Re Taueki (Ngāti Tamarangi) & Ors - [2025] NZHC 1488

Introduction
This decision concerns applications made under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Takutai Moana Act) for recognition of customary marine title (CMT) in the Takutai Moana. The takutai moana in general terms includes the coastal area up to the mean high-water springs, and the seascape to the territorial sea limit of 12 nautical miles. A CMT recognition order gives the holder certain rights in the relevant area, including permission rights under the Resource Management Act 1991. However, public rights of access, navigation, and fishing are expressly preserved under the Takutai Moana Act. A CMT area cannot be alienated or otherwise disposed of. See at [20]–[37].

The hearing area runs from the northern bank of the Rangitīkei River to Whareroa (north of Paekākāriki). It includes the offshore Kapiti Island and its islets. See at [1]–[5]. Six applicants made claims for recognition of CMT in various parts of the takutai moana. See at [6]–[11].


Background
A primary contest among the parties at the hearing was between the iwi descendants of the Kurahaupō waka — being Muaūpoko, Mr Taueki on behalf of Ngāti Tamarangi, Ngāti Apa, and Rangitāne — and those referred to as the Hekenga iwi, represented in these proceedings by Ngāti Toa, Te Ātiawa, Ngāti Raukawa, and Mr Tima for Te Whānau Tima (Seymour) and Ngā Ahi Kā o Te Hapū o Te Mateawa. The Kurahaupō allies had occupied the Kapiti area for many hundreds of years prior to the 1820s. The Hekenga iwi arrived in the hearing area from the north in a series of heke, or migrations, in the 1820s and 1830s.

Te Rauparaha precipitated the move south of tribes from the Waikato and Taranaki, following his visit to the area in 1818–1820 as part of a raiding taua or āmiowhenua (a war party expedition around the North Island). He formed an intention to lead Ngāti Toa from their homeland in the Waikato (Kawhia) to escape the constant warfare between tribes in that area.

The events of the 1820s and the 1830s following the arrival of the Hekenga iwi in the Kapiti region, and the subsequent effects on the various iwi and hapū involved, remain some of the most contested in historical and tribal narratives.


The claims
The first of the Hekenga iwi to arrive were Ngāti Toa and Te Ātiawa. Various battles and skirmishes followed between the incumbent Kurahaupō iwi and the newcomers. It is generally accepted that the battle of Waiorua in 1824 was a significant victory for Ngāti Toa and Te Ātiawa. They fought off a sizable force of Kurahaupō allies who had launched an attack on Kapiti Island. The Hekenga iwi claimed that by virtue of that battle and the subsequent clearing of the Kurahaupō iwi from the takutai moana in the area, they were entitled to foundational rights based on take raupatu, or conquest, and in the case of Te Ātiawa, gifts of land (tuku whenua). They said these rights were made permanent through long settlement or ahi kā, and the customary rights arising from the take raupatu should be recognised through CMT orders in their respective claimed rohe. See at [300]–[352].

Ngāti Raukawa, who have close whakapapa ties to Ngāti Toa, were not at the battle of Waiorua. They arrived in a heke sometime after that battle. However, Ngāti Raukawa claimed that they could also rely on the take raupatu acquired at Waiorua, as they had come at the request of Ngāti Toa to assist them in securing the area. Ngāti Raukawa, alongside Te Ātiawa, were also given land by Ngāti Toa through tuku whenua, in return for their military assistance and support in the establishment of the Hekenga iwi in the relevant part of the coast. These take form the basis of their CMT claim over the takutai moana from Kukutauaki to the Rangitīkei River. See at [438]–[570].

Of the Kurahaupō iwi, Ngāti Apa (represented by Mr Shenton) claimed CMT from Omarupapako/Round Bush to Rangitīkei. See at [760]–[787]. Rangitāne, while not an applicant in this proceeding, have made a CMT claim in an alternative process involving Crown negotiations from the northern bank of the Rangitīkei River to the southern bank of the Manawatū River. They participated in the hearing and adduced evidence as an interested party to assist the Court. See at [788]–[813].

Muaūpoko claimed CMT from Kukutauaki to the northern side of the Manawatū River. The historical experts called by Muaūpoko gave evidence that Muaūpoko were not annihilated, and while some did flee from the area for a time, they never gave up their long held ancestral rights, particularly in the area of the Hōkio Stream and Punahau (Lake Horowhenua). The historical experts also said that there were significant acts of peace-making in the 1820s and 1830s between Muaūpoko and the Hekenga iwi. See at [676]–[759].

The Horowhenua 11 (Part) Reservation Trust, which participated as an interested party, owns the bed of Punahau and the Hōkio Stream on behalf of the Muaūpoko beneficial owners. It assisted the Court by adducing evidence relating to those areas, and sought to protect the interests of the beneficiaries. See at [653]–[675].

The Hekenga iwi recognised the ancestral rights of the Kurahaupō iwi, but argued that those rights were not sufficient to meet the test for CMT in the circumstances.

Another contest was between Ngāti Toa and Te Ātiawa. Te Ātiawa said their claim to CMT should be granted exclusively in their mainland rohe from Whareroa to Kukutauaki, but on a shared basis with Ngāti Toa over Kapiti Island (and its islets) and the surrounding moana. However, Ngāti Toa disputed that claim in relation to parts of the mainland coast and Kapiti Island. They did not have a claim before this Court and so were not entitled to any CMT orders in their favour. Nevertheless, Ngāti Toa participated in the hearing and adduced substantial evidence to assist the Court. See at [245]–[299].

The applicants and other parties adduced substantial evidence as to their continuous “integrated or holistic relationship” with the takutai moana, manifested by ongoing activities such as resource gathering and fishing, following tikanga and kawa, and exercising kaitiakitanga. Two pūkenga were appointed by the Court to give expert evidence on the application of relevant tikanga in the hearing area. See at [38]–[118].

Representatives of the Seafood Industry appeared as interested parties to give evidence in relation to the seaward extent of the applicants’ claims. See at [1044]–[1047]. Relevant local authorities, being the Kāpiti Coast District Council, the Greater Wellington Regional Council, and the Manawatū-Whanganui Regional Council (Horizons), also appeared as interested parties. See at [187]–[198]. In addition, the Attorney-General participated as an interested party to act in the interests of the New Zealand public, including Māori, and to assist the Court in the application of the Takutai Moana Act. See at [11].


Supreme Court decision on the test for CMT
The Supreme Court addressed the approach to CMT in its decision Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, which was released in December 2024 following the conclusion of this hearing. It reframed the test for CMT under s 58 of the Takutai Moana Act into four elements, albeit noting that these elements overlap both conceptually and evidentially. The four elements were organised under the following headings: holds in accordance with tikanga; exclusive use and occupation; continuity from 1840 to the present day without substantial interruption; and extinguishment. See at [119]–[140].


CMT findings
The final determinations recognise that five applicant groups have met the test for CMT and are entitled to either shared exclusive or exclusive CMT over various parts of the takutai moana in the hearing area. See at [1171]–[1174]. These applicants are: Te Ātiawa (see at [353]–[437]); Ngāti Raukawa (see at [814]–[896]); Mr Tima (see at [897]–[910]); Mr Taueki (see at [928]-[936]); and Muaūpoko (see at [937]–[1024]). The seaward boundaries of the applicants’ respective areas of CMT extend to one nautical mile from shore, with the exception of Mr Taueki, whose claim extends to one kilometre. In addition, Te Ātiawa is entitled to shared CMT with Ngāti Toa over Te Rau o Te Rangi Channel, between the mainland and Kapiti Island, should the latter be granted CMT by the Crown. See at [1025]–[1170].