ways in which thoseclaims could be reconciled. Specifically, they did not conclude either that the six hapūhold the specified area in accordance with tikanga or that the WKW parties do nothold an area in accordance with tikanga. They recognised that Te Ūpokorehe wereunwilling to participate (representatives left a hui attended by the pūkenga rather thancontinue discussions) but they did not examine Te Ūpokorehe's claim to hold areasindependently of the other hapū. Nor did the pūkenga address exclusivity of use andoccupation, or continuity since 1840. They were not asked to do so. Instead, theylooked forward to a structure in which CMT could be held and governed to include allmembers of Whakatōhea. The Judge acknowledged this latter point, stating that:[187] As noted by the [pūkenga] in their report, the issue of how any CMTis to be held is a matter for future discussion between the parties andfinalisation in the second hearing. The [pūkenga] were hopeful that thepoutarāwhare adopted by them might allow for the recognition of differentinterests as between the hapū. That is possible. It is also possible thatŪpokorehe might not accept the Court's adoption of the [pūkenga] findingsand not wish to be part of any CMT which they jointly held with other hapū.That would obviously be a matter for them. However, the Court hopes that,as the [pūkenga] encouraged, there might be discussions between partiesleading to an agreed outcome in accordance with tikanga.[268] As among the five hapū, their agreement to iwi-level CMT which they wouldhold with Te Ūpokorehe relieved the Judge of the need to determine their separateapplications.350 But Te Ūpokorehe did not agree. Nor did the WKW parties (thoughtheir disagreement ultimately did not concern the iwi claim to CMT; rather, theywanted to hold a share in the title). The Judge found that applicants had met the testsfor CMT in three areas, and the first of these was an order for the six hapū. The areaconcerned was from Maraetōtara to Tarakeha and out to the 12 nautical mile limit(excluding marine and coastal area around Whakaari and Te Paepae o Aotea).351 Hecould not make that finding without dismissing Te Ūpokorehe's claims to hold and350 It would still be necessary to consider whether they must amend their applications and whethersuch amendments were permissible; we return to this point below at [296].351 Judgment under appeal, above n 11, at [660(a)] and [661].occupy specific places and areas in the same area to the exclusion of the other hapū.I accept that he might reserve the precise definition of boundaries for stage two, as hedid, but this not a question of boundaries. It is a question of entitlement which mustbe answered on the facts.[269] The pūkenga did not scrutinise competing claims to the same areas. It seemsmost unlikely that they could have done so in the limited time available to them. Byway of illustration, they explained that place names are important evidence of holdingin accordance with tikanga but stated in cross-examination that they had not been ableto address all the places named on the maps they had been given; that would take toomuch time.[270] It is fair to say, as Ms Roff submitted, that the Judge relied heavily on thepūkenga report. I do not accept the submissions of other counsel that his findingsrested entirely on it. Nor do we accept that it is necessary to order a rehearing simplybecause he attributed to the pūkenga certain conclusions that they did not reach. Wemight be satisfied, on reviewing the evidence ourselves, that his factual findings werecorrect. But no counsel invited us to do so; rather, they accepted that a rehearingwould be necessary were we to disagree with the Judge's approach. For reasons towhich I next turn, a rehearing is unavoidable with respect to CMT Orders 1 and 3.[271] I have already addressed issues of principle raised by the LCI appeal and thequestion of extinguishment of CMT in navigable rivers. I now address the individualappeals and cross-appeals. It is convenient to organise what I have to say by referenceto each of the groups concerned, whether they appear as an appellant or a respondentor an interested party.352 The Court is agreed on the orders I record below.WKW: the Edwards priority application[272] I have referred to WKW's grounds of appeal above at [11]. I focus here on theEdwards "iwi tipuna" application, which covered the entire area and was first broughtby Claude Edwards on behalf of the iwi in 1999 in the Māori Land Court, then in 2005under the 2004 Act. Mr Edwards was a rangatira of Te Whakatōhea and it is through352 The relief we propose will be granted in the appeals and cross-appeals.his leadership and industry, over many years, that his application became the secondto be heard in the High Court. It is a priority application, meaning that it was filedunder the 2004 Act, and MACA requires that such applications be heard in priority tonew applications.353[273] As Mr Fowler acknowledged, priority status did not mean that the Edwardsapplication must be decided separately from competing applications. He argued ratherthat it was brought with the authority of the hapū and such authority had never beenrevoked, as a matter of tikanga. He also pressed the point that the Edwards applicationwas the only one to seek CMT for the entire rohe moana of the iwi and for that reasonit is still relied upon by the hapū notwithstanding that they later brought their ownapplications. He contended that Churchman J never actually dismissed theapplication, notwithstanding that, as Ms Feint pointed out, the Judge stated in a laterjudgment of these proceedings that he had done so.354[274] I find that the Judge did dismiss the iwi tipuna application. We think that isimplicit in his decision to grant the applications made by the hapū for the same area.[275] I also accept that he was right to do so. It is implicit in s 101 and the definitionof "applicant group" that the applicant must have the mandate of the applicant group,which in this case was the entire iwi.355 Mr Edwards once held that mandate frommost, or perhaps all, of the hapū (Ngāti Ruatakenga deny having ever given him amandate). He brought his application as representative of the iwi. But by the time itcame on for hearing, the hapū had brought their own applications (through the Boardin the case of Ngāti Ngāhere and Ngāti Ruatakenga) and when the hearing ended the(by then effectively joint) applications of Te Kāhui group covered the same area. Noneof the six hapū supported the Edwards proposal that a trust would be formed in duecourse to hold the title for the iwi. Rather, Te Kāhui proposed that it would be held bytwo representatives for each of the six hapū.353 MACA, s 125(1) and (3)(a).354 Re Edwards (Te Whakatōhea No 4) [2021] NZHC 3180 at [17(e)].355 See MACA, s 9(1) definition of "applicant group".[276] It may be that tikanga would call for a process to withdraw Mr Edward'smandate and decide who ought represent the iwi, if only as a matter of etiquette. Iexpress no view about that. It is also apparent that the six hapū do not represent theviews of everyone affiliated to the iwi. But MACA treats mandate as a question offact for the court, and the six hapū appeared for themselves, stating that the Edwardsapplication did not have their support.356 That having occurred, it could no longer besaid that the Edwards application was brought for the iwi.WKW: Ngāti Muriwai and Kutarere Marae[277] I can deal briefly with the appeals of Ngāti Muriwai and Kutarere Marae. Theother WKW parties did not file separate submissions in this Court.[278] Mr Sharp, representing both parties, argued that it was an error to ask thepūkenga who held the area in accordance with tikanga, because that was a question oflaw. I have already rejected that submission. I have also accepted that the pūkengadid not answer the question.357 However, they did address the status of Ngāti Muriwaiand Kutarere Marae, implicitly offering the opinion that neither were presently hapūof Whakatōhea, though Ngāti Muriwai had the potential to achieve recognition.Mr Sharp challenged that conclusion.[279] I need not address the pūkenga report here because the Judge did not rest hisconclusions on it. He heard evidence and found on the facts that:(a) On its own evidence Kutarere Marae came into existence in the 1930sand is not a whānau, hapū, or iwi.358(b) Ngāti Muriwai did claim to have been a hapū since 1840, independentof Ngāti Ruatakenga with whom they acknowledged a closeassociation, but there was no evidence of their presence in theWhakatōhea region between 1840 and 1870. They were allocated land356 The Judge alluded to the causes of dissension between Mr Edwards and the hapū in the judgmentunder appeal, above n 11, at [464].357 Above at [266]–[267].358 Judgment under appeal, above n 11, at [424].at Ōpape reservation between 1870 and 1881, following the raupatu andafter a dispute with Ngāti Ruatakenga over grazing. There was someevidence that Ngāti Muriwai had become moribund and was revived inthe 1990s after Claude Edwards lost his seat on the Board following afailed Treaty settlement process.359[280] I am not persuaded that the Judge was wrong to find that neither group wasentitled to CMT in its own right.360 Neither could show that they had held an area inaccordance with tikanga since 1840. In reply submissions Mr Sharp criticised theJudge's factual findings to that effect, suggesting they went a little further than theevidence warranted, but he did not manage to detract from their substance.[281] However, Ngāti Muriwai are at least a whānau group forming part of the iwi.They cannot meet the s 58(1) criteria themselves, but I accept Mr Sharp's submissionthat they should not be disregarded when it comes to the issue of a recognition orderfor Whakatōhea. As explained above at [204], they may participate in a recognitionorder granted to an applicant group of which they form part, provided members of thatgroup are able to meet the s 58(1) criteria. Their participation in CMT ought to beresolved among a successful applicant group of which they form part and inaccordance with tikanga.[282] It does not follow that Ngāti Muriwai's appeal should be allowed. They soughta CMT recognition order on the ground that they were applicants who met the statutorycriteria in their own right. I have upheld the Judge's conclusions about that. Themanner in which title is to be held has not been settled in the High Court and will needto be revisited in any event.[283] The appeal of Kutarere Marae will also be dismissed. It seems immaterial thatas a formal matter they participated in the hearing as an interested party. The Judgeclearly understood that they also sought to be recognised as a hapū. His finding that359 At [439]–[441], [445]–[448] and [464].360 At [424] and [465]. We are not called on to consider succession among groups according totikanga.they are neither a hapū nor a whānau group, and so are ineligible for CMT,361 was opento him.Te Ūpokorehe[284] The Judge did not separately address Te Ūpokorehe's application. Whenanalysing the individual applications, he dealt only with the WKW applicants. In hisconclusion he stated that he accepted the conclusion of the pūkenga that the specifiedarea was held by the six hapū, including Te Ūpokorehe.362 In effect, Te Ūpokorehewere treated as part of the Board/Te Kāhui applications and included in Orders 1 and 2.As I have explained, the pūkenga did not conclude, as a matter of fact, that the sixhapū together held the area in accordance with tikanga or address the question ofexclusivity.363[285] I have held that Te Ūpokorehe could insist on the Court deciding theirapplication to hold a substantial part of the specified area to the exclusion of the otherhapū and addressing their insistence that they did not have an interest in the area eastof the Waiōweka River.364 From the perspective of Te Ūpokorehe, shared CMT doesnot reflect customary title, especially inshore and in the eastern part of the specifiedarea. On the contrary, they see it as a contemporary arrangement imposed on them bythe Judge at the instance of the other hapū, though they are prepared to accept thatCMT may have been held at an iwi level offshore.[286] I agree with counsel that we are in no position to decide Te Ūpokorehe'sapplication ourselves. The record does not permit the place-by-place and area-by-areaanalysis that, as the pūkenga recognised, would be required to distinguishTe Ūpokorehe from the other hapū and identify any areas where the iwi acted as acollective and so might be granted a jointly held recognition order.361 At [424].362 At [465]. He confirmed this view in his No 7 judgment, above n 15, at [159].363 See above at [267].364 Above at [205].[287] It follows that Te Ūpokorehe's appeal must be allowed and their applicationremitted for rehearing in the High Court along with those of Te Kāhui and the Board.CMT Order 1 must be set aside.[288] I record that I reject Te Ūpokorehe's claim that Ngāti Ngāhere failed to apply,or to adduce evidence in their own right. The argument is difficult to understand.Ngāti Ngāhere qualify as an applicant group. They mandated the Board to apply ontheir behalf and might rely on evidence offered by others.Ngāti Awa[289] The Judge noted that while Ngāti Awa recognised shared interests inŌhiwa Harbour, they claimed exclusive interests in the Disputed Area, being thecommon coastal marine area from Maraetōtara to Ōhiwa Harbour.365 Whensummarising the pūkenga report, he noted that they had identified areas whichneighbouring iwi claimed to hold exclusively, or to share with the Whakatōhea hapū.He quoted that part of the report (see above at [255]) in which the pūkenga notedNgāti Awa's claims.366 The pūkenga also stated that:v. our poutarāwhare have a long history of occupation in and proximityto Ngāti Awa to the west, Ngāi Tūhoe, Te Aitanga-ā-Mahaki and othereastern iwi to the south and Ngai Tai to the east. Ourrecommendations for a single title with governance at thepoutarāwhare level while acknowledging their rangatiratanga, maynot solve all issues. It does however mandate their mana whenua andmana moana and allows it to make meaningful decisions in respecttheir interactions with regard the previously mentioned iwi or hapū.While there is a great measure of tino rangatiratanga in such a decisionthere is still a need to work through matters of definite and sharedboundaries as well as mandated access and the appropriate exchangeof kai and other resources. Further hui are encouraged and should notbe curtailed by the issue of the High Court's decisions.[290] The Judge noted that the pūkenga had not specifically addressed theDisputed Area and asked following the hearing whether their conclusions extended toit.367 They responded:365 Judgment under appeal, above n 11, at [160].366 At [321].367 Edwards Minute No 33, above n 347, at [11].i. having settled its claims, Ngāti Awa already has a stake in the groundto the extent that they have been awarded lands on both sides of theMaraetotara Stream. Because we did not read the Waitangi TribunalReports, we do not know if all of those awards were tikanga based.However, and based on tikanga, we do know that Ngāti Awa haveinterests east of that stream and these include Tauwhare Pa, theNgāti Awa farm and along the Ohope spit where there are reserves andwaahi tapu. However, the lands past the Camping grounds along thespit and to the mouth of the Ohiwa Harbour, was shared; andii. our mentioning Waitotara as the eastern boundary of our poutarāwharewas based on the references made by several parts of that construct.Our position therefore is that there is a tikanga basis to Maraetōtarabeing of significance. However, there is still the practical applicationof the settlement and the purport of the current application, to beworked through. The documents mentioned in paragraphs 5. d. vi, viiand xii are only some of the reasons why we say more hui areencouraged, as a way forward;[291] The Judge adopted the pūkenga's poutarāwhare approach and"their conclusions that, in accordance with tikanga the six Whakatōhea hapū hold thearea from Maraetōtara to Tarakeha".368 This was subject to the express qualificationthat the interests of the six hapū were shared with Ngāti Awa in west Ōhiwa Harbour.369[292] The answer of the pūkenga to the Judge's further question is obscure, but Ithink it is clear that they did not decide the six hapū held the Disputed Area to theexclusion of Ngāti Awa. Rather, they accepted that there was a tikanga basis for sayingthe area was of significance to the Whakatōhea hapū. They did not dispute that it wasalso of significance to Ngāti Awa. On the contrary, they expressly acknowledged thatNgāti Awa had interests to the east of the Maraetōtara Stream. They stated that landspast the camping grounds (on the Spit) to the mouth of the Ōhiwa Harbour wereshared. And they appear to have contemplated that Ngāti Awa would participate in thefurther negotiations they proposed.[293] The record contains much evidence of Ngāti Awa's interest in theDisputed Area. They participated in the hearing, calling mostly historical evidenceand questioning witnesses called by other parties. The immediate question for us iswhether the evidence justifies a rehearing. I am satisfied that it shows Ngāti Awa havean arguable claim, at least, to the area. By way of illustration, the joint brief of368 Judgment under appeal, above n 11, at [331].369 At [331].Sir Hirini Mead, Dr Hohepa Mason and Te Kei Wirihana Merito indicates that thereare sites of significance to Ngāti Awa along the Ōhope Spit, including several pā thatin 1840 were under the mana of Ngāti Awa. Treaty settlement redress for Ngāti Awaincluded an exclusive nohoanga site, co-management of the Ōhope and Tauwhare Pāreserves, and land transfers.370 The Manahautū (Chief Executive) of Ngāti Awa until2021, Leonie Simpson, identified lands which the iwi have retained around theHarbour. This matters because there is evidence that hapū or whānau groupscustomarily had mana over waters immediately offshore from their lands, which gavethem an immediate connection to that part of the coastal and marine area.371Contiguous landholdings are a relevant consideration under s 59(1)(a)(i) of MACA.None of this evidence was evaluated in the High Court.[294] The explanation for the Judge's oversight may lie in the fact that Ngāti Awahad not applied for CMT but had chosen to pursue direct engagement with theCrown.372 However, they have appealed against CMT Order 1. For the reasons justgiven, their appeal must be allowed to that extent. The finding that theWhakatōhea hapū hold the Disputed Area in accordance with tikanga is set aside. TheWhakatōhea claims to the area will be reheard. Ngāti Awa will need to decide howthey will participate in that hearing.Te Kāhui and the BoardRehearing[295] I have explained that Order 1 must be set aside on the appeals of Te Ūpokoreheand Ngāti Awa and the applications of the six hapū must be reheard. Because theHigh Court did not squarely address the s 58 test, this order must extend to that partof Te Whakatōhea rohe moana that is not the subject of Te Ūpokorehe's appeal.[296] I add that it was necessary to amend the individual hapū and Board applicationsto reflect the fact that they now sought a single CMT on a shared exclusivity basis. Iappreciate that this change of stance came very late in the process. Had the need for370 See Ngāti Awa Claims Settlement Act 2005, pt 4, subpts 5–6 and pt 5, subpt 1.371 See Muriwhenua fishing report, above n 306, at 198.372 See judgment under appeal, above n 11, at [405]–[412].amendment been recognised, the Judge might not have overlooked the difficulty thatTe Ūpokorehe were not party to the amendment. Amendment would have addressedthe difficulty that strictly only the Edwards application covered the entire rohe moanaultimately claimed by Te Kāhui and the Board. Subject to the extension of hapū claimsto Whakaari, which I discuss below, it would have been appropriate to amend the hapūand Board applications in this way, for the reasons given by the Judge; there wereapplications before the Court which proceeded on a shared exclusivity basis.373It follows that, subject to those amendments being made, the rehearing will proceedon the basis that the Whakatōhea parties between them have made a timely applicationfor CMT over the area encompassed by Order 1.Navigable rivers[297] I turn to Te Kāhui's cross-appeal. As noted, it was brought on two grounds.The first related to navigable rivers. For the reasons given at [244] above, thecross-appeal will be allowed to that extent.Whakaari and Te Paepae o Aotea[298] The second ground related to Whakaari and Te Paepae o Aotea.[299] Churchman J declined to grant recognition orders for CMT or PCRs. He found,as discussed earlier, that the extension of hapū claims to Whakaari amounted to afundamental change in the applications.374 Only two of the six hapū had originallymade claims to the takutai moana around Whakaari, while others had sought to amendtheir claims much later. If this were the only ground of cross-appeal, I would allow iton the ground that one of the applicant groups comprising Te Kāhui had made such aclaim and it was apparent on the evidence that it was a claim to shared exclusivity asan iwi. Te Whānau-ā-Apanui (who contend the Judge was correct to refuseamendments) say they did not put forward all their evidence, but that was evidently atactical decision. They were on notice of the nature and substance of the Whakatōheaclaim.373 At [185].374 At [466]–[473].[300] However, the Judge also found that the evidence (for both Whakatōhea andNgāi Tai) supported only resource rights relating to the gathering of tītī at Whakaariand fishing in the sea around Whakaari and Te Paepae o Aotea.375 These are resourcerights for which PCRs are not available.[301] Whakaari and Te Paepae o Aotea are uninhabitable islands which are taongafor all the applicant groups in this case. The largest of the islands in the Te Paepae oAotea group, Paepae Aotea, has spiritual significance as the place where wairua(spirits) of the dead go before they journey back to the spiritual world to join theirtūpuna. This connection is common to all of those who trace their whakapapa to theMātaatua waka, including the iwi of Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa andWhakatōhea. The volcanic plume from Whakaari is used as a tohu (sign) to show thedirection of the wind, the weather pattern, water safety and the risk of eruption. Theisland is also a navigational landmark.[302] These latter uses require customary knowledge, but there is no reason to thinkthey are exclusive to the parties in this case. It must also be borne in mind thatrecognition orders are confined to the common marine and coastal area. They cannotextend to activities which took place above mean high water springs. This includesthe gathering of tītī (the birds raise chicks in burrows above the intertidal zone). Italso includes uses which depended on sighting the island and need not take placewithin the common coastal and marine area surrounding it. No one can be excludedfrom these latter kinds of uses.376[303] Churchman J recognised that there was little evidence of offshore use atWhakaari (or elsewhere). He stated that:377[328] The written submissions on behalf of the Attorney-General alsospecifically stated that the Attorney-General does not challenge the findingsof the [pūkenga] in their report on the question of which applicant groups heldthe application area or any part of it in accordance with tikanga. Thesubmissions did however note that the evidence set out in the summaryprimarily related to the intertidal areas or harbours within the specified area,and that there was a lack of detailed evidence in relation to areas of the takutaimoana distant from the shore, including Whakaari. This observation is375 At [474].376 See Gray, above n 258, at 269–273.377 Judgment under appeal, above n 11 (footnote omitted).correct. However, it is unsurprising that the bulk of the tikanga evidencerelated to the most intensively used parts of the takutai moana which were theintertidal, estuary and immediate coastal areas.[329] There was, however, some evidence relating to the use of the sea asfar as Whakaari. The applicants (and neighbouring iwi) presented maps whichcontained precise descriptions as to fishing grounds which also included detailas to the location of underwater features such as rocks or the nature of the seabottom, as well as details of the particular types of fish to be caught in theselocations. The importance of this evidence was expressly noted by the[pūkenga] in their report. This evidence established that it was not just theintertidal or estuary areas of the takutai moana that were held in accordancewith tikanga.[304] As I explained above at [90], the Judge treated exclusivity as a question of factonly. He did not accept that an applicant group must show both an intention to controlan area and the capacity to do so, as a matter of tikanga. He did not squarely addressexclusivity, relying rather on the pūkenga report.[305] There is evidence of sophisticated and regular use of offshore fishing groundsand of fishing far offshore. Mandy Mereaira Hata of Ngāti Ruatakenga is a kaikarangaat Ōmarumutu Marae, where an old map used to hang showing traditional fishinggrounds. In evidence she identified eight offshore fishing grounds within the area ofNgāti Ruatakenga. They included one at Whakaari, where hapūku were caught whilea party went ashore to collect tītī. That usage is plainly subsidiary to tītī harvesting.The other fishing grounds, so far as we can gauge, lie between Whakaari and the coast.These may have been named by Whakatōhea, though the record is unclear. Skill andcustomary knowledge, including onshore landmarks and Whakaari itself, were usedto locate them.[306] Other fishing grounds were identified by Tony Walzl, a historian called forWKW. It appears that most of these were inshore fisheries. He acknowledged thatfishing grounds were not necessarily exclusive.[307] Mr Amoamo advanced the widest claim to Whakaari and Te Paepae o Aotea,saying that:5.1 Our customary seascape extends out to sea from our tribal landboundaries at Te Rangi in the east through to Pakihikura in the west.It extends as far out as Whakaari (White Island) and beyond. Intikanga, what is in front of you extending from the land out to sea isyour space. You control the sea as well as the land. 'Takutai moana'means 'it's my coastline', and is a term I recall my elders using.I never heard them saying 'tautai moana' ('it's your coastline').5.15 All Whakatōhea hapū have a connection with Whakaari as it is partof our customary seascape area. Paepae Aotea are the rocks next toWhakaari. Whakatōhea and Te Whānau a Apanui had rights to gathertītī (muttonbirds) at Whakaari in the season from November toDecember. They nest in burrows on the island. I have reviewed thenames of the Whakatōhea Tribal Executive Committee whoauthorised people to go muttonbirding listed in Bruce Stirling'shistorical research, and identified those who are Ngāti Rua. I havelisted them in Appendix Two. I should add that I have also knownothers to get tītī at the headland at Ōpape.[308] However, the evidence is that the use of the coastal marine area aroundWhakaari was closely tied to tītī harvesting, which was strictly seasonal and not initself a use of the marine and coastal area. Mr Warren explained that very few boatswent out there, and would go only on special occasions to get tītī and "those sort ofthings" on behalf of the iwi. Mr Amoamo, Mr Walzl and Donald Kurei (fromNgāti Ira) mention one fishing ground, Hamatatuhou, which appears so far as I cangauge to have been within the 12 nautical mile zone around Whakaari. AnotherNgāti Ira witness, Anna-Marei Kurei, deposed that Whakaari was an area for fishingfor the bramble shark, whose valuable liver oil was used as a pigment. This is the onlyspecific evidence of the marine and coastal area around Whakaari being usedotherwise than for passage for tītī harvesting, and for fishing while at Whakaari forthat purpose.[309] The evidence about offshore fishing grounds is consistent with customary userights, but it does not show that they were used by a given group (or groups) to theexclusion of others. Te Ringahuia Hata, of Ngāti Patumoana, accepted that threespecified fishing grounds within Ngāti Patumoana's rohe moana might also lie withinthe rohe moana of hapū of Te Whānau-ā-Apanui. She did not suggest that togetherthey used those grounds to the exclusion of others. Nor did Mr Warren of Pākōwhaihapū, when speaking of their fishing grounds; he acknowledged that there would bean overlap with Ngāi Tai but did not suggest that together they used those grounds tothe exclusion of others. He explained that most fishing took place inshore, with veryfew going 10–20 miles out, which raises the possibility that use of offshore groundswas too occasional to sustain control.[310] Among the expert witnesses, Mr Walzl spoke of an "overall permissiveness"regarding rights at sea, extending to arrangements between iwi. Professor Williamsexplained that in Māori customary law, resource boundaries were described byreference to location and size of the resource and territorial (political) boundaries weredefined according to the structures and allegiances of hapū from time to time. Coastalreefs and fishing grounds were as much restricted, apportioned and defined as the land.Their resource and territorial boundaries might be precisely defined. Becauseauthority radiated from a central heart, territorial rights over resources might beuncertain at the margin.[311] The expert evidence indicates that hapū or iwi might exercise territorialauthority over offshore fishing grounds. The Waitangi Tribunal has found that controlmight extend not only to specific resources but also to the whole sea adjacent to triballands.378 But holding and exclusivity are questions of fact, and for the reasons justgiven, the evidence of fact in these appeals does not presently satisfy the requirementfor exclusive use and occupation of the common marine and coastal area out to the12 nautical mile limit.379 That is especially true of the area surrounding Whakaari.[312] There is also recognition in the evidence that Te Whānau-ā-Apanui heldsuperior rights to Whakaari. It derives from the fact that a hapū ofTe Whānau-ā-Apanui, Te Whānau-ā-Te Ehutu, acquired the island by customarytransfer from Ngāti Awa in the 1820s. There is some dispute about this transaction,380but all agree that Te Whānau-ā-Apanui took precedence in visiting Whakaari to harvesttītī. They appear to have controlled whether and when other iwi shared in the resource.The record includes evidence prepared in 2005 in which it is said thatTe Whānau-ā-Apanui would allow a second round of harvesting if there were enoughbirds.378 Muriwhenua fishing report, above n 306, at [3.1.4].379 Except for Ōhiwa Harbour, which we discuss below.380 We were told that Whakatōhea contend Ngāti Awa did not have authority to transfer the island.[313] The pūkenga stated in their further responses that Te Whānau-ā-Apanui havemana whenua according to tikanga at Whakaari. That reflects what appears to besubstantial consensus among leaders of the applicant groups. Ms Coates, forTe Whānau-ā-Apanui, drew our attention to concessions to that general effect inevidence.381 This consensus exists despite the status of Whakaari as a taonga for allthose who whakapapa to the Mātaatua waka. The placement of rāhui following lossof life in the 2019 eruption need not show that other iwi speak for Whakaari alongsideTe Whānau-ā-Apanui. Robert Edwards suggested that this behaviour reflectsknowledge of currents which carry water from Whakaari to coastal areas.[314] For these reasons, I am not persuaded that the Judge was wrong to find that theevidence established only usage rights for other iwi.382 The evidence falls short ofshowing that Whakatōhea and Ngāi Tai shared exclusivity with Te Whānau-ā-Apanui(and perhaps other iwi) in the marine and coastal area around Whakaari. It followsthat Te Kāhui's cross-appeal must be dismissed with respect to Whakaari.[315] I should say something about the implications of these findings forTe Whānau-ā-Apanui. Their claim for CMT is not before us, nor do we know whatother claims to the area may be pending. I have not found that Te Whānau-ā-Apanuienjoy exclusive use and occupation of the common marine and coastal area aroundWhakaari and Te Paepae o Aotea. I have found only that, as among the parties to thiscase, Te Whānau-ā-Apanui have mana over Whakaari to an extent that precludes theother iwi sharing CMT there.Ngāi Tai and Ririwhenua[316] The appeal of Ngāi Tai and Ririwhenua against the dismissal of theirapplication for CMT at Whakaari and Te Paepae o Aotea fails for the reasons just givenwith respect to Te Kāhui and the Board.381 The witnesses were Heremaia Warren, Adriana Edwards, Robert Edwards, Wallace Aramoana,Lance Reha, Karen Mokomoko, Te Riaki Amoamo, Te Rua Rakuraku and Muriwai Jones.We noted that Ms Feint disputed the accuracy of one of the translations but Mr Mahuika, forTe Whānau-ā-Apanui, disagreed and no attempt has been made to correct the record. Nothingturns on it in our view, because the evidence overall points to the same conclusion; others havecustomary interests at Whakaari but Te Whānau-ā-Apanui have superior rights there.382 Judgment under appeal, above n 11, at [474].[317] The Judge relied on the pūkenga report for his conclusion that Ngāi Tai alsomet the statutory criteria for CMT.383 The pūkenga said that in their view Ngāi Taihave mana whenua from Tarakeha to Te Taumata-ō-Apanui and that they sharedcustomary interests with Whakatōhea out to Whakaari and Te Paepae o Aotea. Thisview appears to have been based entirely on consensus among the applicant groups.The Judge relied on the pūkenga report to find that, subject to the resolution ofoverlapping boundaries out at sea, CMT would extend to the 12 nautical mile limit.384[318] The principal witness was Arapeta Mio. He deposed to specific inshoregrounds and coastal locations that have been named by Ngāi Tai and used by whānaugroups. He also said that there are specific offshore fishing grounds, but he declinedto identify them, saying he did not wish to risk interference by others. The Judge didnot review any of this evidence in his judgment.[319] For the Attorney-General, Ms Roff submitted that the existence of offshorefishing grounds which were not disclosed in evidence could not justify a CMTrecognition order out to the 12 nautical mile limit. I agree.[320] This is not to suggest that CMT is confined to specific fishing grounds or otherresources. It may extend to all the rohe moana exclusively occupied and used by anapplicant group for purposes such as passage and navigation as well asresource-gathering.385 I have noted evidence that a group's takutai moana includesareas adjacent to their land. There is also evidence that in Māori customary law, rightsof control are also linked to resources,386 and most of the evidence about offshore usein this case concerned resources; in particular, fish. So the inquiry into CMT mustrecognise resource boundaries. It must further consider whether territorial authorityextends to exclusive use and occupation of these resource areas, as I noted whenaddressing Te Kāhui's cross-appeal in relation to Whakaari. The evidence there raisesdoubt about exclusivity, at least in areas of overlap with Ngāi Tai. The evidence might383 At [479]–[482] and [578]–[583].384 At [482].385 Tsilhqot'in Nation, above n 138, at [40] citing Marshall, above n 177, at [137]–[138].386 Professor Williams explained that in Māori law land, rights pertained to resources, the use of whichwas subject to the interests of the hapū of the territory. He distinguished between resource andterritorial or political boundaries.well sustain CMT for Ngāi Tai in inshore areas, but counsel did not suggest that wecould identify those areas on the record before us.[321] For these reasons Ngāi Tai's application for CMT over the area covered byOrder 3 must also be reheard.LCI[322] I have not accepted LCI's main argument on the interpretation of s 58(1), but Ihave accepted that the Judge erred in his approach to exclusivity and substantialinterruption, and further that he did not make necessary findings on exclusivity, insteadadopting what he saw as the conclusions of the pūkenga.[323] LCI sought a rehearing. As explained above, it is necessary to order one forOrder 1, in the appeals by Te Ūpokorehe and Ngāti Awa. For the same reasons, it isalso necessary to order a rehearing for Order 3. An order for the rehearing ofapplications for CMT in the areas covered by Orders 1 and 3 will be made in LCI'sappeal.[324] LCI's argument extends to Order 2. As I see it, that is in a different category.Ōhiwa Harbour is a shallow estuary surrounded by lands held by applicant groups andthe evidence shows that the waters and the surrounding land are replete with sites ofsignificance to those groups. My reservations about the adequacy of evidence of rightsto offshore fishing grounds do not extend to this area and there is no uncertainty aboutthe external boundary. The applicant groups, including Ngāti Awa, have shown thatthe Harbour has been continuously held in accordance with tikanga since 1840. Thereappears to have been some evolution of internal boundaries,387 but this may reflectshifting alliances rather than any loss of control. The applicant groups generally haverecognised one another's mana over specific local areas and sites. I am sufficientlysatisfied that the applicant groups have together occupied the area to the exclusion ofothers. For reasons given at [330] below, I am not persuaded that there has beensubstantial interruption. Lastly, the tikanga process which has been followed in the387 Notably as told to us by Ngāti Awa witnesses Sir Mead, Dr Mason and Mr Merito in 1991Ngāti Awa and the Board agreed to a boundary in Ōhiwa Harbour at the Nukuhou River.High Court to achieve consensus among applicant groups and interested parties isappropriate for the reasons I have given earlier. The statutory criteria have been met.LCI's appeal will be dismissed so far as it pertains to Order 2.The Attorney-General[325] The Attorney-General supported the Judge's reasoning with respect tonavigable rivers. I have found above at [239]–[244] that the Judge was wrong toconclude that CMT over navigable rivers has been extinguished in law, and Te Kāhui'scross-appeal will be allowed accordingly. Because that moves the boundary of thecommon marine and coastal area upstream in navigable rivers, the High Court willneed to consider the grant of a CMT recognition order in affected areas. This affectsOrder 1 and the Waiōweka and Ōtara rivers, both of which enter the sea at Ōpōtiki.388CRHL[326] I accept CRHL's argument that the Judge found prematurely that applicantgroups had met the criteria for CMT at Ōpōtiki Harbour. That conclusion strictly couldnot be reached before the question of substantial interruption had been decided.However, nothing turns on it. Order 1 is to be reheard, and the Judge has since foundthat CMT was substantially interrupted by the Ōpōtiki Harbour RedevelopmentProject.389Seafood Industry Representatives[327] As noted, SIR appeared in this Court as an interested party to support LCI'sappeal.[328] I discussed substantial interruption above at [173]–[183]. Mr Scott urged us tofind that the evidence established substantial interruption through commercial fishingin the several application areas. Ms Feint contended that the evidence established the388 The Ōpōtiki Harbour Redevelopment Project does not use the existing river mouth. A newentrance is being constructed to the harbour from the sea. The record includes aerial photographswhich show approximately where the boundary of the common marine and coastal area will lieunder our approach.389 No 7 judgment, above n 15, at [28].opposite and submitted that the claims made by SIR were not put to witnesses calledby other parties.[329] I decline to make the findings requested by either counsel. Having regard toour analysis of exclusive use and occupation, substantial interruption and the burdenof proof, it may not be easy to satisfy a court that commercial or recreational fishingamounts to substantial interruption. But there is to be a rehearing for Orders 1 and 3.It will extend to substantial interruption. I have found at [178] above that the Judgemisdirected himself, and I accept that he did not deal expressly with some of theevidence relied on by SIR.390 And if the evidence establishes substantial interruptionfrom commercial fishing, it will be necessary to identify the affected areas.[330] Mr Scott did not specifically address Ōhiwa Harbour. Counsel cited onehistorical complaint that fishers had torn up Māori traps and nets there, but asexplained above such complaints do not evidence substantial interruption. It alsoappears that most complaints were about trawling and our attention was not drawn toevidence that trawling occurs in the Harbour. We were told that most commercialinshore fishing is for rock lobster. I accept that there was, and presumably still is,competition from non-Māori for seafood in the harbour. That fact is not sufficient toestablish substantial interruption in the area covered by Order 2.PCRs[331] PCRs, provided for in subpt 2 of pt 3 of MACA, are rights that have beenexercised in a particular area since 1840, that continue to be exercised by the applicantgroup in accordance with tikanga, and that have not been extinguished as a matter oflaw.391 A group that has a PCR in respect of a specified area (for example, to gatherdriftwood or seaweed or sand and rocks in that area) is entitled to exercise that rightin that area without needing to obtain a resource consent, and without paying certaincharges under the Resource Management Act.392 PCRs do not confer any right to390 When dealing with substantial interruption by third party use and occupation in the judgmentunder appeal, above n 11, at [256]–[269] he discussed the evidence of Daryl Sykes, of theNew Zealand Rock Lobster Industry Council, but not that of Mark Derby, a historian called by theAttorney-General, whose evidence Mr Scott relied on before us.391 MACA, 51(1).392 Sections 52.control the relevant area.393 Nor do they confer an exclusive right to any relevantresource. But consent authorities must not (with certain exceptions) grant resourceconsents to another person to carry out an activity that is likely to have adverse effectsthat are more than minor on the exercise of the PCR without the consent of the PCRholder.394[332] I have set out s 51 of MACA above at [73]. It provides relevantly that a PCRis a right that "has been exercised since 1840" and "continues to be exercised" in aparticular area "in accordance with tikanga by the applicant group" and "is notextinguished as a matter of law".395[333] There was debate in the High Court about the extent to which CMT and PCR'scan co-exist. Churchman J accepted that a PCR recognition order may be granted toone applicant group over an area that is subject to CMT held by another group.396Further, it is possible to grant recognition orders for multiple overlapping PCRs.397These conclusions were not disputed before us. They are consistent with the evidenceof Professor Williams and the findings of the Waitangi Tribunal (see above at [160]and [209]) about the complex distribution of specific rights in Māori law.[334] I turn to the two specific appeals concerning PCRs.Ngāti Ruatakenga's appeal against a PCR for Ngāti Muriwai[335] The Judge found that Ngāti Muriwai are an applicant group, entitled to seek aPCR:[499] Although the [pūkenga] found that Ngāti Muriwai were not a hapūand could not be said to have exclusively used and occupied the specified areafrom 1840 to the present day, which precluded them from being granted CMT,s 51 does not require an applicant group to have exclusively used and occupiedthe relevant area from 1840 without substantial interruption.393 Section 54.394 Section 55.395 MACA, s 51(1).396 Judgment under appeal, above n 11, at [398].397 At [397].[599] The claim relating to "living on the land" including erectingdwellings, clearly does not relate to the takutai moana below high-watersprings.[336] Ms Feint, appearing for Ngāti Ruatakenga, contended that this was an errorbecause Ngāti Muriwai were not in existence in 1840, so could not have beenexercising any rights since that time. In my view the Judge was right to reject thisargument. Section 51(1) does not state that the applicant group must itself haveexercised the right since 1840. Rather, it requires that the right has been exercisedsince 1840 and that the applicant group continues to exercise it. As noted earlier, Iagree with Churchman J that Ngāti Muriwai are at least a whānau.398 They accordinglyqualify as an applicant group.399[337] The Judge observed that there was relatively little evidence about exactlywhere activities took place, what tikanga was involved or whether the activities werecontinuous.400 This appears to have been true of other PCR applications too.However, he was prepared to draw inferences from the available evidence.401 Hefound there was evidence for the collection of driftwood, stones and shells, forwhitebaiting and the growing and harvesting of certain aquatic plants.402 Ms Feint didnot seek to persuade us that these findings were wrong. She did argue that there wasno evidence these activities had been continuous since 1840. I am not persuaded thatthe Judge was wrong about that. The evidence sufficiently established that thepractices were historic and there was no reason to doubt that they had been carried onin the relevant area (which he was prepared to accept was the entire rohe) since1840.403398 At [499]–[500] and [512].399 MACA, s 9(1) definition of "applicant group".400 Judgment under appeal, above n 11, at [502].401 At [502].402 At [503]. We record that Ms Barnett, for the Attorney-General, advised us that the hearing belowproceeded on a misunderstanding about seaweed. It was thought that seaweed of the classRhodophyceae is not regulated by the Fisheries Act 1996, for the purposes of s 51(2)(a) of MACA,because s 89(2)(f) of the Fisheries Act excludes "seaweed of the class Rhodophyceae while it isunattached and cast ashore" from the activities which require a current fishing permit under s89(1). Crown counsel now take the view that it is so regulated. We have reservations about this,because such seaweed is regulated only in the sense that the law says it may be gathered withoutany permit. But no other counsel disputed the point, which would preclude PCRs for gatheringany seaweed that is unattached and washed ashore. We cannot recall and amend recognition ordersgranted in the High Court because Ngāti Patumoana's is the only appeal in which the issue arises.The issue will need to be resolved in the High Court.403 Judgment under appeal, above n 11, at [512].[338] The Judge accepted that the activities were practised by Ngāti Muriwai inaccordance with tikanga:[503] In relation to the collection of firewood, stones, shells and aquaticplants, there is little evidence of particular tikanga associated with theseactivities but there was evidence of tikanga followed generally whenventuring into the takutai moana. This included the saying of karakia beforeand after activities, the exercise of manaakitanga by way of sharing resourceswith others in the groups and not taking more of a resource than was requiredto meet immediate needs.[339] Ms Feint did not challenge these findings. Rather, she contended that tikangawas not followed because any rights that Ngāti Muriwai held were actually rights ofNgāti Ruatakenga. She accepted that multiple hapū may independently exercise rightsaccording to tikanga in the same area, but there must be evidence that those rights arebroadly recognised by other hapū. Specifically, she contended that Ngāti Muriwaicould emerge as a new group only with the permission of Ngāti Ruatakenga. Shereferred to evidence of Mr Amoamo to the effect that Ngāti Muriwai did not knowtheir historical traditions, contending that this shows they are not a separate group.[340] Mr Amoamo's opinion that Ngāti Muriwai have no separate identity as a matterof tikanga must be respected. He is a tohunga with deep knowledge of the practice oftikanga. He traces Ngāti Muriwai's whakapapa directly through Ngāti Ruatakenga. Iaccept that there are strong kinship connections. Kin relationships are not optional.404But it is the very existence of the right for Ngāti Muriwai, rather than the manner ofits exercise, that concerns him.[341] In my view that concern must yield to the scheme of s 51, which contemplatesmultiple overlapping rights and allows any iwi, hapū or whānau group to obtain a PCRif the right has been exercised since 1840 and the applicant group continues to exerciseit in accordance with tikanga. The legislation contemplates that PCRs may berecognised for groups which did not exist in 1840, so long as someone to whom theapplicant has a relevant connection has continuously exercised the relevant customaryright in the particular area since then and has done so in accordance with tikanga. Thatpolicy decision may be taken to reflect post-1840 changes in Māori society which are404 See Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in ModernNew Zealand Law" (2013) 21 Wai L Rev 1 at 23.well illustrated in these appeals. There were once 22 hapū of Whakatōhea and onlysix (counting Te Ūpokorehe) of those remain today. At the same time, as Mr Bennion,for Ngāti Patumoana, pointed out, new and apparently substantial whānau groups haveestablished themselves. Ngāti Muriwai are such a group. They say that they affiliateto the area and the iwi, but not to Ngāti Ruatakenga.[342] I agree with Churchman J that Ngāti Muriwai are eligible for PCRs andotherwise met the s 51 criteria.405 Ngāti Ruatakenga's appeal will be dismissed.Ngāti Patumoana's appeal against refusal of a PCR[343] Ngāti Patumoana sought PCRs for (relevantly) taking kaimoana, includingwhitebait in the Waiōweka River; taking aquatic plants and seabirds; navigation,passage, and the landing of waka along the coastline; and collection of sand, stones,shingle and detritus, and cultural practices associated with these such as the exerciseof kaitiakitanga, saying of karakia and practise of karanga.406 As noted, the applicationwas declined for lack of evidence; it is not a case in which evidence was led but foundwanting.407 On appeal, Ms Ford-Brierley contended that there was evidence, whichwas omitted from a schedule prepared by Crown counsel and which the Judgeoverlooked.[344] The Judge accepted there was evidence of whitebaiting by Ngāti Patumoanabut rejected the claim for whitebait because he had found that the beds of navigablerivers are not part of the common marine and coastal area.408 I have found that he waswrong about that.[345] With respect to kaimoana and seabirds, the Judge found there was no evidenceof non-regulated species being taken.409 Ms Ford-Brierley did not dispute this.405 Judgment under appeal, above n 11, at [512].406 As with a number of the applications, the Judge refused PCRs for activities which he found cannotbe the subject of PCRs (such as fishing for regulated species or the taking of wildlife) or which(like placing wāhi tapu) should be dealt with under CMT: at [527] and [530]–[532].407 At [523]–[524], [527], [529] and [534].408 At [527].409 At [527].[346] With respect to aquatic plants, the Judge noted evidence of seaweed beingcollected, but there was no evidence of the specific types and he could not determinewhether it was a type that could support the grant of a PCR.410 As noted above, it nowappears to be common ground that all are regulated. Ms Ford-Brierley pointed toevidence of Te Ringahuia Hata that other plants (harakeke, raupō, pīngao, toitoi andbullrushes) were used for weaving, and still are, to make piupiu and poi.[347] The Judge found that there was some historic evidence of navigation, passageand the landing of waka but no evidence about how those activities might continue.411I agree that there was historic evidence of these activities, connected with fishing.Because the collection of kaimoana by boat continues, I am prepared to infer that theseactivities continue much as they have always done.[348] The Judge accepted that there was some evidence of karakia rituals and theexercise of kaitiakitanga, but some of this evidence focused on rāhui, which must bedealt with pursuant to CMT.412 Ms Ford-Brierley pointed to evidence of Ms Hata thatthe takutai moana is a place where Ngāti Patumoana offer and receive prayer; conductrituals of protection and guidance; take the ill to pray and heal and the dead to embalm;and engage in leisure, play and learning. There was also evidence from severalwitnesses, notably Irene Moore, Graeme Riesterer and Pine Te Maipi, of the exerciseof kaitiakitanga.[349] The Judge found there was no evidence of the collection of sand, stones,shingle and detritus.413 Ms Ford-Brierley pointed to evidence that these items wereand are gathered for decorative and artistic uses.[350] It is not surprising that some of this evidence may have been overlooked in themass of material before the Judge. Some of it was offered by witnesses who aremembers of Ngāti Patumoana but were not listed as witnesses for the hapū. Attentionhaving now been drawn to it, I consider that, consistent with the generally liberalapproach the Judge took to PCRs, the appeal should be allowed with respect to410 At [527].411 At [528]–[529].412 At [526] and [532].413 At [534].whitebait; aquatic plants; navigation, passage and the landing of waka; rituals such askarakia and karanga; the exercise of kaitiakitanga; and the gathering of sand, stones,shingle and detritus.Disposition[351] The Court is agreed on the outcome of the appeals and cross-appeals.[352] The Edwards appeal is dismissed, as are those of Kutarere Marae andNgāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwai fromparticipating in any recognition order for CMT granted, following rehearing, to theWhakatōhea applicant groups.[353] The appeals of Te Ūpokorehe, Ngāti Awa and LCI are allowed in part.CMT Orders 1 and 3 are set aside. LCI's appeal against CMT Order 2 is dismissed.[354] The cross-appeals of Te Kāhui and Ngāi Tai are dismissed so far as they seeka recognition order for CMT over the common marine and coastal area aroundWhakaari and Te Paepae o Aotea.[355] Te Kāhui's cross-appeal is allowed in part. CMT may extend to the beds ofnavigable rivers which form part of the common marine and coastal area as MACAdefines that term.[356] We order a rehearing of the applications for CMT recognition orders over thearea covered by Orders 1 and 3. The rehearing will not extend to the common marineand coastal area around Whakaari and Te Paepae o Aotea.[357] The appeal of Ngāti Ruatakenga against the granting of recognition orders forPCRs to Ngāti Muriwai is dismissed.[358] The appeal of Ngāti Patumoana against the refusal to grant recognition ordersfor PCRs is allowed to the extent set out at [350] above. The form of the orders is tobe settled in the High Court.[359] Costs will lie where they fall.COOPER P AND GODDARD J(Given by Goddard J)The issues addressed in this judgment[360] We agree with the disposition of the appeals before this Court proposed byMiller J, including the orders set out at [351]–[359] above. We also agree with muchof the reasoning in his judgment. However our analysis of the relevant provisions ofthe Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) differs in tworespects which may be of some practical significance for the rehearing of the mattersreferred back to the High Court, and for future proceedings seeking recognition ofcustomary marine title (CMT). In this judgment we address those two topics:(a) The matters that are relevant to determining an application forrecognition of CMT under s 58 of MACA, and in particular the mattersthat bear on exclusivity of use and occupation of an area, withoutsubstantial interruption.(b) The circumstances in which the High Court may make an order forshared CMT.The backdrop against which s 58 must be interpreted[361] The meaning of s 58 of MACA must be ascertained from its text, in light of itspurpose and its context.414 In order to understand s 58 and related provisions, it isnecessary to set those provisions in their wider legal and historical context.Customary rights and interests pre-1840[362] In 1840 there existed a complex and pervasive network of customary rightsand interests in land held by whānau, hapū and iwi throughout all of AotearoaNew Zealand.415 In 1847 the first Chief Justice of New Zealand, Sir William Martin,414 Legislation Act 2019, s 10.415 See generally ET Durie Custom Law (draft paper for the Law Commission, January 1994).observed that "[s]o far as yet appears, the whole surface of these Islands, or as muchof it as is of any value to man, has been appropriated by the Natives".416[363] These customary rights did not have tidy straight line territorial boundaries, asthe Waitangi Tribunal has explained:417A difficulty occurs today when people, both Māori and Pākehā, try to translatethis customary network of rights and connections into an environment of'straight-line' boundaries. Resource rights were complex, convoluted, andoverlapping. They almost never phased cleanly from hapū to hapū as onepanned across the customary landscape. Instead, most resource complexeshad primary, secondary, and even tertiary right holders from different hapūcommunities, all with individual or whanau interests held in accordance withtikanga, and therefore by consent of their respective communities. All rightsvested and were sustained by the currency of whakapapa.[364] Sir Edward Taihākurie Durie commented on the nature of these networks ofrights in relation to land in a paper prepared for the Law Commission:418• In Māori law, land rights pertained not to blocks but resources, theindividual right being that of access and user subject to the interests of thehapū of the territory. Resource 'boundaries' were described by referenceto the location and size of the resource, use rights by the places of habitualexploitation and territoriality by the extent to which territoriality wasclaimed.• To the extent that political or hapū boundaries existed, they should bedistinguished from resource boundaries, resource boundaries beingcapable of definition by physical markers, political boundaries varyingaccording to the shifting structures and allegiances of hapū.• Resource boundaries were conceived of lineally, and radially with rightsor authority radiating from a central heart to uncertain fringes.• The authority of a hapū in an area was not necessarily exclusive.Hapū claimed the resources of territories exclusively or conjointly withothers. Many resource areas were shared by several hapū. Not all hapūareas were contiguous but were intersected by the use rights of others.• It was also common that from a variety of historical causes discrete andautonomous communities of one descent group resided in a districtgenerally populated by another.416 Sir William Martin "Opinions of various authorities on native tenure" [1890] I AJHR G1 at 3.417 Waitangi Tribunal Turanga Tangata, Turanga Whenua: The Report on the Turanganui a KiwaClaims (Wai 814, 2004) at 18.418 Durie Custom Law, above n 415, at 84–85.[365] As Durie went on to note, "[c]oastal reefs and fishing grounds were as muchrestricted, apportioned and defined as the land."419[366] It is well established that the acquisition of sovereignty by the British Crownin 1840 did not affect existing Māori customary rights and interests in relation toland.420 Those customary rights continued unless and until lawfully extinguished.It bears repeating that respect for those rights was an integral component of theTreaty of Waitangi. Article 2 of the Treaty (in the version set out in sch 1 of the Treatyof Waitangi Act 1975) provides:Ko te TuaruaKo te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu-kinga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratoukainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminengame nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenuae pai ai te tangata nona te Wenua-ki te ritenga o te utu e wakaritea ai e ratouko te kai hoko e meatia nei e te Kuini hei kai hoko mona.Article the SecondHer 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; but the Chiefs of the United Tribes and the individual Chiefsyield to Her Majesty the exclusive right of Preemption over such lands as theproprietors thereof may be disposed to alienate at such prices as may be agreedupon between the respective Proprietors and persons appointed byHer Majesty to treat with them in that behalf.[367] As Chapman J said in R (on the prosecution of McIntosh) v Symonds in 1847,in guaranteeing Māori property the Treaty "[did] not assert either in doctrine or inpractice any thing new and unsettled".421 And as that Judge also observed, in a passagesubsequently approved by the Privy Council in Tāmaki v Baker:422 it cannot be too solemnly asserted that [native property over land] isentitled to be respected, that it cannot be extinguished (at least in times ofpeace) otherwise than by the free consent of the Native occupiers.419 At 87.420 See Attorney-General v Ngāti Apa, above n 62.421 R v Symonds, above n 277, at 390.422 Tāmaki v Baker [1901] AC 561 (PC) at 579 (commonly cited as Nireaha Tamaki v Baker).[368] In 1872, in Re the Lundon and Whitaker Claims Act 1871, this Court reaffirmedthat all forms of customary property rights are recognised as a matter of commonlaw:423The Crown is bound, both by the common law of England and by its ownsolemn engagements, to a full recognition of Native proprietary right.Whatever the extent of that right by established Native custom appears to be,the Crown is bound to respect it.[369] It should have been axiomatic that those same principles applied with equalforce to Māori customary interests in the common marine and coastal area: there wasno principled basis for a different approach to customary interests in dry land and inthe foreshore or seabed as a matter of New Zealand common law. For many years,however, New Zealand courts failed to recognise Māori customary interests in landbelow the high water mark.424 That wrong turning was eventually corrected by thisCourt in Ngāti Apa.[370] In Ngāti Apa this Court reiterated that as a matter of common law all of thecustomary rights of an indigenous community continued to exist following acquisitionof sovereignty by the British Crown, unless and until those rights were lawfullyextinguished.425 The common law of England was received in New Zealand subjectto recognised Māori customary property interests. If such customs provide forinterests in the foreshore and seabed, there is no room for a contrary presumptionderived from English common law. The common law of New Zealand is (in thisrespect, among others) different from English common law.426[371] This Court went on to explain that Māori customary interests in the commonmarine and coastal area had not been extinguished by legislation. As the Courtrepeatedly emphasised, the onus of proving extinguishment lies on the Crown, andlegislative measures that are claimed to extinguish such rights must be clear andplain.427 Native property rights are not to be extinguished by a side wind.428 None of423 Re the Lundon and Whitaker Claims Act 1871, above n 67, at 49.424 See in particular Re the Ninety-Mile Beach, above n 69.425 Attorney-General v Ngāti Apa, above n 62, at [34] per Elias CJ. See also [47] per Elias CJ, [147]–[148] per Keith and Anderson JJ and [183]–[186] per Tipping J.426 At [86] per Elias CJ.427 At [148] per Keith and Anderson JJ and [185] per Tipping J.428 At [154] per Keith and Anderson JJ.the statutes relied on by the Crown as extinguishing Māori customary rights in thecommon marine and coastal area made clear and plain provision to that effect.[372] The essence of the decision is helpfully captured in the judgment of Tipping J:[185] It follows that as Māori customary land is an ingredient of thecommon law of New Zealand, title to it must be lawfully extinguished beforeit can be regarded as ceasing to exist. In this respect Māori customary title isno different from any other common law interest which continues to existunless and until it is lawfully abrogated. In the case of Māori customary landthe only two mechanisms available for such abrogation, short of dispositionor lawful change of status, are an Act of Parliament or a decision of acompetent Court amending the common law. But in view of the nature ofMāori customary title, underpinned as it is by the Treaty of Waitangi, and nowby Te Ture Whenua Maori Act 1993, no Court having jurisdiction inNew Zealand can properly extinguish Māori customary title. UndoubtedlyParliament is capable of effecting such extinguishment but, again in view ofthe importance of the subject matter, Parliament would need to make itsintention crystal clear. In other words Parliament's purpose would need to bedemonstrated by express words or at least by necessary implication. [186] When a claim is made that a particular piece of land has the status ofMāori customary land, the Māori Land Court must investigate the claim inaccordance with the statutory provisions in that behalf. A claim may fail as amatter of fact but the Māori Land Court's investigation into the facts must beallowed to proceed unless it can be shown beyond doubt that the land cannot,as a matter of law, have the status asserted for it. In my view it follows that inprinciple, and subject to any clear statutory indication of extinguishment, thequestion whether Māori customary title existed and continues to exist over theseabed and the foreshore is essentially a matter of fact which is both generaland specific to the site in question. It is a question which necessarily involvesan examination of tikanga Māori which is the "exclusive jurisdiction" of theMāori Land Court: see s 132(1) of Te Ture Whenua Maori Act.The position at common law absent statutory intervention[373] Thus in the absence of legislation that clearly and plainly extinguished Māoricustomary rights and interests in the common marine and coastal area, all rights andinterests existing as at 1840 would continue to the present day. A group asserting suchrights could seek appropriate orders recognising those rights in the Māori Land Court.The inquiry before that Court would focus on the nature and extent of the group'srights as a matter of tikanga: this would be a largely factual inquiry, potentially assistedby expert evidence on tikanga. That inquiry would generally take as its starting pointthe position as a matter of tikanga in 1840. It might be necessary to consider whetherthe identity of the right-holder, or the content of the rights, had been affected by eventsfrom 1840 to the present day. This would also be a tikanga-focused inquiry, havingregard to changes in the composition of relevant groups over time. Tuku (customarytransfers) would also need to be taken into account.[374] New Zealand common law would then give effect to any rights of a group asat 1840 that were established by the factual inquiry into the group's relationship withthe land, absent a clear and plain extinguishment of those rights by legislation.In doing so, the common law would seek to reflect as closely as possible the nature ofthe rights established by the evidence, and avoid forcing them into English propertylaw constructs.429 The existence and content of customary property is determined asa matter of the custom and usage of the particular community.430 As the Chief Justicenoted in Ngāti Apa,431 the Native Rights Act 1865, enacted to remove doubts as to thejurisdiction of the general courts in respect of Māori and their property, had earlierdeclared as much:IV. Every title to or interest in land over which the Native Title shall not havebeen extinguished shall be determined according to the Ancient Custom andUsage of the Māori people so far as the same can be ascertained.[375] Thus at common law in any given area there could be multiple right-holders,different types of rights, and layers of rights and interests, reflecting the varied natureand extent of the customary rights established by the evidence before the court.[376] The importance of not seeking to shoehorn this diverse range of rights intorigid frameworks derived from different landscapes and cultures, and different legalsystems, was acknowledged by this Court in Ngāti Apa.432 Reference was made to thecautionary words of the Privy Council in Amodu Tijani v Secretary, Southern Nigeriathat ascertainment of customary rights "involves the study of the history of theparticular community and its usages in each case".433 Viscount Haldane, deliveringthe advice of the Board in that case, commented on the need for caution in applyingEnglish legal concepts to native property interests. He referred to the necessity of"getting rid of the assumption that the ownership of land naturally breaks itself up into429 Attorney-General v Ngāti Apa, above n 62, at [144]–[145] per Keith and Anderson JJ, citingAmodu Tijani v Secretary, Southern Nigeria, above n 135, at 401–402 and 404.430 Korokai v The Solicitor-General (1912) 32 NZLR 321 (CA) at 351 (commonly cited as TamihanaKorokai v The Solicitor-General).431 Attorney-General v Ngāti Apa, above n 62, at [32].432 At [33].433 At [33], citing Amodu Tijani v Secretary, Southern Nigeria, above n 135, at 404.estates, conceived as creatures of inherent legal principle".434 As the Chief Justiceexplained in Ngāti Apa, the danger of such assumptions cuts both ways: it may bedismissive of customary interests less than recognisable English legal estates; and itmay cause lesser customary interests to be inflated to conform with familiar legalestates.435[377] Similarly, the Supreme Court of Canada has commented that:436 the court must be careful not to lose or distort the Aboriginal perspectiveby forcing ancestral practices into the square boxes of common law concepts,thus frustrating the goal of faithfully translating pre-sovereignty Aboriginalinterests into equivalent modern legal rights.[378] As explained below, one of the challenges posed by MACA is that it does seekto "translate" the diverse range of customary Māori relationships with land into twostatutory boxes: CMT and protected customary rights (PCRs). Unsurprisingly, somethings are lost in this translation.MACA: an overview[379] The legislative history of MACA is set out in some detail in the judgment ofMiller J.437 We agree with his account, and need not repeat it here.[380] The preamble to MACA describes the scheme of that Act as follows:This Act takes account of the intrinsic, inherited rights of iwi, hapū, andwhānau, derived in accordance with tikanga and based on their connectionwith the foreshore and seabed and on the principle of manaakitanga.It translates those inherited rights into legal rights and interests that areinalienable, enduring, and able to be exercised so as to sustain all the peopleof New Zealand and the coastal marine environment for future generations:[381] We repeat, because it is central to the interpretation of s 58, the purposestatement in s 4 of MACA:4 Purpose(1) The purpose of this Act is to—434 Amodu Tijani v Secretary, Southern Nigeria, above n 135, 403.435 Attorney-General v Ngāti Apa, above n 62, at [33].436 Tsilhqot'in Nation, above n 138, at [32].437 See Miller J's reasons above at [39]–[60].(a) establish a durable scheme to ensure the protection of thelegitimate interests of all New Zealanders in the marine andcoastal area of New Zealand; and(b) recognise the mana tuku iho exercised in the marine andcoastal area by iwi, hapū, and whānau as tangata whenua; and(c) provide for the exercise of customary interests in the commonmarine and coastal area; and(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).(2) To that end, this Act—(a) repeals the Foreshore and Seabed Act 2004 and restorescustomary interests extinguished by that Act; and(b) contributes to the continuing exercise of mana tuku iho in themarine and coastal area; and(c) gives legal expression to customary interests; and(d) recognises and protects the exercise of existing lawful rightsand uses in the marine and coastal area; and(e) recognises, through the protection of public rights of access,navigation, and fishing, the importance of the commonmarine and coastal area—(i) for its intrinsic worth; and(ii) for the benefit, use, and enjoyment of the public ofNew Zealand.[382] Consistent with that purpose, s 5 repeals the Foreshore and Seabed Act 2004(the 2004 Act). Section 6 provides for the restoration of customary rights that wereextinguished by the 2004 Act:6 Customary interests restored(1) Any customary interests in the common marine and coastal area thatwere extinguished by the Foreshore and Seabed Act 2004 are restoredand given legal expression in accordance with this Act.(2) Any application under this Act for the recognition of customaryinterests must be considered and determined as if the Foreshore andSeabed Act 2004 had not been enacted.[383] Section 7 confirms that MACA is intended to take account of theTreaty/te Tiriti:7 Treaty of Waitangi (te Tiriti o Waitangi)In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), thisAct recognises, and promotes the exercise of, customary interests of Māori inthe common marine and coastal area by providing,—(a) in subpart 1 of Part 3, for the participation of affected iwi, hapū, andwhānau in the specified conservation processes relating to thecommon marine and coastal area; and(b) in subpart 2 of Part 3, for customary rights to be recognised andprotected; and(c) in subpart 3 of Part 3, for customary marine title to be recognised andexercised.[384] The consistent theme of these provisions is that MACA is intended to restorecustomary interests in the common marine and coastal area that were extinguished bythe 2004 Act. Those interests are to be "given legal expression" in accordance withMACA.438 Or, as it is put in the Preamble, translated into legal rights and intereststhat are inalienable, enduring, and able to be exercised so as to sustain all the peopleof New Zealand and the coastal marine environment for future generations. Section 7expressly makes the link with the Treaty of Waitangi: MACA recognises and promotesthe exercise of customary interests of Māori in the common marine and coastal area"in order to take account of the Treaty of Waitangi". It does so by providing, amongother things, for PCRs to be recognised and protected and for CMT to be recognisedand exercised.[385] However MACA does not leave it to the courts to identify the nature andcontent of customary rights and interests, and make orders reflecting those findings.Rather, MACA provides for customary rights and interests to be translated into thethree kinds of statutory entitlement referred to in s 7 of MACA. The statutoryentitlements into which the customary rights are translated are subject to a number ofexpress limits that must be borne in mind when considering claims to thoseentitlements.438 MACA, s 6(1).[386] First, and most fundamentally, none of the statutory entitlements amounts toownership of any area of the common marine and coastal area. Section 11(2) ofMACA records that neither the Crown nor any other person owns, or is capable ofowning, the common marine and coastal area. That special status does not affect therecognition of customary interests in accordance with MACA.439 Thus a group thatholds a PCR or CMT in respect of a specified area does not own the area in question.Rather, it has the bundle of (statutory) rights and interests set out in MACA itself.[387] Second, MACA provides for the public to have certain rights in relation to thecommon marine and coastal area even if that area is subject to a CMT: rights of accessunder s 26, rights of navigation (including temporary anchoring and grounding) unders 27 and rights of fishing under s 28. The corollary of this is that a holder of CMTdoes not have many of the rights that are commonly associated with ownership of land,and does not have some of the rights that (on the evidence before us) seem likely tohave existed as a matter of tikanga in some parts of the foreshore and seabed as at1840.[388] What, then, are the statutory entitlements short of ownership into whichcustomary rights and interests have been "translated"?[389] The participation rights provided for in subpt 1 of pt 3 are a new form of rightthat does not directly reflect the content of customary rights. They provide relevantgroups with a voice, but not decision rights, in relation to certain statutory conservationprocesses.[390] PCRs, provided for in subpt 2 of pt 3, are rights that have been exercised in aparticular area since 1840, that continue to be exercised by the applicant group inaccordance with tikanga, and that have not been extinguished as a matter of law.440The statutory rights conferred by a PCR are described in more detail by Miller J aboveat [331].439 Section 11(5)(a).440 Section 51(1).[391] CMT, provided for in subpt 3 of pt 3, is the most extensive form of statutoryright provided for under MACA. CMT is a (non-alienable) interest in land.441 A groupthat holds CMT over a specified area does not have the right to exclude people fromthat area: public rights of access, navigation and fishing are, as already mentioned,expressly carved out and protected by ss 26–28. But a group that holds CMT hascertain rights set out in ss 60 and 62 of MACA including permission rights under theResource Management Act 1991442 (dealt with in ss 66–70 of MACA) and certainconservation statutes (ss 71–75); a right to protect wahi tapu and wahi tapu areas(ss 78–81); prima facie ownership of newly found taonga tūturu (s 82); ownership ofcertain minerals (ss 83–84); and the right to create a planning document for the area(ss 85–93). These statutory rights are described in more detail by Miller J above at[134]–[135].[392] That brings us to s 58 of MACA, which governs applications for CMT:58 Customary marine title(1) Customary marine title exists in a specified area of the commonmarine and coastal area if the applicant group—(a) holds the specified area in accordance with tikanga; and(b) has, in relation to the specified area,—(i) exclusively used and occupied it from 1840 to thepresent day without substantial interruption; or(ii) received it, at any time after 1840, through acustomary transfer in accordance with subsection (3).(2) For the purpose of subsection (1)(b), there is no substantialinterruption to the exclusive use and occupation of a specified area ofthe common marine and coastal area if, in relation to that area, aresource consent for an activity to be carried out wholly or partly inthat area is granted at any time between—(a) the commencement of this Act; and(b) the effective date.(3) For the purposes of subsection (1)(b)(ii), a transfer is a customarytransfer if—441 Section 60(1)(a).442 Or, as applicable, under the Natural and Built Environment Act: see sch 1, cls 83–84.(a) a customary interest in a specified area of the commonmarine and coastal area was transferred—(i) between or among members of the applicant group;or(ii) to the applicant group or some of its members from agroup or some members of a group who were not partof the applicant group; and(b) the transfer was in accordance with tikanga; and(c) the group or members of the group making the transfer—(i) held the specified area in accordance with tikanga;and(ii) had exclusively used and occupied the specified areafrom 1840 to the time of the transfer withoutsubstantial interruption; and(d) the group or some members of the group to whom the transferwas made have—(i) held the specified area in accordance with tikanga;and(ii) exclusively used and occupied the specified area fromthe time of the transfer to the present day withoutsubstantial interruption.(4) Without limiting subsection (2), customary marine title does not existif that title is extinguished as a matter of law.[393] Section 59 sets out a number of matters relevant to whether CMT exists in aparticular area. Section 59(1)(a)(i) confirms that the ownership of land abutting thespecified area is relevant, though not (unlike under the 2004 Act) decisive. So too isthe exercise of non-commercial customary fishing rights in the specified area from1840 to the present day (s 59(1)(a)(ii)).[394] Section 59(3) confirms that use of a specified area of the common marine andcoastal area by persons who are not members of an applicant group does not, of itself,preclude the applicant group from establishing the existence of CMT. We return tothis below.[395] Section 106 provides for the burden of proof in applications for PCRs andCMT:106 Burden of proof(1) In the case of an application for recognition of protected customaryrights in a specified area of the common marine and coastal area, theapplicant group must prove that the protected customary right—(a) has been exercised in the specified area; and(b) continues to be exercised by that group in the same area inaccordance with tikanga.(2) In the case of an application for the recognition of customary marinetitle in a specified area of the common marine and coastal area, theapplicant group must prove that the specified area—(a) is held in accordance with tikanga; and(b) has been used and occupied by the applicant group, either—(i) from 1840 to the present day; or(ii) from the time of a customary transfer to the presentday.(3) In the case of every application for a recognition order, it is presumed,in the absence of proof to the contrary, that a customary interest hasnot been extinguished.[396] Against that backdrop, we turn to consider each of the limbs of s 58(1).Section 58(1)(a): holding the area in accordance with tikanga[397] The first limb of s 58(1) requires the applicant group to show that it holds thespecified area in accordance with tikanga. This requirement appears to reflect thedefinition of Māori customary land in Te Ture Whenua Maori Act 1993: "land that isheld by Māori in accordance with tikanga Māori".443 In relation to this provision theMāori Land Court has observed that: "The important word here is 'held'. There is noconnotation of ownership but rather that it is retained or kept in accordance withtikanga Māori."444443 Te Ture Whenua Maori Act, s 129(2)(a).444 da Silva v Aotea Māori Committee, above n 135, at 217.[398] The Judge considered that the task for the Court in considering s 58(1)(a) wasnot to attempt to measure the factual situation against western property concepts oreven the tests at common law for the establishment of customary land rights. Nor didhe consider it was particularly helpful to attempt to apply the Canadian and Australianjurisprudence on aboriginal title. Rather, "[t]he critical focus must be on tikanga andthe question of whether or not the specified area was held in accordance with thetikanga that has been established".445 This is a factual assessment that will be heavilyinfluenced by the views of tikanga experts.446[399] The Judge's approach was supported by the respondents.[400] The Attorney-General and Landowners Coalition Inc (LCI) were also broadlysupportive of the Judge's approach, but submitted that the Judge gave insufficientweight to the term "held". They accepted that in interpreting limb (a), the focus shouldbe on tikanga, and weight can properly be given to the views of pūkenga on what itmeans to hold an area in accordance with tikanga. But they noted that s 51 refers to aPCR being "exercised" in an area, in contrast to CMT where the group "holds" thatarea. Thus, they submitted, the relationship with an area that founds CMT must be atthe "territorial" end of the spectrum of customary rights. The tikanga evidence mustshow some form of control or authority by the applicant group over the area, thatelevates the group's connection with the area from a use right into a "holding".[401] We agree with the Judge that in interpreting and applying the first limb, thefocus should be on tikanga, and whether as a matter of tikanga the applicant groupholds the relevant area. We also however accept the submission that evidence ofactivities that show control or authority over the area, as opposed to simply carryingout a particular activity in that area, will be of particular relevance in distinguishing a"holding" of the area from the use of the area to gather a particular resource.[402] This is a contemporary inquiry: the term "holds" is in the present tense. So theapplicant group must currently use and occupy the area, in a manner consistent with445 Judgment under appeal, above n 11, at [144].446 At [131].the nature of that area, and must have control or authority over the area according totikanga.[403] The Canadian cases discussed by Miller J speak of a group's "intention andability" to exclude others from land.447 However in the context of Māori customaryrelationships with land, and the principles of whanaungatanga and manaakitanga,448we consider that it is more helpful to focus on the group's intention and ability tocontrol access to an area, and the use of resources within it, as a matter of tikanga.Permitting others to access the area and to use resources within it, as an expression ofmanaakitanga, is not inconsistent with control: rather, it demonstrates the exercise ofauthority in respect of the relevant area. A group may hold an area in accordance withtikanga where, for example, tikanga requires the permission of that group to be soughtbefore others access the area or use resources within it. The fact that permission isinvariably granted, in particular to whanaunga (relatives) and others with whom thereare reciprocal relationships, does not call into question the group's control of the area.Rather, it is a manifestation of that control.[404] Conversely, the use by a group of a particular resource in a specific area,coupled with an intention and ability to control the use of that resource by others, isnot of itself sufficient to establish that the area is "held" by that group in accordancewith tikanga. In the absence of statutory intervention (in the form of the 2004 Act,then MACA) such rights would have been recognised at common law as exclusiverights in respect of the resource in question. The common law would have restrainedcompeting uses of the resource, and any other uses of the area that interfered withaccess to or use of the resource. But the common law would not have enlarged thoseresource-related rights into full customary title to the area in question, conferringrights of exclusive use and occupation of that area that did not exist as a matter ofcustom pre-1840.447 See Miller J's reasons above at [105]–[113].448 See Miller J's reasons above at [127] for a definition of these principles.Section 58(1)(b): exclusive use and occupation without substantial interruption[405] The second limb of the test, set out in s 58(1)(b), requires the group to have"exclusively used and occupied [the area] from 1840 to the present day withoutsubstantial interruption". (We put to one side for the time being questions of tuku, andother questions of succession as a matter of tikanga.)[406] The Judge did not consider that the "same western proprietary approach" takenby the Canadian courts should be adopted, as this overlooked the way in which thetakutai moana is used and occupied. That approach would also undermine the test ins 58(1)(a) to the effect that the specified area was held in accordance with tikanga.449Canadian cases considering "a different type of property right to CMT" were of limitedrelevance.450[407] The Judge did not squarely address what it means to use and occupy an area ofthe coastal and marine area "exclusively", but considered that multiple groups couldshare exclusive use and occupation of an area where the area was shared by the groupsin accordance with tikanga.451 He considered that physical activities authorised by agrant of resource consent may have the practical effect of amounting to a substantialinterruption to exclusive use and occupation of part of an area, but the fact that acouncil had issued a resource consent does not automatically have that effect.452Whether an activity has that effect will depend on its nature, scale and intensity.453Third party use of the area for access, navigation or fishing would not amount to asubstantial interruption of the holding of the specified area in accordance withtikanga.454[408] It was common ground before us that at some points the Judge erred by askingwhether matters (such as fishing activities) had substantially interrupted the holdingof an area according to tikanga.455 That approach runs together the first and second449 Judgment under appeal, above n 11, at [174].450 At [150].451 At [161]–[168].452 At [224].453 At [229]–[230].454 At [256]–[269].455 See for example at [264].limbs of s 58(1). Under the second limb the question is whether any activities amountto a substantial interruption of the group's exclusive use and occupation of an area.[409] LCI argued that the second limb is a separate and independent requirementexpressed in familiar terms that should be given their ordinary meaning. Unlike thefirst limb, the second limb does not refer to tikanga. It was not open to the High Courtto "interpret away" the exclusivity requirement of this limb based on a perception thatit imposes requirements that are inconsistent with tikanga. The Canadian caselaw onaboriginal title provides substantial assistance in interpreting this limb, which wasbased on that jurisprudence. The group must have acted in a way that wouldcommunicate to third parties that it held the land for its own purposes, and the groupmust prove an intention and ability to control the specified area to the exclusion ofothers.[410] Thus, LCI submitted, if there has been substantial third party access to an area,or fishing in it, between 1840 and the present day, that demonstrates that the group didnot hold the area exclusively throughout that period (or that exclusivity wassubstantially interrupted), then CMT is not made out.[411] Similarly, the Seafood Industry Representatives (SIR) submitted that evidenceof third party fishing and other activity is relevant to determining whether an applicantgroup held an area exclusively, without substantial interruption, throughout therelevant period. Interferences that are more than minor, including interferences in theform of access or fishing, to which the applicant group objected without successfulrecognition or result, show a lack of capacity to exercise control over an area.Similarly, evidence that an applicant group's own use of the area has been negativelyaffected by the use of others is a strong indicator of a lack of ability to control therelevant area. Such interferences are capable of amounting to substantial interruptionsthat preclude recognition of CMT.[412] The Attorney-General also submitted that the Canadian jurisprudence providesuseful guidance on the application of the second limb, which deliberately reflectselements of the common law on possessory title and aboriginal title, adapted to theNew Zealand statutory context.456 The Attorney-General sought clarification from thisCourt in respect of the assessment of evidence required to establish exclusive use andoccupation, particularly at the seaward boundary, and how "shared exclusivity" worksin practice and the assessment of evidence relating to shared exclusivity.[413] The respondents emphasise the purpose and context of MACA. They submittikanga has a central role to play in interpreting MACA. The Treaty/te Tiriti is alsocentral to the interpretation of MACA. MACA should be read in a manner thatrecognises and promotes customary interests, and is consistent with the presumptionthat such interests have not been extinguished. A regime that has the practical effectof extinguishing customary rights through non-recognition would be inconsistent withthe Crown's Treaty/Tiriti obligations and would undermine the careful politicalcompromise which Parliament struck.[414] The respondents accept that the second limb requires continuity of use andoccupation. They say this will usually be met where a group has satisfied the firstlimb by showing that they hold the area according to tikanga, because the principle ofahi kā roa (long burning fires of occupation) requires demonstration of ongoing useand occupation to keep the fires burning. But there may be exceptions, where forexample a group present in 1840 no longer exists or where a group has emerged since1840 (absent a customary transfer).[415] The respondents do not accept that an applicant group is required todemonstrate an intention and ability to control the specified area to the exclusion ofthird parties, for four main reasons. First, they say this requirement could not be metin the marine environment, especially given the provision in s 59(3) that use of thearea for fishing or navigation does not of itself preclude CMT. Second, an expressprovision to this effect was included in the 2004 Act, which required that the area beused and occupied "to the exclusion of all persons who did not belong to the group".457But this requirement was removed in MACA. Third, the Canadian jurisprudence isnot directly applicable because it reflects different factual contexts, differentconstitutional contexts, and different legal consequences attaching to a finding of456 The Attorney-General referred to the departmental report, above n 162, at [1425].457 Foreshore and Seabed Act, s 32(2)(a).customary title. Fourth, if "exclusive" is defined by reference to an intention andability to control the specified area to the exclusion of third parties, there would be noneed to add the words "without substantial interruption" as this would already becaptured.[416] We have found it exceptionally difficult to reconcile the text of s 58(1)(b) withthe purpose of MACA. On a literal reading of s 58(1)(b), and its requirement — notfound in the common law of New Zealand, as Ngāti Apa makes plain — that the groupmust have exclusively used and occupied the area from 1840 to the present day, itseems likely there would be few areas of the foreshore or seabed where CMT couldbe made out. In some (perhaps many) areas where the common law would recognisethat a group had customary title, incursions into that area over the last 180 years bythird parties would deprive the group of CMT. Far from recognising and promotingcustomary interests, MACA would in many cases extinguish those interests. And itwould do so by a side wind, by setting a threshold for recognition of CMT that couldnot be met as a result of matters that would not otherwise affect common lawrecognition of customary title. That outcome would be inconsistent with the Treaty/teTiriti. It would be inconsistent with the assurances given in the Government's 2010consultation document that preceded MACA, discussed by Miller J at [54]–[59]above. It would be inconsistent with the purposes of MACA set out in s 4: in particular,recognising mana tuku iho458 and providing for the exercise of customary interests inthe common marine and coastal area. It would be inconsistent with the statement in s7 that MACA recognises and promotes the exercise of customary rights to take accountof the Treaty/te Tiriti.[417] We accept the submission of LCI and the Attorney-General that it is clear fromthe language of s 58, and from the legislative history, that CMT is a territorial interestin an area. It is the statutory interest in land into which MACA translates interests thatthe common law would recognise as territorial in nature, not simply as use rights.But LCI's submission goes much further: it would result in many customary rights ofa territorial nature being lost in translation, in a manner that we consider cannot be458 Defined as inherited right or authority derived in accordance with tikanga in MACA, s 9(1).reconciled with ss 4–7 of MACA or with the assurances and principles set out in the2010 consultation document that preceded it.[418] Ultimately we have concluded that it is possible to interpret the text of s 58 ina manner that is consistent with the purpose of MACA by reading it in a manner thatis sensitive to the materially different legal frameworks that applied beforeproclamation of sovereignty in 1840, and from proclamation of British sovereigntyonwards.[419] The requirement that the applicant group has used and occupied the area from1840 to the present day emphasises the need to trace the relevant customary rightsback to 1840, before the British proclamation of sovereignty. The customary rightsmust have existed as at 1840, and the applicant group must be (or be the successor of)the group that exercised those rights at that time.[420] In so far as this limb relates to the position in 1840, before proclamation ofBritish sovereignty, we accept the submission of LCI that it largely reflects commonlaw requirements for customary title as explained in the Canadian authorities. But asthe Canadian authorities emphasise, this analysis must be undertaken in a culturallysensitive manner that focuses on the customs and usages of the relevant groups.459[421] As discussed above, the applicant group must have had the intention and abilityas a matter of tikanga to control access to the relevant area by other groups.This distinguishes areas held by the group at that time from areas in respect of whichthe group could assert specific resource rights, but did not otherwise control the use ofthe area, especially where other groups also independently used the area or accessedother resources in that area. The group could not be said to exclusively use and occupythe area in such circumstances.[422] The use of a particular resource in an area will not, without more, amount toexclusive use and occupation of that area. There must be a "strong presence" in thearea, manifesting itself in acts of occupation that could reasonably be interpreted as459 See for example Tsilhqot'in Nation, above n 138, at [35], [41]–[42] and [50]; and Delgamuukw,above n 138, at [148] per Lamer CJ and Cory, McLachlin and Major JJ.demonstrating that the area in question belonged to, was controlled by, or was underthe exclusive stewardship of the claimant group. This will be more difficult todemonstrate in relation to marine areas than in relation to coastal areas, because oftheir nature and the different ways in which such areas can in practice be used. And itwill be more difficult to demonstrate in respect of offshore areas visited onlyoccasionally (for example, to fish) than shallower areas close inshore that could be(and were) observed and controlled from coastal settlements, and used on a regularbasis (for example, coastal inlets frequently used for collection of shellfish andshallow-water fish species, transport, rongoā (medicine) and other activities).[423] The result may be that it is more difficult to establish CMT in respect of marineareas other than inlets and shallow coastal waters. That is because the ways in whichsuch areas are used is often more akin to a use/resource right than a right of exclusiveoccupation of the kind that founds customary title of a territorial nature. At commonlaw those rights could have been translated into strong (non-territorial) rightsexercisable against third parties to protect access to the resource. But MACAprecludes this: only territorial rights translate into CMT, with other rights protectedthrough PCRs (or other mechanisms, for example in relation to customary andcommercial fisheries).[424] The ability of a group to meet this requirement will not necessarily be defeatedby evidence of access to the area and use of resources in that area by other Māorigroups. Full account will need to be taken of the core tikanga values ofwhanaungatanga and manaakitanga in order to understand the basis on which othergroups were present in the area. As we explained above in relation to the first limb,where a group permits access by other groups to its land and to its resources, that willreflect the exercise of its mana/control in respect of that land, and (as a result) supportsrather than undermines a claim to CMT.[425] We also emphasise that where an area is used by two or more groups, theappropriate conclusion may well be that the two groups together meet the test, or thatsome broader group that includes the two applicant groups meets that test. We returnbelow to the question of shared exclusivity.[426] The requirement that a group must have exclusively used and occupied the areafrom the proclamation of British sovereignty to the present day, without substantialinterruption, needs to be approached having regard to the substantial disruption to theoperation of tikanga that resulted from the Crown's exercise of kāwanatanga, andhaving regard to the scheme and purpose of MACA. Relevant factors include:(a) The nature of the customary rights in issue, which in many cases willhave been consistent with access by others to the area in a manner thatdid not affect the enjoyment of the resources found in that area.(b) The frequent and generous exercise of manaakitanga by whānau, hapūand iwi in favour of other Māori groups, and in favour of Europeansettlers. So for example where settlers accessed a coastal area with theacquiescence of a Māori group that held the area in accordance withtikanga, that did not disprove or interrupt the relevant group's rights ofcontrol: rather, this represented the exercise of an important facet ofthose control rights. It would be ironic and unjust if the generouswelcome that Māori extended to settlers were now to be treated asdiminishing or extinguishing the rights of Māori groups: MACA shouldnot be read in a manner that would produce that unsatisfactory result.(c) The Crown's promise, contained in art 2 of the Treaty/te Tiriti, thatMāori would continue to enjoy the full exclusive and undisturbedpossession of their lands and estates, forests, fisheries and otherproperties. Māori did not agree to forego these rights, and the Crownmade a commitment to respect them. MACA expressly records that itsprovisions take account of the Treaty/te Tiriti, and art 2 is the provisionof central relevance in the MACA context.(d) The Crown's arrogation to itself of the power to control access tocustomary lands, by prohibiting (in the exercise of kāwanatanga) theuse of force to prevent incursions into an area controlled by a relevantgroup, and (from 1909 onwards) by preventing customary owners frombringing their own proceedings in the courts to prevent unauthorisedaccess to their customary land.460 This meant that Māori were deprivedof mechanisms for controlling access to coastal areas that they held asa matter of tikanga and as a matter of common law: they could notlawfully resort to force to protect those areas and associated resources,and they were effectively excluded from seeking to protect those areasthrough the courts.(e) The longstanding and widely held (but incorrect) view that there couldbe no customary rights or interests in the common marine and coastalarea, ultimately dispelled by this Court's decision in Ngāti Apa.This view doubtless encouraged incursions into areas that were held byMāori as a matter of tikanga, and contributed to inaction by the Crownin relation to such incursions.(f) The express provision in s 59(3) of MACA that use at any time bypersons who are not members of an applicant group of a specified areafor fishing or navigation does not, of itself, preclude the applicant groupfrom establishing the existence of CMT. We agree with Miller J thatthe same must be true of public access to an area, as MACA treats suchaccess as compatible with CMT.461 This confirms that activitiesengaged in by third parties in coastal areas, whether as a result ofmanaakitanga on the part of relevant groups or as a result ofAnglocentric assumptions on the part of those third parties about theirright to do so that Māori were unable to resist, should not be seen asrelevant interruptions of the customary rights that found CMT.[427] The submission by LCI and SIR that any substantial third party access to (orfishing in) an area claimed by a group demonstrates that the group did not hold thearea exclusively (or that exclusivity was substantially interrupted) fails to take thesematters into account. It misunderstands the centrality of whanaungatanga andmanaakitanga to relationships between iwi Māori and whenua. It would, if accepted,have the result that MACA fails to achieve its stated purposes. Far from giving effect460 See Native Land Act 1909, s 88.461 See Miller J's reasons above at [120].to customary rights and interests and taking account of the Treaty/te Tiriti, s 58 wouldoperate to extinguish many customary rights and would defeat the promises made inthe Treaty/te Tiriti. Where the Treaty/te Tiriti had been breached by Crown failures toprotect customary rights and interests, MACA would entrench and perpetuate thosebreaches. MACA would, by a side wind, create a form of "adverse possession" regimein respect of customary land that would be novel and unprecedented, inconsistent withthe common law, and inconsistent with the Treaty.462 The courts should be slow toattribute to Parliament an intention to prescribe a test for CMT that would operate inthis manner, contrary to the stated purposes of MACA and contrary to the assurancesand principles set out in the 2010 consultation document.[428] We do not consider that the language of s 58 compels such an unsatisfactoryresult. Rather, we consider that s 58(1)(b) can and should be read as requiring that theapplicant group's use and occupation of the area was not substantially interrupted bylawful activities carried on by others. Activities that were not interruptions, becausethe group allowed those activities in the exercise of its manaakitanga, would not resultin a failure to meet this requirement. Activities that were inconsistent with the group'scustomary rights, and were not authorised by legislation capable of overriding thoserights, would be disregarded: such activities also would not result in a failure to meetthe s 58(1)(b) requirement.[429] It follows that we do not accept the submission by LCI and SIR that anapplicant group needs to demonstrate both an intention and an ability to exclude others(including non-Māori) from the relevant area from 1840 to the present day. It wouldbe unjust and unprincipled to require an applicant group to demonstrate an ability toexclude others, when that ability was taken away from Māori customary owners bythe law as it was understood for most of the relevant period. In the absence of anability to exclude others, an intention to do so would be futile. MACA should not be462 It is well established as a matter of common law that customary title can only be extinguished(without the owners' consent) by clear legislation to that effect: see Attorney-General v Ngāti Apa,above n 62, at [185] per Tipping J. See also Re Pukaroro No 1 Block (1996) 11 Tākitimu AppellateMB 170 (11 ACTK 170), particularly at 173–177 and 179–181; Neera v The Bishop of Wellington(1902) 21 NZLR 655 (CA) at 668; Roihi v Assets Company Ltd (1902) 21 NZLR 691 (CA) at761–762; and Banjima People, above n 212, at [21], citing Griffiths, above n 212, at [127]. Thisprinciple is reflected in ss 155 and 159(a) of the Land Transfer Act 2017 and s 150E of Te TureWhenua Maori Act.read as requiring whānau, hapū and iwi to demonstrate an intention and ability toexclude other people from coastal areas in circumstances where the law effectivelydeprived them of that ability.[430] That approach to s 58(1)(b) is consistent with the limited nature of rightsconferred by CMT, and in particular the fact that CMT is subject to the rights of access,navigation and fishing protected by ss 26–28 of MACA. It would be illogical torequire an applicant group to demonstrate a level of control from 1840 to the presentday that extended to precluding access, navigation and fishing by settlers and othersin order to qualify for statutory rights which do not confer that level of control overthe area in the future.[431] What, then, would amount to a substantial interruption of a group's exclusiveuse and occupation post-1840? That question will need to be explored as and when itarises in particular cases. We can do no more than provide some broad indicationsbased on the scenarios canvassed before us.[432] First, it seems to us that rights that existed as at 1840 will have beensubstantially interrupted where a group has ceased to use and occupy a relevant areafor such an extended period that ahi kā roa is no longer maintained by that group as amatter of tikanga. More generally, where as a matter of tikanga a group has ceased tohave the relevant degree of control and authority over an area after 1840, for examplebecause other Māori groups have displaced the original customary holders as theprimary occupiers and kaitiaki of the area, the test will not be met by that originalholder. (In those circumstances, it seems likely that the first limb of s 58(1) also willnot be satisfied by the original holders: they will not currently hold the area inaccordance with tikanga.)[433] Second, an Act of Parliament could authorise use or occupation of the area byanother person without the permission of the customary owner. Use or occupation ofthe area by another person in a manner that was expressly authorised by an Act ofParliament could substantially interrupt the use and occupation of the area by theapplicant group. Whether it does so in fact will, as the Judge held in this case,463463 Judgment under appeal, above n 11, at [230], [251]–[252] and [256]–[258].depend on a factual inquiry into the nature and extent of the interruption to the group'suse and occupation. So for example the lawful construction and operation of portfacilities pursuant to a resource consent or some other form of legislative authority, ina manner that excludes the applicant group from access to certain parts of the commonmarine and coastal area, would preclude the grant of CMT in respect of those parts ofthe area.[434] In summary, it seems to us that the best available reading of s 58, whichrespects both its text and its purpose, focuses on:(a) Whether the applicant group currently holds the relevant area as amatter of tikanga.(b) Whether in 1840, prior to the proclamation of British sovereignty, thegroup (or its tikanga predecessor(s)) used and occupied the area, andhad sufficient control over that area to exclude others if they wished todo so. This inquiry essentially parallels the inquiry required bycommon law to establish customary title as at 1840.(c) Whether post-1840 that use and occupation ceased or was interruptedbecause the group's connection with the area and control over it waslost as a matter of tikanga, or was substantially interrupted by lawfulactivities carried on in the area pursuant to statutory authority.Burden of proof[435] We agree with Miller J that the Judge erred in finding that an applicant groupmust establish all the elements of s 58, including that their occupation was exclusivefrom 1840 to the present day, and was not substantially interrupted. That approach isdifficult to reconcile with the express language of s 106. Reading ss 58 and 106together, as we must, we consider that an applicant group will need to call evidence tosatisfy the Court that:(a) The specified area is currently held by that group in accordance withtikanga. That is, the group will need to show that as a matter of tikangait has the authority to use and occupy the area, and to control access toand use of that area by others.(b) The use and occupation of the area by that group has been continuousfrom 1840 to the present day (allowing for tuku, and for changes incomposition and identities of customary groups).[436] That will be sufficient for the Court to draw an inference that the s 58 test ismet, unless some other party takes it on themselves to demonstrate that the customaryinterests of the applicant group were not sufficient to establish effective control overthe relevant area as at 1840, or have ceased to have the necessary character or beensubstantially interrupted after 1840, as explained above.[437] The Judge considered that applicants were required to establish exclusivity andabsence of substantial interruption because these are positive elements of s 58, ands 98 provides that the Court may only make an order recognising CMT if it is satisfiedthat the applicant meets the requirements of s 58.464 However we consider that theeffect of s 106 is that if the matters specified in that provision are established by theapplicant, the Court is entitled to infer that the other requirements of s 58 are satisfiedunless a party alleges, and establishes, the contrary.Shared CMT[438] We add some observations about shared CMT.[439] We agree with Miller J that the Judge was right to conclude that it would beinconsistent with the scheme of MACA to have two or more overlapping CMTs inrespect of the same area.465 That would be unworkable. But we see no difficulty in asingle grant of recognition in favour of two or more groups of a single CMT in respectof a particular area. Such a grant is most likely where the groups make a jointapplication, or where they make separate applications but each acknowledges theshared rights of use and occupation of the other groups.464 At [98]–[99].465 At [169].[440] However we do not share the view of Miller J that where there are twoapplicant groups, neither of which acknowledges the rights of the other, there can beno grant of recognition of a shared CMT. We do not see any contradiction in a findingthat two applicant groups hold a specified area in accordance with tikanga vis-à-vis allother groups and individuals, and between them exclusively use and occupy the area,while at the same time vigorously contesting their mutual rights as betweenthemselves.[441] Suppose for example that two hapū occupying coastal marae both make regularuse of an area in the common marine and coastal area. The two hapū have closewhakapapa links. Each hapū considers that they have the primary connection to thearea, and that the other is permitted by them to use it as a matter of manaakitanga andwhanaungatanga. It is clear that no other group has any rights or interests in the areaas a matter of tikanga, and pre-1840 it is likely that attempted incursions by a thirdgroup would have been met by the two groups putting aside their differences, if onlytemporarily, and together defending the area against others. If the two hapū areconsidered together, all the s 58 tests are met. However they do not make a jointapplication for CMT under MACA. Each hapū seeks its own CMT. Each opposes agrant to the other of recognition of CMT. There is no consent to the recognition of ajoint CMT. The Court is not able to be satisfied that either occupied the area to theexclusion of the other. Does that mean that each fails the s 58 test, and no CMT canbe recognised?[442] A refusal to recognise CMT in those circumstances would effectively meanthat areas that were unquestionably in Māori customary ownership in 1840 were takenout of Māori ownership, and customary rights and interests lost, because a currentlyunresolved tikanga difference between two or more hapū cannot be resolved in theHigh Court in the context of competing applications for CMT. Tikanga differences ofthis kind can take considerable time to resolve in a tikanga-consistent manner. Whereit would be premature or institutionally inappropriate for the High Court to seek todetermine such a difference, the result should not be a permanent loss of rights. Thatwould be a perverse outcome inconsistent with the purpose of MACA. Rather, weconsider that in these circumstances the Court can grant recognition of CMT to bothgroups jointly on the basis that one or other or both together meet the s 58 test, and theresolution of entitlement as between those two groups is best achieved through atikanga process over time. The groups can be directed to submit draft orders on thisbasis under s 109 of MACA. If they cannot agree on draft orders, the Court canappoint a person to hold the CMT for one or other or both groups until such time as atikanga resolution can be reached between them.466 The order could then be varied toreflect that resolution in accordance with s 111.[443] We agree with Miller J that it is unsatisfactory to compel parties to hold CMTjointly where that was not sought by the parties, especially if joint ownership wasactively opposed. But we consider that terms on which CMT is held by a neutral partycan be devised which do not require permanent joint ownership: rather, this would bea mechanism for holding the position pending a tikanga-consistent resolution of theparties' differences. We see this as less problematic by some considerable margin thana permanent loss of rights.[444] Another form of overlap in rights that is in our view consistent with MACAwould arise where one group holds an area according to tikanga, but a second grouphas a specific customary right to use a particular resource within that area.The overlapping networks of resource rights that characterised Māori customaryinterests in relation to land not infrequently gave rise to overlaps of this kind, as weunderstand the evidence. By way of analogy, just as there is no contradiction betweenperson A holding a fee simple title to a particular area of land, and person B having aneasement or a profit à prendre in respect of some part of that land, so there is nocontradiction between one group holding a specified area in accordance with tikanga,and another group having a more narrowly defined right to use a particular resource ata particular time on that land, or to access that land for a particular purpose.[445] On this approach, there is no inconsistency between a grant of recognition ofCMT in respect of a specified area to one group, and the grant of recognition of PCRto another group in respect of a particular activity in that same area. That is consistentwith the complex and often overlapping networks of resource rights that characterisedcustomary Māori interests in land. It would be inconsistent with the nature of those466 If the two groups cannot agree on a person to hold the CMT for them on this basis, the Court couldidentify a suitable person — perhaps, for example, the Māori Trustee.rights, and the purpose of MACA to recognise and give expression to such rights, totreat CMT and PCR as mutually exclusive and antithetical.Conclusion[446] The approach to s 58 outlined above leads us to the same result as that set outin the judgment of Miller J. As already mentioned, we agree with the orders heproposes.[447] The applications for CMT recognition orders over the area covered by Orders1 and 3 in the High Court should be reheard in the High Court in light of the approachset out above.Solicitors:Ngātahi Law, Auckland for Edwards/Whakatōhea Iwi, Pākōwhai Hapū, Hiwarau C, Turangapikitoi,Waiōtahe and Ōhiwa of WhakatōheaTe Aro Law, Wellington for Te Ūpokorehe Treaty Claims TrustWhāia Legal, Wellington for Te Rūnanga o Ngāti AwaOranganui Legal, Paraparaumu for Ngāi Tai and RiriwhenuaFranks Ogilvie, Wellington for Landowners Coalition IncTu Pono Legal Ltd, Rotorua for Whakatōhea Māori Trust BoardTe Haa Legal, Ōtaki for Ngāti Muriwai and Kutarere MaraeAnnette Sykes & Co, Rotorua for Ngāti Ruatakenga and Ngāti Ira o WaiōwekaBennion Law, Wellington for Ngāti PatumoanaWackrow Panoho & Associates, Auckland for Ngāi Tamahaua Hapū and Te Hapū Titoko o Ngai TamaMcCaw Lewis, Hamilton for Te Uri o Whakatōhea Rangatira MokomokoCrown Law Office | Te Tari Ture o te Karauna, Wellington for Attorney-GeneralKāhui Legal, Wellington for Te Rūnanga o Te WhānauChapman Tripp, Wellington for Seafood Industry RepresentativesCooney Lees Morgan, Tauranga for Crown Regional Holdings Ltd, Ōpōtiki District Council and Bayof Plenty Regional CouncilBrookfields Lawyers, Auckland for Whakatāne District Council