KEY POINTS:
Customary Maori rights became the centre of attention nine days into the trial of two Haast helicopter pilots accused of stealing pounamu (greenstone) worth $800,000 from the Cascade Plateau.
David Anthony Saxton, 60, and his son, Morgan David Saxton, 28, claim they were able to take the pounamu under customary rights.
David Saxton claimed delegated customary rights from a South Westland kaumatua who was the father of Saxton's common-law wife.
But the Crown is disputing that in the trial before Judge Gary MacAskill in the Christchurch District Court, where the hearing is expected to take more than a month.
Yesterday it called Sir Tipene O'Regan, former chairman of the Ngai Tahu Trust Board and one of the negotiators of the Ngai Tahu Pounamu Vesting Act 1997.
Testifying as an expert witness, Sir Tipene said there was no provision under the act allowing the transfer of rights to any other person, even to a spouse.
The act made it clear that ownership of the pounamu was vested in Te Runanga o Ngai Tahu. "Pounamu was and is so central to Ngai Tahu mana [standing, respect]," he said.
While the tribal collective was owner of the tribe's customary rights, its role was one of guardianship of the right itself.
The tribe had a responsibility to protect the resource being managed. In practice, that responsibility generally devolved on the tribe of the area. In South Westland, Te Runanga o Makaawhio managed and controlled the natural resources.
A person would have to get permission to exercise a customary right from the collective, or from the rangatira (tribal chief) on the assumption that he held delegated authority from the collective.
"I am of the view that because the pounamu resource was actually vested in the entity that was Te Runanga o Ngai Tahu, the issue is not one of the defendants exercising customary rights, but of ownership and therefore the unauthorised taking of a resource that belongs to Ngai Tahu," he said.
He was questioned by defence counsel Colin Withnall, QC, about how customary rights were derived through whakapapa (genealogy), and belonged to an individual by virtue of his or her ancestry.
"I would emphasise that a customary right is a right to access to a resource," Sir Tipene said.
"That's what you own, not the resource itself."
He was also questioned about the legal status of Ngai Tahu, and its struggle to maintain its identity as something other than as a "creature of statute".
"We pre-existed the state. We accommodated the state by treaty. The state recognised our existence in 1996 after a century of failure."
He denied Mr Withnall's suggestion that Ngai Tahu "owes its legal existence and personality to an act of Parliament".
Mr Withnall asked about the act's preamble referring to the "individual beneficial rights of members" of Ngai Tahu.
Sir Tipene said the customary rights were held collectively, and what an individual owned was an access right.
The trial has already been moved to a larger courtroom to accommodate the public gallery, but it was standing room only again yesterday as Sir Tipene gave his evidence.
The Saxtons have pleaded not guilty to two joint theft charges and one further theft charge against David Saxton alone, relating to an earlier period dating back to 1991.
- NZPA
