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The long road to recognition of customary rights for Māori

The issuing of customary marine titles and protected customary rights for Māori practices involves complex legal proceedings that explore traditional culture and customs. MARLEE PARTRIDGE takes a deep dive into the latest court proceedings and takes part in the customary gathering of kaimoana.

The highest form of protection for Māori rights and interests today are customary marine titles [CMT], which recognise the relationship of iwi, hapū, or whānau with some section of the ‘common marine and coastal area’.

This term largely refers to the area between high tide and 12 nautical miles out to sea. Protected customary rights generally don’t include fishing and commercial aquaculture.

Activities protected under customary rights, often rooted in tikanga Māori [customary behaviours and practices], include launching waka and collecting hangi stones.

These practices were undertaken before 1840 and continue today.

The ability to be vested with a CMT was enshrined in legislation in 2011 through the passing of the Marine and Coastal Area [Takutai Moana] Act.

This Act was intended to address the shortcomings of the previous Foreshore and Seabed Act 2004.

But the Takutai Moana legislation has proven to be complex. Representatives from the Crown, local councils, seafood industries, and iwi and hapū regularly meet in court over customary and cultural marine rights.

Applications for CMTs and associated protected customary rights [PCR] were due by April 2017, but it has taken over six years for the hearings to take place.

“People have supposedly had time to gather their evidence for their hapū claims, get their lawyers together, and have conversations with extended whānau and hapū,” said Robin Potangaroa, claimant for Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Settlement Trust.

In the meantime, public access, fishing, and other recreational activities are allowed to continue in the claimed areas.

In September 2023, hearings were held in Masterton to consider claims from Wairarapa-based iwi and hapū relating to the stretch of coast from the Whareama River mouth down to Turakirae Head at Palliser Bay.

Seven claims were addressed at the proceedings in Masterton. The applicants were Ngāti Kahungunu ki Wairarapa Tamaki nui-ā-Rua, Rangitāne o Wairarapa and Rangitāne Tamaki nui-ā-Rua, Ngāi Tūmapūhia-a-Rangi hapū, Ngāti Hinewaka, the iwi of Te Atiawa, Tukōkō, Ngāti Moe, and Te Hika o Pāpāuma Mandated Iwi Authority.

Stage 1B of the hearings will commence on February 12 at the Wellington High Court.

This feature gives voice to Wairarapa Māori seeking to reclaim their customary marine rights under the Act.

Robin Potangaroa from Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Settlement Trust

At the September 2023 hearings, Potangaroa said the seafood industry had argued that the ancestors of hapū didn’t have the ability to go more than a couple of kilometres out to sea, and when land was sold, the right to collect seafood was also sold.

“What we’re trying to prove is our ancestors did set aside fishing reserves. And we kept land that abutted the sea, so we could always return and collect our customary rights,” he said. “I kindly told the seafood industry lawyer that the interests he represents were born on the back of Māori customary rights lost.”

The court had earlier heard from seafood industry representative Daryl Sykes, who affirmed that Māori have “always been closely involved in the business and activity of commercial fishing”.

Citing 2021 proceedings in the Bay of Plenty at which hapū of Whakatōhea were granted CMT and PCR, and about which various appeals have since been filed following the decision, Potangaroa said a similar chain of events may occur in Wairarapa.

“After it’s finished, the judge will get around to making a decision and, like the Whakatōhea one, someone will go to the Court of Appeal because they don’t like it.”

Te Hika o Pāpāuma Mandated Iwi Authority

Lawyer Charl Hirschfeld, representing Te Hika o Pāpāuma, said these hearings would work to legally formalise customary rights that were already in place.

Te Hika o Pāpāuma submitted their application to cover the coast from the southern point of the Whareama river mouth up to Poroporo. It is at the Whareama river mouth where a slight overlap is seen with the current claimants.

Hirschfeld, who is Ngāti Porou himself, is well-versed in the process, having worked on Treaty claims for the better part of his career. He said that neighbourly relations are critically important.

“When you claim an interest, part of the test is, ‘What do the neighbours say about that?’”

Hirschfeld said that these hearings are “to mark out, finally, recognition of long-standing interests for the record so that future generations may benefit from that recorded knowledge”.

Reon Te Maari Kerr, rohe moana kaitiaki [ocean guardian] for Ngāi Tūmapūhia A Rangi

After speaking to tāngata whenua and hāukainga both during and after the proceedings about the importance of respecting traditional practices, the writer was invited to join a cultural dive several months ago.

Sitting at a large kitchen table in one of the whānau homes overlooking the ocean, Reon Te Maari Kerr recalls his visits from childhood that forged his connection to Mātakitaki-a-Kupe, adding to the richness of his whakapapa.

Mātakitaki-a-Kupe [Cape Palliser] holds great significance in the region and to people from across the motu [country] due to the legends of Polynesian explorer Kupe.

Two humble whānau homes sit beneath the imposing shadow of the iconic Cape Palliser lighthouse, a structure built in 1897 to guide brave night-time sailors with its dim oil-fuelled glow.

Rocky outcrops pierce through the clear but turbulent waters of Cape Palliser and, as the tide ebbs and flows, they stab through the surface and remain steadfast as Tangaroa [often translated as God of the Sea] attempts to batter them into submission.

The rich cultural history and extensive ecosystem in the region make it a prime location for customary and cultural practices.

Kerr’s visits to the area in his youth were full of whānau time, connecting with the land and Tangaroa, and – importantly – collecting kaimoana for the whole whānau to eat.

Today, he visits Mātakitaki-a-Kupe to go diving for a family event, a permit granted in recognition of the cultural practices done in the area for centuries.

Kerr also serves as a rohe moana kaitiaki [ocean guardian] for Ngāi Tūmapūhia A Rangi [a hapū further north along the Wairarapa coastline].

Cultural and customary fishing practices are usually carried out for events – mostly on marae.

Tangihanga [funerals] are one example, and the hākari [feast] is an important part of all Māori death customs.

Though customs have changed over the centuries, the hākari is still used to symbolically welcome the whānau pani [bereaved family members] back among the living.

Kerr’s role to provide kaimoana for tangi is something he doesn’t take lightly.

He told the court about his connection to the coastal and marine areas of Wairarapa and the importance of his customary fishing.

“I see my diving as a way to make my whānau feel loved and looked after,” he said.

While diving for customary or cultural events, there is a process that is followed.

“We say karakia before we dive,” he said before explaining that each diver will do it in different ways.

“Some will stand in a circle and say the karakia out loud,” but Te Maari-Kerr prefers to do his in solitude while walking toward the shore.

Though the weather determines when and where the fishing is done, he always tries his best to find enough kaimoana for the whole whānau.

Overcast and windy, the sea-spray is relentless as Te Maari-Kerr parks his ute and the family clamber out to go diving for pāua – because this isn’t something Reon does on his own.

“We always try to make it a whānau thing,” he says.

His cousin, Dion, usually joins him for customary dives, but this time there’s a group willing to brave the cold.

The tamariki are excited to get in the water, or simply play along the shore, while others are keen to dive for pāua and then get into a hot shower as quickly as possible.

Even the dogs are excited as they beeline straight for the clear waters and scramble up rocks in an apparent effort to help.

And it doesn’t take long before the whānau heads back to the house that sits below the formidable structure of the centuries-old lighthouse with catch-bags of pāua, their customary quota having been met.

The role of kaitiaki moana means that Kerr now works to protect the vulnerable marine ecosystem of the Wairarapa coastline and, in doing that, defend the rights of the Wairarapa people to their coastal shores, seabeds, and lakes.

The coastal area holds significant emotional ties for Kerr, and he claimed that Ngāti Hinewaka do have customary interests, based on his own personal experiences and those of his whānau.

Kerr descends from Piripi Te Maari, a Ngāti Kahungunu leader, farmer, orator, protester, and defender of the rights of the Wairarapa people to their lands and lakes.

And Kerr’s views are born from Māori legends handed down across the centuries.

Māori customary and cultural fishing practices have been recognised for centuries, stories of the sea God, Tangaroa, and Tāwhirimātea [God of the weather] being passed down by parents and kaumātua through the generations, recalling the mythologies of their tīpuna.

Customary rights, if granted, may also support seafood sustainability

Earlier this year, daily pāua limits for recreational divers were slashed in half from 10 to five with the support of local divers, community members, and tangata whenua after reports of low pāua stock.

A 2021 stock assessment of pāua along Wairarapa’s coastline showed they were at a sustainable level, a finding that contradicted several anecdotal eyewitness accounts of significant decreases in pāua numbers at the September hearings in Masterton.

In his testimony, Kerr said that he often doesn’t “bother” with searching for kōura due to the lack of them in areas where he dives. If there’s not a substantial number of them, he can’t harvest them for customary events.

Counter claims from the seafood industry

Daryl Sykes took the stand at the Takutai Moana hearings in Masterton to present his own affidavit and evidence on behalf of the seafood industry.

He stated that arguments about reduced pāua and kōura stock ignore the management regime “authorised by the fisheries legislation over time which has recognised the benefits of reducing biomass levels in order to produce long-term sustainable yields”.

Sykes confirmed that he is not an expert in tikanga or Māori customary fishing and that his expertise is with regards to kōura [crayfish/rock lobster].

He told the hearing that he has several years of experience working as an executive officer and operating officer of the Rock Lobster Industry Council and has been actively involved in the fishing industry for over 50 years.

While Sykes acknowledged the long-standing history of customary fishing along the eastern coast of the North Island, he also emphasised that commercial fisheries have been operating in the region for several decades too.

He explained that “there are no safe harbours between Wellington and Napier”.

This means that smaller vessels involved in both pāua and lobster fishery industries consequently need to launch from beaches along the coast.

To be able to continue this practice, fisheries need to continue to have access and to work with local landowners.

Although customary titles would not prevent access according to the Act, Sykes said the impact of beach launches has been criticised by various parties, including the applicants for customary titles.

Next steps

Wairarapa claimants under the Marine and Coastal Area [Takutai Moana] Act are of the view that any customary marine titles and rights granted will simply formalise in writing what has been happening for hundreds of years.

They may also strengthen tangata whenua’s connection to Tangaroa and, with that, their whakapapa.

The outcomes of the Takutai Moana hearings won’t be known for months or, potentially, even years.

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