Te Kereme always speak

Jul 12, 2023

Nā Justine Innes rātou ko Nigel Scott, kō Daniel Jackson.

It was commonly said in the 1980s and 1990s, as court decisions began to give real effect to legal references to the principles of the Treaty, that “the Treaty always speaks.” That is to say, the Treaty is always relevant in contemporary Aotearoa/New Zealand, and how it is to be applied must be determined by the circumstances of the time.

For Ngāi Tahu, it can equally be said that Te Kerēme always speaks; the historic injustices the iwi proved before the Waitangi Tribunal, and the findings of the tribunal on them, continue to play out in the life of the tribe to this day. We saw this in a High Court decision issued in October 2022 endorsing a network of mātaitai covering the lower parts of the Kahutara, Oaro and the Tutaeputaputa (Conway) River catchments in Kaikōura.

The three mātaitai were established by the Minister of Fisheries in 2018 following applications by Te Rūnanga o Kaikōura. In 2022, the decision to establish the mātaitai was challenged by a group of landowners in the catchments. Te Rūnanga o Ngāi Tahu and Te Rūnanga o Kaikōura joined the Crown in defending the mātaitai, and focused on providing evidence and arguments about Ngāi Tahu rights and the significance of the mātaitai for the iwi.

In October 2022, the High Court dismissed the landowners’ challenge, finding that the decision to establish the mātaitai was lawful. In December 2022 it went on to award substantial court costs to the Ngāi Tahu parties, over the objections of the landowners’ group.

Ngāi Tahu evidence to the court drew from evidence and findings of the Waitangi Tribunal in Wai 27: the three mātaitai cover a very similar area to the reserves sought by Ngāti Kuri in negotiations over the Kaikōura Deed in 1859. The Crown failed to honour that, providing only a small fraction of the area as reserves. This resulted in Ngāti Kuri losing access to inland mahinga kai. Of course, similar things happened across the Ngāi Tahu takiwā. Rights to mahinga kai were an important part of Te Kerēme.

As Tā Tipene O’Regan said in an essay quoted in the October 2022 decision:

… the communal exploitation and use of natural resources both for tribal consumption and trade was basic to the Māori economy and hence to the whole social fabric of tribal and inter-tribal life. For generations, Ngāi Tahu has petitioned Parliament over deprivation of their traditional mahinga kai. The tribe claims that the Crown guaranteed our people all our fisheries and other natural food resources under Article 2 of the Treaty and, in terms of the Kemp Purchase Deed, absolutely …

The Ngāi Tahu Deed of Settlement contained various provisions about mahinga kai. One required the Crown to make customary fishing regulations for the South Island. These regulations are what the mātaitai were created under. They are among the 35 mātaitai that have been created across the Ngāi Tahu takiwā, along with four taiāpure and 44 sets of special commercial and recreational fishing regulations that form the core of the Ngāi Tahu Customary Protection Areas (CPA) network.

In the first paragraph of his judgment, Justice Gendall recognised the significance of mātaitai in terms of Te Tiriti and historical Crown breaches:

Mātaitai … are customary fisheries management arrangements that allow tangata whenua, in recognition of their tino rangatiratanga and kaitiakitanga, to exercise customary management practices within parts of the customary food gathering area/rohe moana for which they are tangata whenua. Mātaitai are an important mechanism by which the Crown provides redress for historic breaches of Te Tiriti o Waitangi (Te Tiriti) and by which the Crown complies with Te Tiriti obligations on an ongoing basis.

The judge noted that the customary fishing regulations under which the mātaitai were established reflected commitments made by the Crown in the Ngāi Tahu Deed of Settlement and the Fisheries Settlement. He said, drawing on legal submissions made by the Ngāi Tahu parties, those regulations “must be interpreted in light of Te Tiriti and tikanga Māori” and observed:

The Supreme Court has made it clear that statutory terms describing the interests of tangata whenua must “not only be viewed through a Pākehā lens” but also understood (or perhaps sometimes solely understood) through the lens of tikanga. That was in reference to terms expressed in English. It can only be more so the case for kupu Māori. Indeed, as the Environment Court stated as far back as 2002, “[w]e start with the proposition that the meaning and sense of a Māori value should primarily be given by Māori.”

Justice Gendall emphasised “the importance, when considering the meaning of the criteria in the regulations, of what meaning the tangata whenua, in whose interests the regulations are made, ascribe to them” and said that “the views of tangata whenua may be determinative in some contexts.” He acknowledged the centrality of mahinga kai to Ngāi Tahu identity and the Ngāi Tahu evidence that:

… the mātaitai reserves lie wholly … or largely within land which Ngāi Tahu requested to have reserved to it when it sold its land to the Crown under the 1859 Kaikōura Deed of Purchase. That request had been denied at that time by the Crown.

The judge accepted Ngāi Tahu evidence that mātaitai were traditional fishing grounds, which he found to be equivalent in meaning to mahinga kai. He did not accept that mātaitai had to be “confined to specified and pinpointed fishing areas.”

A NIWA freshwater ecologist, Dr Jellyman, gave evidence that the mātaitai were not traditional fishing grounds and “that there was little evidence of customary fishing above State Highway 1.” This was said to be based on “interviews with the local iwi” in a study that NIWA had been commissioned to undertake by Te Rūnanga o Kaikōura as part of the proposal for mātaitai.

However, Justice Gendall rejected Dr Jellyman’s evidence preferring the Ngāi Tahu evidence. He said:

… notwithstanding Dr Jellyman’s experience and qualifications as a fisheries scientist, he is not qualified as a social scientist, historian or person with expertise in mātauranga in this area or in the nature and extent of Māori traditional fishing customs or practices. By contrast, in the context of the mātaitai applications and the wider legislative scheme, again the evidence of the tangata whenua themselves was of predominant importance, if not determinative of these matters in itself.

This is an important statement that the courts will respect and prioritise mātauranga and evidence from those who hold mana whenua when assessing customary fishing practice, rather than the supposed expertise of Pākehā scientists.

The judge also rejected an argument that the size of the mātaitai and the lack of public access to much of the area meant they weren’t of a size appropriate to effective management by Ngāi Tahu. The judge concluded that the size of a mātaitai was irrelevant and should be disregarded by the minister. He stated that the ability to effectively manage the mātaitai did not necessarily depend on having physical access to all of it. Rather, it depended on the knowledge that Ngāi Tahu had of the area and its fisheries resources, as well as the resources and support available to them.

Ngāi Tahu knowledge and expertise was acknowledged by the minister and the court. The minister said in his evidence: “I am well aware of the knowledge, experience, skill and resources which

Te Rūnanga o Ngāi Tahu brings in its involvement in the fisheries space.” The judge said:

In terms of knowledge, as was noted in the briefing paper to the minister, it seems the Ngāi Tahu parties have a good knowledge of the areas and considerable experience and resources in the fisheries space. Given the involvement of Ngāi Tahu here, it is said there is also no concern as to a lack of resources or support … Tangata Tiaki/Kaitiaki, as I understand the position, have also been managing customary fishing in the broader rohe moana, including the areas of the mātaitai, under the regulations since October 2000, without any suggestion that a lack of access has compromised their ability to do so.

The judge accepted that tangata tiaki/kaitiaki appointed by Ngāi Tahu “can readily manage the mātaitai and fisheries resources within them without having access to every part of the applicable fisheries waters,” and endorsed the Ngāi Tahu argument that:

The fact that private ownership of land adjoining the waterways that comprise the mātaitai has limited the ability of Ngāi Tahu to access parts of those waterways has not diminished their significance as mahinga kai.

The landowners argued that the notices creating the mātaitai were too uncertain because they defined them by reference to the phrase “South Island fisheries waters” (which is also used in the Fisheries Act and the customary fishing regulations). Part of the definition of this term in the Fisheries Act is “fresh or estuarine waters within New Zealand where fish, aquatic life, or seaweed … are found.” The landowners claimed that this could apply to water in dams, tanks, swimming pools and even toilets.

The judge was unimpressed by this argument. He made the obvious point that commercial fishers, the only people affected by the establishment of the mātaitai, were unlikely to be fishing in a toilet or a swimming pool. There was no evidence that they were actually confused by the definition. In fact, many of them had supported establishment of the mātaitai.

The landowners also challenged the adequacy of the consultation undertaken before the minister made a decision on the application. The judge found that the consultation process required by the regulations had been followed and, emphasised that the mātaitai applications had emerged from Te Korowai o Te Tai o Marokura, a lengthy, collaborative, community-based process that had included some of the landowners involved in the court challenge.

In fact the judge seemed puzzled about why the landowners had brought the matter to court at all. He noted that the creation of the mātaitai did not have any effect on them. Its only immediate consequence was the prohibition on commercial fishing, but they were not commercial fishers.

If bylaws restricting recreational fishing were subsequently proposed there would be consultation on them, in which the landowners could raise any concerns they might have. But “mātaitai do not diminish the rights and interests of owners of private property adjoining or surrounding waterways within a mātaitai.”

The long struggle for recognition of rights to mahinga kai bore fruit with Te Kerēme and the Ngāi Tahu Settlement. It resulted in the creation of customary fishing regulations and mātaitai. This judgment has reaffirmed the importance of these rights to mahinga kai and the mātaitai that protect them, as well as the expertise and mātauranga of Ngāti Kuri and Ngāi Tahu in this area. And, importantly, it has said that they must be understood from the Ngāi Tahu point of view and through the lens of tikanga, not by imposing Pākehā legal concepts or the views of outside scientific experts on them.