Customary rights over areas within Whangārei Harbour are being debated at a hearing expected to last three months.
Discussions surrounding customary titles, collective agreements and historical dialogues are unfolding in court, shaping the future dynamics between the local Māori community and Whangārei Harbour.
The Marine and Coastal Area Act (MACA) was passed under John Key’s National Government in 2011 in response to Labour’s controversial Foreshore and Seabed Act of 2004, which in turn followed a 2003 Court of Appeal ruling that Māori customary rights to the foreshore and seabed had not been extinguished.
The MACA provided for the recognition of Māori customary rights in parts of the marine and coastal area that aren’t already in private ownership or part of a conservation area.
Under the current law, an iwi or hapū applicant group has to meet two main criteria before customary title is recognised: it has to hold the area in accordance with Māori customs and practices and it has to have been exclusively used and occupied since 1840 without substantial interruption.
The act has been fraught with issues as many iwi, hapū and whānau go up against each other with overlapping interests. The Waitangi Tribunal also found Māori were being prejudiced by the act with its procedural and resourcing requirements that many were unable to access.
Sixteen groups from Whangārei applied to the High Court in 2017 to have their customary interests recognised in an order known as a customary marine title (CMT). This week a hearing began before Judge Lane Harvey in the High Court at the Whangārei Māori Land Court.
Some of the groups include Ngātiwai, Patuharakeke, Te Parawhau, Ngāpuhi, Ngāti Whātua, Ngāti Pūkenga, Te Wairāriki, Ngāti Kororā and Ngāti Takapari along with many smaller groups.
The goal of the hearing is to obtain recognition orders for groups granting significant rights, including a veto over new developments such as marinas or offshore wind turbines in their designated areas.
These orders also enable authority to create planning documents for the area, grant mineral rights and allow for the designation of sacred sites, where public access may be restricted.
Currently, there is only one order in place in the lower South Island. However, draft orders are underway for large parts of the Bay of Plenty.
Tom Bennion, lawyer for Ngāti Pūkenga, has worked on hearings in Whakatōhea, Tauranga Harbour, Wairarapa and the Kāpiti Coast and told NZME the number of applicants for Whangārei was significant.
“Until 2003 the courts and everybody assumed, once you got beyond the high-water mark, the Crown owned everything, but it was always uncertain.
“In 2003, the Court of Appeal said, ‘No, Māori land interests and customary rights go beyond the high-water mark.’ So suddenly everyone had to scramble and go, ‘Oh my God, we have to do what the Native Land Court said way back then’ but let’s do it better.
“So that’s what we’re doing, basically going around the country, in a process that’s in the High Court but we’re doing this because politicians insisted on it and they’ve crafted legislation that’s got traps and problems and things we have to navigate and the courts have to interpret.”
Each coastal area presented unique challenges, he said. Considerations such as mandate issues, trust structures and historical interests complicated the process and led to complex discussions and negotiations.
“Based on the cases that have been through so far, we would expect an order that covers reasonably significant parts of the Whangārei Harbour and then it will be the question of who holds it.
“I think the way we’re pushing or the general outcome is the sensible one.”
He said that, in his experience, Whangārei Harbour held similarities to Rangataua Bay in Tauranga, being an enclosed harbour with multiple hapū scattered around the shoreline.
“Every witness here is saying what you would expect, which is, we’re all in this together because it’s an enclosed harbour and so that’s not unexpected.
“It’s logical we would have an order with everyone’s name in, but the mandate issues are not solved for lots of groups so there will be quite interesting discussions there.”
Bennion said one thing to keep an eye on at the Whangārei hearing was the push by Northport impeding on group abilities to show they had exclusively used an area since 1840.
“What happens [is] there is a significant infrastructure gets carved out and the proof shows that you’ve been pushed out. But the pushback is these are interests that have been there for hundreds of years – the fact that an oil refinery turned up a few decades ago, is that a momentary thing? If we’re looking at the history of the interests, that’s an argument we’re having.”
Te Parawhau, the Panaho whānau and Te Rae Trust gave evidence earlier this week with Ngāti Whātua next.
Shannon Pitman is a Whangārei-based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.