Dear Members & Donors,
Thank you for your continued support of the Langs Beach Society. The Society is maintaining a watchful eye on discussions and decisions in relation to applications under the Marine and Coastal Area (MACA) Act of 2011, and their relevance to the Langs Beach Area.
Since the Society AGM in February, here has been an important High Court decision which will be of considerable interest to the Langs Beach community. The Committee has since reviewed the decision, liaised with our counsel, Graeme Mathias of Whangarei, and met with the architect of the MACA Act, Chris Finlayson.
Churchman Decision - Re: Te Whakatōhea
The decision of Justice Churchman on Re: Te Whakatōhea in May 2021 is possibly the most significant development in the MACA Act process in the last twelve months.
You will recall that for a Customary Marine Title (CMT) to be recognised, the applicant group must hold the specified area in accordance with tikanga and have exclusively used and occupied it from 1840 to the present without substantial interruption.
This case has set precedents for future decisions by addressing matters not previously considered by the High Court. Specifically:
Tikanga:
● The Churchman decision put much credence on the existence of tikanga - Māori historical custom, being the use of, and the relationship with, the land and sea, by iwi, hapū, and whānau;
● The Court appointed pūkenga – Māori historical custom expert, as allowed by the MACA Act, to establish tikanga of the area and this was relied on in the decision;
● Once the existence of tikanga had been established, the burden of proving otherwise lies with the other party or parties. The Crown may well be neutral or take no position. Churchman, in his decision, held that there was insufficient evidence to prove that tikanga had been extinguished.
● Understanding this process is relevant for the Society, as we build up our knowledge of Māori and European history in the Langs Beach Area.
Exclusivity:
● The Churchman decision also reset expectations by accepting the concept of “joint exclusivity”, which Canadian jurisprudence has developed in recent times.
● This applied where applicants accepted that tikanga was jointly shared;
● Where there was no agreement on jointly shared tikanga, it was up to the Court to decide which applicant held CMT, if any, and if they did, the nature of the interest.
● This is particularly relevant for the Langs Beach Area, given the multitude of overlapping applications.
Substantial Interruption:
● The facts of the case were that land abutting the specified area of the applications had previously been confiscated;
● This distinguishing factor was of importance to the Court in reviewing whether there had been a break in the chain of the customary relationship;
● In this particular set of circumstances, the Court held that with the applicants being forced offtheir land, it would have been unfair to consider this as the reason for a substantial interruption;
● The historical facts and circumstances will be of relevance when the Court considers the Langs Beach Area.
Additional Resources:
You can read the full text (215 pages!) of the High Court Decision and the Synopsis prepared by the Society's Counsel using the following links:
Full Text of Decision by Churchman J RE: Te Whakatōhea;
Synopsis of Decision from Society Counsel, Graeme Mathias
Appeals
The Landowner’s Coalition, a voluntary community group, who were registered as an interested party in the Re: Te Whakatōhea case, have appealed the decision to the Court of Appeal;
The Crown has not appealed the decision, but remains an interested party to any further action;
The Society will watch the appeal process very closely.
Other Decisions Pending
There are three further priority applications that have or are being heard and are awaiting decision:
a) Clarkson- presided over by Justice Mallon. The decision on this has just been released and the committee is reviewing this in the same manner as for Re: Te Whakatōhea
b) Ngati Pāhauwera, presided over by Justice Churchman
c) Ngā Pōtiki, presided over by Justice Powell, has been part heard, with the final decision scheduled for September 2021.
Although the facts in each case will be different and presiding judges can and will form different decisions, collectively they will establish precedents for the future.
The first application coming before the High Court directly affecting the Langs Beach Area is the application of Te Uri o Hau (Kaipara area stretching over to Langs and Mangawhai) which has been deferred to May 2022, and may be subject to further deferral. Their Waitangi Tribunal claim was settled in 2000 and certain customary rights and fishing protocols have already been recognised.
Society Direction
Future cases will be determined by their specific facts, particularly as it relates to the establishment of tikanga, whether tikanga remains in existence up to today, and whether there has been any substantial interruption.
There was no confiscation of land in the Langs Beach Area. Land was purchased through Crown Grants in the 1850’s with titles including riparian rights (to the mean high-water mark).
Recently, the Committee met informally with Chris Finlayson, former Attorney General in the last National government and architect of the MACA Act. He shared valuable context on the Churchman decision and has indicated a willingness to be available in the future should we wish to seek his opinion.
What we have taken from this decision and the various discussions are that we need to:
● Build on our understanding of European history in the area;
● Build our understanding of Māori history and tikanga in our area
● Establish relationships with iwi, hapū and whānau with connections to our area over time.
To gain a better insight of both European and Māori history in the Langs Beach Area, the Committee is considering specialist help. If the Society were to commit to help from historians, this may involve additional funding of a means beyond our current resources.
The MACA Act process is full of uncertainties; both in terms of timelines and outcomes. It is this reason the Langs Beach Society was formed; to try and create some understanding of the direction and implications to our area.
We appreciate your interest and your financial support.
We also currently only represent a small proportion of our Langs Beach community - we would be grateful if you could forward this to friends, family and neighbours as relevant. They can learn more about us at our website here.
Russell Tills
Chair
Langs Beach Society
17 August 2021