December 23, 2021
Court clarifies Kahungunu coastal rights
The High Court has further clarified what can be expected from the Marine and Coastal Area (Takutai Moana) Act it its latest finding regarding the northern coast of Hawke’s Bay.
When the Act was introduced to replace the Marine and Foreshore Act, the then National Government indicted it was likely to mean customary title would only be recognised over about 3 percent of the coastline.
In four decisions so far the court has gone well beyond that, with the latest judgment covering parts of the coast from just south of Wairoa to a point 11 kilometres south of the entrance to Napier Harbour.
It said each of the four applicant groups – Ngāti Pāhauwera, the Maungaharuru-Tangitū Trust, Ngāti Parau from Napier and Ngāi Tahu o Mōhaka-Waikare – had been residing in the area for hundreds of years and were deeply interconnected through whakapapa, but with their own distinct identities.
Ngati Pāhauwera missed out on its longstanding claim to customary rights at the mouth of the Mōkau River in what the court said was an unfair result, because the area was navigable and therefore vested in the Crown under the Coal Mines Act.
It said wāhi tapu conditions can be used in limited circumstances to temporarily exclude third parties and members of the public through the implementation of rāhui, as long as it was in accordance with tikanga.
In some areas there will be joint title awarded, as long as each applicant party acknowledges their interest is shared.
A hearing in May 2022 will set the exact boundaries of the areas subject to customary marine title and the form of protected customary rights orders for activities like collection of stones, sands, shells and driftwood, non-commercial whitebait fishing and the exercise of kaitiakitanga practices.