Takutai Moana

The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) is an attempt by the Crown to address the shortcomings of the Foreshore and Seabed Act 2004, and was the child of a time of protest and dissatisfaction. Māori were excited by the prospect of a legislative framework that would recognise their customary rights and interests in the foreshore area. However, the issue was relatively polarising across the nation, with misinformation feeding fears that iwi would begin excluding the public from accessing beaches and coastline for recreation and fishing.
Chris Brankin, a policy advisor for Te Rūnanga o Ngāi Tahu, shares his view on the impact of this legislation among Ngāi Tahu people.

The highest form of protection of Māori rights and interests available is “Customary Marine Title”, which recognises the relationship of an iwi, hapū, or whānau with a part of the common marine and coastal area. The title can’t be sold, and free public access, fishing, and other recreational activities are allowed to continue in Customary Marine Title areas. Successful applicant groups gain a number of rights in regards to the area:

1. A Resource Management Act permission right which lets the group say yes or no to activities that need resource consents or permits;
2. A Conservation Permission Right which lets the group say yes or no to certain conservation activities;
3. The right to be notified and consulted when other groups apply for marine mammal watching permits;
4. The right to be consulted about changes to Coastal Policy Statements;
5. A wāhi tapu protection right which lets the group seek recognition of a wāhi tapu and restrict access to the area if needed;
6. The ownership of minerals other than petroleum, gold, silver, and uranium;
7. The interim ownership of taonga tūturu found in the area, and;
8. The ability to prepare a planning document which sets out the group’s objectives and policies for the management of resources in the area.

The striking thing about this list is that with the exception of the protection of wāhi tapu and ownership of minerals and taonga tūturu, a Customary Marine Title does not actually address much of what many would imagine to be customary rights and interests. That is not to say that some of the tools it provides are not useful in certain situations, but whether this legislation can satisfy Māori who want true recognition is doubtful.

To be awarded a Customary Marine Title, an applicant must prove their group holds the specified area in accordance with tikanga, and have exclusively used and occupied it, without substantial interruption, from 1840 to the present day. These tests are steep, and were a key point in opposition to the Act. Many felt that for the Crown to state they intended to provide recognition to Māori, but then to set such strenuous tests, was a contradiction and in bad faith. However despite protests and advice of iwi, the Bill became an Act in 2011.

Te Rūnanga o Ngāi Tahu strongly advised the Crown early on that the MACA Bill would not offer Māori any greater recognition of their rights and interests than had been possible under the previous framework, slamming the Bill as unimaginative.

A Customary Marine Title first caught the attention of Denis Tipene after an application for a Mātaitai reserve did not come to fruition. According to his evidence, he sought to protect the pāua fishery around the Tamaitemioka and Pohowaitai Islands, a pair of closely adjacent tītī islands on the southwest end of Rakiura. After a lifetime of birding a number of islands, Mr Tipene, a beneficial owner, has birded on Tamaitemioka since the mid 1980s. The trigger came after a conversation with a fellow birder who remarked that commercial divers were threatening the availability of pāua for whānau who bird the two islands and relied heavily on kaimoana to sustain themselves. From that point, Mr Tipene began to explore avenues he hoped would offer legal protection for the customary rights of birders on the island.

Pohowaitai and Tamaitemioka are separated by only a few metres of sea, and for the most part the “coastal area”’ is difficult to access, with sheer rock faces plunging into a temperamental ocean. “The Landing” is the most accessible, and services both islands when approaching by boat, and as the place to get a kai. For these reasons The Landing was to become the area of focus for the application.

Pohowaitai and Tamaitemioka are beneficial tītī islands, meaning that their ownership and right of use is a matter of whakapapa. Travelling to these remote places is no mean feat, even with modern technology and transport, and once there the conditions are challenging and the work is hard. To be a birder requires commitment and passion. When Denis Tipene described to the court his relationship to the island, he said it was part of him and that the drive to go there was woven into his DNA. Powerful and emotive, this statement shows the depth of the connection to the place and practice.

There are two pathways to being awarded a Customary Marine Title: direct negotiation with the Minister for Treaty Settlements, or an application through the High Court. Mr Tipene made his application to the High Court, and, for a number of reasons, this did not attract a great deal of attention until proceedings were reasonably advanced. The Act compels applicants to publish notices in local newspapers to notify potentially affected parties of the details of the application, and to hold public hui.

Mr Tipene satisfied these requirements from a legal perspective, but received no responses. On one hand this demonstrates a relatively flimsy procedure set out by the Act, but it also shows that not many of the birding community had taken the application seriously – which was to make matters complicated as proceedings continued.

Te Rūnanga o Ngāi Tahu became aware of the application in mid 2014 when alerted by the Rakiura Tītī Committee. By that stage it was too late for Te Rūnanga to oppose or support the application, but both the Crown and the court were anxious to have Te Rūnanga joined to proceedings. It was also an opportunity to give whānau a second chance to have their say. Te Rūnanga were concerned that miscommunication and misunderstanding had meant that no voices other than Mr Tipene’s would be heard.

It is no exaggeration to say that many of those voices were harsh, vitriolic, and in most part strongly opposed to the application. Mr Tipene, following the format laid out by the Act, had applied for Customary Marine Title from the high water mark out to 12 nautical miles from Tamaitemioka and Pohowaitai. The title was to be vested in the name of his daughter, and the applicant group was the Tipene whānau. Many other birders found these aspects of the application intolerable. Having the title in the name of a potential owner (that had yet to inherit their parent’s rights) made no sense to many, while others were concerned the application area challenged the mana moana of other islands. Many whānau were also suspicious of Mr Tipene’s intentions, as well as having a general disdain for the Act or any “outside” influence on the management of the islands.

In closing submissions all parties agreed that the application area was held in accordance with tikanga and had been exclusively used and occupied from 1840 to the present day without substantial interruption, as required by the Act. This was a good outcome, as the Crown had earlier indicated that it did not agree with this.

In Mr Tipene’s defence, these concerns can be attributed as much to the Act and the limitations of the application structure, while his intentions can only be speculated on. Having been formally joined to proceedings in August 2014, Te Rūnanga staff devised a strategy that would allow birders an opportunity to have their views heard by the High Court. A questionnaire was circulated that asked for information about tikanga of the islands, use of the sea around the islands, and how an applicant group could be identified and represented. The responses formed the basis of the first set of evidence that Te Rūnanga submitted before the Crown. Mr Tipene was naturally frustrated, given that when he had tried to raise the issue with the tītī community he had been largely ignored. Further to this, Mr Tipene questioned why Te Rūnanga and the birding community would not support him in his application.

Te Rūnanga was unable to offer Mr Tipene the direct support he desired, just as it was unable to directly oppose the application. The key was to ensure that as much information as possible was before the court. This would be the first time an application was to be heard before the High Court, and the process and outcome would create a precedent for any more to come. This created a sense of unease for many, as the tītī islands are such a precious example of customary practice and tikanga. To invite an intrusion of law that may suggest otherwise created a stir. It is important to remember the fierce pride and independent nature of the birding community, which gives context to their natural reluctance to open their doors to the outside world.

Despite his frustration, Mr Tipene did take action to rectify the concerns of fellow birders, and amended his application. The applicant group was now to be Rakiura Māori with a beneficial interest in the two islands, rather than solely the Tipene whānau. The application area was reduced to avoid conflict with other islands, and Mr Tipene wished the holder of the title to be a legal entity rather than an individual. At this point the hearing was imminent, and legal counsel for Mr Tipene argued that such was the change in detail, that it would be unfair to continue at that point. The court agreed, and the hearing was adjourned.

It was decided that Mr Tipene would be allowed to continue with his amended application rather than filing anew, but that he would be required to repeat the public notification, and that there would be a fresh opportunity for interested parties to notify an intention to appear before the court during the hearing. This would have allowed all those who had missed the opportunity to now join and have their views heard independently, rather than through Te Rūnanga. Unfortunately none of those potentially interested parties filed, and the situation remained the same.

During this time Te Rūnanga staff met with him to discuss alternative options, but Mr Tipene declared his intention was to persist. Just months before the hearing would begin, special regulatory closures that banned commercial take of pāua in a number of locations around the tītī islands came into effect. This gave Mr Tipene what he sought, but he was determined to see his application through.

The hearing began in Invercargill in November 2015, before Justice Mallon. Her Honour was to be assisted by Aunty Jane Davis, acting as a court-appointed pūkenga, or expert. On the first morning Mr Tipene amended his application again, to further diminish his application area, which was now described by Te Rūnanga witness and Waihōpai Rūnaka representative Michael Skerrett as a “postage stamp”.

Crown Law took a very adversarial approach to the hearing, which was disappointing. Over the course of the hearing a number of witnesses gave their evidence on behalf of all parties, and the judge began to build a picture of the tikanga and use of the islands.

In closing submissions all parties agreed that the application area was held in accordance with tikanga and had been exclusively used and occupied from 1840 to the present day without substantial interruption, as required by the Act. This was a good outcome, as the Crown had earlier indicated that it did not agree with this.

The issue on which the parties differed was who the applicant group was, as required by the Act, and whether Mr Tipene had the mandate to represent that group. Mr Tipene’s lawyer stated that he did, and throughout the hearing papers were provided to the court from individuals stating that they supported Mr Tipene. Both the Crown and Te Rūnanga asserted that this was not clear.

Justice Mallon adjourned proceedings, and instructed Mr Tipene to conduct yet more consultation with whānau to better demonstrate his mandate to bring an application, and further define the applicant group. This was done in Mr Tipene’s own way, with hui held and letters of support produced for the court. From that point on was a waiting period, until just over a year later Justice Mallon notified parties that Mr Tipene’s application was to be awarded; a victory for his perseverance. The holder of the title is yet to be determined, but the title itself is secure. Many in the birding community were dismayed at the outcome; however the impact of such a small title will be minimal.

Mr Tipene’s success, so close to the application window finishing, will have been a factor in the rush of applications for Customary Marine Title. While the Marine and Coastal Area (Takutai Moana) Act 2011 remains a flawed mechanism to deliver Māori their rights, it is there for now, and Denis Tipene took it on and in his own way, he succeeded.

Earlier this year Te Rūnanga o Ngāi Tahu governors decided to make a takiwā-wide application for Customary Marine Title, the highest recognition available under the Marine and Coastal (Takutai Moana) Act 2011. While Te Rūnanga does not consider this Act to adequately recognise Ngāi Tahu rights and interests in the coastal area, a Customary Marine Title would be a partial step forward in the journey to achieving that.

• The application was made on behalf of all Ngāi Tahu whānui to ensure the statutory deadline was met (3 April 2017).
• Te Rūnanga will work with rūnanga and land owners to ensure title of each area rests with mana whenua.
• This application does not overlap and will not hinder any valid application made by Ngāi Tahu whānau in the Ngāi Tahu takiwā. Te Rūnanga supports those applicants exercising their own mana.
• Te Rūnanga has applied for both formal pathways provided by the Act, direct negotiation with the Minister for Treaty Settlements, and the High Court. As the kaupapa progresses the best pathway for each area will be taken.

Te Rūnanga kaimahi have been meeting whānau to discuss the application. If you would like to be involved, please keep an eye out for pānui via your rūnaka offices, or email [email protected] to get in touch.