Māori win customary title over Tokomaru Bay on East Coast

The entire stretch of Tokomaru Bay on the East Coast will be subject to a joint customary marine title for two hapū, and extending up to four miles out to sea.

A High Court judge has found the two groups, who during the case settled a dispute over boundaries for their rights, had proven they had held the area under tikanga, or custom, without substantial interruption since 1840.

Justice Helen Cull dismissed claims from the seafood industry that its commercial fishing had depleted the fish stocks of the waters to a point that had effectively ‘interrupted’ the two hapū’s use. The industry was also unsuccessful in arguing that commerce through the Waima Wharf, freezing works and shipping from the bay for over half a century had done so.

Customary Marine Title (CMT) is a property interest that allows successful claimants to have a say over certain activities that need resource consent. This could include the building of new wharves or fish farms.

The title does not, however, restrict free public access, fishing, recreation and many other common activities.

The success of the hapū at Tokomaru Bay, which is about 90km north of Gisborne, in their application under the Marine and Coastal Areas Act (MACA) is the latest of a series in favour of Māori in the North Island – including stretches of the eastern Bay of Plenty, part of Hawkes Bay and the southern Wairarapa.

While the Tokomaru Bay case was before the High Court, the Court of Appeal gave its first major ruling on MACA customary title applications, for areas around Ōpōtiki in the eastern Bay of Plenty.

A two-to-one majority found the MACA law’s stated ‘purpose’ and one of its sections seemed at variance with each other, and the court opted to give weight to the purpose that MPs had articulated when passing the measure in 2011.

Justice Forrest Miller, in a dissent, said the decision by his colleagues would have the effect of making applications for customary rights “very much easier” for Māori to obtain.

Within a month of that Court of Appeal ruling, New Zealand First won a commitment from National in their coalition agreement to rewrite the relevant section of the law to overturn that ‘easier’ interpretation.

The Government would: “Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal” in that Whakatohea (Ōpōtiki) case.

The MACA was National’s response in 2011 to the highly controversial 2004 Foreshore and Seabed Act brought in by Helen Clark’s Labour government after the appeal court at the time found Māori could claim customary ownership rights of their shoreline and inshore waters.

The 2004 law extinguished any customary rights and vested the foreshore and seabed in the Crown, leading to widespread Māori protest and ultimately the formation of the Māori Party.

National’s compromise MACA law seven years later declared no one owned the foreshore and seabed – not Māori and not the Crown. It restored any customary rights extinguished by the 2004 law, and provided instead for Māori groups to apply for Customary Marine Title (CMT) recognising that certain areas were held by them and giving them influence over uses in those zones. It covers the area between high-water springs and the 12 nautical mile limit of the territorial sea.

Iwi and hapū around the country have lodged 202 court applications for customary marine title. Around 385 applicants have chosen to seek CMT in direct negotiations with the Crown. Many applicants filed in both pathways.

Justice Cull’s new judgment takes the appeal court’s findings into account.

She said: “For over 400 years, two hapū, sharing the same tīpuna, have lived north of Gisborne in Tokomaru Bay. The hapū Te Whānau a Te Aotāwarirangi and Te Whānau a Ruataupare have lived, side by side, in the north and south of Tokomaru Bay to the present day.”

Their separate applications for customary marine title over much of the bay were first made in 2017. After jurisdictional issues over the applications ‘overlapping’, the groups agreed in mediation to accept joint customary marine title for the whole Tokomaru Bay, with a new entity to be formed to legally administer it.

Other groups have direct claims for parts of the area underway with the Crown, beyond the court process, but they did not affect this case directly.

The case had one further complexity because the East Coast area’s broader iwi, Ngāti Porou, had succeeded in its own settlement legislation in 2019 in having a separate form of customary marine title recognised. However, neither of the two Tokomaru Bay hapū were part of that settlement.

Justice Cull said: “Neither Te Whānau a Ruataupare nor Te Whānau a Te Aotāwarirangi have become a party to the Ngāti Porou deed of agreement, so do not fall within the definition of “ngā hapū o Ngāti Porou”. The Ngāti Porou Act does not apply to them. The area from Koutunui Head to Māwhai Point, encompassing Tokomaru Bay, is not included within the definition of “ngā rohe moana”.

In granting the customary marine title, the judge rejected the claims from the two hapū to CMT out to the territorial limit of 12 miles from the shore.

“I am satisfied that the two hapū have demonstrated their exclusive use and occupation since 1840 to the present time in the inshore area, within three to four nautical miles from mean highwater springs, of the Tokomaru Bay foreshore. However, I am not satisfied that the hapū have demonstrated exclusive use and occupation beyond three to four nautical miles from the foreshore.”

The inshore boundaries would be set at a further hearing.

In dismissing claims from the seafood industry that the hapū could not have maintained ‘control’ or continued use of the marine resource because commercial fishing had seriously depleted stocks, the judge said such fishing had not stopped Māori pursuing their customary practices.

“Importantly, the depletion of the fisheries resource has not caused the hapū applicants to abandon the areas where the fishing resource is less. Commercial fishing activity, therefore, in quota management areas does not amount to substantial interruption.”

Similarly, an attempt to challenge the continuous use on the basis that the Waima Wharf and busy commercial shipping and freight activity until 1950 interrupted the hapū claim was turned down.

The commercial activity at the wharf and freezing works had been encouraged by the great local MP Sir Āpirana Ngata and had benefited Māori as well as Europeans in the area.

“There was no evidence from any of the hapū members,” Justice Cull wrote, “that the wharf hadimpeded their customary practices or interrupted their ability to carry out their customary fishing practices. While the applicants could not control the activity on the wharf, they clearly adapted their tikanga and practices by using it.”

As an example, she gave “the juxtaposition of the wharf structures with the home-made customary fishing equipment, such as the pōuraki, being the bicycle wheel with bread in the centre, continued”.

The judge concluded: “The land abutting the foreshore is largely Māori freehold land, on which are located three pā sites of significance to the hapū of Tokomaru Bay. Both hapū have used and occupied the inshore area exclusively, subject to tikanga principles of manaakitanga and kaitiakitanga, exercising their customary practices since 1840 to the present.

“I am satisfied that a recognition order may be issued for a joint CMT over the inshore application area extending out to three to four nautical miles.”