Marine and Coastal Area (Takutai Moana) Act 2011 – Māori customary interests – first substantive appeal to Court of Appeal – pūkenga report – whether judge made relevant factual finds – test for customary marine title – shared exclusivity – when shared title available – customary title to navigable rivers

Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504 per Cooper P, Miller and Goddard JJ.

This is the first substantive appeal under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) made to the Court of Appeal. It follows a landmark decision by Churchman J in Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025, awarding customary marine title (CMT) and protected customary rights (PCR) to a range of applicant groups in the Eastern Bay of Plenty. The decision carried significant implications for some 200 applications filed in the High Court. It was also the first case to confront competing applications for CMT over the same area.

At the heart of this appeal is a contest between groups who make up Te Whakatōhea iwi as to who should hold CMT over the specified area. The contested issues fall under four broad thematic categories:

• Whether Churchman J made necessary factual findings to establish CMT in respect of three CMT orders:
  • the area from Maraetōtara to Tarakeha (order one). The appeals and cross-appeals in respect of order one primarily reflect disagreement among groups affiliated with Whakatōhea about which of them ought to have or be included in a recognition order over this area and who may apply on their behalf;
  • the Ōhiwa Harbour area, recognising shared CMT between Ngāti Awa and six Whakatōhea hapū (order two); and
  • the area between Rarakeha and Te Rangi, in respect of which a recognition order was granted to Ngāi Tai (order three).
• the test for CMT under s 58(1) of MACA;
• the circumstances in which shared CMT will be available to applicant groups; and
• whether CMT can be held over the beds of navigable rivers.

Factual findings for CMT

Two pūkenga (experts) were appointed to help the High Court make factual findings about tikanga (questions one and two), the groups which hold the application area in accordance with tikanga (question three) and the entities which comprise each applicant group (question four).  The pūkenga wrote a report setting out answers to these questions.

Pūkenga answers to questions one and two were uncontroversial. Pūkenga provided a list of groups in response to questions three and four, but qualified their response by emphasising their findings were only commentary and more hui between groups would be needed for determination. They recommended a tikanga-based solution.

Churchman J relied heavily on the pūkenga report when making factual findings that led to the orders being granted.

On appeal, the Court of Appeal found the pūkenga did not in fact answer questions three and four. Rather, they acknowledged the claims of the applicant groups and looked for ways in which those claims could be reconciled. There was no scrutiny of competing claims to the same areas. Therefore, some conclusions that pūkenga did not reach were incorrectly attributed to them. This meant the judge did not come to the necessary factual findings to establish CMT and on that basis a rehearing was ordered in respect of orders one and three. The court was satisfied that Ngāti Awa and six Whakatōhea hapū met the test for CMT at Ōhiwa Harbour and therefore order two stood.

Test for CMT

The court split on what the test for CMT is under s 58(1) of MACA. Cooper P and Goddard J found the test was:

• Whether the applicant group holds the relevant area as a matter of tikanga;
• whether in 1840, prior to the proclamation of British sovereignty, the group (or its tikanga predecessor(s)) used and occupied the area, and had sufficient control over that area to exclude others if they wished to do so; and
• whether post-1840 that use and occupation ceased or was interrupted because the group’s connection with the area and control over it was lost as a matter of tikanga, or was substantially interrupted by lawful activities carried on in the area pursuant to statutory authority.

An applicant need only satisfy the court that it holds the area in accordance with tikanga, and its use and occupation of the area has been continuous since 1840. In other words, “substantial interruption” will impede an award of CMT only where it was to the applicant group’s holding of an area in accordance with tikanga, not where it was to the group’s exclusive use and occupation.

Miller J dissented, considering that s 58(1) creates a single composite test: the applicant groups must hold the specified area in accordance with tikanga, their use and occupation must be exclusive, which requires both an externally manifested intention to control the area and the capacity to do so, and must have been continuous since 1840.

Exclusivity

Churchman J accepted that shared exclusivity is available under MACA, adopting Canadian authorities finding it exists where two or more groups have occupied the same territory and have used it communally as part of their traditional way of life, such that they jointly occupied it to the exclusion of others. In these situations, the court may award shared CMT to multiple groups. This principle was not disturbed on appeal.

However, the Court of Appeal again split on when shared CMT may be awarded. Cooper P and Goddard J held that shared CMT can still be granted in situations where groups deny they both meet the test for CMT. Miller J dissented – where there are two applicant groups, neither of which acknowledges the rights of the other, there can be no grant of recognition of a shared CMT. All three judges were of the view, though, that compelling parties to hold CMT jointly where this was not sought by them, especially if joint ownership was actively opposed, would be unsatisfactory.

Navigable rivers

Finally, Churchman J found that customary title to navigable rivers has been extinguished in law, as s 261 of the Coal Mines Act 1979 vests the bed of navigable rivers in the Crown and s 58(4) of MACA precludes CMT from existing if the title is extinguished as a matter of law.

The Court of Appeal reversed this finding, noting that s 11(3) of the MACA divests the Crown of any title it previously owned, under any enactment, of any part of the common marine and coastal area. Section 58(4) contemplates extinguishment of CMT by means other than Crown ownership that was subsequently reversed.

Applicable principles: Test for customary marine title under MACA – whether ‘substantial interruption’ relates to holding area in accordance with tikanga or to use and occupation – whether shared exclusivity and title available where groups disagree – whether customary title to navigable rivers extinguished in law.

Held: Rehearing ordered with respect of two CMT orders. CMT may extend to the beds of navigable rivers.

Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504.