Re Edwards Whakatohea - [2022] 2 NZLR 772

Māori and Māori customary rights — Customary marine title and protected customary rights requirements — Burden of proof — Positive elements on applicants — Assumption not extinguished — No obligation to prove not extinguished — Standard of proof — Balance of probabilities — But with that assumption — Not western property concepts — Critical focus tikanga — Exclusion of others not sit well with manaakitanga and whanaungatanga — Question of fact focus on tikanga matters to be considered — Marine and Coastal Area (Takutai Moana) Act 2011 ss 51 and 58.

Māori and Māori customary rights — Customary marine title and protected customary rights — Inappropriate interpret or define by reference to common law proprietorial rights — Position under tikanga exercised mana motuhake and tino rangatiratanga in relation to coastal land and waters — Māori customary title did not automatically pass to Crown — Tikanga Māori and common law brought together by Treaty of Waitangi — Marine and Coastal Area (Takutai Moana) Act 2011 ss 51 and 58.

Māori and Māori customary rights — Marine and coastal area — “Exclusively used and occupied” includes shared exclusivity — Shared exclusivity not default position — Consider from tikanga perspective — Requires acceptance by all claimants — Marine and Coastal Area (Takutai Moana) Act 2011 s 58.

Māori and Māori customary rights — Marine and coastal area — “Without substantial interruption” — Raupatu did not substantially interrupt relationship with takutai moana — Grant of resource consents did not constitute substantial interruption — No intention in Resource Management Act 1991 to extinguish Māori customary rights — Activity authorised could interrupt — Fact specific — Reclaimed land vested in Crown cannot be subject to protected customary right or customary marine title — Other structures may interrupt — Fact specific — Marine and Coastal Area (Takutai Moana) Act 2011 s 58.

Māori and Māori customary rights — Marine and coastal area — Application for recognition orders — Whakapapa and whanaungatanga critical identifying group or groups holding the area in accordance with tikanga — Applicants have established whakapapa links to earliest settlements of Te Moana a Toi — Hapū of Whakatōhea share common whakapapa and share whakapapa with Ngāti Awa, Te Whānau-a-Apanui and Ngāi Tai — Boundaries not straight lines — Six Whakatōhea hapū hold from Maraetōtara to Tarakeha as a poutarāwhare — Mokomoko Whānau, Hiwarau C Block, Kutarere Marae, Pākōwhai and Ngāti Muriwai not established a specified area. — Share with Ngāti Awa in west Ōhiwa Harbour

Māori and Māori customary rights — Marine and coastal area — “Mouth of rivers” — Definitions “coastal marine area” and “mouth” — Waiōweka River navigable — Vested in Crown — Not available for customary marine title — Estuaries within mean high water springs part coastal marine area — Can be subject to customary marine title — Resource Management Act 1991 s 2.

Māori and Māori customary rights — Marine and coastal area — Eligibility for protected customary rights — Fishing including shellfish cannot be subject to a protected customary right — Fisheries Act 1996 — Whitebaiting can be recognised — Collection of feathers from tītī (mutton birds) and toroa (albatross) cannot be subject to a protected customary right — Wildlife Act 1953 — Practices relating to kaitiakitanga, rangatiratanga and mana motuhake that can be connected to a natural or physical resource and physical activity able to be granted protected customary right — Use and extraction of resources can be recognised not commercial aqua culture — Not petroleum, gold silver or uranium — Protected customary right not excluded because another group has customary marine title — Marine and Coastal Area (Takutai Moana) Act 2011 s 51.