A major High Court decision on applying the law which followed the Foreshore and Seabed Act could set a precedent for hundreds of applications for iwi and their say over marine and coastal areas. Ben Leonard reports

After decades of legal battles, iwi in the eastern Bay of Plenty have been granted customary rights to parts of the marine and coastal area.

The High Court ruling is only the second under the Marine and Coastal Area (Takutai Moana) Act, the legislation that replaced the controversial Foreshore and Seabed Act in 2011.

The Whakatōhea decision gives three iwi groups customary marine title, a property interest that allows them to have a say over certain activities that need resource consent. This could include the building of new wharves or fish farms.

It does not, however, restrict free public access, fishing, recreation and many other common activities.

“It’s a judgment for the decade, for the century,” says lawyer and activist Annette Sykes.

Sykes represented Ngāti Ira o Waiōweka, one of the Whakatōhea groups granted customary title under the Act.

“It’s as important, I think, as Wi Parata,” Sykes says, referring to the 1877 judgment that set precedent well into the 20th Century.

While this is the second ruling under the 2011 Act, the Whakatōhea case is the first to tackle a large area with a number of hapū and iwi. It’s also the first to truly test how tikanga Māori (customary practice) can act as a set of guiding principles under the Act.

“This case gives tikanga Māori force and value under law.”
– Annette Sykes.

While the court does not determine tikanga (that is left to iwi), it is required to rule on whether the applicants have held the marine area ‘in accordance with tikanga’ since 1840. As a High Court decision, it has the potential to set precedent for the more than 200 other marine and coastal applications already before the court.

Tikanga and the common law

In particular, the Whakatōhea case is being hailed as a blueprint for the ongoing interaction of tikanga Māori and New Zealand’s common law. This relationship has been playing out for generations, but the last decade has seen an increasing willingness by judges to bring tikanga Māori into the courtroom.

“This case gives tikanga Māori force and value under law,” says Sykes.

“It sets the basis for a relationship between Māori and non-Māori for the next 100 years based on respect and mutual understanding of each other’s rights and obligations.”

In particular, the court relied on the evidence of kaumātua and two specially appointed pukenga (knowledge holders) who provided detailed advice on tikanga of Whakatōhea. Principles such as whakapapa, whanaungatanga, and manaakitanga played a major role in the court’s decision.

For descendants of Whakatōhea like Te Ringahuia Hata, the ruling is a milestone.

“It’s really huge for us” says Hata, one of the claimants for Ngāti Patumoana. “Now we must be at the table and every decision about our moana and our harbour developments and our aquaculture, must include us.”

The precise details of the customary title, including the overlap between hapū, will be worked out over the next year.

‘Exclusive’ use

The legislation sets a high bar for proving customary title, one which has drawn criticism from legal experts. For an order of title, a group must show exclusive use and occupation of an area since 1840, without substantial interruption.

Despite land confiscation, dislocation and war, Whakatōhea were able to prove just that.

Extensive evidence from kaumātua, historians and other experts showed how the various hapū of Whakatōhea had continued to use and control the foreshore and seabed of the eastern Bay of Plenty according to their own customs.

Experts presented maps showing precise fishing grounds, including detailed knowledge of underwater features and the sea floor, as well as the particular types of fish to be caught in different areas.

“That insertion of mātauranga Māori knowledge keepers has given an integrity to the decision making process,” says Sykes.

Whakatōhea were able to show an unbroken connection to places like the beach near Opotiki, pictured here. Photo: Lynn Grieveson.

Beyond customary title, the decision also grants protected customary rights to a number of hapū. This means traditional activities like launching waka, gathering natural materials and holding baptisms can be undertaken without the need for resource consents.

While they are now protected by law, these are activities that Whakatōhea has been undertaking for centuries.

“Uncle so-and-so is still going to be able go out and get kai moana,” says Hata. “We are still going to go out and get pipi and fish, none of that changes.”

A new approach

To apply tikanga in this case, the judge relied heavily on the appointed pukenga, Dr Hiria Hape and Doug Hauraki. These two experts were agreed upon by the claimant groups as the authorities on Whakatōhea tikanga.

While the court was not bound by the pukenga’s findings, Justice Peter Churchman held that their advice was “highly influential”.

The pukenga identified a number of tikanga aspects that should guide the court, including mana, tino rangatiratanga, kaitiakitanga and tapu. The pukenga report also created a unique poutarāwhare framework, likened to a house where the tikanga of the region was brought together under one roof.

The poutarāwhare approach was a breakthrough in tackling the legal requirement that hapū show “exclusive use” of the marine and coastal area since 1840.

“Exclusive control was an impossible standard,” says Brett Cunningham, one of the lawyers for the Edwards whānau who first launched the seabed claim in 1999.

“If you look at the debate when the Act was being passed, Chris Finlayson [former Treaty Negotiations Minister] said only about 4 percent of iwi would have their rights recognised.”

With the poutarāwhare approach, however, Whakatōhea hapū were able to show their shared use of the sea and coastline under a common body of rules. The court found that this showed ‘shared exclusivity’, a new legal concept that satisfied the law while maintaining hapū sovereignty.

Benefits for the public

The case raises the spectre of the controversial foreshore and seabed debate that led to mass protests and the formation of the Māori Party in 2004. However, most people involved in the Whakatōhea case agree that things have moved on since then.

“Some will have an uninformed view that this will affect their boating rights or fishing rights or daily public activities,” says Tony Sinclair, another lawyer for the Edwards whānau.

“Have a quick read of the Act and you’ll see it doesn’t affect any of those at all,” he says.

Instead, Sinclair says many locals are supportive of the decision and pleased that environmental management and economic development will be in the hands of local iwi rather than central government.

“Ask anyone in that community, Māori or non-Māori, about the benefits of the Whakatōhea mussels farm development and you’ll get a positive response,” he says.

Mussel farms like this one near Havelock have become an important part of economic development for iwi like Whakatōhea. Photo: Wikimedia Commons.

According to Hata, the poutarāwhare approach also has the benefit of including non-Māori in the rights and responsibilities of caring for the marine environment.

“It’s a house that is inclusive of everybody, that’s the manaakitanga bit,” she says.

“Manaakitanga is our value that resources in the moana and the whenua are shared with everybody, for all New Zealand.”

Hata is also hopeful that poutarāwhare approach will bring new possibilities for iwi and hapū governance as Whakatōhea approaches its settlement negotiations with the Crown.

“From a top-down iwi structure, it’s turned around to a bottom-up hapū structure,” she says. “That’s what we always wanted.”

Tikanga in the courtroom

While bringing tikanga into the courtroom is cause for celebration to some, others aren’t so sure.

“One could say that its New Zealand’s judicial system coming of age,” says Sinclair. “But others may say that its Māori lore entering into a jurisdiction where there is very little control.”

With courts increasingly open to interpreting and applying tikanga, some fear that iwi will lose control and determination over their own customs. As the law recognises, tikanga is something determined by iwi.

Māui Hudson, deputy chair of the Whakatōhea Trust Board, says there was concern about how the judge would interpret the evidence. However, with the guidance of the pukenga, Hudson feels the correct tikanga has been upheld.

“If we want to challenge racism in our institutions then this is something we have to consider,” he says.

“There are some places where tikanga provides the logic and the rationale, but sometimes we need the law to support and enforce it.”

With more than 200 marine and coastal applications due to come before the courts, Sinclair says there will be many more judgments on tikanga to come.

“It’s certainly the beginning, but there is a long way to go.”

Ben Leonard writes on Treaty issues and the environment.

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