The Court of Appeal on Molesworth St. Photo / Mark Mitchell
The Court of Appeal on Molesworth St. Photo / Mark Mitchell
The Crown has decided not to lodge an appeal in the first major foreshore and seabed decision under the current law which awarded customary title in three parts of Eastern Bay of Plenty to six hapu of Whakatohea.
Instead, the Crown has applied to be an "intervenor" in the case.
The decision last month, by Justice Peter Churchman, is the first major case under the foreshore and seabed law, the Marine and Coastal Area (Takutai Moana) Act 2011, which replaced Labour's foreshore and seabed law.
"The Crown is not appealing, but other parties are," a spokesman for Attorney-General David Parker told the Herald.
"The Attorney-General has applied to appear as an intervenor to assist the court, as we did at the first hearing."
The deadline for lodging appeals to the Court of Appeal ends today and Act, among others, has called on the Crown to appeal on the grounds that the decision is importing what it calls "ill-defined spiritual beliefs" into the common law and has distorted it.
Some of the hapu which were awarded only customary protected rights (such as the right to take stones) rather than customary marine title, which allows greater say over an area, have appealed the decision. One is thought to be Ngati Muriwai.
Attorney-General David Parker. Photo / Mark Mitchell
The law says that to get customary title, claimants must have exclusively used and occupied the areas from 1840 to the present day without substantial interruption and held it in accordance with tikanga.
But the judge rejected the notion that holding an area in accordance with tikanga required the claimants to show they had some form of control over the area.
He said if the test was the ability to exclude others, it was at odds with important tikanga values of whanaungatanga and manaakitanga.
"In tikanga rather than there being an emphasis on exclusive individual or collective title to any part of land, the focus was on the use of and relationship with resources of the land and sea including manaakitanga," the judgment said.
"Perhaps most importantly for this litigation the concept of exclusion was fundamentally inconsistent with the tikanga values of manaakitanga and whakapapa."
Act leader David Seymour. Photo / Mark Mitchell
The judge relied on pūkenga or locals with expert historical knowledge to determine which hapu qualified for customary title and which didn't and he accepted the Canadian concept of "shared exclusivity", meaning several hapū could have an interest in the same area, so long as they each recognised the other's interest.
Placing great weight on tikanga rather than on exclusive use and occupation is likely to substantially lower the threshold for the test of customary title if followed by other judges or the Government in direct negotiation for about 240 other claims in the New Zealand coastal area.
Maori have applauded the judgment with local Waiariki MP and Maori Party co-leader Rawiri Waititi calling it a "courageous decision."
"I applaud the decision because, for the first time ever, the power has gone back to hapu and iwi to make those decisions."
Maori Party co-leader Rawiri Waititi. Photo / Mark Mitchell
Successful applicants will have to guarantee access to beaches, navigation and fishing unless parts of the area are subject to a court-ordered wahi tapu order.
The Churchman decision awarded customary marine title (CMT) in three parts of the Eastern Bay of Plenty coast to six hapū of Whakatōhea:
a) a jointly held order for Ngāti Ira, Ngāti Patumoana, Ngāti Ruatakenga, Ngāi Tamahaua, Ngāti Ngahere and Upokorehe, from Maraetotara in the west to Tarakeha in the east and out to the 12-nautical-mile limit;
b) in relation to the western part of Ohia Harbour, a jointly held customary marine title between the six iwi mentioned and Ngāti Awa;
c) a customary marine title for Ngāi Tai between Tarakeha and Te Rangi and out to the 12-nautical-mile limit.
The judgment also recognised protected customary rights (PCRs) to Ngāti Muriwai; Ngāti ira o Waioweka; Te Uri o Whakatōhea Rangatira Mokomoko; Ngāi Tamahaua; Te Upokorehe; and Whakatōhea Māori Trust Board, specifically Ngāti Ruatakenga.
The PCRs are specified for each group in the judgment and include catching whitebait for every group, and various other activities such as performing baptisms and tangihanga, gathering sand, shells, stones, plants and driftwood, launching waka and boats, taking water, and planting.
The Attorney-General declined to say whether he had consulted cabinet and caucus colleagues about any appeal.
