Customary marine title to Te Tāhuna O Rangataua (pictured) will now be shared by five iwi and hapū. Photo: Supplied

A High Court decision granting customary title to part of Tauranga Harbour is the latest in a series of cases giving legal backing to tikanga Māori. Ben Leonard reports.

It’s been a long and costly journey for the iwi and hapū of Te Tāhuna O Rangataua (Rangataua Bay).

After years of legal battles, their people have finally been granted customary title to the marine and coastal area of Tauranga Harbour’s eastern-most arm.

“It’s a beautiful piece of moana that our people have occupied for over 300 years,” says Ngā Pōtiki ā Tamāpahore chair Peter Stokes.

The tidal inlet lies just south of Mount Maunganui, between Matapihi, Maungatapu, and Te Tihi (Welcome Bay).

“It’s a pataka kai – a place of food gathering not just for our people, but the whole community,” he says.

“It’s also a place of healing. Sustenance for our mind, body and soul.”

Ngā Pōtiki ā Tamapāhore are one of the five groups to be granted shared customary marine title to Te Tāhuna O Rangataua under the Marine and Coastal Area (Takutai Moana) Act, the successor to the Foreshore and Seabed Act.

Under the Act, customary marine title gives mana whenua legal rights over areas of the foreshore and seabed below mean high water springs (the highest point washed by the tide).

This includes having a say over activities that need resource consent, like the building of new wharves. It does not, however, restrict public access or recreation.

With Ngā Pōtiki, Ngāti Pūkenga, Ngāti Hē, Ngāi Tukairangi and Ngāti Tapū will jointly manage the title under a joint entity known as Ngā Pāpaka O Rangataua, after a whakataukī (proverb) describing the area.

“It gives us a bit of teeth to be able to carry out our kaitiakitanga,” says Stokes.

“We have always done that because we have our tikanga behind us. We have both the lore and the law now.”

The High Court found that five of the seven groups who applied were able to show unequivocal evidence of a “deep and abiding connection” to Te Tāhuna O Rangataua.

Justice Grant Powell said these iwi and hapū displayed strong whakapapa links, active customary practices and the exercise of their role as kaitiaki to protect and preserve the bay.

While it’s a positive outcome for Ngā Pōtiki, Stokes says he has mixed feelings about the process.

“In some senses it’s a hollow victory because we shouldn’t have to go to court to prove these things,” he says.

“We could very well ask the Crown some of the same questions.”

Ngā Pāpaka o Rangataua are only the third group to receive customary marine title under the Act since it was passed in 2011.

With more than 200 applications yet to be heard, the case is an important one in setting precedent for the legal application of one of the Act’s key concepts – tikanga Māori.

For a court to grant customary marine title, a group must be able to show two things.

First, that they have held the area in accordance with tikanga, and second that their use has been exclusive, ongoing, and without substantial interruption since 1840.

It’s a high bar that has drawn criticism from some legal experts and launched an ongoing Waitangi Tribunal inquiry.

According to former Treaty Negotiations Minister Chris Finlayson, only about 4 percent of iwi would have their rights recognised using the Act’s two-part test.

In practice, however, judges have proven willing to depart from western property law and decide cases based on the unique tikanga of each rohe as presented to them by pūkenga and other experts.

In this case, Ngā Pōtiki and the other claimants relied on acknowledged tikanga expert Dr Te Kahautu Maxwell (Te Whakatōhea, Ngāti Awa, Ngāi Tai, Te Whānau-a-Apanui, Ngāti Porou, Ngāti Maniapoto, Tūhoe).

Dr Maxwell outlined a number of core concepts underpinning tikanga and the ways in which iwi and hapū could hold mana moana through whakapapa, ahi kā, pakanga, and tuku.

Based on the evidence presented, Justice Powell ruled that to hold an area ‘in accordance with tikanga’ did not require a proprietary ownership in the western legal sense.

Instead, evidence of a group’s use and occupation would be judged on the basis of their own tikanga.

As to the second part of the test, Justice Powell found that “exclusive use” of an area did not require an iwi to prove that no other groups had used the bay. Instead, it was enough to show that they had the authority to do so under their own tikanga.

Along with the Re: Edwards (Whakatōhea) case earlier this year, the Rangataua decision shows an increasing willingness from the courts to use tikanga Māori in their judgments.

However, some are concerned about the effect this could have on the rights of iwi and hapū to determine their own tikanga.

“It doesn’t sit right with me,” says Stokes.

“As I’m listening to the kōrero, I’m wondering how the judge is presiding over our tikanga and our whakapapa.

“That’s not to say they can’t understand, but tikanga sits with us as Māori.”

In August, a whānau application for customary marine title in Hawkes Bay was refused by the High Court because the judge found that the group’s claim did not conform to the tikanga of their wider hapū.

With hundreds of applications for customary marine title still in the pipeline, these decisions matter.

In the meantime, Stokes says his people’s role as kaitiaki of Te Tāhuna o Rangataua will go on as it has done for generations.

“It’s a place our tūpuna have always used and many of them are still here,” he says.

“Our tūpuna are still here, even though some people cannot see them.”

Ben Leonard writes on Treaty issues and the environment.

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