Re Reeder (Ngā Pōtiki Stage 1 - Te Tāhuna o Rangataua) - [2021] NZHC 2726

Date of Judgment

12 October 2021

Decision

Re Reeder (Ngā Pōtiki Stage 1 - Te Tāhuna o Rangataua) (PDF 1.7 MB)

Summary

Applications by seven groups for order recognising customary marine title (Marine and Coastal Area (Takutai Moana) Act 2011 (“MACA”), ss 58 and 106) in respect of Te Tāhuna o Rangataua, an estuary in Tauranga Harbour.  Applicants sought to be included in single joint title held by entity to be known as Ngā Pāpaka o Rangataua. Elements of test for customary marine title as outlined in MACA and previous decisions comprising two limbs: holding application area in accordance with tikanga, and exclusive use and occupation without substantial interruption from 1840 to present day or acquisition of land after 1840 through customary transfer (s 58(1)).

Found that no requirement for applicants to hold area in a “proprietary” manner to meet first limb; holding must be determined according to tikanga rather than European concepts of ownership.  In relation to second limb, exclusive use and occupation to exclusion of all others unnecessary as test in reality only requires authority giving rise to ability or intention to exclude others; what constitutes exclusive use and occupation must be assessed with reference to particular tikanga.

Held:  Unequivocal evidence supporting grant of customary marine title to five of the applicants (Ngā Pōtiki, Ngāti Pūkenga, Ngāti Hē, Ngāi Tukairangi and Ngāti Tapū).  Order not opposed by Crown or any other interested party and clear applicants held and continue to hold area in accordance with tikanga since historical occupation some 300 years ago and requisite level of use and occupation maintained without substantial interruption (s 58(1)(b)) displayed by strong whakapapa links, active customary practices and exercises of role as kaitiaki to protect and preserve the area.

Evidence insufficient to support inclusion of the other two applicants (Ngāti Ruahine and Ngāi Te Ahi) in that title. Virtually no information presented to demonstrate how Ngāti Ruahine met s 58 criteria. While Ngāi Te Ahi exercises customary rights over Te Tāhuna o Rangataua, insufficient evidence to show rights exercised in own right rather than through close links with Ngāti Hē.  Applications dismissed.  Court noted Ngāi Te Ahi’s exercise of mahinga kai rights may give rise to grant of protected customary rights (s 51) and leave reserved should Ngāi Te Ahi wish to apply for s 51 order.

Court also found customary rights in foreshore of Te Tāhuna o Rangataua not extinguished by Tauranga Foreshore Vesting and Endowment Act 1915 due to Act’s failure to identify foreshore said to be vested in Tauranga Harbour Board because legislation insufficiently explicit to have extinguished Māori customary rights.  In any event, even if Act had extinguished rights, those rights revived by Foreshore and Seabed Endowment Revesting Act 1991.
Directions issued as to procedure for finalising draft order.