SAVE THE DATE
Trust AGM.
The AGM will be held at Pipitea Marae on Saturday 29 March 2025. The doors will open at 9:00am and the Annual General Meeting for members will commence at 10:00am and conclude at 1:00pm which will be followed by kai.
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SPECIAL GENERAL MEETING OF TE TATAU O TE PŌ WHĀNAU
Te Tātau o Te Pō Marae – a summary of the process to establish a Marae Charter, a set of Trustees and establishing a Marae Committee.
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The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) provides for recognition and the exercise of customary interests of iwi, hapū and whānau in the common marine and coastal areas of Aotearoa and its offshore islands.
It was brought in to replace the Foreshore and Seabed Act 2004.
It was brought in to replace the Foreshore and Seabed Act 2004.
The Takutai Moana Act creates a new property class for the marine and coastal area which is vested in no-one.
There are 2 main types of rights: Protected Customary Rights (PCR) and Customary Marine Title (CMT).
There are 2 pathways available to protect our interests.
Te Ātiawa’s Customary Marine Title (CMT) application relates to Pipinui Point to Turakirae Head Scientific Reserve (which was the area noted in the Port Nicholson Block Settlement Claims 2008 that included Mukamukaite which is the furthest eastern boundary), and the adjacent sea area.
Our Protected Customary Rights (CPR) application relates to our established Area of Interest, Pipinui Point to Turakirae Head
Our High Court action is on hold as we undertake negotiations with the Crown and other overlapping interests.
Crown engagement is on going and we hope this will be completed by the end of 2025.
SAVE THE DATE
Trust AGM.
The AGM will be held at Pipitea Marae on Saturday 29 March 2025. The doors will open at 9:00am and the Annual General Meeting for members will commence at 10:00am and conclude at 1:00pm which will be followed by kai.
»
SPECIAL GENERAL MEETING OF TE TATAU O TE PŌ WHĀNAU
Te Tātau o Te Pō Marae – a summary of the process to establish a Marae Charter, a set of Trustees and establishing a Marae Committee.
»
The Marine and Coastal (Takutai Moana) Act 2011 **1 was the result of a long and fraught debate between central government, iwi, local government, and the wider community about the ownership of the foreshore and seabed.
In 1997, the eight iwi of Te Tau Ihu o te Waka-a-Māui applied to the Māori Land Court for an order declaring the foreshore and seabed of the Marlborough Sounds Māori customary land.
This proposition was found to hold some weight by the Waitangi Tribunal, and the Government (of the day) reacted by creating the Foreshore and Seabed Act 2004, which gave ownership to all New Zealanders and administering rights to the Crown.
This created a legal challenge before the Waitangi Tribunal as a breach of the Treaty of Waitangi. As a result, the Foreshore and Seabed Act was repealed and replaced by the Marine and Coastal (Takutai Moana) Act 2011.
The Marine and Coastal (Takutai Moana) Act 2011 provided an opportunity where Iwi could apply for cultural recognition by way of a customary title or protected customary rights.
____________________________________________________________________________________ **1 Overview by Community Law on the Marine and Coastal (Takutai Moana) Act 2011 also Overview for Local Government on the Marine and Coastal (Takutai Moana) Act 2011
A customary marine title recognises the relationship of an iwi, hapū or whānau with a part of the common marine and coastal area.
Customary marine title can’t be sold, and free public access, fishing and other recreational activities are allowed to continue in customary marine title areas.
If successful, the holder of the title would:
With respect to protected customary rights, access rights can be granted for a customary activity like collecting hāngi stones or launching waka in the common marine and coastal area without resource consent or other permissions.
What is the test for CMT?
To get CMT requires proof that Te Ātiawa ki te Upoko:
a) holds the area in question in accordance with tikanga; and
b) has, in relation to that area, exclusively used and occupied it from 1840 to the present day without substantial interruption.
The following can be taken into account in determining whether the test is met:
Other evidence of the history and interests of Te Ātiawa ki te Upoko in the area is also relevant, as well as how members have used, relied on, and taken care of the takutai moana.
What is the test for PCRs?
To get recognition of PCRs requires proof that the activity:
a) has been exercised since 1840;
b) continues to be exercised in a particular part of the takutai moana in line with tikanga by the applicant group, whether in exactly the same or similar way or whether it has evolved over time; and
c) has not been extinguished by law.
The following activities cannot be recognised as a PCR:
This is mostly because these activities are already addressed by other laws, for example the customary fishing regulations and the commercial aquaculture settlement.
The Act provides two (2) separate process for which Iwi can submit a claim. One is a High Court process and the other is a Crown process. In both processes, to be successful an applicant would need to prove beyond reasonable doubt:
The Ministry of Justice advised all parties (who were considering lodging applications) to apply under both processes. The information at the time provided on their website stated that the Crown process would go first and any applicant could adjourn the high court process.
The High Court process is run by the judiciary with Crown being a party to the process. All information must be provided upfront and legal tests will be applied by the judge(s).
When a decision is made, this can be taken to a higher authority (i.e. Appeal Court, Supreme Court) if there are issues within the decision.
The Crown process is one of information assessment by the Crown on information they currently hold about the Iwi under application.
Once all the information has been assessed, they come to the Iwi group and compare and test information.
The Crown then makes a decision as to whether or not the title/right can be issued. The Crown decision is final and no appeal process is available.
Te Ātiawa ki te Upoko lodged application, under both processes, for their area of interest out to the coastal limit (12 nautical miles).
The plan was to have the Crown and the High Court examine the area in isolation so that the specific areas were considered and decided upon.
The process did not work as well as the Crown would have hoped. They under resourced the departments responsible for running the Crown process and they severely underestimated the number of applications that would be received (in excess of 300).
In the early stage, the Crown stalled in the processing of these Crown applications and hence indicated that initial consultation would not happen for at least a few years.
The High Court process moved ahead with great steam. Judges have been assigned and they are working through the process and hearings have commenced.
Despite the Waitangi Tribunal enquiry **2 , the High Court process will continue, and each Iwi and the Crown will need to present evidence and witnesses to further their case.
Unfortunately, the likely outcome of the High Court process will be that each Iwi will present their case on the basis that they are right and others are wrong.
There are a number of other interested iwi parties to the Te Ātiawa ki te Upoko application.
The Crown recognised that the cost of litigation will cost each party a considerable amount, and to this end created funding to support applicants.
Te Ātiawa ki te Upoko was successful in its application and has already received reimbursement and will continue to claim.
____________________________________________________________________________ **2 The stage 2 report investigates whether the Act itself breaches Treaty principles and causes prejudice to Māori. In this report, the Tribunal finds the claimants have been, and will likely continue to be, prejudiced by aspects of the Act that breach Treaty principles. Tribunal releases second report on marine and coastal area regime | Waitangi Tribunal
Dual Status: - High Court and Crown Engagement
A jointly held CMT for the area between Tūrakirae Head in the west and Mukamukaiti in the east, from the mean high-water springs out to a line parallel to mean high water springs three km out to sea.
A general right of kaitiakitanga over the application area for the purposes of conservation measures and practices.
As well as Te Ātiawa the other iwi claimants in Area M are: -
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As well as Te Ātiawa the other iwi claimants in Area N are :
The Marine and Coastal Area (Takutai Moana) Act 2011 provides for the special status of the Common Marine and Coastal Area as an area that is incapable of ownership.
The common marine and coastal area is the area between the line of mean high water springs (the landward boundary of the part of the beach covered by the ebb and flow of the tide) and the outer limits of the territorial sea (12 nautical miles) excluding existing private titles, the bed of Te Whaanga Lagoon in the Chatham Islands and certain conservation areas.
Common Marine and Coastal Area
Resource Management Act (RMA)
The RMA is the principal statute for managing activities in the coastal marine area. The regional coastal plan is the primary mechanism for determining what can occur in particular areas, and what the environment will be like as a result of management.
Minister of Conservation - Hon Tama Potaka **3 (started 27/11/23)
The Minister of Conservation has a range of key functions in relation to management and regulation of activities under the Resource Management Act. This includes approving national coastal policy statements and approving regional coastal plans.
The Minister of Conservation has various functions under the Marine and Coastal Area (Takutai Moana) Act including performing administrative functions which are contemplated by the Act, if the function is not conferred on a local authority or other person/s.
_________________________________________________________________________ **3 Apart from being the Minister of Conservation the other portfolios Hon. Tama Potaka holds are: Minister of Crown Māori Relations – Te Arawhiti; Minister of Māori Development; Minister of Whānau Ora; Associate Minister of Housing (Social Housing) all of which started on 27/11/23. Potaka, Tama - New Zealand Parliament (www.parliament.nz)
Regional councils
The detailed management of the environmental resources of the coastal marine area is carried out by regional councils. They prepare regional coastal plans and approve coastal consents under the Resource Management Act. The Resource Management Act allows regional councils to set, collect and retain rental for occupation.
District councils
District councils do not have planning jurisdiction over the coastal area, but where they have coastal boundaries they are responsible for matters such as the Building Act, and can pass bylaws to control certain types of activities (e.g. dogs, drinking alcohol, driving vehicles) that could affect the public use of these areas.
Department of Conservation
The Department of Conservation is responsible for supporting the Minister in his roles. A number of active management activities are also undertaken, such as spartina weed control, facilitating public access, health and safety responsibilities etc.
The Takutai Moana Claim Project Team are:
Article taken from Newsroom Contributor 21/08/2024
The Trust’s Submission re Marine and Coastal Areas (Takutai Moana) (Customary Marine Title) Amendment Bill
Should this Amendment Bill be passed it will have an impact on the Trust's Claim. A hard fought Recognition Order for Area ‘M’ from the High Court would be reneged, and with all the mahi that had previously entailed to achieve the Recognition Order, would need to be represented and rechallenged all over again under the tighter requirements of the Amendment Bill. Likewise, for the mahi being done through both the Crown Engagement and the High Court pathways regarding Area ‘N’ of the claim.
The Amendment Bill shows a total disregard of Māori tikanga along with the recognition and rights of Māori as a Treaty Partner. The key elements in the amending legislation are changes to sections 57 (definitions), 58 (conditions to gaining customary title), 59 (matters of relevance), and 106 (Burden of proof).
After presenting the concerns of the Project Team to the Trust Board, approval was given to provide a submission on behalf of the Trust to Government.
As part of the submission process a request was put to present personally to the Justice Committee and subsequently the Trust has been allocated 10 minutes on Thursday 31 October 2024 at 9:30am to address the Parliamentary Justice Committee.
The Trust would like to acknowledge the support of its submission from Palmerston North Māori Reserves Trust and Wellington Tenths Trust along with that of others who offered their tautoko.
If you would like to see and hear our Chair Anaru speak on this korero to the Justice Committee you can do so as the Oral Hearings will be livestreamed on Vimeo with the link posted to the Parliament Website.
The following provides a more detailed explanation of the proposed changes.
(Albeit that the comments contained in the explanations are those of its author, who it seems as being biased in favour of the Amendment Bill. – The full article can be read by clicking on the following link The Marine and Coastal Area Amendment Bill – A step not far enough | NZCPR Site)
QUOTE
Section 57 – definitions
The Bill adds new “interpretation” clauses to S57 to define “exclusive use and occupation” (S57A) and “substantial interruption” (S57B).
It says, exclusive use and occupation of the area is where the applicant group or its members “had both the intention and the ability to control the area, to the exclusion of others…”. In other words they have access rights greater than others and have enforced those rights.
The meaning of “Substantial interruption” is taken to mean an event or accumulation of events that interrupt that exclusive use and occupation, that “requires a decision maker (including the Court) to consider the nature, extent, duration, and cause of any interruption to the group’s exclusive use and occupation of the specified area.”
Whether an interruption is significant, will be an important point that determines the outcome of claims.
Section 58 – conditions to gaining customary title
Section 58 of the Act says:
58 (1) Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
(a) holds the specified area in accordance with tikanga; and
(b) has, in relation to the specified area,—
(i) exclusively used and occupied it from 1840 to the present day without substantial interruption…
The Bill amends this by adding a new section 1(A) which says that when considering whether an applicant has exclusively used and occupied an area from 1840 to the present day without substantial interruption, there must be evidence of physical activity rather than claims of a spiritual connection. In other words, the connection needs to be real.
Section 59 – matters of relevance
Section 59 of the Act guides the court by referring to matters that MAY be relevant to indicate whether customary marine title exists. They include whether the applicant group or any of its members own land abutting all or part of the specified area and whether they have exercised customary fishing rights in the area.
The Bill amends this by replacing the “MAY” be taken into account with “MUST have particular regard” and then it lists the ownership of abutting land and customary fishing rights in the area, and adds “have marae near all or part of the specified area”.
While this is a directive rather than a suggestion, the possibility of bias from judges too easily persuaded by creative historical accounts presented by so-called cultural historians, remains.
The Bill should be amended to provide further clarity, including a requirement for applicants to own abutting land and control access to the area (which was a requirement of the Foreshore and Seabed Act but relaxed in the Marine and Coastal Area Act) and demonstrate the land has been occupied without interruption from 1840 to the present day.
Section 160 – burden of proof
S106 addresses the burden of proof. The Bill corrects what is likely to have been a drafting error in the Act and now explicitly requires an applicant to provide proof that they have used an area exclusively and continuously since 1840.
While these changes are welcome, there are other areas that need to be addressed.
The Bill continues to leave room for judicial reinterpretation by activist judges.
To most people exclusive means exclusive – used by one particular person or group. Justice Churchman in the High Court saw it differently when he looked at it through a tikanga lens. He ruled exclusive can mean more than one and issued “jointly held Customary Marine Title”. Parliament needs to make it clear to the courts that exclusive means what it says, and close the window on any further reinterpretation of key words in the Bill – like the meaning of significant interruption when assessing whether an area has been used continuously since 1840.
The MACA cases are unusual in that they lack competing evidence. The evidence is from Maori through their cultural experts (pukenga) that goes unchallenged. It is an adversarial approach without adversaries.
The fact that there is no Respondent to these proceedings means hearsay evidence and cultural mumbo jumbo goes unchallenged. It becomes the only evidence available to the judge, and more so when it is supported by cultural experts (pukenga) who legitimise it as “evidence”.
How the courts deal with historical evidence and what standards they adopt will be critical.
UNQUOTE
The Trust's Takutai Moana Claim Project Manager - Mark Ormsby presented on this most important kaupapa. Sit back and take the time to watch the video, to hear the korero and nga pātai.
Should this Amendment Bill be passed it will have an impact on the Trust's Claim. With this implication at the forefront of the Project Team, the Trust Board was approached to receive instruction to raise the concerns of the team and to forward a submission on behalf of the Trust to Government.
Submissions closed on Tuesday 15 October 2024 and are now in the Public Arena. The Trust also requested to make an oral submission to the Government Select Committee.
The Trust would like to acknowledge the support of its submission from Palmerston North Māori Reserves Trust and Wellington Tenths Trust along with that of others who offered their tautoko.
To read the submission kindly click on the following link.
Te Ātiawa ki te Upoko o te Ika a Māui Pōtiki Trust SUBMISSION
RNZ 27 Aug, 2024 03:43 PM - Today's latest from the Coalition Government on MACA.
The NZ Herald - 26 Jul, 2024 04:05 PM
· - 26 July 2024 09:00am