Report to ENVIRONMENT & POLICY COMMITTEE for decision

13/373 Subject: Recognition of a Protected Customary Right and Customary Marine Title by Rongomaiwahine under the Marine and Coastal (Takutai Moana) Act 2011 Prepared by: Keriana Wilcox-Taylor (Senior Planner, Policy) Meeting Date: 25 September 2013 Report to ENVIRONMENT & POLICY COMMITTEE for decision SUMMARY Rongomaiwahine iwi have applied to the High Court for recognition of a protected customary right and customary marine title under the Marine and Coastal (Takutai Moana) Act 2011 ( MACA ). The application is attached with a copy of the affidavit and public notice as appendix 1. The Rongomaiwahine takutai moana area to which the application relates is: a. On the landward side, by the line of mean high water springs; and b. On the seaward side, by the outer limits of the territorial sea. This includes the beds of rivers, the airspace and the water space above, and the subsoil, bedrock and other matter including natural resources within the Rongomaiwahine takutai moana area as follows: To the north, at Whareongaonga/Paritu; To the south, the mouth of the Nuhaka River; And including Te Mahia Peninsula (including but not limited to Mahanga, Oraka, Te Mahia, Whangawehi, Horokaka, Nukutaurua, Tawapata, Ahuriri, Te Houra (Waikawa or Fortland Island), Kinikini, Te Hoe, Moata, Mokotahi, Opoutama, Waikokopu, Aureti). The area depicted in appendix 3 shows the Rongomaiwahine takutai moana area within the boundary of Gisborne District Council (GDC). The northern point is at Whareongaonga through to the boundary with Hawke s Bay Regional Council (HBRC), north of Takararoa in the south. The Council represents the interests of all members of the Gisborne community. A431452 Page 1

Council can take the view that areas that have legal or practical public access to the seabed and foreshore should probably not be given customary marine title status, as these areas do not meet the statutory test of the Marine and Coastal Area (Takutai Moana) Act 2011. Staff understand that at least some of the areas covered in this application would fall into this category. There are also potential cross boundary cross boundary issues with neighbouring iwi, Ngai Tāmanuhiri, who also share Whareongaonga and Paritu as part of their rohe. This may pose issues for Council in relation to its statutory obligations. For these reasons Council could oppose the application. A notice of appearance relating to this application is due to be lodged with the Wellington High Court by 30 September 2013, should the Council wish to join the proceedings. RECOMMENDATIONS That the Committee 1. receives the report 2. instructs Paul Beverley of Buddle Findlay Lawyers Wellington to lodge a Notice of Appearance with the High Court Wellington to oppose application CIV-2011-485-794 by Pauline Tangiora on behalf of Rongomaiwahine. Keriana Wilcox-Taylor Senior Planner (Policy) Hans van Kregten Group Manager Environment and Policy Keywords: Rongomaiwahine, Marine & Coastal (Takutai Moana Act) 2011 A431452 Page 2

1. BACKGROUND Background the Marine and Coastal (Takutai Moana) Act 2011 ( MACA ) The purpose of the MACA is to restore and protect legitimate, customary interests and recognise the mana tuku iho exercised by iwi, hapū, and whānau as tangata whenua. The MACA acknowledges Te Tiriti o Waitangi, which the Foreshore and Seabed Act did not. Whānau, hapū or iwi groups have until March 2017 to seek Customary Marine Title. This can be done through specific negotiations with the Crown or through an application to the High Court. The latter is the course of action that Rongomaiwahine is currently undertaking. Differences from Foreshore and Seabed Act 2004 ( FSSB ) There are some differences between the MACA and FSSB. The MACA: a. Acknowledges the Treaty of Waitangi; b. Restores native title, which was extinguished under the FSSB; and c. Limits the ability to obtain title through fulfilment of the statutory legal test. The Common Marine and Coastal Area The MACA creates a common space in the marine and coastal area called the common marine and coastal area. This was previously referred to as the foreshore and seabed under the FSSB. The MACA guarantees free public access in that area, but it does not affect private titles. The Crown does not own the common marine and coastal area, nor is it capable of being owned by anyone else (including iwi, hapū or whānau groups). Protected Customary Rights The MACA provides for the protection of customary rights. These are longstanding rights that continue to be exercised. The MACA protects these rights by affording them the status of mana tuku iho, which formalises existing best practice in coastal management and will allow iwi and hapū to take part in conservation processes in the area. Customary rights are not territorial (and therefore the public cannot be excluded). This is because the recognition of customary rights relates primarily to an activity and not an area of marine and coastal space. Customary rights holders have to give written permission in relation to third party applications for resource consents for activities that will have an adverse impact (more than minor) on the customary activity. Protected customary rights holders will be able to: Continue to carry out activities without a resource consent; Determine who within the group can do so; and Limit or suspend those activities. While it is the consent authority who decides whether or not a resource consent can be granted, the consent authority cannot grant a resource consent if the activity will, or is likely to have, adverse effects that are more than minor on the protected customary right. A431452 Page 3

In such a case, the protected customary right holder can give written approval for the activity to go ahead despite the adverse effects (Section 55). Customary Marine Title Under the MACA, Māori can apply for recognition of customary marine title for areas within which whānau, iwi or hapū have a longstanding and exclusive history of use and occupation. Customary marine titles will be subject to the right of public access and they cannot be sold. Customary marine title is the stronger of the two forms of protections available under the MACA. Once granted, the holders of a customary marine title in specific parts of the common marine and coastal area will have: the right to permit (or withhold permission for) activities requiring a resource consent in the area covered by the title (other than accommodated activities listed in the Act); the right to permit (or withhold permission for) certain conservation processes (e.g. establishing a marine reserve); the right to prepare a planning document setting out the objectives and policies for their customary marine title area which would be recognised and provided for by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be taken into account in those areas. A planning document also has relevance for decisions made by local authorities under the Local Government Act 2002, the Historic Places Trust, conservation management strategies and, to a limited extent, fisheries management; the ownership of non-nationalised minerals within the customary marine title area; prima facie ownership of taonga tuturu (historical artefacts) found in the customary marine title area; input into the New Zealand Coastal Policy Statement and applications for marine mammal watching permits; and the ability to prohibit or restrict access to wāhi tapu within their customary marine title area. Activities to which the permission right will not apply include: some existing infrastructure work, maintenance and upgrades emergency activities; scientific research or monitoring; certain new infrastructure activities that are considered to be essential from a national or regional perspective and cannot practicably be constructed outside a customary marine title area; and certain petroleum activities. A431452 Page 4

[[[ Legal Test for Obtaining Customary Marine Title To gain customary marine title, applicants will have to fulfil the statutory test of showing that they have exclusively used and occupied the area without substantial interruption since 1840. The without substantial interruption test has been altered slightly when compared to the FSSB. The MACA allows recognition of a right whether it continues to be exercised in exactly the same way or a similar way, or evolves over time. This is an important change, as it allows applicant groups to show that the right has evolved or progressed since 1840. Importantly, there is no longer a need for the right to be exercised in precisely the same way as it was in 1840. An applicant group can seek recognition of its rights either through: a. notifying the Crown that the applicant group has an intention to seek an agreement with the Crown (i.e. through direct negotiations) e.g. Ngāti Porou; or b. by filing an application for a recognition order with the High Court. The notification or application must be presented or filed in Court no later than March 2017. At present there are no others lodged with the Gisborne District. 2. DISCUSSION Staff participated in a teleconference with policy staff from Hawke s Bay Regional Council, who is also considering lodging a notice of appearance. We spoke with a solicitor from the Crown Law Office, Andrew Irwin, who is representing the Crown in this matter. Key points from the discussion: The information provided in the application and affidavit about the customary activities to be undertaken within the claim area is insufficient. The affidavit establishes Rongomaiwahine tino rangatiratanga and customary rights over the area but does not say what those rights and resulting activities are. This makes it difficult to assess potential adverse effects from these activities on the environment. The area over which the applicant group are claiming is recognised as a statutory area under the Ngai Tāmanuhiri Claims Settlement Act 2012. A map of this area is attached as appendix 4. It is not clear what the implications to Council would be in carrying out its responsibilities in relation to the RMA, MACA and Ngai Tāmanuhiri Claims Settlement Act. It is not clear what the northern boundary is for the Rongomaiwahine takutai moana area. The application states Whareongaonga/Paritu, the affidavit states Paritu. Clarification is required as the issues are substantially different if the boundary is at Paritu as opposed to Whareongaonga. A431452 Page 5

Other Matters Claim area within GDC boundary Whareongaonga is on the northern boundary of the Rongomaiwahine takutai moana area. Map 2A.27 from the Coastal Environment Plan for the Gisborne District indicates that this area is a Marine Area of Significant Conservation Value and an Outstanding Landscape. These areas are treated as protection management areas. The purpose of the Protection Management Area is to sustain the values that make these sites special. Activities will be allowed in the sites of special value provided that there are no adverse effects on the values of those sites. The Protection Management Area encompasses all identified regionally significant sites of special ecological, cultural, historic, scientific, scenic, and amenity value, including all the areas of significant conservation value identified by the Minister of Conservation. This is why it is imperative that Council know what customary activities are planned within the claim area. Map 2A.27 o f the Coastal Environment Plan for the Gisborne District Resource Consents There are no current resource consents or coastal permits within the claim area. Applicants for resource consents within the application area will need to have regard to this application in assessing any resource consent applications within this area until the end of the High Court process. A431452 Page 6

Public Access Council represents the interests of all members of the Gisborne community. The Council has previously made comments about the issue of public access to the Ngati Porou Customary Marine Title enquiry. Those areas which since 1840 have been able to be legally or physically accessed by the general public may not meet the criterion that whanau, hapu and iwi groups have exclusively used and occupied the coastal marine area from 1840 to the present day. On those grounds, those areas should probably not be recognised as qualifying for customary marine title. 4. SIGNIFICANCE This is not a significant decision according to Council s significance policy. 5. FINANCIAL There will be financial implications by joining these proceedings. Some of these costs include a high court lodgement fee of approx $200, staff time and lawyers fees between $1,000 and $5,000. Hawke s Bay Regional Council have offered their assistance by asking Council to join their process should they lodge a notice of appearance. This would reduce costs significantly from our end. HBRC have engaged Matt Conway from Simpson Grierson in Wellington for legal advice. 6. LEGAL The immediate issue for council is filing for a notice of appearance with the High Court in time for the 30 September deadline. The in house Legal Officer is unable to lodge the Notice of Appearance on behalf of the Council as she is not a litigator. This is why Council must engage outside legal counsel to act on its behalf. She has recommended Paul Beverley from Buddle Findlay in Wellington. He specialises in this area of work and has previously advised the Crown on the MACA. The recommendation is to oppose the application on the grounds that there is insufficient information on which to base a sound position. Paul Beverley has since been approached and is preparing a draft notice of appearance. This is not available at the time of the drafting of this report. 7. CONSULTATION The Chief Executive requested a meeting with Mrs Pauline Tangiora in relation to the application. This request has been deferred until mid-october, due to the legal proceedings currently being undertaken. Ngai Tāmanuhiri has also been advised by Council of this application. 8. APPENDICES Appendix 1: Appendix 2: Appendix 3: Appendix 4: Appendix 5: Copy of the Rongomaiwahine Application to the High Court and public notice. Affidavit of Pauline Tangiora. Map of the Rongomaiwahine Takutai Moana area within the GDC boundary. Map of the Ngai Tāmanuhiri Statutory Area Notice of Intention to Appear by Gisborne District Council A431452 Page 7