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Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504 (18 October 2023)

Last Updated: 24 October 2023

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA303/2021
CA314/2021
CA326/2021
CA327/2021
CA330/2021
CA332/2021
CA339/2021
[2023] NZCA 504

	BETWEEN	WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) TE ŪPOKOREHE TREATY CLAIMS TRUST TE RŪNANGA O NGĀTI AWA NGĀI TAI AND RIRIWHENUA HAPŪ LANDOWNERS COALITION INCORPORATED TE KĀHUI AND WHAKATŌHEA MĀORI TRUST BOARD NGĀTI MURIWAI AND KUTARERE MARAE NGĀTI RUATAKENGA NGĀTI PATUMOANA Appellants
	AND	TE KĀHUI AND WHAKATŌHEA MĀORI TRUST BOARD NGĀI TAI AND RIRIWHENUA HAPŪ TE ŪPOKOREHE TREATY CLAIMS TRUST TE RŪNANGA O NGĀTI AWA Respondents
	AND	ATTORNEY-GENERAL TE WHĀNAU-Ā-APANUI SEAFOOD INDUSTRY REPRESENTATIVES CROWN REGIONAL HOLDINGS LIMITED, ŌPŌTIKI DISTRICT COUNCIL AND BAY OF PLENTY REGIONAL COUNCIL WHAKATĀNE DISTRICT COUNCIL Interested Parties

Hearing:	27 February 2023 – 3 March 2023
Court:	Cooper P, Miller and Goddard JJ
Counsel:	M J Sharp for Ngāti Muriwai and Kutarere Marae (Christina Davis and Barry Kiwara) T C Waikato for Crown Regional Holdings Ltd, Ōpōtiki District Council and Bay of Plenty Regional Council T H Bennion and O Ford Brierley for Ngāti Patumoana (Te Ringahuia Hata) DTK Ketu for Te Uri o Whakatōhea Rangatira Mokomoko (Karen Mokomoko and Pita Biddle) D M Salmon KC, H K Irwin-Easthope and K J Tarawhiti for Te Rūnanga o Ngāti Awa E S Greensmith-West for Whakatāne District Council J M Pou for Whakatōhea Māori Trust Board R L Roff and C C Barnett for Attorney-General J S Cooper KC, B R Lyall and HL B Swedlund for Te Ūpokorehe Treaty Claims Trust RJB Fowler KC, A J Sinclair and B M Cunningham for Edwards/Whakatōhea Iwi, Pākōwhai Hapū, Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa of Whakatōhea (Claude Edwards, Adriana Edwards, Dean Flavell and Larry Delamere), Collectively Whakatōhea Kotahitanga Waka B R Arapere, A E Gordon and E K Rongo for Ngāi Tai and Ririwhenua (Muriwai Jones) J E Hodder KC, B K McLay and B E Morten for Landowners Coalition Incorporated K S Feint KC and SWH Fletcher for Ngāti Ruatakenga ATI Sykes and TMM P Rurehe for Ngāti Ira o Waiōweka (Te Rua Rakuraku) CMT Panoho-Navaja for Ngāi Tamahaua Hapū and Te Hapū Titoko o Ngai Tama (Tracy Hillier) B A Scott and S Cvitanovich for Seafood Industry Representatives M Mahuika and N R Coates for Te Rūnanga o Te Whānau
Judgment:	18 October 2023 at 2.00 pm

JUDGMENT OF THE COURT

The Edwards appeal is dismissed, as are those of Kutarere Marae and Ngāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwai from participating in any recognition order for customary marine title (CMT) granted, following rehearing, to the Whakatōhea applicant groups.
The appeals of Te Ūpokorehe, Ngāti Awa and the Landowners Coalition Inc are allowed in part. CMT Orders 1 and 3 are set aside. LCI’s appeal against CMT Order 2 is dismissed.

The cross-appeals of Te Kāhui and Ngāi Tai are dismissed so far as they seek a recognition order for CMT over the common marine and coastal area around Whakaari and Te Paepae o Aotea.

Te Kāhui’s cross-appeal is allowed in part. CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.
We order a rehearing of the applications for CMT recognition orders over the area covered by Orders 1 and 3. The rehearing will not extend to the common marine and coastal area around Whakaari and Te Paepae o Aotea.
The appeal of Ngāti Ruatakenga against the granting of recognition orders for protected customary rights (PCR) to Ngāti Muriwai is dismissed.
The appeal of Ngāti Patumoana against the refusal to grant a recognition order for PCRs is allowed to the extent set out at [350]. The form of the orders is to be settled in the High Court.

H Costs will lie where they fall.
___________________________________________________________________

REASONS

Miller J [1]
Cooper P and Goddard J [360]

MILLER J

TABLE OF CONTENTS

Introduction

[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) recognises certain Māori customary interests in the marine and coastal area,^[1] meaning the area between high-water springs and the 12 nautical mile limit of the territorial sea.^[2] MACA creates three new species of legal interest: a right to participate in conservation processes,^[3] a customary marine title (CMT) and a protected customary right (PCR).^[4] These legal interests may be granted to iwi, hapū or whānau groups.^[5] Grants are made by agreement with the Crown or, alternatively, on application to the High Court for a recognition order.^[6]
[2] Some 200 applications for recognition orders have been filed in the High Court. Several have been decided there and the others are pending.^[7] The present appeals concern the first substantive judgment to reach this Court. It was also the first case to confront competing applications for CMT over the same area.
[3] These appeals are almost entirely concerned with CMT, which the High Court may recognise if satisfied that the applicant group holds a specified area in accordance with tikanga,^[8] and that they have “exclusively used and occupied” that area from 1840 to the present day “without substantial interruption”.^[9] The Court may, and in this case did, take non-binding advice on questions of tikanga from a court‑appointed expert (pūkenga).^[10]
[4] The judgment under appeal was delivered by Churchman J on 7 May 2021 after an eight-week hearing conducted under difficult COVID-19-disrupted conditions.^[11] It contains much detail and analysis which we gratefully adopt, including a detailed account of whakapapa connections. Many of his findings are not now in dispute.
[5] The Judge found that applicants had met the criteria for CMT recognition orders in three areas but failed in others.^[12] He also found that the applicants had met the criteria for specific PCRs.^[13]
[6] Churchman J has since delivered a further judgment (No 7 judgment) working out 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 and PCRs.^[15] The findings made in the No 7 judgment are the subject of separate appeals which have not yet been set down.
[7] I observe that the High Court has employed staged hearings in other MACA cases.^[16] This has been done for good reason. Among other things, staged hearings may better accommodate tikanga processes, as we explain later. However, appellate review is constrained if the case is part-heard at first instance and closely related issues are likely to become the subject of future appeals. It has been sensible to address questions of principle in this case, the first MACA appeal, but this Court will need to consider in future cases whether to delay setting appeals down until final orders have been made at first instance.
[8] The specified area under appeal comprises a tract of the marine and coastal area 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 coastal area around Whakaari (White Island, 48 kilometres offshore) and Te Paepae o Aotea (formerly called the Volkner Rocks, five kilometres from Whakaari).^[17] It also includes the Ōhiwa Harbour. It is said to represent the rohe moana of Te Whakatōhea and part of the rohe moana of Ngāi Tai. Neighbouring iwi appear to contest the boundaries of the specified area to the west and to contest Whakatōhea claims to CMT at Whakaari and 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 the Seafood Industry Representatives (SIR).^[18]
[10] Almost all of the 27 PCRs recognised by the Judge are uncontroversial, aside from 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, essentially for want of mandate, to establish their claim to CMT on behalf of the iwi of Whakatōhea. The members are:

(a) Claude Augustin Edwards (deceased) and Adriana Edwards (claiming to act on behalf of Te Whakatōhea iwi);
(b) Christina Davis for Ngāti Muriwai hapū;
(c) Dean Flavell for Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwa o Whakatōhea;
(d) Larry Delamere for Pākōwhai Hapū; and
(e) Barry Kiwara for Kutarere Marae.

Among other things, WKW say that the “iwi tipuna” application filed by Claude Edwards was first in time and must have priority, that the pūkenga appointed by the High Court to advise on questions of tikanga went well beyond their remit and that the Judge erred by deferring to them.

[12] Te Kāhui are an umbrella group who succeeded below in establishing their joint claim to CMT as hapū of Whakatōhea, which has been described as a hapū‑centric iwi. They are the principal respondents and also appear as cross‑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 the common marine and coastal area surrounding Whakaari and Te Paepae o Aotea. They also 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 say the Judge erroneously denied them PCRs for taking kaimoana, taking aquatic plants and seabirds, navigation and passage, for collection of sand, stones, shingle and detritus, and for cultural practices associated with these uses, on the ground that there was insufficient evidence of these activities.^[21] Ngāti Ruatakenga say the Judge was wrong 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 are merely a “subdivision” of Ngāti Ruatakenga and as such disentitled, as a matter of tikanga, to a separate recognition order.
[14] Although not an applicant below or a party to the appeals, a fifth hapū of Whakatōhea, Ngāti Ngāhere, were found entitled to CMT as part of the Te Kāhui claim.^[23] Their case was advanced by Whakatōhea Māori Trust Board (the Board), which is a hapū-based organisation established in 1952 (originally under the Maori Purposes Act 1949 and later the Maori Trust Boards Act 1955) to represent the iwi of Whakatōhea.^[24] Its members comprise six hapū: Ngāi Tamahaua, Ngāti Ruatakenga, Ngāti Ira o Waiōweka, Ngāti Patumoana, Ngāti Ngāhere and Te Ūpokorehe. The Board is a respondent, appearing to oppose the appeals and to support Te Kāhui’s cross‑appeal.
[15] Te Ūpokorehe, who are represented by Te Ūpokorehe Treaty Claims Trust, are a cross-appellant and respondent. Te Kāhui and the Board recognise them as a sixth hapū of Whakatōhea, as just noted, and the High Court found that they are entitled to share in the CMT granted to Whakatōhea hapū. However, Te Ūpokorehe say they are an iwi entitled to CMT of their own which encompasses much of the area claimed by Te Whakatōhea hapū. They say the Judge erred by ruling that MACA does not contemplate overlapping CMT;^[25] alternatively, that a much more “granular” approach ought to have been taken to defining CMT boundaries. They also dispute the recognition of Ngāti Ngāhere as a joint holder of a CMT on evidential and procedural grounds.
[16] Te Rūnanga o Ngāti Awa are a neighbouring iwi to the west. They did not ask the High Court to determine their own CMT claim but opposed territorial claims that overlap with it. They now appear as a cross-appellant, saying the Judge was wrong to extend a Whakatōhea CMT to the area between Maraetōtara Stream and the entrance of Ōhiwa Harbour (we will call this the Disputed Area).^[26] Ngāti Awa ask that the order be set aside to that extent, allowing them to pursue CMT in negotiations with the Crown, or, alternatively, that they be included in joint CMT with Whakatōhea over the Disputed Area.
[17] Ngāi Tai and Ririwhenua Hapū, represented by Muriwai Maggie Jones, are a neighbouring iwi and a hapū to the east. They succeeded in obtaining an award of CMT for the area from Tarakeha to Te Rangi. LCI challenges that award and the Attorney‑General submits that the evidence was not sufficient to justify CMT out to the 12 nautical mile limit. Ngāi Tai also appear as cross-appellants, saying the Judge was wrong to find they did not meet the tests for CMT at Whakaari and Te Paepae o Aotea.
[18] Te Whānau-ā-Apanui are an iwi represented by Trustees of Te Rūnanga o Te Whānau. They participate as an interested party to oppose others’ claims to CMT around Whakaari and Te Paepae o Aotea.
[19] Ngāti Muriwai and Kutarere Marae appeal, saying the High Court was wrong to deny them recognition as applicant groups and they ought to have been included in the Whakatōhea CMT.^[27] As noted above, Ngāti Muriwai and Kutarere Marae are among the parties comprising WKW. Indeed, Ngāti Ruatakenga claim that “Ngāti Muriwai” is, in reality, a name adopted by the Edwards whānau. It will be seen that Ngāti Muriwai accordingly seek, with the other WKW parties, to obtain CMT on behalf of the entire iwi and, should that claim fail, to participate formally in a recognition order granted to hapū of Whakatōhea.
[20] The Attorney-General appears as an interested party to address the Court’s approach to interpreting the legislation and applying the tests for CMT or PCRs. He takes a neutral position on whether applicants have met those tests. He maintains that the Judge was correct to find that CMT over navigable rivers has been extinguished by 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] erring to 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 the legislation and also contend that, on the evidence, commercial fishing has substantially interrupted applicant groups’ exclusive use and occupation of marine areas, with the result that CMT recognition orders could not be granted.
[23] Crown Regional Holdings Ltd (CRHL) is an interested party. It appears to protect the Crown’s interest in the Ōpōtiki Harbour Redevelopment Project, which includes 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 Court was premature and wrong to find that applicants made out the grounds for CMT which includes the Harbour Redevelopment Project area. Churchman J decided in his No 7 judgment that resource consents had substantially interrupted the applicants’ use, precluding the issue of CMT.^[30] CRHL maintains its present appeal against the possibility that the substantial interruption finding will be reversed on appeal from the No 7 judgment.
[24] The Bay of Plenty Regional Council and the Whakatāne District Council appear 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 plan A (attached):^[31]

(a) The area from Maraetōtara to Tarakeha is the subject of the first CMT order made (Order 1). It extends out to the 12 nautical mile limit and is said to correspond to the Whakatōhea rohe moana, being that part of the coastal marine area associated with the Whakatōhea iwi. In large measure the appeals and cross-appeals reflect disagreement among groups affiliated with Whakatōhea about which of them ought to have or be included in a recognition order over this area and who may apply on their behalf.
(b) The Ōhiwa Harbour is the subject of Order 2, recognising shared CMT between Ngāti Awa and the six Whakatōhea hapū. The order is not now in dispute among applicant groups, but as noted above, LCI challenges it.
(c) The area between Tarakeha and Te Rangi is the subject of Order 3, the recognition order granted to Ngāi Tai.^[32] As noted above, LCI also challenges that order.

[26] Plan B identifies the Disputed Area from Maraetōtara to the mid-mouth of the Ōhiwa Harbour, in which Ngāti Awa say their rights are superior to those of Whakatōhea. It also shows the area which is the subject of Te Ūpokorehe’s claim to CMT; it will be seen that the application covers much of Order 1 but does not extend to the east of Waiōweka river mouth.^[33]
[27] Those parts of Whakaari and Te Paepae o Aotea that lie above mean high water springs cannot be the subject of a recognition order, but the common marine and coastal area around them is contested. That area is also shown on plan B. The Judge declined to make any CMT orders for the area around Whakaari and Te Paepae o Aotea, and everyone except Te Whānau-ā-Apanui says he was wrong:

(a) Te Kāhui agree among themselves that they share exclusivity with Ngāti Awa, Ngāi Tai and Te Whānau‑ā‑Apanui and accordingly should participate with them in CMT over the entire common marine and coastal area around Whakaari and Te Paepae o Aotea.
(b) Ngāti Awa agree that they hold Whakaari on a shared exclusivity basis with Whakatōhea and Te Whānau‑ā‑Apanui, and Te Paepae o Aotea with Whakatōhea only, but they say the collective interest does not extend to Ngāi Tai.
(c) Ngāi Tai say their claim ought also to have been recognised on a shared exclusivity basis. They do not specify with whom it would be shared and have proposed a tikanga process to decide that issue.
(d) Te Whānau‑ā‑Apanui recognise shared interests in the area but say that these are usage rights only; mana rests with them and no other group meets the criteria for CMT.

[28] Not shown on these large-scale plans are many specific locations which are the subject of evidence from witnesses deposing to practices carried out there by their whānau, hapū or iwi, including the exercise of kaitiakitanga.^[34] There is much evidence that 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-European times, the iwi comprised as many as 22 hapū and had a population of perhaps 2000.^[38] The early 19th century saw the iwi go into decline, principally through the arrival of European settlers and devastating intertribal warfare in the 1820s during which their aggressors had the advantage of muskets.^[39] But the iwi prospered in the two decades following the signing of Te Tiriti o Waitangi | the Treaty of Waitangi.^[40] Fertile land in the area provided a strong base for agriculture.^[41] The iwi established their own flour mill and acquired ships which they used to ship goods to markets in Auckland and elsewhere.^[42]
[30] In 1865 the missionary Carl Völkner was killed by a group of Māori at Ōpōtiki.^[43] The murder led to a declaration of martial law.^[44] It is accepted now that the principal instigator was not from Whakatōhea, but the iwi were blamed.^[45] Whakatōhea suffered significant casualties at the hands of colonial forces and on the ground that they were in rebellion they were subjected to raupatu (land confiscation) which destroyed their economic wealth and severed their connection with much of their ancestral land.^[46] In January 1866, some 448,000 acres of land, amounting to the whole of the Ōpōtiki district, were confiscated by the Crown.^[47]
[31] Some compensation for the raupatu was made to some members of the iwi shortly afterward.^[48] It mostly took the form of reserves of second-rate land which, in 1867, 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 from the 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 other things, the loss of productive land and separation from customary food gathering locations much affected their ability to provide for themselves.^[53] It made the people more 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 Whakatōhea repeatedly petitioned the government for compensation. In 1946 the Crown and the six hapū reached a settlement, consisting of a £20,000 lump sum payment with £6,000 of accumulated interest.^[55] The Whakatōhea Māori Trust Board was established under the Māori Purposes Act to administer these funds.^[56] Its members comprised representatives of the six hapū.
[34] Some customary rights lost through past breaches of the Treaty/Te Tiriti are now addressed through the negotiated Treaty settlement process. After these appeals were argued Te Whakatōhea and the Crown settled the iwi’s claim for redress. Counsel did not suggest that the settlement is relevant to these appeals and we have not considered it. MACA is concerned with customary rights which are said to remain extant.
[35] I need not recount the whakapapa of the Whakatōhea parties. Churchman J discussed whakapapa linkages at [301]–[307] and in a lengthy appendix to his judgment.^[57] He concluded that, although they might choose to emphasise one line of descent over another, the hapū of Whakatōhea (including Te Ūpokorehe) share common whakapapa which gives rise to obligations of whanaungatanga. He also found that the hapū share whakapapa with Ngāti Apa, Te Whānau-ā-Apanui and Ngāi Tai.^[58] There was no challenge to this material before us and I respectfully adopt it.^[59] It is significant because, as I explain below, whakapapa linkages may sustain shared exclusivity as a matter of tikanga. It is also clear what while Te Ūpokorehe whakapapa, through their shared ancestor Muriwai, to the five groups which identify as hapū of Whakatōhea, they are also a substantial group with whakapapa linkages that are not shared with the other hapū. I acknowledge that they maintain they are not a hapū but an iwi. Like Churchman J,^[60] we need not classify them as one or the other.

Overview of the legal issues

[36] The appeals concern the statutory requirements for recognising CMT; in particular, what it means to hold an area in accordance with tikanga and what must be shown to satisfy the Court that an applicant group has exclusively used and occupied it from 1840 to the present day without substantial interruption.^[61] There is a question whether the Act admits shared exclusivity, in which several applicant groups may jointly hold share CMT, or overlapping CMTs held by different groups. There are related issues of process under the Act. The burden of proof is contested. There is controversy about the High Court’s reliance on a report of pūkenga appointed to offer the Court their opinion on questions of tikanga. An issue arises about whether CMT is extinguished by law in the mouths of navigable rivers which were vested in the Crown under older legislation. There is a question whether PCRs may be recognised for applicant groups which were not in existence in 1840.
[37] When addressing these questions of law, I bear in mind that many applications remain to be heard in other High Court proceedings and outcomes depend heavily on findings of fact about the circumstances of the particular area and applicants. As will be 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 whether they exclusively use and occupy those areas and have done so continuously since 1840. And substantial interruption strictly arises on the present appeals only to the extent that lawful commercial fishing is said to have had that effect. For these reasons I 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 for exclusivity in the present day.

MACA

[38] I begin with a very brief survey of the legislative history to put the issues in context and to explain how some of the language of MACA came to be adopted.

Legislative history and purpose

[39] In its well-known 2003 decision, Attorney-General v Ngāti Apa, this Court held that customary property rights to the foreshore and seabed might survive the Crown’s acquisition of radical title on cession of sovereignty under the Treaty of Waitangi, with the result that the Māori Land Court had jurisdiction to determine claims to customary ownership.^[62]
[40] The Court explained that at common law all the customary rights of an indigenous community continued to exist following acquisition of sovereignty by the British Crown, unless and until those rights were lawfully extinguished.^[63] English common law principles relating to ownership of the foreshore and seabed had no application in New Zealand: the common law of England was received in New Zealand subject to recognised Māori customary property interests. If such customs provide for interests in the foreshore and seabed, there is no room for a contrary presumption derived from English common law.^[64] The common law of New Zealand is (in this respect, among others) different from English common law.^[65] It followed that no New Zealand court could properly extinguish Māori customary title. That could only be done by legislation which made clear that such was Parliament’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 the common law of New Zealand, title to it must be lawfully extinguished before it can be regarded as ceasing to exist. In this respect [Māori] customary title is no different from any other common law interest which continues to exist unless and until it is lawfully abrogated. In the case of [Māori] customary land the only two mechanisms available for such abrogation, short of disposition or lawful change of status, are an Act of Parliament or a decision of a competent Court amending the common law. But in view of the nature of [Māori] customary title, underpinned as it is by the Treaty of Waitangi, and now by Te Ture Whenua Maori Act 1993, no Court having jurisdiction in New Zealand can properly extinguish [Māori] customary title. Undoubtedly Parliament is capable of effecting such extinguishment but, again in view of the importance of the subject matter, Parliament would need to make its intention crystal clear. In other words Parliament's purpose would need to be demonstrated by express words or at least by necessary implication. ...

[42] As the Court explained, the proposition that the common law recognises Māori customary interests was not novel.^[66] In 1872, in Re Lundon and Whitaker Claims Act 1871, this Court had reaffirmed that all forms of customary property rights are recognised as a matter of common law:^[67]

... The Crown is bound, both by the common law of England and by its own solemn 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 interests extended to intertidal land and it had long been understood that territorial seas legislation had vested title to the seabed in the Crown.^[68] In its 1963 decision in Re the Ninety-Mile Beach, which concerned customary title to land in the intertidal zone, this Court held that customary rights to land did not survive the Crown’s assumption of sovereignty.^[69] Ngāti Apa reversed that error.
[44] The Court in Ngāti Apa confined itself to holding that because customary rights had not been extinguished, the definition of “land” in Te Ture Whenua Maori Act 1993 did not necessarily exclude foreshore and seabed.^[70] The Court held that the content of a customary interest is a question of fact, discoverable by evidence. It recognised the possibility that such customary rights might not survive in fact, and also that they might be limited to use or occupation rights.^[71]
[45] The Court was concerned with a question of jurisdiction. It did not find it necessary to consider to what extent customary territorial rights might entail exclusive control over the foreshore and seabed, nor did it consider whether any claimed customary 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 of Australia had addressed the latter question.^[72] The High Court held that the common law recognised limits upon the Crown’s sovereignty over the foreshore and territorial sea, in the form of public rights of navigation and fishing, that international law recognised a right of innocent passage, and that those rights could not co-exist with a customary right to exclude all others from those areas.^[73] Kirby J dissented, pointing out 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 other than navigation and innocent passage; this would preclude fishing, resource extraction and tourist activities.^[74]
[46] By recognising the possibility that there might remain extant customary rights to the foreshore and seabed Ngāti Apa unsettled an assumption that such rights could be recognised only through claims for redress for historic Treaty breaches. Concern that the decision might lead to public rights of access to the foreshore being curtailed led the Government of the day to propose legislation.^[75] That in turn led to the Waitangi Tribunal holding an urgent hearing to report on the Crown’s foreshore and seabed policy.
[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 aboriginal title might recognise customary rights equivalent to ownership in the foreshore and seabed. The Tribunal heard expert evidence from Professor Paul McHugh, who expressed the opinion, citing Yarmirr, that the common law could only recognise rights that intersect with, or can co-exist with, its own norms.^[77] A right to exclude others was not consistent with those norms. It is a question of sovereignty; although the Crown was the presumptive owner of the foreshore and seabed at English common law, it never enjoyed the right to exclude all comers.^[78] Rather, the common law always recognised public rights of fishing and navigation. The common law would reach a similar position in New Zealand if it were left to develop following Ngāti Apa. The Tribunal thought it arguable that claims to exclusivity might succeed, pointing out that the common law had been received in New Zealand so far as it was applicable to local circumstances and citing the dissenting judgment of Kirby J in Yarmirr, but it eventually concluded that the majority approach in Yarmirr likely would be followed in New Zealand.^[79]
[49] Second, the Tribunal recognised that the Crown has provided for public interests in the foreshore and seas.^[80] It divided those into rights derived from the common law (navigation and fishing) and long-standing privileges that did not amount to rights (access and recreational uses).^[81]
[50] Third, the Tribunal accepted that as a matter of Māori custom the open sea was seen as a free highway for all groups, but authority extended as far from the beach as it 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, but swiftly introduced the Foreshore and Seabed Bill, which was enacted in November 2004.^[83] The 2004 Act, as I will call it, extinguished customary rights and vested the foreshore and seabed in the Crown.^[84] It made provision for recognition of “territorial customary rights” in tightly circumscribed circumstances: in particular, the group must have had customary title or an aboriginal title that could have been recognised at common law,^[85] founded on exclusive use and occupation of an area,^[86] and the group must have had continuous title to contiguous land from 1840 to the present day.^[87] It is not in dispute that the concept of exclusive and continuous use and occupation was drawn from Canadian law, but the legislation left its development to the courts. No claim under the 2004 Act had been heard by the time of its repeal in 2011.
[52] As MACA’s preamble acknowledges, the 2004 Act was found to be unfair and discriminatory not only by the Waitangi Tribunal but also by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Special Rapporteur.^[88] In 2009 a ministerial review panel was appointed to provide independent advice on the 2004 Act.^[89] The Panel comprised Sir Taihākurei Edward Durie, Richard Boast and Hana O’Regan. Their report is also referenced in MACA’s preamble.
[53] The Panel concluded that the ultimate apportionment of customary and public interests should not be left to the courts.^[90] Doubt was expressed about what legal rules would govern the process of litigation.^[91] The Panel favoured a mixed model that both recognised customary rights which would attach to the hapū and iwi whose rights they were, rather than to Māori generally, and secured reasonable public access.^[92] The regime would require new legislation providing mechanisms for allocating rights and interests to groups who would then be entitled to particular rights of consultation and input into coastal management, provision for co-management at a local level, and ability to gain more specific access and use rights.^[93]
[54] Following consultation with iwi representatives and other interested parties the Government published a consultation document in 2010 proposing repeal and replacement of the 2004 Act.^[94] The Consultation Document offered assurances, and set out principles on which any new legislation would be based:^[95]

Assurances and principles

The government gives all New Zealanders these assurances:

» Public access for all – access will be guaranteed for all New Zealanders subject to certain exceptions, for example, for health and safety reasons in port 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 new legislation will include recognition of customary rights and interests in order to address the disproportionate impact of the 2004 Act on customary interests;

› protection of fishing and navigation rights – fishing rights provided under fishing legislation will be protected and rights of navigation in the foreshore and seabed will be protected, subject to certain 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) that operate in the foreshore and seabed will be protected to the end of their term, including any existing preferential right or rights of renewal or process right.

Any new legislation will be based on the following principles:

» Treaty of Waitangi – it must reflect the Treaty of Waitangi, its principles and 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 protect the 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 for recognising and protecting rights in the foreshore and seabed;

» Certainty – there must be transparent and precise processes that provide clarity for all parties, including for investment and economic development; and

» Efficiency – there must be a simple, transparent and affordable regime that has low compliance costs and is consistent with other natural resource management regulation and policies.

[55] The Consultation Document proposed that rather than leaving it to the courts to develop the tests for recognition of different types of customary interest, new legislation should set out the tests to be applied and the awards that would be made.^[96] The 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 that was “based on tikanga Māori and common law”.^[98] A territorial interest would be recognised where the following elements were proven:

» in order to establish the necessary connection/interest the relevant foreshore and seabed area must be held in accordance with tikanga Māori;

» this connection/interest must be of a level that accords with the applicant group having ‘exclusive use and occupation’ of the relevant foreshore and seabed area; and

» this ‘exclusive use and occupation’ must date from 1840 until the present without 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 a group has had exclusive use and occupation from 1840 until the present without substantial interruption;

» 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 will be 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 must be met;

» clarifies that fishing (in addition to rights of navigation) by third parties does not prevent a finding of ‘exclusive use and occupation’;

» ensures that customary transfers of territorial interests between hapū and iwi post-1840 are recognised as legitimate; and

» allows for ‘shared’ exclusivity between coastal hapū/iwi as against other third party interruptions.

[59] The Consultation Document recorded that the Government believed that using a test based entirely on the legal experience of another country (Canada) was inappropriate.^[99] The Government also rejected a test based solely on the test in Te Ture Whenua 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 the proposed new test had been developed, or how they were intended to operate. The first limb is explicitly tikanga-based, drawing on the language used in Te Ture Whenua Māori Act. The second limb would reflect the common law as developed in Canada provided it was applied as at 1840, in a manner sensitive to the relationship between Māori 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 we are aware) anywhere else.
[60] The resulting Bill closely followed the proposals in the Consultation Document and the Māori Affairs Committee recommended that it be passed without amendment.^[101] It was. MACA received Royal Assent on 31 March 2011 and came into force the following day.^[102]

The legislation

[61] MACA’s preamble recites that it is the product of engagement with Māori and the public generally about their interests in the foreshore and seabed. It states that MACA:

(4) ... takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment 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 the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and

(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; 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 restores customary interests extinguished by that Act; and

(b) contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and

(d) recognises and protects the exercise of existing lawful rights and 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 common marine and coastal area—

(i) for its intrinsic worth; and

(ii) for the benefit, use, and enjoyment of the public of New Zealand.

[63] MACA accordingly repealed the 2004 Act,^[103] restored any customary rights in the common marine and coastal area,^[104] and gave those rights expression through recognition of protected customary rights and customary marine title.^[105] These interests are recognised under agreements with the Crown or recognition orders made by the High Court.^[106]
[64] Section 7 is a so-called Treaty clause. It recites that, through MACA’s rights and processes, Parliament intends to take account of the Crown’s obligations under the Treaty of Waitangi:^[107]

7 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 interests of 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 processes relating to the common marine and coastal area; and

(b) in subpart 2 of Part 3, for customary rights to be recognised and protected; and

[65] In s 11, MACA divests the Crown of title to the common marine and coastal area and provides that neither the Crown nor any other person owns or is capable of owning 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 time after the commencement of this Act.

(3) On the commencement of this Act, the Crown and every local authority are divested of every title as owner, whether under any enactment or otherwise, of any part of the common marine and coastal area.

...

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 and marine area by MACA does not affect certain interests and activities. These are extensive; they include any lawful use and any statutory power to control or permit uses:

(5) The special status accorded by this section to the common marine and coastal area does not affect—

(a) the recognition of customary interests in accordance with this Act; or

(b) any lawful use of any part of the common marine and coastal area or the undertaking of any lawful activity in any part of the 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 common marine and coastal area; or

(d) any power or duty, by or under an enactment, to grant resource consents or permits (including the power to impose charges) within any part of the common marine and coastal area; or

(e) any power, by or under an enactment, to accord a status of any kind to a part of the common marine and coastal area, or to set aside a part of the common marine and coastal area for a specific purpose; or

(f) any status that is, by or under an enactment, accorded to a part of the common marine and coastal area or a specific purpose for which a part of the common marine and coastal area is, by or under an enactment, set aside, or any rights or powers that may, by or under an enactment, be exercised in relation to that status or purpose.

[67] Although MACA restores any former customary interests that were extinguished by the 2004 Act, it provides for their recognition only through legal orders (relevantly, for PCRs and/or CMT) granted under MACA itself. These legal interests are unique. In s 98(4), MACA states that the jurisdiction of the High Court to hear and determine any aboriginal rights claim is fully replaced by the jurisdiction under MACA.^[109] We note, as did Churchman J,^[110] that it is argued in other proceedings before the Waitangi Tribunal that MACA continues to derogate from customary rights and so breaches the Treaty. That question is not before us. Our task is to implement MACA, which strikes a balance between customary rights and the rights of others in relation 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 and coastal area:

(b) to pass and repass in, on, over, and across the common marine and coastal area:

(2) The rights conferred by this section are subject to any authorised prohibitions or restrictions that are imposed under section 79, or by or under 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 it is authorised, apply to—

(a) any or all of the rights conferred by this section:

(b) 1 or more ways of exercising those rights:

(d) 1 or more specified areas.

(4) In this section, enactment includes bylaws, regional plans, and district plans.

We observe that these rights are subject to s 79, which relates to wāhi tapu conditions and establishes an exception to the rule that anyone may access, navigate and use the marine and coastal area.^[111]

[69] Similarly, s 27(1) provides that every person may enter by ship, navigate through, temporarily anchor and ground within the marine and coastal area. Section 28 provides that nothing in MACA prevents the exercise of any fishing rights conferred or recognised by law.

The marine and coastal area

[70] The area over which customary rights may be recognised under MACA is essentially 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:^[112]

marine and coastal area—

(a) means the area that is bounded,—

(i) on the landward side, by the line of mean high-water springs; and

(ii) on the seaward side, by the outer limits of the territorial sea;^[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 areas described in paragraphs (a) and (b)

[71] It will be seen that with respect to riverbeds, MACA incorporates the definition of “coastal marine area” in the Resource Management Act 1991. That definition is relevantly identical to MACA’s except that it defines the landward boundary at a point upstream from the point where the line of mean high-water springs crosses a river:^[114]

11 Interpretation

coastal 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 the territorial sea; and

(b) of which the landward boundary is the line of mean high‑water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of—

(i) 1 kilometre upstream from the mouth of the river; or

(ii) the point upstream that is calculated by multiplying the width of the river mouth by 5

Protected customary right

[72] A PCR recognises an activity, use or practice. The term is defined initially in s 9(1) of MACA:

protected customary right means an activity, use, or practice—

(a) established by an applicant group in accordance with subpart 2 of Part 3; and

(b) recognised by—

(i) a protected customary rights order; or

(ii) an agreement

It will be seen that this definition addresses process and form. The activity, use or practice must both be established by the applicant group in accordance with other provisions 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 common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way, or evolves over time; and

(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 meaning of section 4 of the Maori Commercial Aquaculture Claims Settlement Act 2004); or

(i) any commercial Māori fishing right or interest, being a right or interest declared by section 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 to be settled; or

(ii) any non-commercial Māori fishing right or interest, being a right or interest subject to the declarations in section 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 the Marine Mammals Protection Act 1978; or

(e) that is based on a spiritual or cultural association, unless that association is manifested by the relevant group in a physical activity or use related to a natural or physical resource (within the meaning of section 2(1) of the Resource Management Act 1991).

(3) An applicant group does not need to have an interest in land in or abutting the specified part of the common marine and coastal area in order to establish protected customary rights.

[74] A PCR may be exercised without a resource consent.^[115] The existence of a PCR must be taken into account when considering any application for a resource consent in the area if the relevant activity is likely to have adverse effects on the PCR that are more than minor.^[116] A PCR must be exercised in accordance with any conditions 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 the part of the common marine and coastal area where the protected customary right is exercised, other than the rights provided for in section 52.

(2) A protected customary right must be exercised in accordance with—

(a) any terms, conditions, or limitations on the scale, extent, and frequency of the activity specified in the order or in the agreement; and

(b) any controls imposed by the Minister of Conservation under section 56.

Customary marine title

[75] CMT means customary interests that are established by an applicant group over an area of the common marine and coastal area and recognised by a customary marine title order or an agreement with the Crown.^[117] The term is defined in s 9(1) and in subpt 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 of Part 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:^[118]

common marine and coastal area means the marine and coastal area other than—

(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 the following kinds:

(i) a conservation area within the meaning of section 2(1) of the Conservation Act 1987:

(ii) a national park within the meaning of section 2 of the National Parks Act 1980:

(iii) a reserve within the meaning of section 2(1) of the Reserves Act 1977; and

This definition operates to exclude certain areas, principally comprising freehold land and conservation areas, national parks and reserves.

[77] “Customary marine title” is given content in s 58:

58 Customary marine title

(1) Customary marine title exists in a specified area of the common marine 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 the present day without substantial interruption; or

(ii) received it, at any time after 1840, through a customary transfer in accordance with subsection (3).

(2) For the purpose of subsection (1)(b), there is no substantial interruption to the exclusive use and occupation of a specified area of the common marine and coastal area if, in relation to that area, a resource consent for an activity to be carried out wholly or partly in that 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 exist if 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 that the beds of navigable rivers cannot be the subject of CMT because they were vested in the Crown under the Coal Mines Act 1979.^[119]

[78] Section 59 identifies certain matters that may be considered when determining whether 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 whether customary marine title exists in a specified area of the common marine and coastal area include—

(a) whether the applicant group or any of its members—

(i) own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:

(ii) exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and

(b) if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.

(2) To avoid doubt, section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not limit subsection (1)(a)(ii).

(3) The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.

(4) For the purpose of subsection (1)(a)(i), land abutting all or part of the specified area means—

(a) land that directly abuts the specified area; or

(b) land that does not directly abut the specified area, but does directly abut any of the following:

(i) a marginal strip (as defined in section 2(1) of the Conservation Act 1987) that directly abuts the specified area:

(ii) an esplanade reserve (as defined in section 2(1) of the Resource Management Act 1991), but only to the extent that it directly abuts the specified area:

(iii) a reserve (as defined in section 2(1) of the Reserves Act 1977), but only to the extent that it directly abuts the specified area:

(iv) a Māori reservation (as defined in section 2(1) of the Reserves Act 1977) that directly abuts the specified 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 to those 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 to alienate or otherwise dispose of any part of a customary marine title area; and

(b) provides only for the exercise of the rights listed in section 62 and described in sections 66 to 93; and

(2) A customary marine title group—

(a) may use, benefit from, or develop a customary marine title area (including derive commercial benefit) by exercising the rights conferred by a customary marine title order or agreement, but is not exempt from obtaining any relevant resource consent, permit, or approval that may be required under another enactment for the use and development of that customary marine title area; and

(b) is not liable for payment, in relation to the customary marine title area, of—

(i) coastal occupation charges imposed under section 64A of Resource Management Act 1991; or

(ii) royalties for sand and shingle imposed by regulations made under the Resource Management Act 1991.

(3) A customary marine title group may—

(a) delegate the rights conferred by a customary marine title order or an agreement in accordance with tikanga; or

(b) transfer a customary marine title order or an agreement in accordance with tikanga.

...

62 Rights conferred by customary marine title

(1) The following rights are conferred by, and may be exercised under, a customary marine title order or an agreement on and from the effective date:

(a) a Resource Management Act (RMA) permission right (see sections 66 to 70); and

(b) a conservation permission right (see sections 71 to 75); and

(d) rights in relation to—

(i) marine mammal watching permits (see section 76); and

(ii) the process for preparing, issuing, changing, reviewing, or revoking a New Zealand coastal policy statement (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 the Crown 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 marine and 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 under section 100 for recognition of customary marine title and notice has been given in accordance with section 103; or

(ii) an applicant group has applied to enter negotiations under section 95.

(3) Before a person may lodge an application that relates to a right conferred by a customary marine title order or agreement, that person 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 made by the High Court under s 98(1):^[120]
1. Court may recognise protected customary right or customary marine title

(1) The Court may make an order recognising a protected customary right or customary marine title (a recognition order).
(2) The Court may only make an order if it is satisfied that the applicant,—

(a) in the case of an application for recognition of a protected customary right, meets the requirements of section 51(1); or

(b) in the case of an application for recognition of customary marine 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 the group to which they apply. The section provides that a PCR order must describe the right with any limitations imposed on it and a CMT order must include a survey plan and description of the area:

101 Contents of application

An application for a recognition order must—

(a) state whether it is an application for recognition of a protected customary 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

(d) identify the particular area of the common marine and coastal area to which 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 the applicant group; and
(g) specify contact details for the group and for the person named to hold the order; and
(h) be supported by an affidavit or affidavits that set out in full the basis on which the applicant group claims to be entitled to the recognition order; and
(i) contain any other information required by regulations made under section 118(1)(i).

[82] Section 109 specifies what must be contained in a recognition order:

109 Form of recognition order

(1) An applicant group in whose favour the Court grants recognition of a protected customary right or customary marine title must submit a draft 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 to which the order applies; and

(b) the group to which the order applies; 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 the scale, 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 marine title area, to a standard of survey determined for the purpose by 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 or wāhi 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] whose answer is binding,^[124] or obtain the advice of a pūkenga with knowledge and experience of tikanga.^[125] A pūkenga’s advice is not binding.^[126] Their status is that of an expert witness.

Applicant group

[84] Recognition orders or agreements may be sought by an applicant group comprising one or more iwi, hapū or whānau groups. Section 9(1) defines “applicant group”:^[127]

applicant group—

(a) means 1 or more iwi, hapū, or whānau groups that seek recognition under Part 4 of their protected customary rights or customary marine title by—

(i) a recognition order; or

(ii) an agreement; and

(b) includes a legal entity (whether corporate or unincorporate) or natural person appointed by 1 or more iwi, hapū, or whānau groups to be the representative of that applicant group and to apply for, and hold, an order or enter into an agreement on behalf of the applicant group

[85] Applications to the High Court for recognition orders had to be made within six years of the day after MACA’s commencement; that is, by 1 April 2017.^[128]

Process and proof

[86] There are provisions for form, content, service and public notification. Any interested person who has filed a timely notice of appearance may be heard.^[129] The Court may receive as evidence any oral or written statement, document, matter, or information 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 customary rights in a specified area of the common marine and coastal area, the applicant 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 in accordance with tikanga.

(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—

(a) is held in accordance with tikanga; and

(b) has been used and occupied by the applicant group, either—

(i) from 1840 to the present day; or

(ii) from the time of a customary transfer to the present day.

(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 has not been extinguished.

[87] Trial judges, including Churchman J, have found that the burden of proof extends to the elements of a PCR or CMT, as the case may be.^[131] They have held that applicants for CMT recognition orders must show that their customary rights have not been extinguished through proving, in accordance with s 58(1), that they have exclusively used and occupied the area from 1840 to the present day without substantial interruption.^[132]
[88] The court is given flexibility in dealing with applications; it may treat a PCR application as an application for CMT and vice versa, and it may also strike out applications that disclose no reasonably arguable case or are likely to cause prejudice or delay or are an abuse of process.^[133]

The 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 accepted authorities emphasising that it is an error to adopt assumptions drawn from English 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 accordance with tikanga, which is to be assessed from a Māori perspective, not by reference to European legal concepts.^[136]
[90] The Judge did not accept an argument for the Attorney-General and LCI that the applicant must prove an “intention and ability to ‘control’” an area that they claim to hold in accordance with tikanga.^[137] He observed that the Canadian authorities on which this argument was based concerned the ability to exercise exclusive possession of land at common law,^[138] while MACA is concerned with the takutai moana and a specified set of statutory rights that do not allow the owner to exclude others who are using it for access, fishing or navigation.^[139] He accepted that an applicant must show more than that a system of tikanga existed in relation to the takutai moana.^[140] But whether a specified area is held in accordance with tikanga is ultimately a question of 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] We infer that he did not accept an applicant must show an intention and ability to exclude others; he had rejected that argument when addressing s 58(1)(a). He made it clear that he saw the ability to exclude others, in the sense argued for by the Attorney‑General and LCI, as incompatible with whanaungatanga and manaakitanga.^[143]
[92] The Judge discussed shared exclusivity, accepting that it is available under MACA.^[144] On this issue he chose to follow Canadian authority, which we examine below. 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: two or more groups may have occupied the same territory and used it communally as part of their traditional way of life, such that they jointly occupied it to the exclusion of others.^[145] Second, we infer that he accepted that shared exclusivity does not or may not 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 for practical reasons:^[147]

[169] I have concluded that the structure of the Act is consistent with a jointly held CMT rather than two overlapping CMTs for the same area each held by different parties. If there were multiple CMTs for the same area then there would be practical problems with the exercise of the rights which flow from 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 be practical problems if two groups held CMT and wanted to exercise the various rights conferred by s 62.

[170] Jointly holding CMT avoids some of these problems. There will clearly need to be co-operation and agreement between the holders of joint CMT but these are not insurmountable issues. Tikanga has in the past provided for the exercise of a complex web of overlapping rights. It should be able to assist in parties holding CMT on a joint or shared exclusive basis working out how to jointly exercise the rights conferred by a grant of CMT.

[94] The Judge rejected a submission that the ownership of abutting land is an important, and not merely a relevant, consideration under s 59.^[148] He also rejected an argument that shared exclusivity requires evidence of an express agreement in existence in 1840.^[149] Neither of these contentions is pursued on appeal.
[95] The Judge next turned to substantial interruption. He approached this question largely as one of fact and discussed it under headings suggested by the Attorney‑General: raupatu, resource consents granted prior to 1 April 2011, permanent structures, and third-party use and occupation.^[150] He considered evidence of duration, frequency, overall extent, and nature of any activity said to constitute a substantial interruption.^[151] Most of his findings under this head are not now contentious. In particular, no one disputes his finding that the extensive raupatu suffered by Whakatōhea in 1866 did not amount to substantial interruption;^[152] he accepted evidence that the iwi were more dependent on coastal and marine area, from which they were never excluded, after the confiscation of their cultivated land and other assets.^[153] Nor is there any disagreement with his conclusions that: (a) nothing in the Resource Management Act 1991 shows an intention to extinguish the customary rights of Māori;^[154] (b) reclaimed land ceases to be part of the common coastal marine area and vests in the Crown;^[155] and (c) third-party structures may amount to substantial interruption, reserving for future determination whether any did so in fact.^[156] With respect to other third party use and occupation, the Judge held that substantial interruption is a question of fact and found that there was insufficient evidence to show that third-party use had amounted to substantial interruption.^[157] The Judge reserved for future decision the question whether other activities such as the operation of marine farms amount to substantial interruption.^[158]

Submissions on s 58, in brief

[96] Mr Hodder KC, for LCI, led the argument challenging the Judge’s reasoning on the interpretation of s 58(1). Counsel commenced by reminding us that Parliament set out to create a durable scheme that protects the rights of all New Zealanders, and that our task is to faithfully implement Parliament’s intent as expressed in the statutory language. These submissions I readily accept.
[97] Counsel contended that as a matter of construction the two limbs of s 58(1) are separate. The first limb, s 58(1)(a), adopts from Te Ture Whenua Maori Act the concept 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 but rather to establish specific criteria to guide them. That limb makes no reference to tikanga. It incorporates criteria deliberately drawn from Canadian law on aboriginal title at common law. It also employs language which is intended to be accessible and clear and is well understood by laypeople. Those criteria require evidence of exclusivity and continuity since 1840.
[98] In support of this argument, counsel drew our attention to matters of legislative fact,^[159] notably the report of the Ministerial Review Panel,^[160] the Consultation Document,^[161] a departmental report prepared by the Ministry of Justice,^[162] three regulatory impact statements,^[163] the report of the Māori Affairs Select Committee,^[164] and statements made by the then Attorney-General and other Members of Parliament during debate on the Bill.^[165] These were said to confirm that the first limb was drawn from customary law and the second limb was drawn from the common law and was intended to set a high threshold for CMT. This was deliberate, and any disagreement about it must be settled in the political arena.
[99] This is valuable background material.^[166] I bear in mind that Parliament spoke through the legislation itself and its thinking should not lightly be attributed to other materials. But I accept that policy decisions identified in report of the Ministerial Review Panel and the Consultation Document have been carried through to the legislation.
[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 in accordance with tikanga. Counsel characterised this as a serious error. The Judge rejected the very notion of exclusivity by reasoning (mistakenly) that it was inconsistent with tikanga, and he erroneously discounted the Canadian authorities on the ground that they dealt with title to dry land, while MACA establishes a limited suite of rights in relation to marine and coastal areas the use of which is naturally transitory.^[167] This led the Judge into error when he came to substantial interruption and exclusive use and possession;^[168] these he ought to have treated as matters of historical fact, provable by evidence. He treated the report of the pūkenga as if it could determine whether the second limb had been satisfied, but that was not a decision for the pūkenga to make and, in any event, they did not address it directly. As a result, an insufficiently rigorous approach was taken to the test for CMT and there is no alternative to a full rehearing in the High Court. The Judge also erred by discounting MACA’s treatment of ownership of abutting land and the exercise of non‑commercial customary fishing rights; these reflect the importance of a tangible connection to the specified area.
[101] Ms Roff, for the Attorney-General, did not agree with LCI that the appeal ought to be allowed, but she acknowledged that the Judge twice enquired whether holding in accordance with tikanga had been interrupted when he ought to have asked whether exclusive use and occupation had been interrupted. She submitted that Parliament relied on Canadian jurisprudence when adopting the second limb. She argued, citing the judgment of Powell J in Ngā Pōtiki Stage 1,^[169] that the applicant must possess the intention and ability to control the specified area. She invited the Court to elaborate on 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.
[102] Ms Waikato, for CRHL, argued that tikanga is relevant to both limbs of the s 58(1) test and that the second requires a closer look at the relevant tikanga to ascertain whether it extends to the right to exclude others, which need not have been exercised 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, for Te Kāhui. She described MACA as constitutional legislation intended to strike a political compromise and redress the Crown’s breaches of Treaty obligations, hence the restoration of customary title. She agreed that MACA incorporates a reconciliation or balancing between customary rights and the birthright of all New Zealanders, and she accepted that Parliament chose not to leave it to the courts to control the reconciliation. But she argued that if LCI is correct, the test for CMT would never be met, and that is something Parliament cannot have intended. English common law affecting title to land cannot sensibly be applied to the sea. Properly understood, the second limb adds three things: (a) customary title as at 1840 must still be extant (so excluding dormant hapū); (b) substantial interruption amounts to extinguishment and so sets a high threshold; and (c) exclusive use and occupation serves a qualitative purpose, 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 of te ao Māori. She described the right required by s 58 as the strongest in a complex taxonomy. 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 the mana tuku iho to act as kaitiaki in relation to it. MACA accommodates lesser rights through PCRs.

The Canadian and Australian authorities on customary title to land

[104] I have noted that the Ministerial Review Panel stated that a solution for New Zealand should be based on domestic historical experience and legal development; it should not be governed by legal solutions from other jurisdictions whose experience and legal development has been different from our own, such as Australia and Canada.^[170] The legislative history nonetheless indicates that the second limb was derived from Canadian jurisprudence on aboriginal title to land at common law,^[171] and it also indicates that the drafter took Australian law into account. We did not understand any counsel to dispute this. Counsel drew our attention to authorities from both jurisdictions. They are instructive, substantially because they serve to highlight the distinctive nature of New Zealand legislative policy toward the impact of colonisation on customary title and the carefully circumscribed role to be played by courts 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 states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”.^[172] The Supreme Court of Canada has held that this bare provision “at the very least, constitutionalized those rights which aboriginal peoples possessed at common law”, since those rights existed when the legislation was passed.^[173] It has been left to the courts to decide what rights existed and how they may be established. They have done so by looking to the period before colonisation.^[174] The Supreme Court reasoned that it is necessary to focus on that period because aboriginal rights depend on practices, customs and traditions that existed prior to European contact.^[175] It follows that it is not necessary to distinguish distinctive indigenous practices, customs and traditions from those influenced or introduced by European contact.^[176]
[106] The requirements of customary title were settled by a pair of Supreme Court decisions: Delgamuukw v British Columbia and Tsilhqot’in Nation v British Columbia:^[177]

(a) Customary title is a right in land, not merely a right to use it for customary purposes.^[178] It encompasses the right to exclusive use and occupation.^[179]
(b) Customary title has distinctive characteristics which distinguish it from fee 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 attachment of people to land on which customary title rests);^[181]
(iii) it can be used for non-traditional purposes,^[182] but it cannot be used in a way which is irreconcilable with the nature of the indigenous group’s attachment to the land;^[183]

(c) Customary title is based on occupation at the time European sovereignty was asserted, and occupation has three characteristics: it must be sufficient to establish title at the time of colonisation, continuous (where present occupation is relied on to prove occupation at that time), and exclusive.^[184]

[107] Sufficiency must be considered from both the indigenous and the common law perspective.^[185] The former focuses on laws, practices, customs and traditions of the group, taking into account the group’s size, manner of life, material resources and technological abilities, and the character of the lands claimed.^[186] The latter imports the idea of possession and control of land, which may extend at common law beyond places that are physically occupied to surrounding lands that are used and over which effective control is exercised.^[187] The Supreme Court has adopted generally the proposition 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 a person to sue a wrong-doer in trespass and the most onerous standard required to ground title by adverse possession against a true owner...

[108] Sufficiency calls for a context-specific and culturally sensitive inquiry.^[189] Regular use is enough.^[190] But the applicant group must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes.^[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 as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. ...

The kinds of act necessary to indicate a permanent presence and intention to hold and use 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, and even walking, with the weight given to such acts depending partly on the nature of the land and the uses to which it can be put.^[194]

[109] Because it would be next to impossible to produce conclusive evidence from pre-contact times, an applicant group may demonstrate historic occupation by proving present occupation and inviting the court to draw an inference that it has been continuous.^[195] Continuity does not require an unbroken chain of occupation.^[196] It requires only that present occupation be rooted in pre‑colonial times.^[197] A change in the nature of occupation need not preclude a claim for aboriginal title, so long as a substantial connection between the people and the land is maintained.^[198]
[110] Exclusivity requires “the intention and capacity to retain exclusive control”.^[199] In Delgamuukw, Lamer CJ explained that:^[200]

... The requirement for exclusivity flows from the definition of aboriginal title itself, because I have defined aboriginal title in terms of the right to exclusive use and occupation of land. Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the 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 without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it.

[111] Exclusivity must also be approached from the perspective of both the common law and the aboriginal society, placing equal weight on each.^[201] The common law places a premium on the factual reality of occupation, but the test must take into account the context of the aboriginal society at the time of sovereignty. Exclusivity is a question of fact for the trial judge, depending on factors such as characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land. It can be proved by evidence that others were excluded or were present with permission.^[202] There may be customary laws under which other groups may use or temporarily occupy land.^[203]
[112] Although none of the cases dealt with shared claims to title, the topic was addressed in Delgamuukw. Lamer CJ observed that the possibility had been recognised by American courts and suggested that joint title could arise from shared exclusivity, a concept which is well known to the common law.^[204] Exclusive possession is the right to exclude others, and shared exclusive possession is the right to exclude others except those with whom possession is shared. There might be cases in which two groups lived on a particular piece of land and recognised each other’s entitlement to it but nobody else’s.
[113] The Supreme Court of Canada has cited the work of Professor Kent McNeil, a leading academic in the law of customary title.^[205] He has examined cases from the United States, which typically involve compensation for past wrongs rather than the issue of title but do recognise shared exclusivity.^[206] The ordinary rule is that where possession 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 amicable manner to the exclusion of other groups, they may claim joint title notwithstanding that 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 that native title was not extinguished by the Crown’s acquisition of sovereignty.^[207] The Native Title Act 1993 (Cth) was enacted in the aftermath, to create a process for the recognition of customary title.^[208] It defines native title as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where the rights and interests are possessed under their traditional laws and customs, and they have, by those laws and customs, a connection with the land or waters, and the rights and customs are recognised by the common law of Australia.^[209] As in Canada, the legislation did not create new rights but rather recognised those antecedent to colonisation, and allowed the common law to identify and protect those pre-existing native rights and interests.^[210]
[115] In Mabo the High Court held that the nature and incidents of native title must be ascertained as a matter of fact by reference to traditional laws and customs of the indigenous inhabitants of a territory.^[211] It has since been held that it is necessary to put to one side the impact of people outside “the universe of traditional laws and customs”:^[212]

Insofar as Europeans are concerned, the primary judge engaged in understatement at [686] when observing that the ability of the Banjima People to enforce their traditional laws and customs was “inhibited”. It would be accurate to say that the Banjima People had no capacity whatsoever to enforce their laws and customs against Europeans because, until Mabo No 2, native title was not recognised in Australia. Moreover, Europeans stood outside the universe of traditional laws and customs. As noted in Griffiths at [127]: “traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people”.

[116] Exclusivity is necessary, but it is not to be gauged by exclusivity of physical possession; rather, it requires an ability or capacity to exclude which is found in the spiritual relationship of indigenous people with the land:^[213]

[127] It is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should, in their testimony, frame their claim to exclusivity as some sort of analogue of a proprietary right. In this connection we are concerned that his Honour’s reference to usufructuary and proprietary rights, discussed earlier, may have led him to require some taxonomical threshold to be crossed before a finding of exclusivity could be made. It is not necessary to a finding of exclusivity in possession, use and occupation that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a “spiritual affair”. ... If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. ...

[117] The Australian cases employ the concept of substantial interruption but, as Powell J noted in Ngā Pōtiki Stage 1, they do so to address loss of cultural connection with an area, as opposed to interference with the group’s use and occupation.^[214] In Members of Yorta Yorta Aboriginal Community v Victoria, a majority in the High Court of Australia explained that substantial interruption recognises that proof of continuous observation of customary oral traditions over many years is very difficult.^[215] It is a question of proof of traditional norms and the possibility that they may not have survived European settlement.^[216]

MACA: a different approach

[118] This brief survey of the Canadian and Australian authorities highlights several features of the New Zealand legislation which show that, while MACA owes much to those authorities, they should be applied with care. The first is that Parliament has not left it to the Courts to work out the incidents of CMT (or PCRs), or the criteria under which recognition orders are granted. Rather, MACA recognises, and protects the exercise of, customary interests of Māori by providing for specified rights.^[217] Those rights are subject to the public rights of navigation and fishing which were recognised at common law,^[218] to the international law right of innocent passage,^[219] and also to public rights of access and recreational use.^[220] MACA establishes criteria which courts must apply to CMT and PCR applications, prescribes procedures, and distributes the onus of proof.
[119] The second feature is that MACA deals with the impact of colonisation in a radically different way. Unlike Canadian law, it does not provide that CMT is to be assessed solely by reference to pre-colonial practices, customs and traditions. Rather, an applicant group must have held an area, exclusively using and occupying it, from 1840 until the present day. Unlike Australian law, MACA does not envisage that the impact of colonisation will be essentially ignored either. For example, it envisages that CMT may be extinguished by resource consents granted since 1840.
[120] At the same time, MACA states emphatically that it seeks to remedy an injustice done to Māori by the 2004 Act. It seeks to give effect to the Treaty by recognising intrinsic, inherited rights and translating them into legal rights and interests. The Act’s very existence supposes that customary territorial and use rights may subsist in fact.^[221] Indeed, it assumes, unlike the 2004 Act, that territorial rights may subsist although the applicant group no longer holds contiguous land. It employs tikanga when assessing whether an applicant group holds a specified area, and also when deciding whether the group’s use and occupation is exclusive. It provides that any interruption to a group’s exclusive use and occupation must be substantial if it is to preclude CMT. It specifies that use of the common coastal and marine area by others for fishing or navigation does not, of itself, preclude CMT. The same must be true of rights of public access and recreational uses, because MACA presumes they may co-exist with exclusivity.^[222] And it presumes, in the absence of proof to the contrary, 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 questions of fact, MACA also anticipates that courts will decide, on a case-by-case basis, what these concepts mean in practice. It is by reference to local practice and circumstances that courts will decide what intensity of use and occupation is needed to establish exclusivity.
[122] There is another reason why the Canadian and Australian caselaw must be applied to MACA with care. The context may differ in ways which matter a great deal. For example, Professor David Williams, an expert witness called by the Board, spoke of the “pervasive” importance of whanaungatanga in Māori culture and the importance of whakapapa linkages. These values may facilitate shared exclusivity among 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 defined terms “tikanga” and “mana tuku iho”.

Tikanga

[124] MACA employs tikanga in connection with both PCRs and CMT: in s 51 it defines a PCR as a right exercised in a particular area by the applicant group in accordance with tikanga, and in s 58(1)(a) it provides that CMT exists in a specified area if the applicant group holds the area in accordance with tikanga. So a court must ascertain what tikanga applies to that part of the rohe moana which is the subject of an application for a recognition order.

Ascertaining tikanga

Whakahokia mai te mana o te iwi ki te iwi, o te hapū ki te hapū, o te whānau ki te whānau, o te tangata ki te tangata, me tana rau kotahi

Return the authority of the tribes to the tribes, of the hapū to the hapū, of the whānau to the whānau, of the individuals to the individuals representing as they do, the generations of the past and the present

[125] The pūkenga commenced their report with this whakatauaki, lamenting that had the parties adopted a perspective reflective of te ao Māori the High Court process could have been avoided. The pūkenga also explained that while there are nuances in tikanga according to iwi rohe, much is applicable to all. There is (as Churchman J recorded in the judgment under appeal) little dispute about the applicable tikanga in the 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 holds an area in accordance with it or exercises a customary right there. In the absence of consensus 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 doing so the Court will exercise care, recognising the warning of Professor Williams, that codification 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 turn out to be just as subversive for the ongoing vitality and potency of tikanga Māori as attempts in the past at direct suppression or extinguishment.

Pūkenga have an important role to play in ensuring that the courts’ treatment of tikanga retains the respect of those who remain the custodians of mātauranga Māori or customary knowledge.

Relational values of tikanga

[127] There is no disagreement about the central relational values of tikanga. They were 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 (spiritual entities). Whanaungatanga means that rights depend on the mutuality and reciprocity of responsibilities among a collective and the responsibility of the community for its members. 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 kin groups, or between people and the physical world. Churchman J acknowledged that giving evidence of whakapapa is tapu for applicants,^[224] whose prerogative it is to define and describe it for themselves,^[225] and he recognised that applicants have shared it with the Court only because they must do so to uphold their rights.^[226] They must do so because whanaungatanga and whakapapa linkages determine who is eligible to share in a CMT recognition order, whether by holding the title or being the beneficiary of obligations owed by those who do.

Mana: authority, control, influence, prestige or power which has been described as having three dimensions: mana atua (God-given power), mana tūpuna (power from the ancestors) and mana tangata (authority derived from personal accomplishments). It is spiritual in nature and is acquired through whakapapa and personal accomplishment. 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.^[227]

Utu: the principle of balance and reciprocity. The essence of utu is the maintenance of relationships by striving for balance of contribution. Key accompanying values are aroha and manaakitanga, which require respect, empathy and generosity.

Kaitiakitanga: the obligation of stewardship and protection of one’s own. It is closely linked to mana, which supplies authority for the exercise of stewardship, and tapu, which recognises the special or sacred character of all things. MACA adopts a definition from the Resource Management Act:^[228]

kaitiakitanga means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources; and includes the ethic of stewardship

Tapu: respect for the spiritual character of all things. Tapu is a religious observance or 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. The cases decided to date tend to demonstrate that.^[229] But it is their specific local application that matters,^[230] and that may be closely fought and fact-specific, as these appeals illustrate.

Mana tuku iho

[129] I have explained that one of MACA’s purposes is to recognise the mana tuku iho — defined as inherited right or authority derived in accordance with tikanga — exercised by tangata whenua in the marine and coastal area.^[231]
[130] Dr Margaret Wilkie, an expert witness for WKW, prepared a kaupapa Māori analysis of MACA in which she examined the concept of mana, identifying six dimensions: manaakitanga, mana atua, mana tūpuna, mana whenua, mana tangata and mana moana. With respect to manaakitanga, she emphasised the traditional responsibilities 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 sea and 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:^[232]

In Māori tradition, hapū and iwi also asserted mana or authority over coastal marine 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 realistic in enclosed waters like harbours, inlets, sounds or lagoons but could equally apply 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 a landscape (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 been criticised as an attempt to frame customary Māori authority in terms of English legal concepts of imperium and dominium, so linking mana with ownership of land rather than the authority of chiefs.^[234] The particular concern underlying counsel’s submission, as I understood it, was that the Court should remain open to the concept of shared exclusivity derived from traditional authority over activities in the rohe moana.
[133] MACA does not speak of mana whenua or mana moana. But it is expressly concerned with mana tuku iho over defined parts of the common coastal and marine area, 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 a specific part of the common coastal and marine area. As Ms Feint put it in further submissions, the mana with which MACA is concerned is political in nature and derives from belonging to the land so as to have the right and the obligation to protect 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 shared among groups which are politically separate but together control an area to the exclusion 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 usage right. A group which holds CMT over a specified area does not have the right to exclude people from that area: public rights of access, navigation and fishing are, as already mentioned, expressly carved out and protected by ss 26–28. But the group has certain rights set out in ss 60 and 62 of MACA including permission rights under the Resource Management Act (RMA permission right),^[236] and certain conservation statutes;^[237] a right to protect wāhi tapu and wāhi tapu areas;^[238] prima facie ownership of newly found taonga tūturu;^[239] ownership of certain minerals;^[240] and the right to create a planning document for the area.^[241] The group may use, benefit from or develop a customary marine title area, but is not exempt from obtaining any relevant resource consent, permit, or approval that is required under another enactment for the use 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 detail in ss 66–70. In short, a group that holds CMT for an area may give or decline permission to a person who wishes to carry out an activity in that area for which permission is required under the RMA.^[243] The person who wishes to carry out the activity must obtain both the consent of the CMT group and necessary resource consent.^[244] If the CMT group owned the area, any activity by a third party within that area would of course require their permission. The RMA permission right regime effectively restores some of that control, but only in relation to activities that would otherwise require a resource consent (such as removing sand or shingle, or constructing 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 specified area of the common marine 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 the present day without substantial interruption;

...

[137] Mr Hodder contended that the two limbs are essentially independent, the first one drawn from customary law and the other from the common law of England. I do not 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 that the common law as received in New Zealand was modified by recognised Māori customary property interests.^[245] The Court had also urged care when applying English legal concepts to customary property interests, which do not necessarily align with estates recognised in English law.^[246] The risk of such assumption may cut both ways, either discounting customary interests or inflating them to conform to English legal estates.
[138] Second, the section establishes a single test which must be interpreted as a whole. In particular, as I explain below, the concept of exclusive use and occupation must 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 the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights. ...

(b) the High Court of Australia has said that the test is:^[248]

... a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. .... the relevant task, ... is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.

[139] The s 58 test for the existence of CMT is intended both to recognise extant territorial rights and to reconcile them with the public and private rights of others in the 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 58 as an improvement on the “well-nigh impenetrable” equivalent provision of the 2004 Act but found the exclusivity requirement still “intractable”.^[249] I agree. Relevantly for these appeals, difficulties are not confined to deciding when the statutory criteria for recognition orders are met. They also arise when deciding which group, 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 inquire whether the applicant group holds the specified area in accordance with tikanga. It is a contemporary inquiry; “holds” is in the present tense. “[H]olds” appears to reflect the definition of Māori customary land in Te Ture Whenua Maori Act: “land that is held by [Māori] in accordance with tikanga [Māori]”.^[250] In relation to this provision the Māori Land Court has observed that: “[t]here is no connotation of ownership but rather that it is retained or kept in accordance with tikanga [Māori].”^[251] The test looks to tikanga that is local, directed to the area concerned.^[252] Evidence of activities that show control or authority over the area, as opposed to simply carrying out a particular activity in that area, will be of particular relevance in distinguishing “holding” the area from use of it to gather a particular resource.
[141] The group’s use and occupation must be exclusive. That is, as all counsel appearing before us accepted, a high standard. It is not synonymous with possession at common law, but it is concerned with the intention and ability to exclude others from the specified area. This distinguishes areas held by the group at that time from areas in respect of which the group held only specific resource rights. Use rights which are not accompanied by territorial control cannot sustain CMT.
[142] The court must further inquire into the group’s past use and occupation, asking whether exclusivity has been continuous from 1840 to the present day. Any interruption during that period must have been substantial if it is to defeat the group’s claim to continuity of use and occupation. Resource consents granted between MACA’s commencement and its effective date are deemed not to amount to substantial interruption (by implication, other resource consents may do so).^[253]
[143] When deciding whether CMT exists in a specified area, relevant considerations include ownership by the applicant group or any of its members of abutting land without substantial interruption since 1840, and the exercise of non‑commercial customary fishing rights in the area since 1840.^[254] Use of the area by others, not being members 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, such activities do not mean, of themselves, that the area is not held in accordance with tikanga or that the applicant group’s exclusive use and occupation has been substantially interrupted.^[255]

Exclusivity as a matter of tikanga

[144] As noted, Churchman J had reservations about exclusivity. He expressed them when responding to the submission, made by counsel for LCI and the Attorney‑General that exclusivity introduces European proprietorial concepts.^[256] He found that the concept of exclusion was fundamentally inconsistent with the values of manaakitanga and whanaungatanga.^[257]
[145] I have explained that s 58(1) establishes a single composite test. It draws from the common law of aboriginal title and it conceives of property not as a thing or resource but as consisting primarily in control over access to things and resources.^[258] MACA defines CMT by reference to holding, use and occupation.
[146] I consider that the Judge was wrong to discount exclusivity on the ground that it 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 were otherwise, few if any applications would be granted.
[147] I have mentioned that the Ministerial Review Panel stated that in traditional Māori society, hapū and iwi presumed the right to control and exclude others.^[259] This clearly referred to physical exclusion. The evidence in this case confirms it, showing that the applicant groups assert the right to exclude others and recognise that other groups enjoy corresponding rights over other parts of the marine and coastal area. The name given to such areas is takutai moana (literally, “it’s my sea”). There are numerous 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 and gathering kai from the moana. You wouldn't have people coming in from outside to fish in our area. We would stay in our area to leave that area for that whanau. This was our cupboard and that was theirs. If we took from their cupboard then there wouldn't be enough in their cupboard for them. That was our 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've gone down there for a holiday and the people from that area take you to where their sources are. That's respect for another iwi or hapū.

[149] Muriel Ngahiwi Smith Kelly, from Ngāti Patumoana, spoke about access to Ōhiwa that was granted to a Tūhoe hapū:

We hosted other iwi, Tūhoe for instance, it was never Tūhoe that was allowed a passage of right though the Ōhiwa, it was Waimana Kaaku who are a 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 take inland. The one thing Tūhoe was deprived of was a regular supply of kaimoana.

[150] Carlo Hemoana Gage, from Ngāti Ira, explained the arrangement between Whakatōhea 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 respected the shared tikanga associated with fishing and diving within the respective hapū and iwi of Te Whānau a Apanui.

There was always a mutual understanding and respect between Whakatōhea and Te Whānau a Apanui in regards to mana moana (in terms of gathering shellfish 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 contact with our whānau or kaumātua living within Te Whānau a Apanui. We would check the weather and/or moana conditions and also if there were any special circumstances we needed to know about, for example, a rāhui (restrictions) or tangihanga in the area.

[151] Such rights include the exercise of kaitiakitanga. An example of this is the placing of rāhui. Donald Ati Kurei, of Ngāti Ira, explains:

We as Tohunga Tikanga in Whakatōhea all make decisions together on Rāhui for the benefit and safety of all. We have always asserted our mana moana and 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 to Whānau Apanui and vice versa. However, when one has been placed, we respect 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 use resources, as a matter of whanaungatanga and whakapapa. Te Riaki Amoamo, of Ngāti Rua, explained that:

We have the right to exercise our customary authority (mana and rangatiratanga) in relation to our own seascape. For the same reason, we would not go into other tribal (iwi) seascapes because we would be challenged. Our customary areas are not as rigid as Western boundaries however. Other Whakatōhea hapū can come into our sector, for instance, we wouldn’t stop Ngāti Patu coming to fish in our area. The tikanga is that we share the kai because our hapū of Whakatōhea are related to each other by whakapapa, and it is part of our collective responsibility to care for our whanaunga, as they do for us (this is known as manaakitanga). In that respect we are a tribal collective. The practice of sharing the kai continues today, so if someone goes out fishing then they will bring me and other kaumātua some fish if they catch some. I will come home from the marae and find a bucket of fish or watercress sitting on my back step.

However, there is a distinction between permitting access to our sea territory as a matter of manaakitanga and having the customary authority to act as the kaitiaki. 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 their whakapapa connections, would come to our rohe when the Moki were running. However, this was always done with Whānau a Apanui permission and 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 right to implement a prohibition that stops the taking of Moki, including placing a rāhui.

[154] Perhaps the best example is the evidence of sharing of tītī (sooty shearwater or muttonbirds) 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 made up Mātaatua waka.

We all had rights in the Bay of Plenty and different iwi had different islands to 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 Island and Whale Island.

We had a circuit. The first iwi to go over to White Island was Te Whānau a Apanui. They would go over; get their birds and then come back and report to Whakatōhea. They’d say, “we’ve been to Pākihikura.” (That’s the name of a 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 let Tūhoe know next.

Tūhoe would go over and they might go to Poroporo[,] another ground and they’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.

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 one else went to Whale [I]sland in the first round.

So, that's the first round. The second round we'd go again dependent on bird numbers or weather. Ngai Te Rangi would tell Te Whānau a Apanui, if there were still plenty of birds there. They'd go around a second time.

The second time round, Ngāti Awa were now allowed to go over to White Island. On the second time round, anybody could now go to Whale 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 the gathering of tītī:

Pre-1960s you went over to Whakaari and got your tītī. The closest point to Whakaari from the mainland was launching off Te Kaha, in Whānau Apanui. Te Whānau ā Apanui would get first pick then Whakatōhea and then Ngāti Awa were the third partners in sharing the resources of Whakaari. It was natural for Whakatōhea to get tītī from Whakaari. For those who couldn't get there for whatever reason, they were fed by those that could. Tuhoe also had their tītī gathering time.

[156] Minna Biddle Roache, for Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa of Whakatōhea, spoke about arrangements with Tūhoe:

Ngai Tūhoe they used to come down to Kutarere or Waiotahi and get pipi and what have you. It must have been an arrangement because when they did that we did not go to the beach. And that might be a week I'm not sure how long it 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 the tribes 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 in terms of bringing and asking. They knew the tikanga. They would go to the chiefs who were available then, of the different hapū around that kai bed, and be respectful. I believe there were certain ceremonies carried out at those times.

Those are the values we have to correct and get right. The kai is there for all of us. If you come from another area, be respectful. Ask first so the people in charge give that permission to go in and take whatever and in return maybe the people may bring some manu or whatever they have, whatever it is they have 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 to take them out ourselves. It's not a case of sending them on their way, we can't do that. Sometimes if you take them out then they'll come back another time and go out by themselves, that's not how it works. They still have to show respect and come in to see us.

[159] There is a strong reciprocal character to these rights. Indeed, continued recognition of one group’s control of a given resource may depend on their willingness to allow others to share it. Nonetheless, such access is formally by permission of the host, granted because they acknowledge their relationship to the group requesting access, 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 which Whānau a Apanui exercise mana, this permission is a privilege and does not establish a right. The hapū of Whānau a Apanui maintain the authority and right to retract this permission at any point.

[160] The view that the power to exclude others from land of the coastal marine area is a dimension of tikanga is reflected in what we were told is the only decision of the Māori Land Court to discuss land “held... in accordance with tikanga” under what is now s 129(2)(a) of the Te Ture Whenua Māori Act. In Wharo Oneroa a Tohe (90 Mile Beach), a 1957 decision, the Māori Land Court found that, immediately before 1840, Te Aupori and Te Rarawa occupied their respective portions of the intertidal zone along 90 Mile Beach and did so to the exclusion of other tribes.^[261] It is also consistent with the expert evidence. Professor Williams explained in his evidence that while rights in land were complex and interlinked, and a given type of right might be held by more than one group at a time, all rights derived from the collective landholding unit, usually the hapū.
[161] What must be shown to satisfy a court that an applicant group uses and occupies a specified area to the exclusion of others? I have explained that the Canadian authorities require intention and capacity to control the land. Ms Roff submitted that evidence of intention and ability to control the specified area against others is necessary under MACA. Counsel cited Ngā Pōtiki Stage 1, in which Powell J held 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 parties at any point.

I observe that the tests adopted by Powell J and contended for by the Attorney‑General are not identical: Powell J’s test is disjunctive and aimed at exclusion of others, while the Attorney’s is conjunctive and aimed at control as against others.

[162] In my view exclusivity of use and occupation requires both an externally‑manifested intention to control the area as against other groups and the capacity to do so. Exclusivity is a question of fact, heavily dependent on the characteristics of the specified area, the kinds, frequency and intensity of use, and the circumstances of claimant groups. The inquiry must be sensitive to the methods that were and are available to assert mana. It must also be sensitive to the practice of whanaungatanga and the existence of whakapapa linkages which mean that other groups may not have been physically excluded from the specified area but rather used its resources with permission of the applicant group.
[163] It should not be assumed that exclusivity has everywhere been lost, for two reasons. First, the mere existence and exercise of public rights secured under MACA is not inconsistent with exclusivity; put another way, Māori groups have not lost exclusive use and occupation merely because they cannot in law prevent public access to and use of the common marine and coastal area for purposes of recreation, fishing and navigation.^[263]
[164] Second, Māori did not abandon their claims to exclusivity following Re Ninety‑Mile Beach and their claims may have been respected in some areas. Professor McHugh has argued that Māori practice carried on regardless and tikanga 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 under fisheries legislation.^[264] The Waitangi Tribunal has found that the acquisition, exercise and impact of public rights of access and use has been uneven and Māori authority has subsisted in some areas.^[265] To some extent use of the foreshore by non-Māori may have been permitted in the exercise of manaakitanga.^[266]

Externally manifested intention to control

[165] The applicant group must intend to control the area and must manifest that intention externally, through acts consistent with exclusive use and occupation. There is evidence that this is regularly done through cultural exchanges or practices. For example, the evidence indicates that the placing or declaration of a rāhui is a right reserved 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 rāhui being imposed on the ocean for some weeks afterwards, extending from the tribal areas of Te Whānau a Apanui and Whakatōhea across to Ngāti Awa. The karakia to lift the tapu were performed on 27 December 2019, and I was asked to lead the karakia for Whakatōhea. We were taken out to sea in a boat. I was asked to say a karakia on the wharf at Whakatāne before we left, and I said no because we were within Ngāti Awa's rohe. I waited until everyone was on the boat and because it was a Whakatōhea boat I was able to commence my karakia. From there we went out to the Whakatōhea mussel farm within our tribal 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 Awa chairman Dr Mason placed a rāhui on their rohe moana. Ngati Awa encompasses Whakatane, Ohope, Ohiwa coastline. On December 9th I as chairman of the Whakatōhea Māori Trust Board and Taumata trust in support and respect to the deceased requested Whakatohea people to observe and respect a temporary resource limitation rāhui placed on the Whakatohea customary boundaries, Ohiwa, Waiotahe, Ōpape, Waiaua and Ōpape Te Rangi. All marine activities along and above the shoreline will be observed during this time of bereavement and will continue until all movement of persons from Whakaari ceases.

Capacity to exclude

[167] With respect to historic methods of controlling an area, Mr Hodder drew our attention to a chapter of a book by Tā (Sir) Hirini Mead.^[267] The author identified 15 elements of mana over land and its occupants.^[268] They begin with military action (take raupatu, take ringa kaha, take pakihiwi kaha) to displace existing occupants — said to be a necessary requirement unless the land was unoccupied or was gifted — and include subsequent occupation, intermarriage with tangata whenua women, 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 and placing of wāhi tapu, the adoption of a group name, and the approval and acceptance of neighbouring iwi.^[269] A court’s inquiry into exclusivity as at 1840 will focus on these requirements to the extent applicable in the particular case.
[168] Not all of the requirements of mana identified by Professor Mead are pre‑colonial. His list included the inclusion of an iwi’s name in the historical record of the Māori Land Court and other institutions of Aotearoa.^[270] That method, it seems to us, may include representation on institutions such as the Trust Board or recognition in Treaty settlements. The record confirms that mana may be asserted through the pursuit of redress and use of statutory processes to limit incursions into the customary uses of resource, and further that these methods have assumed great importance in the modern era. They are not merely claims to compensation or resources. They are means by which mana is asserted as against the Crown or non-Māori and also, as these appeals demonstrate, within Māori society. We were told that a number of applicant groups filed separate but parallel applications because they were exercising their right to 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 the use of force to prevent incursions into a group’s territory.
[170] Further, traditional methods were not replaced or supplemented by effective legal rights. The common law could not come to the aid of Māori seeking to exercise customary rights over land, notwithstanding that it recognised the existence of these rights. As the Chief Justice observed in Ngāti Apa, from the enactment of the Native Lands Act 1909 Māori owners have been prevented from suing for recovery of customary land or damages for trespass.^[271] Under the 1909 Act proceedings might be brought by or on behalf of the Crown for the owners, but so far as we aware the Crown never did so. In my opinion MACA’s objective requires that this legal disability be set aside when considering capacity to exclude.
[171] Some means of establishing control of an area do survive as a set of cultural norms which are constantly reinforced through ritual engagement between tangata whenua and manuhiri. I have noted that the acceptance or acquiescence of neighbouring tribes was identified as a feature of customary title in the Canadian cases.^[272] It assumes importance under MACA because there is much evidence that groups recognise the rights of other groups to control their own areas. The record confirms that mana is constantly reinforced through ritual exchanges and the practice of 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 of the common coastal and marine area is powerful evidence of exclusivity. In the absence 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 is not a prerequisite to CMT. Nor, since claimant iwi, hapū and whānau groups are not the only parties affected by a recognition order, can it be conclusive. Nonetheless, a court may not be satisfied of exclusivity in the absence of evidence that other groups recognise an applicant group’s rights (or a satisfactory account of why such evidence is lacking). Consensus is even more important for shared exclusivity, which rests on evidence that the groups concerned shared control of an area to the exclusion of others.

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 present occupation and the persistence of cultural practices which maintain connection to a specified 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 and occupation of the specified area. I make several points about this.
[175] First, the requirement that interruption be substantial recognises that MACA expressly takes account of the Treaty, in which the Crown promised that Māori would continue to enjoy the full exclusive and undisturbed possession of their lands and estates, 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 caused by people who did not recognise aboriginal rights to land.^[275]
[176] Second, the most common forms of incursion in the nature of trespass will involve use of the marine and coastal area for public access, recreation, fishing and navigation. Under MACA these uses are not incompatible with CMT.
[177] Third, as I have explained, the presence of others is not inconsistent with exclusive 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. That might be so, for example, where European settlers accessed a coastal area with the acquiescence 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 wrong to hold that substantial interruption applies to the applicant group’s holding of an area in accordance with tikanga.^[276] It applies to the group’s exclusive use and occupation. Because the Judge held that holding with tikanga is a question of fact and does not imply exclusivity, he set a more rigorous standard for substantial interruption than the legislation permits. Ms Roff argued that he directed himself correctly on exclusivity elsewhere and contended that he did not rely on this error when he turned to the evidence. I am not persuaded. There is force in the submission of Ms Waikato, for CRHL, that the Judge’s approach to substantial interruption is connected to his view of 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 or navigation can never amount to substantial interruption. The Judge stated that:

[269] Given the fact that any grant of CMT is expressly subject to third‑party rights of navigation, fishing and access, it is unlikely that Parliament intended the test of “substantial interruption” to have been met if the activities said to amount to substantial interruption relate to navigation, fishing or access. That would not be consistent with the purposes of the Act discussed above.

[180] Section 59(3) provides only that such activities do not of themselves preclude CMT. Put another way, an opponent cannot argue that a recognition order is precluded on the ground that these activities were a form of trespass which the applicant group did not or could not resist. That is consistent with what I have said at [170] above; the legal inability to resist trespass through force or at common law must be set aside when considering capacity to exclude. This answers Mr Scott’s submission that the long history — more than a century — of iwi and hapū complaints about lawful commercial fishing were met with no success and so evidence substantial interruption (or interference with holding in accordance with tikanga). As I see it, the significance of the evidence to which counsel referred is that it tends to show Māori never surrendered their 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 use for fishing or navigation, though not “of itself” enough to preclude CMT, may contribute to an applicant group being unable to establish its claim. Again as a matter of construction, the exercise of public rights of access and recreation must also be capable of having that effect. It will depend on the facts. But the mere fact that these activities happened is not enough to preclude CMT in law. There will be questions of scale, extent and duration.
[182] I add that even regular commercial fishing is a transitory use. And if the resource is properly managed from a fisheries perspective, it seems unlikely that fishing would so deplete the resource as to cause an applicant group to abandon the area indefinitely. Mr Scott did not go quite so far as to argue otherwise, though he did point to evidence of complaints that customary fishers often returned home empty‑handed. An activity that is inconsistent with tikanga, or exclusivity of use and occupation, might preclude a recognition order where it occurred with the consent or participation of an applicant group,^[277] but our attention was not drawn to any evidence of that in this case.
[183] Ms Feint argued that as a matter of policy the court ought to ignore any incursion that was a breach of tikanga. That would involve assessing exclusive use and occupation from a tikanga perspective only, ignoring the actions of non-Māori who did not recognise customary rights. In my view that is not the approach that Parliament took in MACA. The legislation contemplates interruption from lawful use and occupation by third parties, including non-Māori and Māori who are not members of the applicant group, whose actions were contrary to tikanga. It provides for them by specifying that they do not preclude CMT unless they amount to substantial interruption 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 the interpretation of s 58.
[185] I have recounted evidence at [147] – [166] above to show that exclusive use and occupation of land is a characteristic of tikanga Māori, not an additional requirement drawn from the common law of England. Mana tuku iho incorporates the intention and ability to exclude others according to the dictates of tikanga. MACA assumes that as a matter of fact applicant groups may have enjoyed exclusive use and occupation of the common marine and coastal area before 1840.
[186] The legislation envisages that the question on which most applications are likely to turn is whether exclusivity, in this tikanga-consistent sense, has been lost in the 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 requirement for exclusive use and occupation since 1840 and the concept of substantial interruption with no work to do. The substance of the majority approach is that an applicant group who can show that they held an area in accordance with tikanga at 1840 will obtain CMT unless (a) their rights have been extinguished in law through action expressly authorised by statute or (b) the group abandoned the area after 1840 or ceded control of 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 no applicant group contended for it and I do not find it an available reading of the legislation. In my opinion the statutory language and the legislative history make clear that 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 few areas 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 recognised customary title in these areas despite lawful third-party incursions over the last 180 years. This leads the majority to discount what we appear to agree is the literal meaning of s 58 in an attempt to give effect to the purpose statement in s 4. In my view neither of these assumptions is justified. I explain why, briefly.
[190] When read with the preamble and s 7, the purpose statement tells us that Parliament has taken account of the Treaty by establishing a durable scheme which recognises and promotes the exercise of customary interests while reconciling them with other lawful rights and uses. The courts’ carefully circumscribed task is to implement that scheme.
[191] What would have happened had the common law been left to its own devices following Ngāti Apa is an interesting and still-important question. The answer supplies a measure of loss experienced by Māori from first the 2004 Act and now MACA. The academic literature I have cited at [48] and [49] above shows that the question whether the common law would have recognised exclusive customary rights of occupation and use in the marine and coastal area is contestable. The debate turns on the extent to which the common law would have followed the majority judgment in Yarmirr by recognising that customary title may be subject to public rights of navigation, fishing and, arguably, access which affected the Crown’s title at English common law.
[192] In Ngāti Apa itself the Court took care not to speculate on the direction the common law might have taken. Counsel did not address the topic before us. I have mentioned it at [45] above not to take a position on it but because it forms part of the narrative of the legislation which followed Ngāti Apa. It was common ground among counsel that, as explained in my survey of the legislative history, Parliament chose not to leave to the courts either the content of customary rights over the common marine and coastal area or the criteria for their recognition. Rather, the legislature adopted a customary rights scheme, initially in the 2004 Act and now in MACA, which supplants the common law. In my view it is a matter of historical fact that the statutory scheme was 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 26 creates new individual rights of access and recreation without charge, but it too may be said to find a source in Yarmirr.^[278]
[193] What Parliament did leave to the courts was the question whether a given applicant group held an area in accordance with tikanga as at 1840 and retained exclusive use and occupation until the present day. This was to adopt the Canadian approach, in which exclusivity is treated as a question of fact. The legislation envisages that these case-by-case inquiries will establish the intensity of use and occupation required for exclusivity, by reference to the particular circumstances of 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. The record in these appeals contains evidence of practices in particular places. But with respect to the areas covered by Orders 1 (except Whakaari) and 3, the necessary findings were not made in the judgment under appeal and counsel agreed that we cannot make them. It would be premature in the meantime to assume that applicant groups cannot establish exclusivity in the specified areas.
[194] If, as I contend, exclusivity is substantially a question of local fact, it must follow that when the evidence is examined the applicant groups may fail to establish that they continue to hold parts, possibly the entirety, of the specified areas in accordance with tikanga. But that need not be so, nor (if true) would it show that the statutory 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 other sources 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 practice Māori authority over the foreshore and sea survived in some areas, notwithstanding re Ninety Mile Beach and the Crown’s failure to enforce customary rights on behalf of Māori. The judgment in Ngā Pōtiki Stage 1 is to similar effect and a good example of the sort of inquiry that I consider Parliament had in mind. Powell J found that customary authority over the application area had been maintained despite its close proximity to metropolitan Tauranga.^[279] That conclusion rested on factual findings about the physical characteristics of the area and practical restrictions on access to it.^[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 a wider scheme to address Treaty obligations. Rights which have been lost to the practical and legal effects of colonisation may be the subject of redress negotiated and authorised by the other branches of government through the Treaty settlement process. That process was well established when the Court explained in Ngāti Apa that customary rights to the foreshore and seabed might remain extant as a matter of law. The hitherto-unrecognised possibility that customary rights might survive led to MACA, which serves the specific purposes of defining customary rights, reconciling them 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 recent Whakatōhea settlement. But the availability of redress still matters. It means that courts need not interpret the legislation by adopting what amounts to a presumption that 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 groups that seek recognition under Part 4 of their protected customary rights or customary marine title”.^[281] The term includes a legal entity or natural person appointed by such group (or groups) to be the representative of that group and to apply for, and hold, a recognition order or agreement on the group’s behalf.
[198] An application is made by an “applicant”.^[282] The applicant must describe the applicant group and name a person to be the holder of the recognition order as representative.^[283] Sections 100 and 101 together envisage that the person who is to hold the order need not be the person who made the application. It follows that a board might seek CMT on behalf of constituent hapū whose mandate it holds and on the basis 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 in a 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.^[284] The group may rely on the status of any of their members as abutting landowners, or the exercise by any member of non-commercial customary rights since 1840.^[285]
[200] The court may exercise flexibility when dealing with applications.^[286] That extends 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 group must submit a draft order for approval by the Registrar under s 109(1). The fact that it 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 the holder.^[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) a representative of the group to which the order applies.^[289] The applicant must satisfy the court that they are authorised to make the application and that the applicant group is 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 or whānau groups which have chosen to make a single collective application.
(b) The applicant group may confer on a natural person or legal entity a mandate to seek an order on their behalf. Should there be any controversy, the court will need to be satisfied that they do represent the 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 to prove that CMT exists. Such status or activity of a member or members may be relevant to proof of the applicant group’s continuous use and occupation of the area specified in their application.
(d) A recognition order will be held by a legal entity (which may be an unincorporated body) on behalf of the group. That person must be identified in the application and named in the recognition order. It is for the group to nominate the entity which will hold the order.

[204] MACA recognises that members of an applicant group may enjoy differing degrees or kinds of mana over the area specified in their application. That is implicit in the ability to claim through a member group. They may nonetheless share — if they so choose — in a single CMT over that area. It is a necessary condition of such a recognition order over a specified area that one or more of the group’s member groups has exclusively used and occupied each part of the area since 1840. Subject to that requirement, MACA claims can accommodate changes in iwi, hapū or whānau groups since 1840.
[205] By providing for collective applications, MACA allows groups to claim title over areas which they share to the exclusion of third parties. It also allows them to avoid fragmentation of title, which might cause conflict and inhibit the effective exercise of rights that MACA confers on CMT holders. Mr Pou urged the latter point on us when contending, for the Board, that an iwi-level title is necessary to avoid what he described as squabbling. I observe, however, that MACA recognises property rights and the autonomy of rights-holders. It is for iwi, hapū and whānau to decide whether to apply as a collective and who will hold their title. Any applicant group may 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 grant a recognition order under s 98. If not satisfied, it must (subject to what I have to say below about process) decline the application. I respectfully part company with Cooper P and Goddard J on this aspect of shared exclusivity. In my view MACA does not envisage that the court will appoint a trustee to hold CMT for separate groups in circumstances where they have not taken the opportunity to agree on shared CMT, and no single group has been able to make out a separate claim. Of course this would not preclude the recognition of PCRs.
[206] Party autonomy extends to the choice whether to pursue an application for CMT and in what forum. Subject to what I say below about the dual pathway, an applicant group may elect to pursue negotiations with the Crown in preference to court proceedings.
[207] Nor does MACA envisage that the High Court will settle questions of internal governance of the legal entity nominated by a successful applicant group to hold the title. Rather, it implicitly adopts the premise that internal governance is a matter for the group to decide in accordance with tikanga. By definition, they have shown that they collectively hold the area in accordance with tikanga. They can continue to govern it as they have always done, recognising among themselves any superior local rights held by group members. We were given to understand that one reason why final orders have not been made in the High Court is that a tikanga process has been undertaken to decide how the titles will be administered.

No overlapping CMT

[208] It will be apparent from what I have said that MACA contemplates shared exclusivity, meaning one or more groups may apply collectively and secure CMT based on the claims of their members to exclusive use and occupation of areas held in accordance with tikanga. Groups which are politically separate entities need not make separate applications. A joint application may succeed if they can show they together hold the area to the exclusion of others.
[209] But MACA does not contemplate overlapping CMT. If two applicant groups were separately granted recognition orders over the same specified area, neither group could meet the s 58(1) criteria for CMT; neither would hold the specified area to the exclusion of the other. As the Waitangi Tribunal has explained, resource rights were “complex, convoluted and overlapping”.^[291] MACA requires that boundaries be precisely defined not because lines on a survey plan correspond precisely to customary boundaries 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, neither group could unilaterally exercise those rights. Neither could effectively give permission to the Minister of Conversation to consider a conservation activity under s 71(1), neither would have the sole right to seek inclusion of a wāhi tapu area in the CMT under s 78(1), neither would control the preparation of planning documents relating to the CMT area under s 85(1), and neither could exercise ownership of minerals 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 applications under pt 19 of the High Court Rules 2016.^[292] This is designed as a relatively inexpensive procedure for cases in which full pleadings and interlocutory processes are not needed.^[293]
[212] MACA specifies that an application must contain the information prescribed by s 101, including the particular area to which the application relates and a description of the applicant group.^[294] It must be accompanied by affidavit evidence, which performs much of the function of pleadings; the affidavits must “set out in full the basis on which the applicant group claims to be entitled to the recognition order”.^[295] Implicit in this latter requirement, as Ms Feint submitted, is a recognition that the basis for the application and matters in issue may be developed as evidence is filed for the applicant group and interested parties.
[213] The legislature’s decision to adopt the originating application procedure is consistent with Tsilhqot’in Nation, in which the Canadian Supreme Court held that a functional approach should be taken to pleading, with courts overlooking minor defects in the absence of clear prejudice.^[296] That is the approach which the High Court has correctly taken under MACA to date.^[297] In Tsilhqot’in Nation, the Court explained that this approach was justified because legal principles might be uncertain at the outset, the evidence might also be initially uncertain, and a technical approach to pleadings would not serve either the goal of reconciliation between Aboriginal groups and wider society or the interests of justice.^[298]
[214] Because the nature of the order sought, the identity of the applicant group, the particular part of the common coastal and marine area which is the subject of the application, the grounds relied on and the identity of the proposed holder of the order are all matters that must be specified in the application,^[299] any change to an application will require an amendment. Where the change is material, the court must give interested parties an opportunity to be heard on the amendment.
[215] The jurisdiction to amend must be exercised with s 100 of MACA in mind. It provides that an application “must be filed not later” than six years from MACA’s commencement, 1 April 2011, and the Court “must not accept for filing or otherwise consider any application that purports to be filed after that date”. This is not a limitation period, to be pleaded or not as a defendant chooses. It is a statutory bar to the exercise of the High Court’s procedural and substantive jurisdiction to consider a new application under MACA.
[216] There were amendments made, or not made but said by opposing parties to be necessary, in this case. Churchman J followed his own interlocutory judgment on a strike-out application in Re Ngāti Pāhauwera Development Trust, in which he held that where (as in this case) the amendment does not raise new matters of law but rather introduces new or additional facts, the Court should apply a high threshold when deciding that the amendment is out of time.^[300] In that case, he held, following ISP Consulting Engineers Ltd v Body Corporate 89408, that the test is whether the amendment changes the “essential nature” of the application.^[301]
[217] Ms Feint argued that Churchman J erred by adopting a test which assumes that ordinary rules for pleadings apply. She submitted that amendments to originating applications fall into a separate category, in which the question is whether any prejudice 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 to pleadings on the ground that s 100 is not a limitation provision but rather an ouster clause 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 judicial review of administrative decision-making. Its reach is confined to the jurisdiction conferred by MACA. I did not take counsel to contend that the Judge could not consider s 100 at all when scrutinising amendments, or when considering whether amendments were necessary. The Court must examine any amended application to ascertain whether it must be considered new, and hence out of time. The question is one of substance, not form. If it were otherwise, an applicant who happens to have brought an application in time might purport to amend it by introducing an unrelated applicant group and an entirely new specified area.
[219] Nor was the Judge wrong to cite authorities dealing with the question whether an amendment introduces a new cause of action for limitation purposes. I accept that s 100 should be interpreted strictly. It bars the exercise of MACA’s jurisdiction to recognise customary property rights which are the subject of Treaty guarantees. However, the Judge did interpret s 100 strictly by asking whether an amendment changes the essential nature of the application.^[303] He accepted that a flexible approach must be taken to pleadings under MACA and recognised that it would be wrong to take an unduly strict or narrow approach to amendment.
[220] When considering whether any given amendment changes the essential nature of the application, it is necessary to bear in mind several features of the statutory scheme:

(a) An applicant group may comprise several distinct groups which may rely on the connection which any member group has to the affected area. This suggests that amendments are unlikely to change the essential 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 are in principle permissible, to incorporate the rohe moana of the applicant group.
(b) An application must contain the details specified in s 101(a)–(i). Any change to these matters will likely require an amendment to the application. Subject to that, the basis of the application may be developed in the affidavit evidence of the applicant and other interested parties.
(c) The Court may (but need not) treat an application for CMT as if it were an application for PCR, and vice versa. This modifies the legal nature of the application. Its inclusion in the legislation signals that Parliament contemplated a flexible approach to amendment.
(d) As Churchman J recognised,^[304] the Court may accommodate tikanga processes in which applicant groups and opposing parties decide whether to seek shared or separate CMT and agree on who is to hold a recognition order. To permit such processes is consistent with MACA’s objective of recognising mana tuku iho in the common coastal and marine area. It allows the Court to accommodate applicants’ preferences to structure their holdings so that recognition orders are administered in accordance with tikanga (and without need for judicial intervention).
(e) Any amendment may affect interested parties who have an interest in the exercise of rights that MACA confers on a successful applicant group. Those rights are substantive, and the class of interested parties is not confined to iwi, hapū and whānau groups. Natural justice must be observed. It is possible that any prejudice to an interested party from late amendment will not be adequately met by an opportunity to respond in the proceeding.

[221] These features together indicate that applications may undergo significant modification as parties join the proceeding and the evidence comes in, provided the result is not in substance a new application and amendment is not contrary to the interests of justice vis-à-vis other applicants and interested parties.^[305] Such a process may reflect a complex and overlapping distribution of territorial and usage rights among whānau, hapū and iwi in traditional Māori society. The Waitangi Tribunal has explained that:^[306]

To the whanau group usually ‘belonged’ ... some ... fishing grounds and shellfish 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, and some 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 the rights of the lesser groups. Major fishing expeditions, journeys, trade arrangements, peace pacts and war were undertaken at tribal level. Cohesion was maintained through an intimate knowledge of bloodlinks, the constant deference 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 group would not interfere unless the matter was of wider concern. Territory and resources were jealously and exclusively maintained unless there was good reason to open these up to the wider community.

Boundary marks were common to delimit both land and water areas, but more usually the knowledge of boundaries was simply passed down. The boundaries were minutely known and natural features, streams, hills, rocks, or prominent trees, served to define both land borders and the location of fishing grounds at sea. Smaller and more specific 'private properties' were often indicated by a sign or mark of some kind, named and placed by the owners and sometimes said to carry their mauri (life-force).

But the rights of small units were always subject to the overright of the hapu or tribal group on matters affecting the people as a whole. A whanau could not vacate its patch for strangers, for example, for the admission of strangers to tribal ranks affects everyone, and it could be calamitous to village life if that were done without general assent.

...

... fishing grounds were clearly included as part of the Maori asset base and within the concept of traditional ownership rights.

[222] I accept that amendments to the specified area may be problematic, especially where they are out of time. It may also be, as several counsel contended, that amendments detract from the credibility of shared exclusivity claims which were previously 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 the purpose of the litigation will not meet the requirements of MACA,^[307] and in particular s 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 the statutory requirements of s 51(1) (for a PCR) or s 58 (for CMT), as the case may be;
(b) under s 106(2), an applicant for recognition of CMT must prove that the specified area is held in accordance with tikanga and has been used and occupied by the applicant group from 1840 to the present day (or from the time of a customary transfer to the present day); and
(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 use and occupation since 1840 has been exclusive. Nor does it specify who is to prove absence of substantial interruption. Both are statutory requirements under s 58(1).
[225] The High Court judges who have considered this issue have agreed that the applicant’s burden extends to all the positive elements of s 58(1) but there is no obligation to prove that their customary rights have not been extinguished.^[308] In the judgment under appeal, Churchman J reviewed the legislative history and found that the legislature intended that the applicant should prove the positive elements.^[309] He characterised the concepts of exclusivity and absence of substantial interruption as positive elements of s 58(1).^[310] That was the effect of s 98(2): the Court may make a recognition order only if satisfied that the statutory requirements have been met.^[311] He noted s 106(3) but reasoned that extinguishment is not the same thing as exclusivity and absence of substantial interruption.^[312]
[226] Ms Feint contended that this was an error. She accepted that the legislative history points to the applicant being required to prove only the positive elements of the test, but she submitted that exclusivity (which she defined here as absence of third‑party use) and absence of substantial interruption are not positive elements. To say that the Court must be satisfied that the statutory requirements have been met is not to convey anything about the burden of proof; it is to say only that the Court must come to the required affirmative conclusion. She acknowledged that in practice little will turn on the burden of proving exclusivity and substantial interruption; where these issues are live, an applicant group may face an evidential burden to adduce evidence to ensure the evidence overall satisfies the statutory tests.
[227] Exclusivity is intimately connected with the requirement that the applicant group 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 with tikanga is to exercise territorial control over it, subject to specified public rights of access and use.^[313] An applicant group which can show that it holds an area in accordance with tikanga will possess a sufficient degree of exclusivity of use and occupation.
[228] I accept Ms Feint’s submission that the applicant need not prove absence of substantial interruption. On the contrary, if an applicant group can show that it holds an area in accordance with tikanga, the Court may infer, in the absence of contrary evidence, that it has done so since 1840. This approach is consistent with the Canadian authorities to which I have referred.^[314] It also recognises that substantial interruption means 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 presumption that a “customary interest” has not been extinguished in the absence of proof to the contrary. The concept of extinguishment requires clarification. In Ngāti Apa the Chief Justice stated that customary property rights continue until extinguished by sale to the Crown, through investigation of title by the Māori Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority.^[315] It is settled law that the legislature must speak clearly if it means to extinguish rights that are the subject of Treaty guarantees.^[316] The customary interests that MACA restores to Māori in 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 interests into which those rights may be translated under the legislation. Proof of CMT rests on facts about the applicant group’s connection with a particular area. The exercise of the lawful rights of others, which is protected under s 11(5), may have so interrupted the group’s exclusive use and occupation so as to defeat their claim to CMT. It need not follow that underlying customary interests have been extinguished completely. For example, the applicant group might still be entitled to a non-territorial right, in the form 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 “customary marine 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 of proof of exclusivity and absence of substantial interruption. For reasons explained below, 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 and CMT by agreement with the Crown or by order of the Court. The Crown need not enter into an agreement.^[317] If it does, the agreement takes effect through an Order in Council (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 but elected to pursue agreement with the Crown. They were given notice of the Whakatōhea 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: their cross‑appeal is confined to challenging the Judge’s finding that Whakatōhea are entitled to CMT in that area. Te Whānau-ā-Apanui maintain that the Judge was right to reject all applications for Whakaari and Te Paepae o Aotea.
[234] The Judge observed that MACA does not specifically explain how to proceed when a claim for recognition orders overlaps with a different claim by a different group which is proceeding by direct engagement with the Crown.^[319] He reasoned that a finding that an applicant before him held CMT arguably would prohibit the Crown from reaching an agreement with another group for the same area. That might cause an injustice for the second group, although it would be lessened if the group had participated as an interested party in the litigation.^[320] He rejected arguments by counsel for LCI and the Board that the concern could be met by adjournment, or a stay under s 107(5).^[321] He considered that neither option was a durable solution; the parties who had come to Court were entitled to a decision, which should be delivered within a reasonable time after the hearing.^[322] He pointed out that the Attorney-General has promulgated a direct engagement strategy under which agreements may be concluded as far away as 2045.^[323] In a subsequent judgment, delivered in the Re 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 overlapping claims, one brought in litigation and the other in negotiations with the Crown.^[324] He saw this as tantamount to a finding that CMT might overlap and therefore inconsistent with 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, drawn from Canadian jurisprudence, that shared exclusivity is not possible where the groups concerned deny one another’s claims. The Judge accepted that the groups need not have enjoyed amicable relations but held that they must together have made use of the area and excluded third parties who did not have their permission to enter.^[326] Ms Feint characterised this as the “consensus principle” and contended that it resulted in the Judge abdicating his responsibility to find that exclusivity was shared and make orders accordingly.
[236] I explain below that the outcome at Whakaari did not rest principally on the so-called “consensus principle”. It rested principally on the evidence. Nor do I accept that the Court can force a recognition order on a party which has exercised its right to seek a recognition agreement instead. I observe that under ss 98–109, CMT is awarded to a representative of an applicant group which seeks a recognition order. There are no defendants in such a proceeding, only applicants and interested parties. Counsel did not address the practical issues associated with issuing CMT to a group which disclaims it, nor did she explain how that would be an appropriate outcome as a matter of tikanga. Presumably the group’s interest in the title would have to be held by someone else, appointed by the Court, as a trustee. The underlying assumption appeared 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 that exclusivity was shared by two groups but was forced to dismiss an application made by one of them on the ground that the other had not submitted to the Court’s jurisdiction, 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 opportunity to 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 negotiate a recognition agreement with the interested party, and I doubt it would do so where the Court had heard from that party and found that they did not enjoy sole exclusivity but rather shared it with an applicant group. The Court, having heard evidence, is likely to have been in a better position than the Crown to decide whether the statutory criteria have been met. Such agreement between the Crown and the interested party may be even less likely where, as in this case, the interested party had filed its own application before the statutory deadline but not brought it on for hearing. Contrary to 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 proceeding to allow an opportunity for a tikanga process among affected groups and engagement with 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 a point upstream of mean high-water springs.^[327] As I explained at [71] above, the Resource Management Act defines the landward boundary of the coastal marine area at a point upstream from where the line of mean high-water springs crosses the mouth of a river. That point is the lesser of one kilometre upstream from the mouth of the river and the point upstream that is calculated by multiplying the width of the river mouth by five.^[328]
[240] Churchman J identified a jurisdictional issue about recognition of CMT over navigable rivers. It arises because s 261 of the Coal Mines Act vested the bed of navigable rivers in the Crown:^[329]

(2) Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown; and, without limiting in any way the rights of the Crown thereto, all minerals (including coal) within such bed shall be the absolute property of the Crown.

[241] The Judge reviewed the legislative history of this provision and the authorities on navigable rivers and held, following the Supreme Court decision in Paki v Attorney-General,^[330] that if a river was navigable in 1903 its bed was deemed to have been vested in the Crown.^[331] This affected the Waiōweka and Ōtara rivers at Ōpōtiki because the evidence showed that the Waiōweka River (into which the Ōtara River converges) 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 title is extinguished as a matter of law.^[333] He reasoned that CMT has been extinguished in rivers because riverbeds are already vested in the Crown under the Coal Mines Act.^[334] In the result, he held that the landward boundary of the common marine and coastal area runs across the river mouth as a continuation of the line of mean high-water springs on either side of the mouth.^[335]
[243] Ms Feint argued that earlier legislation was insufficiently clear to expropriate CMT, 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 Crown under the Coal Mines Act was reversed. The Crown was “divested of every title as owner, whether under any enactment or otherwise, of any part of the common marine and 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’s commencement. The marine and coastal area is defined to include the beds of rivers forming part of that area, as well as the airspace above and the water space (but not the water).^[336] Section 58(4) contemplates that CMT may be extinguished in law, but that provision appears to contemplate extinguishment of CMT by means other than Crown ownership that was subsequently reversed. I observe that, under s 11(5)(c), the special status accorded to the common marine and coastal area does not affect certain powers exercisable by or under an enactment.^[337]

The pūkenga report

[245] The pūkenga report is controversial, partly for reasons of process, and partly because it is said the pūkenga did not answer the questions put to them. It is also said that the Judge relied uncritically on their report and assumed, incorrectly, that it addressed the questions of holding in accordance with tikanga and exclusivity. These contentions require that we survey the process followed, the questions asked, the answers given by the pūkenga, subsequent changes in the applicants’ positions, and the Judge’s treatment of the answers.

The pūkenga process and the hearing

[246] The hearing took place at an events centre in Rotorua under COVID‑19 Level 2 restrictions. It began on 17 August 2020. After the first week the Court took a week‑long adjournment for a tikanga process facilitated by the pūkenga. The Court then sat from 31 August until 9 October, when it adjourned for one week to allow counsel to prepare closing submissions. Submissions were delivered from 19 to 23 October. Overall, the Court sat for eight weeks, with two week-long adjournments.
[247] No one had opposed the appointment of one or more pūkenga. In his Minute 10, issued on 30 March 2020, the Judge had urged the parties to identify candidates and seek agreement.^[338] In his Minute 21, dated 4 August 2020, the Judge recorded that all applicants supported the appointment of pūkenga, and there was also support for a panel rather than a single appointee.^[339] He appointed Mr Doug Hauraki and Professor Pou Temara.^[340] On 13 August, he appointed Dr Hiria Hape to replace Professor Temara, who was no longer available.^[341]
[248] In his Minute 18, dated 8 July 2020, the Judge proposed four preliminary questions for the pūkenga and called for submissions on the nature of questions to be asked.^[342] The parties agreed with these questions, with only minor rewording.^[343] The questions were:^[344]

(a) Question one: what tikanga does the evidence establish applies in the application area?
(b) Question two: which aspects of tikanga should influence the assessment of whether or not the area in question is held in accordance with tikanga?
(c) Question three: which applicant group or groups hold the application area or any part of it in accordance with tikanga?
(d) Question four: who, in fact, are the iwi, hapū or whānau groups that comprise the applicant group?

These are the questions ultimately put to the pūkenga. The Judge envisaged that they would be refined as the hearing progressed and that the pūkenga themselves would be able to suggest questions, but no further changes were made.^[345] The Judge also noted on 13 August 2020 that delays in the appointment meant there would now be no time for 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 week of 24 August. It is apparent from the report and the cross-examination that the pūkenga met 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 pūkenga report. They had no prior knowledge of its contents. 9 October was the final day of evidence. The Court was unable to sit in the morning (due to a fire alarm) but convened at 1 pm and sat until 3 pm. This gave counsel two hours for cross‑examination. Time ran out for all counsel to question the pūkenga, so they were permitted 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 opinion on the Disputed Area. These questions concerned the inclusion of the Ōhope Spit in Maraetōtara East, and their conclusions on who had mana whenua over the area between Tarakeha and Te Rangi.^[347] Ngāti Awa and Te Whānau‑ā‑Apanui both also asked questions in memoranda dated 13 October 2020. The pūkenga provided a written response to those questions on 15 October 2020.

The pūkenga report

[251] The report forms an appendix to the judgment under appeal. I summarise the report, taking into account the responses of the pūkenga to questions asked at and after the hearing.
[252] The pūkenga answered questions one and two (which tikanga applied in the area and which aspects of tikanga should influence the assessment of holding in accordance with tikanga) together. These answers are uncontroversial. They stated that all of the tikanga relational values which I have listed above apply and by way of example listed mana, incorporating tino rangatiratanga, kaitiakitanga, utu, tapu and take-utu-ea (described as a three-way approach to resolution by agreement). Earlier in their report they explained the sources of tikanga on which they relied and emphasised that a great deal of significance is accorded the moana. They noted a degree of flexibility and fluidity with respect to tikanga existing in the area, instancing the sharing of various types of kaimoana among all those who whakapapa to the Mātaatua waka. That flexibility extended, in their impression, to traditional geographical boundaries between the hapū and iwi. They noted that most people affiliated to more than one hapū of Whakatōhea and they went wherever food was available or an event of social significance was to happen.
[253] The pūkenga gave examples of tikanga applied to their report, warning by way of introduction that tikanga is diverse and holistic and its many component parts interact simultaneously in complex ways. Most of the examples given comprised a list or summary of evidence given by witnesses in the proceeding. The pūkenga offered their own opinion that tikanga practices included the naming and use of fishing grounds, the use of Whakaari as a “beacon light” for Te Whānau‑ā‑Apanui, the practice of recognising tapu at pā, oven middens and other traditional sites, and land occupation (we infer, proximate to the sea). In subsequent questions, they identified as crucial tikanga the ability to go offshore and locate taunga ika (fishing grounds) using landmarks.
[254] The pūkenga added that all the tikanga applies to all iwi involved, with minor differences in practical application. They gave as an example access to Whakaari for fishing and tītī or kuia (grey petrel) harvesting, explaining that there was an unwritten acknowledgement of the order of access to those resources. When answering questions from counsel, they acknowledged that not all groups shared the same interest in Whakaari and there was tikanga significance in the acknowledgements of most participants that Te Whānau‑ā‑Apanui were always first to go there for tītī, kuia and other 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 area or any part of it in accordance with tikanga. The pūkenga responded as follows:
1. All groups consider their right according to the tikanga they feel applies. However, and with more hui between them being essential to determine and agree on tikanga, it is only sufficient of us to make a commentary on this question. Furthermore, with numerous positive hui still taking place, this aspect may be resolved in a positive and appropriate way. However, and from the papers available to us the following applies:

a. Ngati Awa

i. Whakaari, Maraetotara west, Tauwhare Pa, West Ohiwa harbour,

ii. Ngati Awa holds the customary interests for Moutohora (Whale Island), Te Raurima, Turuturu roimata (Wairaka rock),

iii. Opihi Whanaungakore (cemetery of the un-named relatives) , te anga o Muriwai cave of Muriwai), Kapu Te Rangi (Toikairakau Pa)

b. Upokorehe

i. Customary interests in Maraetotara East, Cheddar Valley, Ohiwa Harbour, Waiotahe, Hokianga, Hiwarau C, Waioweka, Paerata, Opotiki mai tawhiti,

c. Te Whanau Apanui

i. Whakaari, Hawai, Motu river.

d. Nga Kāhui Hapu o Te Whakatohea

i. One customary and shared customary orders with all hapu in Te Whakatohea. The Kahui is made up of nominated hapu members from each respective 6 hapu of Te Whakatohea that was originally recognised as hapu) Ngati Ira, Ngati Patu, Ngati Ruatakenga, Ngāi Tamahaua, Ngati Ngahere, Upokohere

ii. Hiwarau C, Turangapikitoi, Waiotahi, Ohiwa, Pakowhai, Whanau Apanui, Opape Native Reserve, Whakaari, Moutohora, Te Paepae Atea, Kermedics

e. Ngai Tai Shared customary interests [with] Te Kahui o nga hapu o Te Whakatohea out to the fishing rocks over to Whakaari and Te Paepae Atea. However, and based on Tikanga, our [v]iew is that Ngai Tai have mana whenua from Tarakeha in the west to Taumata o Apanui.

[256] In answer to question four (who are the iwi, hapū and whānau groups that comprise the applicant group), the pūkenga gave a list compiled from the papers:
1. Again this is a response compiled from the papers where again the main applicant iwi, hapū, whānau and groups are:

a. Te Whakatōhea (CIV-2011-485-817); Hiwarau C, Turangapikitoi, Waiōtahe, and Ōhiwa of Whakatōhea (CIV‑2017-485-375); Pākōwhai Hapū; 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 o Ngāi Tamahaua (CIV-2017-485-377) – C Linstead-Panoho and T K Williams:

d. Te Whānau a Apanui (CIV-2017-485-318) – M Mahuika and N 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 and K 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 Sykes and 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 have another application before the High Court but come under the [ambit] of the application by the Whakatōhea Māori Trust Board) – K Feint QC:

2. Summarised, these are as follows:

a. Ngati Awa -Whakaari

b. 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 to questions three and four were taken from the court papers. The closest they had got to researching the claims was in the list given in answer to question four. The parties had presented their claims, but it is evident that the pūkenga had not evaluated the claims to establish who held the area or any part of it. Rather, they envisaged that further investigation might be required if agreement could not be reached.
[258] The pūkenga instead recommended a tikanga-based solution, which was a poutarāwhare (a construct in the form of a symbolic whare which was supported by pou (posts) representing the six hapū of Whakatōhea and accommodating everyone affiliated to Whakatōhea). The poutarāwhare covered the rohe from Maraetōtara in the west to Tarakeha in the east. The pūkenga recommended a single CMT recognition order, reasoning that it would exclude no one and would permit future agreement among all parties about recognition of historic hapū which no longer exist. The interests of other applicants, including the WKW applicants, could be accommodated by the poutarāwhare as they are included within the hapū. In cross‑examination they confirmed 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 Kāhui hapū and the Board, which it will be recalled represented Ngāti Ngāhere, to pursue a single hapū-level CMT for the entire rohe moana claimed by the Whakatōhea applicants, including WKW. This included the area around Whakaari.
[260] Previously WKW had been the only Whakatōhea applicant to claim for the entire area, on behalf of the iwi. Five hapū (excluding Te Ūpokorehe) had otherwise pursued separate applications for lesser areas. These five applications were not in conflict; rather, each hapū spoke for their area and acknowledged the interests of the other hapū. The opening submissions of these applicants indicated that where their claims overlapped they recognised shared exclusivity. Te Ūpokorehe did not take that approach. They pursued their claim to exclusivity as against the other hapū throughout. Ngāti Muriwai did not join the five hapū in seeking a single hapū‑level CMT; 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 not established that they held a specified area in accordance with tikanga.

[331] For the reasons set out at [413]–[465] below, I am satisfied that the evidence supports such a conclusion and I adopt it. I also accept the [pūkenga’s] poutarāwhare approach and their conclusions that, in accordance with tikanga the six Whakatōhea hapū hold the area from Maraetōtara to Tarakeha. The findings are expressly subject to the qualification that the interests of the poutarāwhare were shared with Ngāti Awa in west Ōhiwa Harbour. The precise form of the CMTs for this area will be determined at the next hearing.

[262] It will be seen that the Judge stated that the pūkenga concluded the four named WKW applicants and Mokomoko Whānau had not shown they held a specified area in accordance with tikanga. He added that he agreed with the report for reasons he gave subsequently, when reviewing the evidence.
[263] The Judge also stated that the pūkenga had concluded that the six Whakatōhea hapū held the area from Maraetōtara to Tarakeha. He repeated these conclusions after addressing the evidence for the WKW applicants:

[465] For the reasons discussed above, I share the conclusions reached by the [pūkenga] that the claimants Whakatōhea Rangatira Mokomoko, Hiwarau C, Pākōwhai and Ngāti Muriwai have not established that they, along with the six hapū of Whakatōhea, held a specified area in accordance with the requirements 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 the specified area in accordance with tikanga are [Ngāi] Tamahaua, Ngāti Ruatakenga, Ngāti Ira, Ngāti Ngāhere, Ngāti Patumoana and Ūpokorehe.

[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 formal agreement or understanding that goes beyond the tikanga findings.

[265] The Judge did not deal expressly with continuity, but it is implicit in his adoption of the pūkenga report that he found the six hapū had held the specified area continuously since 1840. He also rejected claims of substantial interruption, examining the evidence in some detail.^[349]

Observations

[266] I accept that the pūkenga answered questions one and two. I also accept that it was appropriate to ask them which groups, if any, held a specified area in accordance with tikanga. Mr Fowler KC, for WKW, argued there was no jurisdiction to ask that question, but it is plainly a question of tikanga within s 99(1) of MACA. It is also a question upon which a court cannot defer to pūkenga but must reach its own conclusion 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 applicant group exclusively used and occupied a specified area; as I have explained, that too is in 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 those claims could be reconciled. Specifically, they did not conclude either that the six hapū hold the specified area in accordance with tikanga or that the WKW parties do not hold an area in accordance with tikanga. They recognised that Te Ūpokorehe were unwilling to participate (representatives left a hui attended by the pūkenga rather than continue discussions) but they did not examine Te Ūpokorehe’s claim to hold areas independently of the other hapū. Nor did the pūkenga address exclusivity of use and occupation, or continuity since 1840. They were not asked to do so. Instead, they looked forward to a structure in which CMT could be held and governed to include all members of Whakatōhea. The Judge acknowledged this latter point, stating that:

[187] As noted by the [pūkenga] in their report, the issue of how any CMT is to be held is a matter for future discussion between the parties and finalisation in the second hearing. The [pūkenga] were hopeful that the poutarāwhare adopted by them might allow for the recognition of different interests as between the hapū. That is possible. It is also possible that Ūpokorehe might not accept the Court’s adoption of the [pūkenga] findings and not wish to be part of any CMT which they jointly held with other hapū. That would obviously be a matter for them. However, the Court hopes that, as the [pūkenga] encouraged, there might be discussions between parties leading to an agreed outcome in accordance with tikanga.

[268] As among the five hapū, their agreement to iwi-level CMT which they would hold with Te Ūpokorehe relieved the Judge of the need to determine their separate applications.^[350] But Te Ūpokorehe did not agree. Nor did the WKW parties (though their disagreement ultimately did not concern the iwi claim to CMT; rather, they wanted to hold a share in the title). The Judge found that applicants had met the tests for CMT in three areas, and the first of these was an order for the six hapū. The area concerned 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] He could not make that finding without dismissing Te Ūpokorehe’s claims to hold and 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 he did, but this not a question of boundaries. It is a question of entitlement which must be answered on the facts.
[269] The pūkenga did not scrutinise competing claims to the same areas. It seems most unlikely that they could have done so in the limited time available to them. By way of illustration, they explained that place names are important evidence of holding in accordance with tikanga but stated in cross-examination that they had not been able to address all the places named on the maps they had been given; that would take too much time.
[270] It is fair to say, as Ms Roff submitted, that the Judge relied heavily on the pūkenga report. I do not accept the submissions of other counsel that his findings rested entirely on it. Nor do we accept that it is necessary to order a rehearing simply because he attributed to the pūkenga certain conclusions that they did not reach. We might be satisfied, on reviewing the evidence ourselves, that his factual findings were correct. But no counsel invited us to do so; rather, they accepted that a rehearing would be necessary were we to disagree with the Judge’s approach. For reasons to which 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 the question of extinguishment of CMT in navigable rivers. I now address the individual appeals and cross-appeals. It is convenient to organise what I have to say by reference to each of the groups concerned, whether they appear as an appellant or a respondent or 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 the Edwards “iwi tipuna” application, which covered the entire area and was first brought by Claude Edwards on behalf of the iwi in 1999 in the Māori Land Court, then in 2005 under the 2004 Act. Mr Edwards was a rangatira of Te Whakatōhea and it is through his leadership and industry, over many years, that his application became the second to be heard in the High Court. It is a priority application, meaning that it was filed under the 2004 Act, and MACA requires that such applications be heard in priority to new applications.^[353]
[273] As Mr Fowler acknowledged, priority status did not mean that the Edwards application must be decided separately from competing applications. He argued rather that it was brought with the authority of the hapū and such authority had never been revoked, as a matter of tikanga. He also pressed the point that the Edwards application was the only one to seek CMT for the entire rohe moana of the iwi and for that reason it is still relied upon by the hapū notwithstanding that they later brought their own applications. He contended that Churchman J never actually dismissed the application, notwithstanding that, as Ms Feint pointed out, the Judge stated in a later judgment of these proceedings that he had done so.^[354]
[274] I find that the Judge did dismiss the iwi tipuna application. We think that is implicit 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 definition of “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 from most, or perhaps all, of the hapū (Ngāti Ruatakenga deny having ever given him a mandate). He brought his application as representative of the iwi. But by the time it came on for hearing, the hapū had brought their own applications (through the Board in 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. None of the six hapū supported the Edwards proposal that a trust would be formed in due course to hold the title for the iwi. Rather, Te Kāhui proposed that it would be held by two representatives for each of the six hapū.
[276] It may be that tikanga would call for a process to withdraw Mr Edward’s mandate and decide who ought represent the iwi, if only as a matter of etiquette. I express no view about that. It is also apparent that the six hapū do not represent the views of everyone affiliated to the iwi. But MACA treats mandate as a question of fact for the court, and the six hapū appeared for themselves, stating that the Edwards application did not have their support.^[356] That having occurred, it could no longer be said 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. The other WKW parties did not file separate submissions in this Court.
[278] Mr Sharp, representing both parties, argued that it was an error to ask the pūkenga who held the area in accordance with tikanga, because that was a question of law. I have already rejected that submission. I have also accepted that the pūkenga did not answer the question.^[357] However, they did address the status of Ngāti Muriwai and Kutarere Marae, implicitly offering the opinion that neither were presently hapū of 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 his conclusions on it. He heard evidence and found on the facts that:

(a) On its own evidence Kutarere Marae came into existence in the 1930s and is not a whānau, hapū, or iwi.^[358]
(b) Ngāti Muriwai did claim to have been a hapū since 1840, independent of Ngāti Ruatakenga with whom they acknowledged a close association, but there was no evidence of their presence in the Whakatōhea region between 1840 and 1870. They were allocated land at Ōpape reservation between 1870 and 1881, following the raupatu and after a dispute with Ngāti Ruatakenga over grazing. There was some evidence that Ngāti Muriwai had become moribund and was revived in the 1990s after Claude Edwards lost his seat on the Board following a failed Treaty settlement process.^[359]

[280] I am not persuaded that the Judge was wrong to find that neither group was entitled to CMT in its own right.^[360] Neither could show that they had held an area in accordance with tikanga since 1840. In reply submissions Mr Sharp criticised the Judge’s factual findings to that effect, suggesting they went a little further than the evidence 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 submission that they should not be disregarded when it comes to the issue of a recognition order for Whakatōhea. As explained above at [204], they may participate in a recognition order granted to an applicant group of which they form part, provided members of that group are able to meet the s 58(1) criteria. Their participation in CMT ought to be resolved among a successful applicant group of which they form part and in accordance with tikanga.
[282] It does not follow that Ngāti Muriwai’s appeal should be allowed. They sought a CMT recognition order on the ground that they were applicants who met the statutory criteria in their own right. I have upheld the Judge’s conclusions about that. The manner in which title is to be held has not been settled in the High Court and will need to be revisited in any event.
[283] The appeal of Kutarere Marae will also be dismissed. It seems immaterial that as a formal matter they participated in the hearing as an interested party. The Judge clearly understood that they also sought to be recognised as a hapū. His finding that they are neither a hapū nor a whānau group, and so are ineligible for CMT,^[361] was open to him.

Te Ūpokorehe

[284] The Judge did not separately address Te Ūpokorehe’s application. When analysing the individual applications, he dealt only with the WKW applicants. In his conclusion he stated that he accepted the conclusion of the pūkenga that the specified area was held by the six hapū, including Te Ūpokorehe.^[362] In effect, Te Ūpokorehe were 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 six hapū together held the area in accordance with tikanga or address the question of exclusivity.^[363]
[285] I have held that Te Ūpokorehe could insist on the Court deciding their application to hold a substantial part of the specified area to the exclusion of the other hapū and addressing their insistence that they did not have an interest in the area east of the Waiōweka River.^[364] From the perspective of Te Ūpokorehe, shared CMT does not reflect customary title, especially inshore and in the eastern part of the specified area. On the contrary, they see it as a contemporary arrangement imposed on them by the Judge at the instance of the other hapū, though they are prepared to accept that CMT may have been held at an iwi level offshore.
[286] I agree with counsel that we are in no position to decide Te Ūpokorehe’s application ourselves. The record does not permit the place-by-place and area-by-area analysis that, as the pūkenga recognised, would be required to distinguish Te Ūpokorehe from the other hapū and identify any areas where the iwi acted as a collective and so might be granted a jointly held recognition order.
[287] It follows that Te Ūpokorehe’s appeal must be allowed and their application remitted 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 on their behalf and might rely on evidence offered by others.

Ngāti Awa

[289] The Judge noted that while Ngāti Awa recognised shared interests in Ōhiwa Harbour, they claimed exclusive interests in the Disputed Area, being the common coastal marine area from Maraetōtara to Ōhiwa Harbour.^[365] When summarising the pūkenga report, he noted that they had identified areas which neighbouring 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 noted Ngāti Awa’s claims.^[366] The pūkenga also stated that:
1. our poutarāwhare have a long history of occupation in and proximity to Ngāti Awa to the west, Ngāi Tūhoe, Te Aitanga-ā-Mahaki and other eastern iwi to the south and Ngai Tai to the east. Our recommendations for a single title with governance at the poutarāwhare level while acknowledging their rangatiratanga, may not solve all issues. It does however mandate their mana whenua and mana moana and allows it to make meaningful decisions in respect their interactions with regard the previously mentioned iwi or hapū. While there is a great measure of tino rangatiratanga in such a decision there is still a need to work through matters of definite and shared boundaries as well as mandated access and the appropriate exchange of kai and other resources. Further hui are encouraged and should not be curtailed by the issue of the High Court’s decisions.
[290] The Judge noted that the pūkenga had not specifically addressed the Disputed Area and asked following the hearing whether their conclusions extended to it.^[367] They responded:
1. having settled its claims, Ngāti Awa already has a stake in the ground to the extent that they have been awarded lands on both sides of the Maraetotara Stream. Because we did not read the Waitangi Tribunal Reports, we do not know if all of those awards were tikanga based. However, and based on tikanga, we do know that Ngāti Awa have interests east of that stream and these include Tauwhare Pa, the Ngāti Awa farm and along the Ohope spit where there are reserves and waahi tapu. However, the lands past the Camping grounds along the spit and to the mouth of the Ohiwa Harbour, was shared; and
2. our mentioning Waitotara as the eastern boundary of our poutarāwhare was based on the references made by several parts of that construct. Our position therefore is that there is a tikanga basis to Maraetōtara being of significance. However, there is still the practical application of the settlement and the purport of the current application, to be worked through. The documents mentioned in paragraphs 5. d. vi, vii and xii are only some of the reasons why we say more hui are encouraged, 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 the area from Maraetōtara to Tarakeha”.^[368] This was subject to the express qualification that 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 I think it is clear that they did not decide the six hapū held the Disputed Area to the exclusion of Ngāti Awa. Rather, they accepted that there was a tikanga basis for saying the area was of significance to the Whakatōhea hapū. They did not dispute that it was also of significance to Ngāti Awa. On the contrary, they expressly acknowledged that Ngāti Awa had interests to the east of the Maraetōtara Stream. They stated that lands past the camping grounds (on the Spit) to the mouth of the Ōhiwa Harbour were shared. And they appear to have contemplated that Ngāti Awa would participate in the further negotiations they proposed.
[293] The record contains much evidence of Ngāti Awa’s interest in the Disputed Area. They participated in the hearing, calling mostly historical evidence and questioning witnesses called by other parties. The immediate question for us is whether the evidence justifies a rehearing. I am satisfied that it shows Ngāti Awa have an arguable claim, at least, to the area. By way of illustration, the joint brief of Sir Hirini Mead, Dr Hohepa Mason and Te Kei Wirihana Merito indicates that there are sites of significance to Ngāti Awa along the Ōhope Spit, including several pā that in 1840 were under the mana of Ngāti Awa. Treaty settlement redress for Ngāti Awa included an exclusive nohoanga site, co-management of the Ōhope and Tauwhare Pā reserves, and land transfers.^[370] The Manahautū (Chief Executive) of Ngāti Awa until 2021, Leonie Simpson, identified lands which the iwi have retained around the Harbour. This matters because there is evidence that hapū or whānau groups customarily had mana over waters immediately offshore from their lands, which gave them an immediate connection to that part of the coastal and marine area.^[371] Contiguous 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 Awa had not applied for CMT but had chosen to pursue direct engagement with the Crown.^[372] However, they have appealed against CMT Order 1. For the reasons just given, their appeal must be allowed to that extent. The finding that the Whakatōhea hapū hold the Disputed Area in accordance with tikanga is set aside. The Whakatōhea claims to the area will be reheard. Ngāti Awa will need to decide how they will participate in that hearing.

Te Kāhui and the Board

Rehearing

[295] I have explained that Order 1 must be set aside on the appeals of Te Ūpokorehe and Ngāti Awa and the applications of the six hapū must be reheard. Because the High Court did not squarely address the s 58 test, this order must extend to that part of 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 applications to reflect the fact that they now sought a single CMT on a shared exclusivity basis. I appreciate that this change of stance came very late in the process. Had the need for amendment been recognised, the Judge might not have overlooked the difficulty that Te Ūpokorehe were not party to the amendment. Amendment would have addressed the difficulty that strictly only the Edwards application covered the entire rohe moana ultimately claimed by Te Kāhui and the Board. Subject to the extension of hapū claims to Whakaari, which I discuss below, it would have been appropriate to amend the hapū and Board applications in this way, for the reasons given by the Judge; there were applications before the Court which proceeded on a shared exclusivity basis.^[373] It follows that, subject to those amendments being made, the rehearing will proceed on the basis that the Whakatōhea parties between them have made a timely application for 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, the cross‑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 a fundamental change in the applications.^[374] Only two of the six hapū had originally made claims to the takutai moana around Whakaari, while others had sought to amend their claims much later. If this were the only ground of cross-appeal, I would allow it on the ground that one of the applicant groups comprising Te Kāhui had made such a claim and it was apparent on the evidence that it was a claim to shared exclusivity as an iwi. Te Whānau-ā-Apanui (who contend the Judge was correct to refuse amendments) say they did not put forward all their evidence, but that was evidently a tactical decision. They were on notice of the nature and substance of the Whakatōhea claim.
[300] However, the Judge also found that the evidence (for both Whakatōhea and Ngāi Tai) supported only resource rights relating to the gathering of tītī at Whakaari and fishing in the sea around Whakaari and Te Paepae o Aotea.^[375] These are resource rights for which PCRs are not available.
[301] Whakaari and Te Paepae o Aotea are uninhabitable islands which are taonga for all the applicant groups in this case. The largest of the islands in the Te Paepae o Aotea 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 their tūpuna. This connection is common to all of those who trace their whakapapa to the Mātaatua waka, including the iwi of Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa and Whakatōhea. The volcanic plume from Whakaari is used as a tohu (sign) to show the direction of the wind, the weather pattern, water safety and the risk of eruption. The island is also a navigational landmark.
[302] These latter uses require customary knowledge, but there is no reason to think they are exclusive to the parties in this case. It must also be borne in mind that recognition orders are confined to the common marine and coastal area. They cannot extend to activities which took place above mean high water springs. This includes the gathering of tītī (the birds raise chicks in burrows above the intertidal zone). It also includes uses which depended on sighting the island and need not take place within the common coastal and marine area surrounding it. No one can be excluded from these latter kinds of uses.^[376]
[303] Churchman J recognised that there was little evidence of offshore use at Whakaari (or elsewhere). He stated that:^[377]

[328] The written submissions on behalf of the Attorney-General also specifically stated that the Attorney-General does not challenge the findings of the [pūkenga] in their report on the question of which applicant groups held the application area or any part of it in accordance with tikanga. The submissions did however note that the evidence set out in the summary primarily 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 takutai moana distant from the shore, including Whakaari. This observation is correct. However, it is unsurprising that the bulk of the tikanga evidence related to the most intensively used parts of the takutai moana which were the intertidal, estuary and immediate coastal areas.

[329] There was, however, some evidence relating to the use of the sea as far as Whakaari. The applicants (and neighbouring iwi) presented maps which contained precise descriptions as to fishing grounds which also included detail as to the location of underwater features such as rocks or the nature of the sea bottom, as well as details of the particular types of fish to be caught in these locations. The importance of this evidence was expressly noted by the [pūkenga] in their report. This evidence established that it was not just the intertidal or estuary areas of the takutai moana that were held in accordance with tikanga.

[304] As I explained above at [90], the Judge treated exclusivity as a question of fact only. He did not accept that an applicant group must show both an intention to control an area and the capacity to do so, as a matter of tikanga. He did not squarely address exclusivity, relying rather on the pūkenga report.
[305] There is evidence of sophisticated and regular use of offshore fishing grounds and of fishing far offshore. Mandy Mereaira Hata of Ngāti Ruatakenga is a kaikaranga at Ōmarumutu Marae, where an old map used to hang showing traditional fishing grounds. In evidence she identified eight offshore fishing grounds within the area of Ngāti Ruatakenga. They included one at Whakaari, where hapūku were caught while a 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 and customary knowledge, including onshore landmarks and Whakaari itself, were used to locate them.
[306] Other fishing grounds were identified by Tony Walzl, a historian called for WKW. It appears that most of these were inshore fisheries. He acknowledged that fishing 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 land boundaries at Te Rangi in the east through to Pakihikura in the west. It extends as far out as Whakaari (White Island) and beyond. In tikanga, what is in front of you extending from the land out to sea is your 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 part of our customary seascape area. Paepae Aotea are the rocks next to Whakaari. Whakatōhea and Te Whānau a Apanui had rights to gather tītī (muttonbirds) at Whakaari in the season from November to December. They nest in burrows on the island. I have reviewed the names of the Whakatōhea Tribal Executive Committee who authorised people to go muttonbirding listed in Bruce Stirling’s historical research, and identified those who are Ngāti Rua. I have listed them in Appendix Two. I should add that I have also known others to get tītī at the headland at Ōpape.

[308] However, the evidence is that the use of the coastal marine area around Whakaari was closely tied to tītī harvesting, which was strictly seasonal and not in itself a use of the marine and coastal area. Mr Warren explained that very few boats went out there, and would go only on special occasions to get tītī and “those sort of things” on behalf of the iwi. Mr Amoamo, Mr Walzl and Donald Kurei (from Ngāti Ira) mention one fishing ground, Hamatatuhou, which appears so far as I can gauge to have been within the 12 nautical mile zone around Whakaari. Another Ngāti Ira witness, Anna‑Marei Kurei, deposed that Whakaari was an area for fishing for the bramble shark, whose valuable liver oil was used as a pigment. This is the only specific evidence of the marine and coastal area around Whakaari being used otherwise than for passage for tītī harvesting, and for fishing while at Whakaari for that purpose.
[309] The evidence about offshore fishing grounds is consistent with customary use rights, but it does not show that they were used by a given group (or groups) to the exclusion of others. Te Ringahuia Hata, of Ngāti Patumoana, accepted that three specified fishing grounds within Ngāti Patumoana’s rohe moana might also lie within the rohe moana of hapū of Te Whānau-ā-Apanui. She did not suggest that together they used those grounds to the exclusion of others. Nor did Mr Warren of Pākōwhai hapū, when speaking of their fishing grounds; he acknowledged that there would be an overlap with Ngāi Tai but did not suggest that together they used those grounds to the exclusion of others. He explained that most fishing took place inshore, with very few going 10–20 miles out, which raises the possibility that use of offshore grounds was 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 Williams explained that in Māori customary law, resource boundaries were described by reference to location and size of the resource and territorial (political) boundaries were defined according to the structures and allegiances of hapū from time to time. Coastal reefs and fishing grounds were as much restricted, apportioned and defined as the land. Their resource and territorial boundaries might be precisely defined. Because authority radiated from a central heart, territorial rights over resources might be uncertain at the margin.
[311] The expert evidence indicates that hapū or iwi might exercise territorial authority over offshore fishing grounds. The Waitangi Tribunal has found that control might extend not only to specific resources but also to the whole sea adjacent to tribal lands.^[378] But holding and exclusivity are questions of fact, and for the reasons just given, the evidence of fact in these appeals does not presently satisfy the requirement for exclusive use and occupation of the common marine and coastal area out to the 12 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 held superior rights to Whakaari. It derives from the fact that a hapū of Te Whānau‑ā‑Apanui, Te Whānau-ā-Te Ehutu, acquired the island by customary transfer from Ngāti Awa in the 1820s. There is some dispute about this transaction,^[380] but all agree that Te Whānau-ā-Apanui took precedence in visiting Whakaari to harvest tītī. 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 that Te Whānau‑ā‑Apanui would allow a second round of harvesting if there were enough birds.
[313] The pūkenga stated in their further responses that Te Whānau-ā-Apanui have mana whenua according to tikanga at Whakaari. That reflects what appears to be substantial consensus among leaders of the applicant groups. Ms Coates, for Te Whānau-ā-Apanui, drew our attention to concessions to that general effect in evidence.^[381] This consensus exists despite the status of Whakaari as a taonga for all those who whakapapa to the Mātaatua waka. The placement of rāhui following loss of life in the 2019 eruption need not show that other iwi speak for Whakaari alongside Te Whānau‑ā‑Apanui. Robert Edwards suggested that this behaviour reflects knowledge 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 the evidence established only usage rights for other iwi.^[382] The evidence falls short of showing 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 follows that Te Kāhui’s cross-appeal must be dismissed with respect to Whakaari.
[315] I should say something about the implications of these findings for Te Whānau‑ā-Apanui. Their claim for CMT is not before us, nor do we know what other claims to the area may be pending. I have not found that Te Whānau-ā‑Apanui enjoy exclusive use and occupation of the common marine and coastal area around Whakaari and Te Paepae o Aotea. I have found only that, as among the parties to this case, Te Whānau-ā-Apanui have mana over Whakaari to an extent that precludes the other iwi sharing CMT there.

Ngāi Tai and Ririwhenua

[316] The appeal of Ngāi Tai and Ririwhenua against the dismissal of their application for CMT at Whakaari and Te Paepae o Aotea fails for the reasons just given with respect to Te Kāhui and the Board.
[317] The Judge relied on the pūkenga report for his conclusion that Ngāi Tai also met the statutory criteria for CMT.^[383] The pūkenga said that in their view Ngāi Tai have mana whenua from Tarakeha to Te Taumata-ō-Apanui and that they shared customary interests with Whakatōhea out to Whakaari and Te Paepae o Aotea. This view 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 of overlapping 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 inshore grounds and coastal locations that have been named by Ngāi Tai and used by whānau groups. He also said that there are specific offshore fishing grounds, but he declined to identify them, saying he did not wish to risk interference by others. The Judge did not review any of this evidence in his judgment.
[319] For the Attorney-General, Ms Roff submitted that the existence of offshore fishing grounds which were not disclosed in evidence could not justify a CMT recognition 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 other resources. It may extend to all the rohe moana exclusively occupied and used by an applicant group for purposes such as passage and navigation as well as resource‑gathering.^[385] I have noted evidence that a group’s takutai moana includes areas adjacent to their land. There is also evidence that in Māori customary law, rights of control are also linked to resources,^[386] and most of the evidence about offshore use in this case concerned resources; in particular, fish. So the inquiry into CMT must recognise resource boundaries. It must further consider whether territorial authority extends to exclusive use and occupation of these resource areas, as I noted when addressing Te Kāhui’s cross-appeal in relation to Whakaari. The evidence there raises doubt about exclusivity, at least in areas of overlap with Ngāi Tai. The evidence might well sustain CMT for Ngāi Tai in inshore areas, but counsel did not suggest that we could identify those areas on the record before us.
[321] For these reasons Ngāi Tai’s application for CMT over the area covered by Order 3 must also be reheard.

LCI

[322] I have not accepted LCI’s main argument on the interpretation of s 58(1), but I have accepted that the Judge erred in his approach to exclusivity and substantial interruption, and further that he did not make necessary findings on exclusivity, instead adopting what he saw as the conclusions of the pūkenga.
[323] LCI sought a rehearing. As explained above, it is necessary to order one for Order 1, in the appeals by Te Ūpokorehe and Ngāti Awa. For the same reasons, it is also necessary to order a rehearing for Order 3. An order for the rehearing of applications for CMT in the areas covered by Orders 1 and 3 will be made in LCI’s appeal.
[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 and the evidence shows that the waters and the surrounding land are replete with sites of significance to those groups. My reservations about the adequacy of evidence of rights to offshore fishing grounds do not extend to this area and there is no uncertainty about the external boundary. The applicant groups, including Ngāti Awa, have shown that the Harbour has been continuously held in accordance with tikanga since 1840. There appears to have been some evolution of internal boundaries,^[387] but this may reflect shifting alliances rather than any loss of control. The applicant groups generally have recognised one another’s mana over specific local areas and sites. I am sufficiently satisfied that the applicant groups have together occupied the area to the exclusion of others. For reasons given at [330] below, I am not persuaded that there has been substantial interruption. Lastly, the tikanga process which has been followed in the High Court to achieve consensus among applicant groups and interested parties is appropriate 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 to navigable rivers. I have found above at [239]–[244] that the Judge was wrong to conclude that CMT over navigable rivers has been extinguished in law, and Te Kāhui’s cross-appeal will be allowed accordingly. Because that moves the boundary of the common marine and coastal area upstream in navigable rivers, the High Court will need to consider the grant of a CMT recognition order in affected areas. This affects Order 1 and the Waiōweka and Ōtara rivers, both of which enter the sea at Ōpōtiki.^[388]

CRHL

[326] I accept CRHL’s argument that the Judge found prematurely that applicant groups had met the criteria for CMT at Ōpōtiki Harbour. That conclusion strictly could not 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 found that CMT was substantially interrupted by the Ōpōtiki Harbour Redevelopment Project.^[389]

Seafood Industry Representatives

[327] As noted, SIR appeared in this Court as an interested party to support LCI’s appeal.
[328] I discussed substantial interruption above at [173]–[183]. Mr Scott urged us to find that the evidence established substantial interruption through commercial fishing in the several application areas. Ms Feint contended that the evidence established the opposite and submitted that the claims made by SIR were not put to witnesses called by other parties.
[329] I decline to make the findings requested by either counsel. Having regard to our analysis of exclusive use and occupation, substantial interruption and the burden of proof, it may not be easy to satisfy a court that commercial or recreational fishing amounts 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 Judge misdirected himself, and I accept that he did not deal expressly with some of the evidence relied on by SIR.^[390] And if the evidence establishes substantial interruption from commercial fishing, it will be necessary to identify the affected areas.
[330] Mr Scott did not specifically address Ōhiwa Harbour. Counsel cited one historical complaint that fishers had torn up Māori traps and nets there, but as explained above such complaints do not evidence substantial interruption. It also appears that most complaints were about trawling and our attention was not drawn to evidence that trawling occurs in the Harbour. We were told that most commercial inshore 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 to establish 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 been exercised in a particular area since 1840, that continue to be exercised by the applicant group in accordance with tikanga, and that have not been extinguished as a matter of law.^[391] A group that has a PCR in respect of a specified area (for example, to gather driftwood or seaweed or sand and rocks in that area) is entitled to exercise that right in that area without needing to obtain a resource consent, and without paying certain charges under the Resource Management Act.^[392] PCRs do not confer any right to control the relevant area.^[393] Nor do they confer an exclusive right to any relevant resource. But consent authorities must not (with certain exceptions) grant resource consents to another person to carry out an activity that is likely to have adverse effects that are more than minor on the exercise of the PCR without the consent of the PCR holder.^[394]
[332] I have set out s 51 of MACA above at [73]. It provides relevantly that a PCR is a right that “has been exercised since 1840” and “continues to be exercised” in a particular area “in accordance with tikanga by the applicant group” and “is not extinguished as a matter of law”.^[395]
[333] There was debate in the High Court about the extent to which CMT and PCR’s can co-exist. Churchman J accepted that a PCR recognition order may be granted to one applicant group over an area that is subject to CMT held by another group.^[396] Further, it is possible to grant recognition orders for multiple overlapping PCRs.^[397] These conclusions were not disputed before us. They are consistent with the evidence of 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 a PCR:

[499] Although the [pūkenga] found that Ngāti Muriwai were not a hapū and could not be said to have exclusively used and occupied the specified area from 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 occupied the relevant area from 1840 without substantial interruption.

...

[599] The claim relating to “living on the land” including erecting dwellings, clearly does not relate to the takutai moana below high-water springs.

[336] Ms Feint, appearing for Ngāti Ruatakenga, contended that this was an error because Ngāti Muriwai were not in existence in 1840, so could not have been exercising any rights since that time. In my view the Judge was right to reject this argument. Section 51(1) does not state that the applicant group must itself have exercised the right since 1840. Rather, it requires that the right has been exercised since 1840 and that the applicant group continues to exercise it. As noted earlier, I agree with Churchman J that Ngāti Muriwai are at least a whānau.^[398] They accordingly qualify as an applicant group.^[399]
[337] The Judge observed that there was relatively little evidence about exactly where activities took place, what tikanga was involved or whether the activities were continuous.^[400] This appears to have been true of other PCR applications too. However, he was prepared to draw inferences from the available evidence.^[401] He found there was evidence for the collection of driftwood, stones and shells, for whitebaiting and the growing and harvesting of certain aquatic plants.^[402] Ms Feint did not seek to persuade us that these findings were wrong. She did argue that there was no evidence these activities had been continuous since 1840. I am not persuaded that the Judge was wrong about that. The evidence sufficiently established that the practices were historic and there was no reason to doubt that they had been carried on in the relevant area (which he was prepared to accept was the entire rohe) since 1840.^[403]
[338] The Judge accepted that the activities were practised by Ngāti Muriwai in accordance with tikanga:

[503] In relation to the collection of firewood, stones, shells and aquatic plants, there is little evidence of particular tikanga associated with these activities but there was evidence of tikanga followed generally when venturing into the takutai moana. This included the saying of karakia before and after activities, the exercise of manaakitanga by way of sharing resources with others in the groups and not taking more of a resource than was required to meet immediate needs.

[339] Ms Feint did not challenge these findings. Rather, she contended that tikanga was not followed because any rights that Ngāti Muriwai held were actually rights of Ngāti Ruatakenga. She accepted that multiple hapū may independently exercise rights according to tikanga in the same area, but there must be evidence that those rights are broadly recognised by other hapū. Specifically, she contended that Ngāti Muriwai could emerge as a new group only with the permission of Ngāti Ruatakenga. She referred to evidence of Mr Amoamo to the effect that Ngāti Muriwai did not know their 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 matter of tikanga must be respected. He is a tohunga with deep knowledge of the practice of tikanga. He traces Ngāti Muriwai’s whakapapa directly through Ngāti Ruatakenga. I accept that there are strong kinship connections. Kin relationships are not optional.^[404] But it is the very existence of the right for Ngāti Muriwai, rather than the manner of its exercise, that concerns him.
[341] In my view that concern must yield to the scheme of s 51, which contemplates multiple overlapping rights and allows any iwi, hapū or whānau group to obtain a PCR if the right has been exercised since 1840 and the applicant group continues to exercise it in accordance with tikanga. The legislation contemplates that PCRs may be recognised for groups which did not exist in 1840, so long as someone to whom the applicant has a relevant connection has continuously exercised the relevant customary right in the particular area since then and has done so in accordance with tikanga. That policy decision may be taken to reflect post-1840 changes in Māori society which are well illustrated in these appeals. There were once 22 hapū of Whakatōhea and only six (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 have established themselves. Ngāti Muriwai are such a group. They say that they affiliate to the area and the iwi, but not to Ngāti Ruatakenga.
[342] I agree with Churchman J that Ngāti Muriwai are eligible for PCRs and otherwise 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, including whitebait 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 exercise of kaitiakitanga, saying of karakia and practise of karanga.^[406] As noted, the application was declined for lack of evidence; it is not a case in which evidence was led but found wanting.^[407] On appeal, Mr Bennion contended that there was evidence, which was omitted from a schedule prepared by Crown counsel and which the Judge overlooked.
[344] The Judge accepted there was evidence of whitebaiting by Ngāti Patumoana but rejected the claim for whitebait because he had found that the beds of navigable rivers are not part of the common marine and coastal area.^[408] I have found that he was wrong about that.
[345] With respect to kaimoana and seabirds, the Judge found there was no evidence of non‑regulated species being taken.^[409] Mr Bennion did not dispute this.
[346] With respect to aquatic plants, the Judge noted evidence of seaweed being collected, but there was no evidence of the specific types and he could not determine whether it was a type that could support the grant of a PCR.^[410] As noted above, it now appears to be common ground that all are regulated. Mr Bennion pointed to evidence of Te Ringahuia Hata that other plants (harakeke, raupō, pīngao, toitoi and bullrushes) were used for weaving, and still are, to make piupiu and poi.
[347] The Judge found that there was some historic evidence of navigation, passage and the landing of waka but no evidence about how those activities might continue.^[411] I 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 these activities continue much as they have always done.
[348] The Judge accepted that there was some evidence of karakia rituals and the exercise of kaitiakitanga, but some of this evidence focused on rāhui, which must be dealt with pursuant to CMT.^[412] Mr Bennion pointed to evidence of Ms Hata that the takutai moana is a place where Ngāti Patumoana offer and receive prayer; conduct rituals 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 several witnesses, notably Irene Moore, Graeme Riesterer and Pine Te Maipi, of the exercise of kaitiakitanga.
[349] The Judge found there was no evidence of the collection of sand, stones, shingle and detritus.^[413] Mr Bennion pointed to evidence that these items were and are gathered for decorative and artistic uses.
[350] It is not surprising that some of this evidence may have been overlooked in the mass of material before the Judge. Some of it was offered by witnesses who are members of Ngāti Patumoana but were not listed as witnesses for the hapū. Attention having now been drawn to it, I consider that, consistent with the generally liberal approach the Judge took to PCRs, the appeal should be allowed with respect to whitebait; aquatic plants; navigation, passage and the landing of waka; rituals such as karakia 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 and Ngāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwai from participating in any recognition order for CMT granted, following rehearing, to the Whakatōhea 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 seek a recognition order for CMT over the common marine and coastal area around Whakaari and Te Paepae o Aotea.
[355] Te Kāhui’s cross-appeal is allowed in part. CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.
[356] We order a rehearing of the applications for CMT recognition orders over the area covered by Orders 1 and 3. The rehearing will not extend to the common marine and coastal area around Whakaari and Te Paepae o Aotea.
[357] The appeal of Ngāti Ruatakenga against the granting of recognition orders for PCRs to Ngāti Muriwai is dismissed.
[358] The appeal of Ngāti Patumoana against the refusal to grant recognition orders for PCRs is allowed to the extent set out at [350] above. The form of the orders is to be 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 by Miller J, including the orders set out at [351]–[359] above. We also agree with much of the reasoning in his judgment. However our analysis of the relevant provisions of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) differs in two respects which may be of some practical significance for the rehearing of the matters referred back to the High Court, and for future proceedings seeking recognition of customary marine title (CMT). In this judgment we address those two topics:

(a) The matters that are relevant to determining an application for recognition of CMT under s 58 of MACA, and in particular the matters that bear on exclusivity of use and occupation of an area, without substantial interruption.
(b) The circumstances in which the High Court may make an order for shared 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 its purpose and its context.^[414] In order to understand s 58 and related provisions, it is necessary 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 rights and interests in land held by whānau, hapū and iwi throughout all of Aotearoa New Zealand.^[415] In 1847 the first Chief Justice of New Zealand, Sir William Martin, observed that “[s]o far as yet appears, the whole surface of these Islands, or as much of it as is of any value to man, has been appropriated by the Natives”.^[416]
[363] These customary rights did not have tidy straight line territorial boundaries, as the Waitangi Tribunal has explained:^[417]

A difficulty occurs today when people, both Māori and Pākehā, try to translate this customary network of rights and connections into an environment of ‘straight-line’ boundaries. Resource rights were complex, convoluted, and overlapping. They almost never phased cleanly from hapū to hapū as one panned across the customary landscape. Instead, most resource complexes had primary, secondary, and even tertiary right holders from different hapū communities, all with individual or whanau interests held in accordance with tikanga, and therefore by consent of their respective communities. All rights vested and were sustained by the currency of whakapapa.

[364] Sir Edward Taihākurie Durie commented on the nature of these networks of rights in relation to land in a paper prepared for the Law Commission:^[418]
- In Māori law, land rights pertained not to blocks but resources, the individual right being that of access and user subject to the interests of the hapū of the territory. Resource ‘boundaries’ were described by reference to the location and size of the resource, use rights by the places of habitual exploitation and territoriality by the extent to which territoriality was claimed.
- To the extent that political or hapū boundaries existed, they should be distinguished from resource boundaries, resource boundaries being capable of definition by physical markers, political boundaries varying according to the shifting structures and allegiances of hapū.
- Resource boundaries were conceived of lineally, and radially with rights or 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 with others. Many resource areas were shared by several hapū. Not all hapū areas were contiguous but were intersected by the use rights of others.
- It was also common that from a variety of historical causes discrete and autonomous communities of one descent group resided in a district generally populated by another.
[365] As Durie went on to note, “[c]oastal reefs and fishing grounds were as much restricted, apportioned and defined as the land.”^[419]
[366] It is well established that the acquisition of sovereignty by the British Crown in 1840 did not affect existing Māori customary rights and interests in relation to land.^[420] Those customary rights continued unless and until lawfully extinguished. It bears repeating that respect for those rights was an integral component of the Treaty of Waitangi. Article 2 of the Treaty (in the version set out in sch 1 of the Treaty of Waitangi Act 1975) provides:

Ko te Tuarua

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu‑ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua-ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Article the Second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her 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 in practice any thing new and unsettled”.^[421] And as that Judge also observed, in a passage subsequently approved by the Privy Council in Tāmaki v Baker:^[422]

... it cannot be too solemnly asserted that [native property over land] is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers.

[368] In 1872, in Re the Lundon and Whitaker Claims Act 1871, this Court reaffirmed that all forms of customary property rights are recognised as a matter of common law:^[423]

The Crown is bound, both by the common law of England and by its own solemn 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 equal force to Māori customary interests in the common marine and coastal area: there was no principled basis for a different approach to customary interests in dry land and in the 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 land below the high water mark.^[424] That wrong turning was eventually corrected by this Court in Ngāti Apa.
[370] In Ngāti Apa this Court reiterated that as a matter of common law all of the customary rights of an indigenous community continued to exist following acquisition of sovereignty by the British Crown, unless and until those rights were lawfully extinguished.^[425] The common law of England was received in New Zealand subject to recognised Māori customary property interests. If such customs provide for interests in the foreshore and seabed, there is no room for a contrary presumption derived from English common law. The common law of New Zealand is (in this respect, among others) different from English common law.^[426]
[371] This Court went on to explain that Māori customary interests in the common marine and coastal area had not been extinguished by legislation. As the Court repeatedly emphasised, the onus of proving extinguishment lies on the Crown, and legislative measures that are claimed to extinguish such rights must be clear and plain.^[427] Native property rights are not to be extinguished by a side wind.^[428] None of the statutes relied on by the Crown as extinguishing Māori customary rights in the common 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 the common law of New Zealand, title to it must be lawfully extinguished before it can be regarded as ceasing to exist. In this respect Māori customary title is no different from any other common law interest which continues to exist unless and until it is lawfully abrogated. In the case of Māori customary land the only two mechanisms available for such abrogation, short of disposition or lawful change of status, are an Act of Parliament or a decision of a competent Court amending the common law. But in view of the nature of Māori customary title, underpinned as it is by the Treaty of Waitangi, and now by Te Ture Whenua Maori Act 1993, no Court having jurisdiction in New Zealand can properly extinguish Māori customary title. Undoubtedly Parliament is capable of effecting such extinguishment but, again in view of the importance of the subject matter, Parliament would need to make its intention crystal clear. In other words Parliament’s purpose would need to be demonstrated by express words or at least by necessary implication. ...

[186] When a claim is made that a particular piece of land has the status of Māori customary land, the Māori Land Court must investigate the claim in accordance with the statutory provisions in that behalf. A claim may fail as a matter of fact but the Māori Land Court’s investigation into the facts must be allowed 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 in principle, and subject to any clear statutory indication of extinguishment, the question whether Māori customary title existed and continues to exist over the seabed and the foreshore is essentially a matter of fact which is both general and specific to the site in question. It is a question which necessarily involves an examination of tikanga Māori which is the “exclusive jurisdiction” of the Māori 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 Māori customary rights and interests in the common marine and coastal area, all rights and interests existing as at 1840 would continue to the present day. A group asserting such rights 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’s rights as a matter of tikanga: this would be a largely factual inquiry, potentially assisted by expert evidence on tikanga. That inquiry would generally take as its starting point the position as a matter of tikanga in 1840. It might be necessary to consider whether the identity of the right-holder, or the content of the rights, had been affected by events from 1840 to the present day. This would also be a tikanga-focused inquiry, having regard to changes in the composition of relevant groups over time. Tuku (customary transfers) would also need to be taken into account.
[374] New Zealand common law would then give effect to any rights of a group as at 1840 that were established by the factual inquiry into the group’s relationship with the 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 of the rights established by the evidence, and avoid forcing them into English property law constructs.^[429] The existence and content of customary property is determined as a matter of the custom and usage of the particular community.^[430] As the Chief Justice noted in Ngāti Apa,^[431] the Native Rights Act 1865, enacted to remove doubts as to the jurisdiction of the general courts in respect of Māori and their property, had earlier declared as much:

IV. Every title to or interest in land over which the Native Title shall not have been extinguished shall be determined according to the Ancient Custom and Usage 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 nature and 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 into rigid frameworks derived from different landscapes and cultures, and different legal systems, was acknowledged by this Court in Ngāti Apa.^[432] Reference was made to the cautionary words of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria that ascertainment of customary rights “involves the study of the history of the particular community and its usages in each case”.^[433] Viscount Haldane, delivering the advice of the Board in that case, commented on the need for caution in applying English 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 into estates, conceived as creatures of inherent legal principle”.^[434] As the Chief Justice explained in Ngāti Apa, the danger of such assumptions cuts both ways: it may be dismissive of customary interests less than recognisable English legal estates; and it may cause lesser customary interests to be inflated to conform with familiar legal estates.^[435]
[377] Similarly, the Supreme Court of Canada has commented that:^[436]

[378] As explained below, one of the challenges posed by MACA is that it does seek to “translate” the diverse range of customary Māori relationships with land into two statutory boxes: CMT and protected customary rights (PCRs). Unsurprisingly, some things are lost in this translation.

MACA: an overview

[379] The legislative history of MACA is set out in some detail in the judgment of Miller 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, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations:

[381] We repeat, because it is central to the interpretation of s 58, the purpose statement in s 4 of MACA:

4 Purpose

(1) The purpose of this Act is to—

(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
(c) provide for the exercise of customary interests in the common marine 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 restores customary interests extinguished by that Act; and
(b) contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c) gives legal expression to customary interests; and
(d) recognises and protects the exercise of existing lawful rights and 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 common marine and coastal area—
(i) for its intrinsic worth; and
(ii) for the benefit, use, and enjoyment of the public of New 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 were extinguished by the 2004 Act:
1. Customary interests restored

(1) Any customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 are restored and given legal expression in accordance with this Act.
(2) Any application under this Act for the recognition of customary interests must be considered and determined as if the Foreshore and Seabed Act 2004 had not been enacted.

[383] Section 7 confirms that MACA is intended to take account of the Treaty/te Tiriti:
1. Treaty of Waitangi (te Tiriti o Waitangi)

(a) in subpart 1 of Part 3, for the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area; and
(b) in subpart 2 of Part 3, for customary rights to be recognised and protected; and
(c) in subpart 3 of Part 3, for customary marine title to be recognised and exercised.

[384] The consistent theme of these provisions is that MACA is intended to restore customary interests in the common marine and coastal area that were extinguished by the 2004 Act. Those interests are to be “given legal expression” in accordance with MACA.^[438] Or, as it is put in the Preamble, translated into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations. Section 7 expressly makes the link with the Treaty of Waitangi: MACA recognises and promotes the 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, among other things, for PCRs to be recognised and protected and for CMT to be recognised and exercised.
[385] However MACA does not leave it to the courts to identify the nature and content of customary rights and interests, and make orders reflecting those findings. Rather, MACA provides for customary rights and interests to be translated into the three kinds of statutory entitlement referred to in s 7 of MACA. The statutory entitlements into which the customary rights are translated are subject to a number of express limits that must be borne in mind when considering claims to those entitlements.
[386] First, and most fundamentally, none of the statutory entitlements amounts to ownership of any area of the common marine and coastal area. Section 11(2) of MACA records that neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area. That special status does not affect the recognition of customary interests in accordance with MACA.^[439] Thus a group that holds 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 the common marine and coastal area even if that area is subject to a CMT: rights of access under s 26, rights of navigation (including temporary anchoring and grounding) under s 27 and rights of fishing under s 28. The corollary of this is that a holder of CMT does 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 to have existed as a matter of tikanga in some parts of the foreshore and seabed as at 1840.
[388] What, then, are the statutory entitlements short of ownership into which customary rights and interests have been “translated”?
[389] The participation rights provided for in subpt 1 of pt 3 are a new form of right that does not directly reflect the content of customary rights. They provide relevant groups with a voice, but not decision rights, in relation to certain statutory conservation processes.
[390] PCRs, provided for in subpt 2 of pt 3, are rights that have been exercised in a particular area since 1840, that continue to be exercised by the applicant group in accordance with tikanga, and that have not been extinguished as a matter of law.^[440] The statutory rights conferred by a PCR are described in more detail by Miller J above at [331].
[391] CMT, provided for in subpt 3 of pt 3, is the most extensive form of statutory right provided for under MACA. CMT is a (non-alienable) interest in land.^[441] A group that holds CMT over a specified area does not have the right to exclude people from that 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 has certain rights set out in ss 60 and 62 of MACA including permission rights under the Resource Management Act 1991^[442] (dealt with in ss 66–70 of MACA) and certain conservation 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 of certain 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 common marine 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 the present day without substantial interruption; or
(ii) received it, at any time after 1840, through a customary transfer in accordance with subsection (3).

(a) the commencement of this Act; and
(b) the effective date.

(3) For the purposes of subsection (1)(b)(ii), a transfer is a customary transfer if—

(a) a customary interest in a specified area of the common marine 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 a group or some members of a group who were not part of the applicant group; and

(b) the transfer was in accordance with tikanga; and

(i) held the specified area in accordance with tikanga; and
(ii) had exclusively used and occupied the specified area from 1840 to the time of the transfer without substantial interruption; and
(d) the group or some members of the group to whom the transfer was made have—
(i) held the specified area in accordance with tikanga; and
(ii) exclusively used and occupied the specified area from the time of the transfer to the present day without substantial interruption.

(4) Without limiting subsection (2), customary marine title does not exist if that title is extinguished as a matter of law.

[393] Section 59 sets out a number of matters relevant to whether CMT exists in a particular area. Section 59(1)(a)(i) confirms that the ownership of land abutting the specified area is relevant, though not (unlike under the 2004 Act) decisive. So too is the exercise of non-commercial customary fishing rights in the specified area from 1840 to the present day (s 59(1)(a)(ii)).
[394] Section 59(3) confirms that use of a specified area of the common marine and coastal 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 to this below.
[395] Section 106 provides for the burden of proof in applications for PCRs and CMT:

106 Burden of proof

(a) has been exercised in the specified area; and
(b) continues to be exercised by that group in the same area in accordance with tikanga.

(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—

(a) is held in accordance with tikanga; and
(b) has been used and occupied by the applicant group, either—
(i) from 1840 to the present day; or
(ii) from the time of a customary transfer to the present day.

(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 has not 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 the specified area in accordance with tikanga. This requirement appears to reflect the definition of Māori customary land in Te Ture Whenua Maori Act 1993: “land that is held by Māori in accordance with tikanga Māori”.^[443] In relation to this provision the Māori Land Court has observed that: “The important word here is ‘held’. There is no connotation of ownership but rather that it is retained or kept in accordance with tikanga Māori.”^[444]
[398] The Judge considered that the task for the Court in considering s 58(1)(a) was not to attempt to measure the factual situation against western property concepts or even the tests at common law for the establishment of customary land rights. Nor did he consider it was particularly helpful to attempt to apply the Canadian and Australian jurisprudence on aboriginal title. Rather, “[t]he critical focus must be on tikanga and the question of whether or not the specified area was held in accordance with the tikanga that has been established”.^[445] This is a factual assessment that will be heavily influenced 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 broadly supportive of the Judge’s approach, but submitted that the Judge gave insufficient weight to the term “held”. They accepted that in interpreting limb (a), the focus should be on tikanga, and weight can properly be given to the views of pūkenga on what it means to hold an area in accordance with tikanga. But they noted that s 51 refers to a PCR being “exercised” in an area, in contrast to CMT where the group “holds” that area. Thus, they submitted, the relationship with an area that founds CMT must be at the “territorial” end of the spectrum of customary rights. The tikanga evidence must show some form of control or authority by the applicant group over the area, that elevates 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, the focus should be on tikanga, and whether as a matter of tikanga the applicant group holds the relevant area. We also however accept the submission that evidence of activities that show control or authority over the area, as opposed to simply carrying out 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 the applicant group must currently use and occupy the area, in a manner consistent with the nature of that area, and must have control or authority over the area according to tikanga.
[403] The Canadian cases discussed by Miller J speak of a group’s “intention and ability” to exclude others from land.^[447] However in the context of Māori customary relationships with land, and the principles of whanaungatanga and manaakitanga,^[448] we consider that it is more helpful to focus on the group’s intention and ability to control 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 of manaakitanga, is not inconsistent with control: rather, it demonstrates the exercise of authority in respect of the relevant area. A group may hold an area in accordance with tikanga where, for example, tikanga requires the permission of that group to be sought before others access the area or use resources within it. The fact that permission is invariably granted, in particular to whanaunga (relatives) and others with whom there are 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, is not of itself sufficient to establish that the area is “held” by that group in accordance with 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 exclusive rights in respect of the resource in question. The common law would have restrained competing uses of the resource, and any other uses of the area that interfered with access to or use of the resource. But the common law would not have enlarged those resource-related rights into full customary title to the area in question, conferring rights of exclusive use and occupation of that area that did not exist as a matter of custom pre-1840.

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 without substantial interruption”. (We put to one side for the time being questions of tuku, and other questions of succession as a matter of tikanga.)
[406] The Judge did not consider that the “same western proprietary approach” taken by the Canadian courts should be adopted, as this overlooked the way in which the takutai moana is used and occupied. That approach would also undermine the test in s 58(1)(a) to the effect that the specified area was held in accordance with tikanga.^[449] Canadian cases considering “a different type of property right to CMT” were of limited relevance.^[450]
[407] The Judge did not squarely address what it means to use and occupy an area of the coastal and marine area “exclusively”, but considered that multiple groups could share exclusive use and occupation of an area where the area was shared by the groups in accordance with tikanga.^[451] He considered that physical activities authorised by a grant of resource consent may have the practical effect of amounting to a substantial interruption to exclusive use and occupation of part of an area, but the fact that a council had issued a resource consent does not automatically have that effect.^[452] Whether an activity has that effect will depend on its nature, scale and intensity.^[453] Third party use of the area for access, navigation or fishing would not amount to a substantial interruption of the holding of the specified area in accordance with tikanga.^[454]
[408] It was common ground before us that at some points the Judge erred by asking whether matters (such as fishing activities) had substantially interrupted the holding of an area according to tikanga.^[455] That approach runs together the first and second limbs of s 58(1). Under the second limb the question is whether any activities amount to 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 requirement expressed in familiar terms that should be given their ordinary meaning. Unlike the first limb, the second limb does not refer to tikanga. It was not open to the High Court to “interpret away” the exclusivity requirement of this limb based on a perception that it imposes requirements that are inconsistent with tikanga. The Canadian caselaw on aboriginal title provides substantial assistance in interpreting this limb, which was based on that jurisprudence. The group must have acted in a way that would communicate to third parties that it held the land for its own purposes, and the group must prove an intention and ability to control the specified area to the exclusion of others.
[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 did not hold the area exclusively throughout that period (or that exclusivity was substantially interrupted), then CMT is not made out.
[411] Similarly, the Seafood Industry Representatives (SIR) submitted that evidence of third party fishing and other activity is relevant to determining whether an applicant group held an area exclusively, without substantial interruption, throughout the relevant period. Interferences that are more than minor, including interferences in the form of access or fishing, to which the applicant group objected without successful recognition 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 negatively affected by the use of others is a strong indicator of a lack of ability to control the relevant area. Such interferences are capable of amounting to substantial interruptions that preclude recognition of CMT.
[412] The Attorney-General also submitted that the Canadian jurisprudence provides useful guidance on the application of the second limb, which deliberately reflects elements of the common law on possessory title and aboriginal title, adapted to the New Zealand statutory context.^[456] The Attorney-General sought clarification from this Court in respect of the assessment of evidence required to establish exclusive use and occupation, particularly at the seaward boundary, and how “shared exclusivity” works in practice and the assessment of evidence relating to shared exclusivity.
[413] The respondents emphasise the purpose and context of MACA. They submit tikanga has a central role to play in interpreting MACA. The Treaty/te Tiriti is also central to the interpretation of MACA. MACA should be read in a manner that recognises and promotes customary interests, and is consistent with the presumption that such interests have not been extinguished. A regime that has the practical effect of extinguishing customary rights through non-recognition would be inconsistent with the Crown’s Treaty/Tiriti obligations and would undermine the careful political compromise which Parliament struck.
[414] The respondents accept that the second limb requires continuity of use and occupation. They say this will usually be met where a group has satisfied the first limb by showing that they hold the area according to tikanga, because the principle of ahi kā roa (long burning fires of occupation) requires demonstration of ongoing use and occupation to keep the fires burning. But there may be exceptions, where for example a group present in 1840 no longer exists or where a group has emerged since 1840 (absent a customary transfer).
[415] The respondents do not accept that an applicant group is required to demonstrate an intention and ability to control the specified area to the exclusion of third parties, for four main reasons. First, they say this requirement could not be met in the marine environment, especially given the provision in s 59(3) that use of the area for fishing or navigation does not of itself preclude CMT. Second, an express provision to this effect was included in the 2004 Act, which required that the area be used and occupied “to the exclusion of all persons who did not belong to the group”.^[457] But this requirement was removed in MACA. Third, the Canadian jurisprudence is not directly applicable because it reflects different factual contexts, different constitutional contexts, and different legal consequences attaching to a finding of customary title. Fourth, if “exclusive” is defined by reference to an intention and ability to control the specified area to the exclusion of third parties, there would be no need to add the words “without substantial interruption” as this would already be captured.
[416] We have found it exceptionally difficult to reconcile the text of s 58(1)(b) with the purpose of MACA. On a literal reading of s 58(1)(b), and its requirement — not found in the common law of New Zealand, as Ngāti Apa makes plain — that the group must have exclusively used and occupied the area from 1840 to the present day, it seems likely there would be few areas of the foreshore or seabed where CMT could be made out. In some (perhaps many) areas where the common law would recognise that a group had customary title, incursions into that area over the last 180 years by third parties would deprive the group of CMT. Far from recognising and promoting customary interests, MACA would in many cases extinguish those interests. And it would do so by a side wind, by setting a threshold for recognition of CMT that could not be met as a result of matters that would not otherwise affect common law recognition of customary title. That outcome would be inconsistent with the Treaty/te Tiriti. It would be inconsistent with the assurances given in the Government’s 2010 consultation 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 iho^[458] and providing for the exercise of customary interests in the common marine and coastal area. It would be inconsistent with the statement in s 7 that MACA recognises and promotes the exercise of customary rights to take account of the Treaty/te Tiriti.
[417] We accept the submission of LCI and the Attorney-General that it is clear from the language of s 58, and from the legislative history, that CMT is a territorial interest in an area. It is the statutory interest in land into which MACA translates interests that the 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 of a territorial nature being lost in translation, in a manner that we consider cannot be reconciled with ss 4–7 of MACA or with the assurances and principles set out in the 2010 consultation document that preceded it.
[418] Ultimately we have concluded that it is possible to interpret the text of s 58 in a manner that is consistent with the purpose of MACA by reading it in a manner that is sensitive to the materially different legal frameworks that applied before proclamation of sovereignty in 1840, and from proclamation of British sovereignty onwards.
[419] The requirement that the applicant group has used and occupied the area from 1840 to the present day emphasises the need to trace the relevant customary rights back to 1840, before the British proclamation of sovereignty. The customary rights must 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 of British sovereignty, we accept the submission of LCI that it largely reflects common law requirements for customary title as explained in the Canadian authorities. But as the Canadian authorities emphasise, this analysis must be undertaken in a culturally sensitive 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 ability as 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 which the group could assert specific resource rights, but did not otherwise control the use of the area, especially where other groups also independently used the area or accessed other resources in that area. The group could not be said to exclusively use and occupy the area in such circumstances.
[422] The use of a particular resource in an area will not, without more, amount to exclusive use and occupation of that area. There must be a “strong presence” in the area, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the area in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. This will be more difficult to demonstrate in relation to marine areas than in relation to coastal areas, because of their nature and the different ways in which such areas can in practice be used. And it will be more difficult to demonstrate in respect of offshore areas visited only occasionally (for example, to fish) than shallower areas close inshore that could be (and were) observed and controlled from coastal settlements, and used on a regular basis (for example, coastal inlets frequently used for collection of shellfish and shallow-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 marine areas other than inlets and shallow coastal waters. That is because the ways in which such areas are used is often more akin to a use/resource right than a right of exclusive occupation of the kind that founds customary title of a territorial nature. At common law those rights could have been translated into strong (non-territorial) rights exercisable against third parties to protect access to the resource. But MACA precludes this: only territorial rights translate into CMT, with other rights protected through PCRs (or other mechanisms, for example in relation to customary and commercial fisheries).
[424] The ability of a group to meet this requirement will not necessarily be defeated by evidence of access to the area and use of resources in that area by other Māori groups. Full account will need to be taken of the core tikanga values of whanaungatanga and manaakitanga in order to understand the basis on which other groups 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 will reflect the exercise of its mana/control in respect of that land, and (as a result) supports rather than undermines a claim to CMT.
[425] We also emphasise that where an area is used by two or more groups, the appropriate conclusion may well be that the two groups together meet the test, or that some broader group that includes the two applicant groups meets that test. We return below to the question of shared exclusivity.
[426] The requirement that a group must have exclusively used and occupied the area from the proclamation of British sovereignty to the present day, without substantial interruption, needs to be approached having regard to the substantial disruption to the operation of tikanga that resulted from the Crown’s exercise of kāwanatanga, and having regard to the scheme and purpose of MACA. Relevant factors include:

(a) The nature of the customary rights in issue, which in many cases will have been consistent with access by others to the area in a manner that did not affect the enjoyment of the resources found in that area.
(b) The frequent and generous exercise of manaakitanga by whānau, hapū and iwi in favour of other Māori groups, and in favour of European settlers. So for example where settlers accessed a coastal area with the acquiescence of a Māori group that held the area in accordance with tikanga, that did not disprove or interrupt the relevant group’s rights of control: rather, this represented the exercise of an important facet of those control rights. It would be ironic and unjust if the generous welcome that Māori extended to settlers were now to be treated as diminishing or extinguishing the rights of Māori groups: MACA should not 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, that Māori would continue to enjoy the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties. Māori did not agree to forego these rights, and the Crown made a commitment to respect them. MACA expressly records that its provisions take account of the Treaty/te Tiriti, and art 2 is the provision of central relevance in the MACA context.
(d) The Crown’s arrogation to itself of the power to control access to customary lands, by prohibiting (in the exercise of kāwanatanga) the use of force to prevent incursions into an area controlled by a relevant group, and (from 1909 onwards) by preventing customary owners from bringing their own proceedings in the courts to prevent unauthorised access to their customary land.^[460] This meant that Māori were deprived of mechanisms for controlling access to coastal areas that they held as a matter of tikanga and as a matter of common law: they could not lawfully resort to force to protect those areas and associated resources, and they were effectively excluded from seeking to protect those areas through the courts.
(e) The longstanding and widely held (but incorrect) view that there could be no customary rights or interests in the common marine and coastal area, ultimately dispelled by this Court’s decision in Ngāti Apa. This view doubtless encouraged incursions into areas that were held by Māori as a matter of tikanga, and contributed to inaction by the Crown in relation to such incursions.
(f) The express provision in s 59(3) of MACA that use at any time by persons who are not members of an applicant group of a specified area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of CMT. We agree with Miller J that the same must be true of public access to an area, as MACA treats such access as compatible with CMT.^[461] This confirms that activities engaged in by third parties in coastal areas, whether as a result of manaakitanga on the part of relevant groups or as a result of Anglocentric assumptions on the part of those third parties about their right to do so that Māori were unable to resist, should not be seen as relevant interruptions of the customary rights that found CMT.

[427] The submission by LCI and SIR that any substantial third party access to (or fishing in) an area claimed by a group demonstrates that the group did not hold the area exclusively (or that exclusivity was substantially interrupted) fails to take these matters into account. It misunderstands the centrality of whanaungatanga and manaakitanga 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 effect to customary rights and interests and taking account of the Treaty/te Tiriti, s 58 would operate to extinguish many customary rights and would defeat the promises made in the Treaty/te Tiriti. Where the Treaty/te Tiriti had been breached by Crown failures to protect customary rights and interests, MACA would entrench and perpetuate those breaches. MACA would, by a side wind, create a form of “adverse possession” regime in respect of customary land that would be novel and unprecedented, inconsistent with the common law, and inconsistent with the Treaty.^[462] The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner, contrary to the stated purposes of MACA and contrary to the assurances and principles set out in the 2010 consultation document.
[428] We do not consider that the language of s 58 compels such an unsatisfactory result. Rather, we consider that s 58(1)(b) can and should be read as requiring that the applicant group’s use and occupation of the area was not substantially interrupted by lawful activities carried on by others. Activities that were not interruptions, because the group allowed those activities in the exercise of its manaakitanga, would not result in a failure to meet this requirement. Activities that were inconsistent with the group’s customary rights, and were not authorised by legislation capable of overriding those rights, would be disregarded: such activities also would not result in a failure to meet the s 58(1)(b) requirement.
[429] It follows that we do not accept the submission by LCI and SIR that an applicant 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 would be unjust and unprincipled to require an applicant group to demonstrate an ability to exclude others, when that ability was taken away from Māori customary owners by the law as it was understood for most of the relevant period. In the absence of an ability to exclude others, an intention to do so would be futile. MACA should not be read as requiring whānau, hapū and iwi to demonstrate an intention and ability to exclude other people from coastal areas in circumstances where the law effectively deprived them of that ability.
[430] That approach to s 58(1)(b) is consistent with the limited nature of rights conferred 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 to require an applicant group to demonstrate a level of control from 1840 to the present day that extended to precluding access, navigation and fishing by settlers and others in order to qualify for statutory rights which do not confer that level of control over the area in the future.
[431] What, then, would amount to a substantial interruption of a group’s exclusive use and occupation post-1840? That question will need to be explored as and when it arises in particular cases. We can do no more than provide some broad indications based on the scenarios canvassed before us.
[432] First, it seems to us that rights that existed as at 1840 will have been substantially interrupted where a group has ceased to use and occupy a relevant area for such an extended period that ahi kā roa is no longer maintained by that group as a matter of tikanga. More generally, where as a matter of tikanga a group has ceased to have the relevant degree of control and authority over an area after 1840, for example because other Māori groups have displaced the original customary holders as the primary occupiers and kaitiaki of the area, the test will not be met by that original holder. (In those circumstances, it seems likely that the first limb of s 58(1) also will not be satisfied by the original holders: they will not currently hold the area in accordance with tikanga.)
[433] Second, an Act of Parliament could authorise use or occupation of the area by another person without the permission of the customary owner. Use or occupation of the area by another person in a manner that was expressly authorised by an Act of Parliament could substantially interrupt the use and occupation of the area by the applicant group. Whether it does so in fact will, as the Judge held in this case,^[463] depend on a factual inquiry into the nature and extent of the interruption to the group’s use and occupation. So for example the lawful construction and operation of port facilities pursuant to a resource consent or some other form of legislative authority, in a manner that excludes the applicant group from access to certain parts of the common marine and coastal area, would preclude the grant of CMT in respect of those parts of the area.
[434] In summary, it seems to us that the best available reading of s 58, which respects both its text and its purpose, focuses on:

(a) Whether the applicant group currently holds the relevant area as a matter of tikanga.
(b) Whether in 1840, prior to the proclamation of British sovereignty, the group (or its tikanga predecessor(s)) used and occupied the area, and had sufficient control over that area to exclude others if they wished to do so. This inquiry essentially parallels the inquiry required by common law to establish customary title as at 1840.
(c) Whether post-1840 that use and occupation ceased or was interrupted because the group’s connection with the area and control over it was lost as a matter of tikanga, or was substantially interrupted by lawful activities 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 group must establish all the elements of s 58, including that their occupation was exclusive from 1840 to the present day, and was not substantially interrupted. That approach is difficult to reconcile with the express language of s 106. Reading ss 58 and 106 together, as we must, we consider that an applicant group will need to call evidence to satisfy the Court that:

(a) The specified area is currently held by that group in accordance with tikanga. That is, the group will need to show that as a matter of tikanga it has the authority to use and occupy the area, and to control access to and use of that area by others.
(b) The use and occupation of the area by that group has been continuous from 1840 to the present day (allowing for tuku, and for changes in composition and identities of customary groups).

[436] That will be sufficient for the Court to draw an inference that the s 58 test is met, unless some other party takes it on themselves to demonstrate that the customary interests of the applicant group were not sufficient to establish effective control over the relevant area as at 1840, or have ceased to have the necessary character or been substantially interrupted after 1840, as explained above.
[437] The Judge considered that applicants were required to establish exclusivity and absence of substantial interruption because these are positive elements of s 58, and s 98 provides that the Court may only make an order recognising CMT if it is satisfied that the applicant meets the requirements of s 58.^[464] However we consider that the effect of s 106 is that if the matters specified in that provision are established by the applicant, the Court is entitled to infer that the other requirements of s 58 are satisfied unless 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 be inconsistent with the scheme of MACA to have two or more overlapping CMTs in respect of the same area.^[465] That would be unworkable. But we see no difficulty in a single grant of recognition in favour of two or more groups of a single CMT in respect of a particular area. Such a grant is most likely where the groups make a joint application, or where they make separate applications but each acknowledges the shared rights of use and occupation of the other groups.
[440] However we do not share the view of Miller J that where there are two applicant groups, neither of which acknowledges the rights of the other, there can be no grant of recognition of a shared CMT. We do not see any contradiction in a finding that two applicant groups hold a specified area in accordance with tikanga vis-à-vis all other groups and individuals, and between them exclusively use and occupy the area, while at the same time vigorously contesting their mutual rights as between themselves.
[441] Suppose for example that two hapū occupying coastal marae both make regular use of an area in the common marine and coastal area. The two hapū have close whakapapa links. Each hapū considers that they have the primary connection to the area, and that the other is permitted by them to use it as a matter of manaakitanga and whanaungatanga. It is clear that no other group has any rights or interests in the area as a matter of tikanga, and pre-1840 it is likely that attempted incursions by a third group would have been met by the two groups putting aside their differences, if only temporarily, and together defending the area against others. If the two hapū are considered together, all the s 58 tests are met. However they do not make a joint application for CMT under MACA. Each hapū seeks its own CMT. Each opposes a grant to the other of recognition of CMT. There is no consent to the recognition of a joint CMT. The Court is not able to be satisfied that either occupied the area to the exclusion of the other. Does that mean that each fails the s 58 test, and no CMT can be recognised?
[442] A refusal to recognise CMT in those circumstances would effectively mean that areas that were unquestionably in Māori customary ownership in 1840 were taken out of Māori ownership, and customary rights and interests lost, because a currently unresolved tikanga difference between two or more hapū cannot be resolved in the High Court in the context of competing applications for CMT. Tikanga differences of this kind can take considerable time to resolve in a tikanga-consistent manner. Where it would be premature or institutionally inappropriate for the High Court to seek to determine such a difference, the result should not be a permanent loss of rights. That would be a perverse outcome inconsistent with the purpose of MACA. Rather, we consider that in these circumstances the Court can grant recognition of CMT to both groups jointly on the basis that one or other or both together meet the s 58 test, and the resolution of entitlement as between those two groups is best achieved through a tikanga process over time. The groups can be directed to submit draft orders on this basis under s 109 of MACA. If they cannot agree on draft orders, the Court can appoint a person to hold the CMT for one or other or both groups until such time as a tikanga resolution can be reached between them.^[466] The order could then be varied to reflect that resolution in accordance with s 111.
[443] We agree with Miller J that it is unsatisfactory to compel parties to hold CMT jointly where that was not sought by the parties, especially if joint ownership was actively opposed. But we consider that terms on which CMT is held by a neutral party can be devised which do not require permanent joint ownership: rather, this would be a mechanism for holding the position pending a tikanga-consistent resolution of the parties’ differences. We see this as less problematic by some considerable margin than a permanent loss of rights.
[444] Another form of overlap in rights that is in our view consistent with MACA would arise where one group holds an area according to tikanga, but a second group has a specific customary right to use a particular resource within that area. The overlapping networks of resource rights that characterised Māori customary interests in relation to land not infrequently gave rise to overlaps of this kind, as we understand the evidence. By way of analogy, just as there is no contradiction between person A holding a fee simple title to a particular area of land, and person B having an easement or a profit à prendre in respect of some part of that land, so there is no contradiction 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 at a 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 of CMT in respect of a specified area to one group, and the grant of recognition of PCR to another group in respect of a particular activity in that same area. That is consistent with the complex and often overlapping networks of resource rights that characterised customary Māori interests in land. It would be inconsistent with the nature of those rights, and the purpose of MACA to recognise and give expression to such rights, to treat 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 out in the judgment of Miller J. As already mentioned, we agree with the orders he proposes.
[447] The applications for CMT recognition orders over the area covered by Orders 1 and 3 in the High Court should be reheard in the High Court in light of the approach set out above.

Solicitors:
Ngātahi Law, Auckland for Edwards/Whakatōhea Iwi, Pākōwhai Hapū, Hiwarau C, Turangapikitoi, Waiōtahe and Ōhiwa of Whakatōhea
Te Aro Law, Wellington for Te Ūpokorehe Treaty Claims Trust
Whāia Legal, Wellington for Te Rūnanga o Ngāti Awa
Oranganui Legal, Paraparaumu for Ngāi Tai and Ririwhenua
Franks Ogilvie, Wellington for Landowners Coalition Inc
Tu Pono Legal Ltd, Rotorua for Whakatōhea Māori Trust Board
Te Haa Legal, Ōtaki for Ngāti Muriwai and Kutarere Marae
Annette Sykes & Co, Rotorua for Ngāti Ruatakenga and Ngāti Ira o Waiōweka
Bennion Law, Wellington for Ngāti Patumoana
Wackrow Panoho & Associates, Auckland for Ngāi Tamahaua Hapū and Te Hapū Titoko o Ngai Tama
McCaw Lewis, Hamilton for Te Uri o Whakatōhea Rangatira Mokomoko
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Attorney-General
Kāhui Legal, Wellington for Te Rūnanga o Te Whānau
Chapman Tripp, Wellington for Seafood Industry Representatives
Cooney Lees Morgan, Tauranga for Crown Regional Holdings Ltd, Ōpōtiki District Council and Bay of Plenty Regional Council
Brookfields Lawyers, Auckland for Whakatāne District Council

^[1] 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.

^[7] 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] 3 NZLR 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 Heritage New 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 or more wāhi tapu.

^[15] Re Edwards (Whakatōhea Stage Two) No 7 [2022] NZHC 2644 [No 7 judgment]. We note that the 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 July 2011, 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 MACA if that person has, by the due date, filed a notice of appearance. This Court ruled in Te Kāhui Takutai Moana o Ngā Whānui Me Nga Hapū v Landowners Coalition Inc [2022] NZCA 27 that interested parties in the High Court might bring appeals in this Court. A number have done so in this proceeding.

^[19] The judgment under appeal is reported as Re Edwards Whakatōhea, above n 11. In the interests of clarity, we have chosen to intitule this judgment using group names, rather than those of individual applicants representing those groups, and we have grouped the appellants, cross‑appellants and respondents according to the substantive part they played in the appeals, with interested 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 in this section of the judgment. We have excluded Te Whānau a Harāwaka, who elected not to participate in the hearing before us but assumed a watching approach.

^[20] 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)]

^[24] The Board made an application for CMT on behalf of Ngāti Ngāhere, Ngāti Patumoana and Ngāti 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 this proceeding.

^[27] Kutarere Marae also advance a process complaint, saying that because they had not applied for CMT, 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 interpretation of s 58(1) (at [120], [129], [142], [161] and [168]) and conflation of s 58(1)(a) and (b) such that subs 58(1)(b) was no longer a separate and standalone requirement (at [57]–[58], [111], [142], [149]–[152], [174], and [264].

^[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 parties except WKW, who argued that the Judge’s CMT Order 1 extended to the common marine and coastal area around Whakaari. We do not find that an available reading of the judgment under appeal.

^[32] We recognise that Ngāi Tai also claim areas to the east of Te Rangi. That claim is pending and we express no view about it.

^[33] We recognise that Ngāti Awa also claim over an area to the west of Maraetōtara. That claim is pending (it may be resolved in negotiation or in recognition proceedings) and we express no view about it.

^[34] MACA, s 9(1) definition of “kaitiakitanga”, which refers to s 2(1) of the Resource Management Act 1991. Kaitiakitanga means the exercise of guardianship by the tangata whenua of an area in accordance 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.

^[42] 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.

^[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 narrow areas of dispute about whakapapa linkages. On the view we take of the outcome, nothing turns on this.

^[60] Judgment under appeal, above n 11, at [313].

^[61] MACA, s 58(1)(a).

^[62] Attorney-General v Ngāti Apa [2003] NZCA 117; [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.

^[66] 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] per Keith 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.

^[72] 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 it would be unsurprising if the common law recognised a public right of access in certain common law 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.

^[78] At 51.

^[79] At 60. I observe that this conclusion remains controversial. See notably Jacinta Ruru “What Could Have Been? The Common Law Doctrine of Native Title in Land Under Salt Water in Australia and Aotearoa/New Zealand” [2006] MonashULawRw 6; (2006) 32 Monash LR 116. I need not explore it here; as explained below, MACA both guarantees public rights and presumes that they are compatible with 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 been recognised rights at law, recreational use has been more problematic and referencing authorities that, 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 considering the 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 2

^[84] Section 13(1).

^[85] 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 Racial Discrimination Decision 1 (66) on Foreshore and Seabed Act LXVI, UN Doc CERD/C/66/NZL/Dec.1 (11 March 2005); and Rodolfo Stavenhagen Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people UN Doc 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 of the Ministerial Review Panel — Ministerial Review of the Foreshore and Seabed Act 2004 Volume 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.

^[94] Ministry of Justice Reviewing the Foreshore and Seabed Act 2004: consultation document (March 2010) [consultation document].

^[95] At 7–8.

^[96] At 32.

^[97] At 32 (footnote omitted).

^[98] At 36.

^[99] At 35.

^[100] At 35, citing Te Ture Whenua Maori Act 1993, s 129(2)(a).

^[101] Marine and Coastal Area (Takutai Moana) Bill (201–1) (select committee report) [report of the select committee] at 2.

^[102] MACA, s 2.

^[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 group must 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.

^[108] Recognition of the radical title is not inconsistent with recognition of customary rights which predated the acquisition of sovereignty: see Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 50 per Brennan J with whom Mason CJ and McHugh J agreed at 7, cited in Attorney-General v Ngāti Apa, above n 62, at [30] per Elias CJ.

^[109] MACA, s 98(5) provides: aboriginal rights claim means any claim in respect of the common marine and coastal area that is based on, or relies on, customary rights, customary title, aboriginal rights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or duties of a similar nature, whether arising before, on, or after the commencement of this Act and whether or not the claim is based on, or relies on, any 1 or more of the following: (a) a rule, principle, or practice of the common law or equity: (b) the Treaty of Waitangi: (c) the existence of a trust: (d) an obligation of any kind.

^[110] Judgment under appeal, above n 11, at [56].

^[111] MACA, in s 9(1) definition of “wāhi tapu”, which refers to s 6 of the Heritage New Zealand Pouhere 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 tapu conditions in a CMT order may prohibit fishing or access. Under s 81(2), intentional breach of any such condition is an offence. The threshold for establishing that specified areas are wāhi tapu was addressed by Churchman J in the No 7 judgment, above n 15, at [110]–[115]; and in Re Ngāti Pahauwera, 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 Resource Management Act, s 2(1) definition of “coastal marine area”, para (b). We have referred to MACA as 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.

^[113] Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 3, provides that the outer limit of the territorial sea is 12 nautical miles from the nearest point of the baseline. Section 5 provides the baseline from which the breadth of the territorial sea of New Zealand is measured shall 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).

^[115] MACA, s 52(1).

^[116] Section 55.

^[117] Section 9(1), definition of “customary marine and coastal area”.

^[118] Section 9(1), definition of “common marine and coastal area”.

^[119] Judgment under appeal, above n 11, at [361], following Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 [first Paki judgment].

^[120] Footnote added.

^[121] Section 112 sets out that this is subject to a right of appeal to this Court on matters of fact and law.

^[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).

^[127] Section 9(1) definition of “applicant group”.

^[128] Section 100(2).

^[129] Section 104.

^[130] Section 105.

^[131] Judgment under appeal, above n 11, at [99], citing Re Tipene, above n 7. See also Ngā Pōtiki Stage 1, above n 7, at [21].

^[132] Re Tipene, above n 7, at [39].

^[133] MACA, s 107(1)–(3).

^[134] At [119]–[120].

^[135] Judgment under appeal, above n 11, at [121]–[128], citing Attorney-General v Ngāti Apa, above n 62, at [33] per Elias CJ, endorsing Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399 (PC) at 404; Re Tipene, above n 7, at [15], citing Waitangi Tribunal Te Whanganui a Tara me ona Takiwa: 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; and Delgamuukw 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].

^[144] At [168]–[169].

^[145] At [162]–[163], citing Delgamuukw v British Colombia, above n 138, at [158] per Lamer CJ, Cory and 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].

^[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 Ōpōtiki Harbour Redevelopment Project does amount to substantial interruption. That finding is not presently before us, but there is a question of whether the Judge ought to have decided the issue of substantial interruption before finding that CMT would be granted.

^[157] Judgment under appeal, above n 11, at [256].

^[158] At [258].

^[159] The term “legislative fact” was used in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [9] per Elias CJ and [230] per McGrath J to describe material going to the content of law and determination of policy; see also Attorney‑General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 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 Foreshore and Seabed Act 2004: Analysis of Replacement Regimes (September 2010); Ministry of Justice Regulatory Impact Statement: Review of the Foreshore and Seabed Act 2004: Post Consultation Decisions (September 2010); and Ministry of Justice Regulatory Impact Statement: Review of the Foreshore 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) 666 NZPD 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.

^[167] Judgment under appeal, above n 11, at [174]. As noted above at [92], the Judge did adopt those authorities 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].

^[170] Ministerial Review Panel report, above n 89, at 7.6.3.

^[171] Departmental report, above n 162, at [1425] indicates that the requirement for exclusive use and occupation was drawn primarily from Canadian case law. See also the speech of the Attorney‑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 Supreme Court held that it was necessary to look to the “period prior to contact between aboriginal and European societies”. It has since been held that in relation to aboriginal title to land, the appropriate 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.

^[177] Delgamuukw, above n 138; Tsilhqot’in Nation, above n 138; and see for example R v Marshall 2003 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 land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship.

^[184] Tsilhqot’in Nation, above n 138, at [25], citing Delgamuukw, above n 138.

^[185] 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] per Lamer 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] per Lamer CJ, Cory and Major JJ.

^[190] Tsilhqot’in Nation, above n 138, at [54].

^[191] At [38].

^[192] At [38].

^[193] At [38].

^[194] At [39], citing Marshall, above n 177, at [136] quoting Kent McNeil Common Law Aboriginal Title (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.

^[202] 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 Co [1942] USSC 12; 314 US 339 (1941).

^[205] See Delgamuukw, above n 138, at [156] per Lamer CJ, Cory and Major JJ, citing McNeil Common Law Aboriginal Title, above n 194, at 204.

^[206] Kent McNeil “Exclusive Occupation and Joint Aboriginal Title” (2015) 48 UBC Law Rev 821 at 839 and 842–844.

^[207] Mabo, above n 108.

^[208] Yarmirr, above n 72, at [323]–[324] per Callinan J.

^[209] Native Title Act 1993 (Cth), s 223.

^[210] Members of Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 194 ALR 538 at [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] (citations omitted), 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].

^[214] 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, Gummow and 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 and Hayne JJ.

^[219] United Nations Convention on the Law of the Sea 1833 UNTS 397 (opened for signature on 10 December 1982, entered into force 16 November 1994), art 17. MACA, s 27 recognises that any person may navigate by ship. Section 27 is not co-extensive with innocent passage as defined in Article 19 of the Convention.

^[220] MACA, s 26.

^[221] Professor McHugh made this point in connection with the 2004 Act: Paul McHugh “Setting the Statutory Compass: The Foreshore and Seabed Act 2004” (2005) 3 NZJIPL 255 at 257.

^[222] Boast, above n 68, at 281.

^[223] Judgment under appeal, above n 11, at [308].

^[224] At [302].

^[225] At [301].

^[226] At [302].

^[227] Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to 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”.

^[229] 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.

^[233] Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [75] per Winkelmann CJ, Glazebrook and Williams JJ.

^[234] Waitangi Tribunal Rekohu: A Report on the Moriori and Ngāti Mutanga Claims in the Chatham Islands (Wai 64, 2001) at 28.

^[235] MACA, s 60(1).

^[236] 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).

^[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].

^[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 the Resolution of Historical and Contemporary Claims” (2015) 46 VUWLR 875 at 903.

^[253] 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].

^[258] See Banjima People, above n 212, at [38] in which the Full Federal Court approach native title in this way, citing Kevin Gray “Property in Thin Air” (1991) 50 CLJ 252 at 299.

^[259] Ministerial Review Panel report, above n 89, at 72.

^[260] The practice ceased in 1968 after officials realised that, as Whakaari had been declared a private scenic reserve in 1953, tītī harvesting was illegal under the Reserves and Domains Act 1953.

^[261] 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 be determined according to the ancient customs and usages of the Maori people, as far as the same can be ascertained.”

^[262] Ngā Pōtiki Stage 1, above n 7, at [41].

^[263] Professor Boast has argued that for this reason the legislation leans toward the dissenting judgment in Yarmirr, above n 7, in which Kirby J held that public navigation rights are not destructive of exclusivity: Boast, above n 68, at 281.

^[264] PG McHugh “Aboriginal Title in New Zealand: A Retrospect and Prospect” (2004) 2 NZJPIL 139 at 140.

^[265] Foreshore and Seabed Report, above n 75, at 31–32.

^[266] At 25.

^[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.

^[271] Attorney-General v Ngāti Apa, above n 62, at [41] referring to the Native Lands Act 1909, s 88 and Te Ture Whenua Maori Act, s 144. Under the latter Act such proceedings may be brought only 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.

^[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] 3 SCR 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].

^[277] R v Symonds (1847) NZPCC 387 at 390.

^[278] The majority in Yarmirr, above n 72, did not hold that customary title was subject to public rights of access but Kirby J held at [281] that such a right was compatible with customary title at common law and as a matter of policy should be recognised in relation to the sea.

^[279] Ngā Pōtiki Stage 1, above n 7, at [84].

^[280] At [82]–[88].

^[281] 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).

^[286] Section 107.

^[287] Section 107(1) and (2).

^[288] Section 109(2)(b) and (c).

^[289] Section 111(4).

^[290] Section 111(5).

^[291] Waitangi Tribunal Turanga Tangata, Turanga Whenua: The Report on the Turanganui a Kiwa Claims (Wai 814(1), 2004) at 18.

^[292] 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 defence be filed, but it has not been suggested that the High Court ought to have done so in this case. It would have been necessary to consider whether formal pleadings were proportionate to the issues and 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].

^[297] Re Tipene [2015] NZHC 169 at [19]–[24]; Re Clarkson, above n 7, at [237]–[238]; and Re Ngāti Pāhauwera 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, above n 297, at [59].

^[301] Ngāti Pāhauwera strike-out application, above n 297, at [59], citing ISP Consulting Engineers Ltd v 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 NZLR 433.

^[303] Judgment under appeal, above n 11, at [468] and [473].

^[304] Judgment under appeal, above n 11, at [170].

^[305] We observe that the Supreme Court held in Tsilhqot’in Nation, above n 138, at [22], citing Tsilhqot’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 how land was used may be uncertain at the outset and will be developed as elders come forward and experts 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 similar effect.

^[307] Judgment under appeal, above n 11, at [184].

^[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].

^[313] 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] per Williams J. See also New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655–656 per Cooke P.

^[317] MACA, s 95(3).

^[318] Section 96(1).

^[319] Judgment under appeal, above n 11, at [405].

^[320] 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].

^[327] 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 river mouths by agreement with the Minister of Conservation and territorial authorities. See the judgment 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 1991 the repeal did not affect any right, interest or title previously vested in the Crown. See the judgment 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].

^[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.

^[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 Minute No 21] at [3].

^[340] At [10].

^[341] Re Edwards HC Wellington CIV-2011-485-817, 13 August 2020 (Minute No 22) [Edwards Minute No 22] at [5].

^[342] Re Edwards HC Wellington CIV-2011-485-817, 8 July 2020 (Minute No 18) [Edwards Minute No 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].

^[345] Edwards Minute No 21, above n 339, at [14]–[15].

^[346] Edwards Minute No 22, above n 341, at [6].

^[347] Re Edwards HC Wellington CIV-2011-485-817, 12 October 2020 (Minute No 33) [Edwards Minute No 33] at [11].

^[348] Judgment under appeal, above n 11.

^[349] At [188]–[230] and [251]–[271].

^[350] It would still be necessary to consider whether they must amend their applications and whether such amendments were permissible; we return to this point below at [296].

^[351] Judgment under appeal, above n 11, at [660(a)] and [661].

^[352] The relief we propose will be granted in the appeals and cross-appeals.

^[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”.

^[356] The Judge alluded to the causes of dissension between Mr Edwards and the hapū in the judgment under appeal, above n 11, at [464].

^[357] Above at [266]–[267].

^[358] Judgment under appeal, above n 11, at [424].

^[359] At [439]–[441], [445]–[448] and [464].

^[360] At [424] and [465]. We are not called on to consider succession among groups according to tikanga.

^[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].

^[365] Judgment under appeal, above n 11, at [160].

^[366] At [321].

^[367] Edwards Minute No 33, above n 347, at [11].

^[368] Judgment under appeal, above n 11, at [331].

^[369] At [331].

^[370] 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].

^[373] At [185].

^[374] At [466]–[473].

^[375] At [474].

^[376] See Gray, above n 258, at 269–273.

^[377] Judgment under appeal, above n 11 (footnote omitted).

^[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.

^[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, for Te Whānau-ā-Apanui, disagreed and no attempt has been made to correct the record. Nothing turns on it in our view, because the evidence overall points to the same conclusion; others have customary interests at Whakaari but Te Whānau‑ā‑Apanui have superior rights there.

^[382] Judgment under appeal, above n 11, at [474].

^[383] 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 which was subject to the interests of the hapū of the territory. He distinguished between resource and territorial or political boundaries.

^[387] Notably as told to us by Ngāti Awa witnesses Sir Mead, Dr Mason and Mr Merito in 1991 Ngāti Awa and the Board agreed to a boundary in Ōhiwa Harbour at the Nukuhou River.

^[388] The Ōpōtiki Harbour Redevelopment Project does not use the existing river mouth. A new entrance is being constructed to the harbour from the sea. The record includes aerial photographs which show approximately where the boundary of the common marine and coastal area will lie under our approach.

^[389] No 7 judgment, above n 15, at [28].

^[390] When dealing with substantial interruption by third party use and occupation in the judgment under appeal, above n 11, at [256]–[269] he discussed the evidence of Daryl Sykes, of the New Zealand Rock Lobster Industry Council, but not that of Mark Derby, a historian called by the Attorney-General, whose evidence Mr Scott relied on before us.

^[391] MACA, 51(1).

^[392] Sections 52.

^[393] Section 54.

^[394] Section 55.

^[395] MACA, s 51(1).

^[396] Judgment under appeal, above n 11, at [398].

^[397] At [397].

^[398] 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 below proceeded on a misunderstanding about seaweed. It was thought that seaweed of the class Rhodophyceae 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 is unattached and cast ashore” from the activities which require a current fishing permit under s 89(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 without any permit. But no other counsel disputed the point, which would preclude PCRs for gathering any seaweed that is unattached and washed ashore. We cannot recall and amend recognition orders granted 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].

^[404] See Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 23.

^[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 cannot be 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].

^[410] At [527].

^[411] At [528]–[529].

^[412] At [526] and [532].

^[413] At [534].

^[414] Legislation Act 2019, s 10.

^[415] See generally ET Durie Custom Law (draft paper for the Law Commission, January 1994).

^[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 Kiwa Claims (Wai 814, 2004) at 18.

^[418] Durie Custom Law, above n 415, at 84–85.

^[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] UKLawRpAC 18; [1901] AC 561 (PC) at 579 (commonly cited as Nireaha Tamaki v Baker).

^[423] 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.

^[429] Attorney-General v Ngāti Apa, above n 62, at [144]–[145] per Keith and Anderson JJ, citing Amodu Tijani v Secretary, Southern Nigeria, above n 135, at 401–402 and 404.

^[430] Korokai v The Solicitor-General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 (CA) at 351 (commonly cited as Tamihana Korokai 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.

^[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].

^[438] MACA, s 6(1).

^[439] Section 11(5)(a).

^[440] Section 51(1).

^[441] Section 60(1)(a).

^[442] Or, as applicable, under the Natural and Built Environment Act: see sch 1, cls 83–84.

^[443] Te Ture Whenua Maori Act, s 129(2)(a).

^[444] da Silva v Aotea Māori Committee, above n 135, at 217.

^[445] Judgment under appeal, above n 11, at [144].

^[446] At [131].

^[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.

^[449] 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].

^[456] The Attorney-General referred to the departmental report, above n 162, at [1425].

^[457] Foreshore and Seabed Act, s 32(2)(a).

^[458] Defined as inherited right or authority derived in accordance with tikanga in MACA, s 9(1).

^[459] 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.

^[460] See Native Land Act 1909, s 88.

^[461] See Miller J’s reasons above at [120].

^[462] 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 Appellate MB 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] NZGazLawRp 132; (1902) 21 NZLR 691 (CA) at 761–762; and Banjima People, above n 212, at [21], citing Griffiths, above n 212, at [127]. This principle is reflected in ss 155 and 159(a) of the Land Transfer Act 2017 and s 150E of Te Ture Whenua Maori Act.

^[463] Judgment under appeal, above n 11, at [230], [251]–[252] and [256]–[258].

^[464] At [98]–[99].

^[465] At [169].

^[466] If the two groups cannot agree on a person to hold the CMT for them on this basis, the Court could identify a suitable person — perhaps, for example, the Māori Trustee.

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