Copyright is owned by the Author of the thesis. Permission is given for a copy to be downloaded by an individual for the purpose of research and private study only. The thesis may not be reproduced elsewhere without the permission of the Author. The Application of Custom to Contemporary Mori Resource Development Melissa Cragg 2009 The Application of Custom to Contemporary Mori Resource Development Melissa Cragg A Thesis Presented for the Degree of DOCTOR OF PHI LOSOPHY In M ori Studies At Massey University, Palmerston North, New Zealand July 2009 ii ABSTRACT Mori have always sought to carefully manage the natu ral environment – to ensure the sustainability of resources and the well-being of future generations. The dynamic nature of any culture provides flexibility for grow th and development, so that new challenges can be faced with assurance and that dyn amic and meaningful solutions can be found. This concept of flexibility and willi ngness to embrace change has been a feature of Mori culture and is documented throughout M ori history and within korero purakau. Therefore the requirement to embr ace contemporary approaches to resource management has not been resisted. However , the desire to align traditional concepts with contemporary resource management conv entions has at times been met with opposition and disapproval. This, despite the fact that the two world views have much in common and are not necessarily inconsistent with each other. ‘The Application of Custom to Contemporary Mori Resource Development’ is both the title of the thesis and the name given to the f ramework which it describes. The framework is a tool for future resource management that provides three levels of information. First, it identifies the resources whe re customary and contemporary methodology is currently being utilised. Second, it outlines the alignment and synergies that exist, and finally, it identifies ba rriers to the amalgamation and integration of both approaches. The framework by itself will not address all the co mplex issues associated with M ori resource management; there are many other considera tions that are beyond the scope of this thesis that would need to be dealt with in order to achieve that outcome. However, the framework does provide a mechanism thr ough which M ori values and practices can be considered alongside Western views and perspectives. The Framework will contribute to the development of more effective strategies, policies and planning. Thus, ‘The Application of C ustom to Contemporary Mori Resource Development’ will contribute to improving the sustainable utilisation of natural resources. iii ACKNOWLEDGEMENTS He waka eke noa This thesis was completed with the assistance of many different people and organisations and although written by a single person can be claimed by many individuals, whnau, hap and iwi. To all those I have interviewed and from whom I sought input: resource management planners, local government representatives, customary Mori fisheries officers, iwi and hap representatives, I extend my gratitude and most sincere thanks for guiding this work, for sharing views and stories, and for providing depth and substance to this study. A special acknowledgement is made to the late Jim Elkington of Ngati Koata, a pioneer in the battle to have Mori resource management recognised not only in Te Tau Ihu but also on the national front – e te rangatira haere haere haere! My appreciation and thanks to Ngati Rarua ki Te Tau Ihu: for their ongoing interest and support of this work and of my overall professional development. To my friends and colleagues at Massey University, Te Putahi a Toi and Massey Library: your interest and support has been encouraging. Studying from a distance and in a place where there are very few other Doctoral students has been very isolating at times and having contact with you all has kept me in touch with an academic community that understands what it means to undertake a feat such as this. The ease in which resources could be accessed via the library system was amazing and a true testament to the wonderful service provided to distance students. To my family/whnau and friends: Your desire for me to complete the thesis was always evident and provided motivation for me to reach that goal. To Enoka, Jamie and Blake: for being so patient with your mother when at times it seemed I would never leave the computer. I know you will be as happy as me when it is all over - we are nearly there kids and I could not have done it without you. iv Finally to Mason and Te Kani: my thanks to you both for all your guidance and support, neither of you became involved as my supervisors thinking the outcome would take quite so long and so I thank you both fo r your patience and understanding. No reira, ki nga tangata, ki nga roopu whakahaere, ki nga whnau, hap me nga iwi katoa: nga mihi nui ki a koutou: kia ora. vTABLE OF CONTENTS Abstract II Acknowledgements III Table of Contents V List of Tables IX INTRODUCTION 1 Treaty of Waitangi Provision 3 Indigenous Comparison 5 Globalisation 9 Significance of Study 10 Thesis Structure 12 Chapter One METHODOLO GY 14 Introduction 14 Research Paradigms 14 Modification of a Western Paradigm 20 A Mori research paradigm 21 Kaupapa Mori research and non-Mori researchers 22 Kaupapa Mori research paradigm 24 A theoretical research framework 26 Quantitative v Qualitative Approaches to Inquiry 28 Definitions and concepts 28 A quantitative or qualitative approach? 30 Research Methods 31 Document review 3 1 Interviews 32 Mori process issues 3 4 Data quality 3 5 Data management 3 6 Data analysis 3 8 Ethical issues 39 Summary 41 vi Conclusions 42 Chapter Two CUSTOMARY M ORI RESOURCE MANAGEMENT 44 Introduction 44 Customary Mori Resource Management 44 The Mori world view 4 5 Tikanga 4 6 Values 4 7 Tohunga and Whare Wananga 55 Karakia 56 Customary Law 57 Customary Mori land tenure 60 Conclusion 63 Chapter Three LAND MANAGEMENT 67 Introduction 67 Customary Land Tenure 69 Treaty of Waitangi Provision 75 Mori Land in Statute 75 Te Ture Whenua Mori Act 1993 79 Ngati Koata Offshore Islands 84 Grovetown Lagoon/M ori Island 87 Conclusion 90 Chapter Four FORESHORE AND SEABED MAN AGEMENT 93 Introduction 93 Customary Practices 94 Treaty of Waitangi Provision 95 Foreshore and Seabed in Statute 96 Definitions 96 Incorporation of tikanga in statute 97 Marine farming/aquaculture 97 Resource Management Act 1991 99 Marlborough Sounds Case 102 vii Foreshore and Seabed Act 2004 (FSA) 1 12 Resource Management (Foreshore and Seabed) 1 1 6 Amendment Act 2004 Recent Developments 118 Conclusion 120 Chapter Five MANAGEMENT OF RIVERS 123 Introduction 123 Customary Practices 124 Treaty of Waitangi Provision 126 Rivers in Statute 127 Water and Soil Conservation Act 1967 128 Resource Management Act 1991 (RMA) 129 Sustainable Water Programme of Action (SWPA) 1 30 Waitangi Tribunal Claims Over Rivers 131 Mohaka River 1 3 1 Whanganui River 1 3 4 Conclusion 142 Chapter Six CUSTOMARY FISHERIES 146 Introduction 143 Customary Practices 144 Treaty of Waitangi Provision 149 Fisheries in Statute 150 Treaty of Waitangi (Fisheries Claims) Settlement 1 5 3 Act 1992 Customary Regulations 155 Appointing tangata tiaki/kaitiaki 1 5 8 Responsibilities of fishers 1 59 Management of reserves 1 59 Establishment of mataitai reserves 1 60 Bylaws 1 6 1 Planning for customary fisheries management 1 62 Recent Activity 162 viii Conclusion 164 Chapter Seven DISCUSSIO N 170 Tikanga 1 70 Contemporary Mori Resource Management 171 Resource Management Act 1991 1 7 1 Te Ture Whenua Mori Act 1993 1 79 Foreshore and Seabed Act 2004 1 8 1 Fisheries Act 1996 1 8 4 Treaty of Waitangi (Fisheries Claims) Settlement 1 8 6 Act 1992 Customary Fishing Regulations 1998 1 8 7 Department of Conservation 1 89 Crown Minerals Act 1991 191 Treaty of Wait angi Provision 192 Custom Applied to Contemporary Polices 197 A Framework to Identify the Application of Custom 204 to Contemporary Mori Resource Development Conclusion 202 CONCLUSIO N 204 Glossary 209 Bibliography 218 Appendix I Questionnaire 235 Appendix II Information sheets and Consent Forms 2 37 ix List of Tables Table 1.1 A Summary of Differences Among the Three Approaches to Research 19 Table 1.2 Quantitative and Qualitative Styles 29 Table 2.1 A Framework for Understanding Māori Environmental Values 55 Table 7.2 A Framework to Identify the Application of Custom to Contemporary 201 Māori Resource Development 1INTRODUCTION Mori have always practised resource management according to customs, methods and lores since first settling in Aotearoa. These systems were based on their relationship with the natural environment, the desire to nurture a sustainable and vibrant society and to ensure the well-being of future generations. Colonisation has done much to malign the integrity of these practices, however; these values have endured throughout the generations and continue to inform Mori resource management perspectives. 1 The underlying challenges, though more complex, are essentially the same today as they were in the past. The challenges centred on environmental sustainability - iwi and hap interactions with their natural surroundings and a desire to develop a robust society. While these notions of environmental sustainability were often firmly rooted in a Mori world view, their relevance to contemporary issues and concerns is also evident as is the alignment with scientific and European cultural concepts of sustainability. Managing resources is as much about protecting the past as the present, not simply to nourish hap and tribal identity, but to also stimulate the critical success factors that can help shape tribal and broader community development. Customary management is about resource use, development, protection, conservation and finding a balance between all those things. Fundamental to all of th is are the ideals of respect and commitment – these are the most important facets of management. Some ancestral development principles can be recaptured and asserted in the context of contemporary circumstances. Modern Mori resource development needs to give expression to the traditional principle of holism. A new system of management, based on traditional Mori and linked to western environmental management. A primary purpose of Mori lore was to maintain appropriate relationships between people and their environment, their history and each other. In this it was by no means unique amongst the laws of the world but the emphas is was different. There was no equivalent to the English common law whereby indivi duals could hold land without 2concomitant duties to an associated community, or no parallel to the English social order wherein large land holdings could influence one’s status in local society. For iwi and hap, the benefits of the lands, seas, and waterways were accrued to all and individual right of use were simple derived from their relationship to the broader community. Similarly, rangatira held chiefly status but might own nothing. It was their boast that all they had was for the people. As the proverb went, the most important thing in the Mori world was not property but people. Accordingly, Mori lore described how people should relate to ancestors as the upholders of old values, to the demi-gods of the environment as the providers of life’s necessities, to hap , which was the primary support system, and to other peoples as necessary for co-existence.2 In Mori thought all things are believed to have mauri, or vital essence; the spark of life kindled at the conception of all living things. All mauri comes from atua and provides every entity with its unique personality. The key to the Mori view on the environment is the importance of not altering mauri to the extent that it is no longer recognisable.3 Tikanga Mori has adapted and survived the impact of intense assimilative pressures over many decades to remain of significance as a non-state legal system. Opportunities for incorporating customary resource management practices have never ceased to be relevant from one generation to the next.4 The distinctly Mori systems of resource management were developed through a combination of empirical methods (and examination w hat did and did not work) and the belief in the inherent life essence or mauri. The life essence permeated even the inanimate resources as a result of the creation ideology whereby heaven and earth were the personification of the primeval parent. In this way a system of resource management was developed in which people were no more than another living part of the whole ecosystem, capable of a care-taking role alongside other creatures. Man lived within and as part of a living whole to which they were intimately and genealogically connected. The emphasis was on the non-destruction of the mauri as opposed to the sustainability of physical resources. The importance of whakapapa or genealogy should not be forgotten here and many trace their ancestry back to the very land itself calling mountains and other parts of the landscape ancestors. The 3management processes were also developed from a spiritual framework which did not assume a dominance of people over the environment but, that people were an integral and intimate part of the environment. Some resource laws recognise and provide for Mori to assert their customary authority. Whilst this may be the intent, there are deficiencies in law that prevent iwi and hap from exercising these principles fully. Where certain resource laws have been adjusted to recognise specific M ori rights to administer and manage their resources (often within a defined territory), M ori themselves need to acquire further skills to uphold their management responsibilities. Customary practices by themselves do not adequately deal with the new reso urce challenges. Non-Mori skills are necessary too, to cope with modern processes and problems. There are opportunities to mange and develop environmental resources within a tribal context in New Zealand. Since the passage of the R MA, a sharp increase in Mori participation in resource management has ensured. This has arisen out of claims to the Waitangi Tribunal, hearings at the Planning Tribunal and reaction to legislation such as the Resource Management Act 1991. To dat e much of what has been planned and acted upon has been reactionary. Mori aspirations for environmental management need to be planned now in a proactive and independent manner. Planning, generally, is a part of the re- empowerment of Mori people.5 TREATY OF WAITANGI PROVISION The Treaty provides for the recognition and protection of customary resource management values and practices. This extends to the control of property in accordance with custom and having regard for cultural preferences. It also extends to the protection of tino rangatiratanga, being the full authority, status and prestige as regards Mori possessions and interests. The right also encompasses the preservation of Mori customary title and the Crown’s obligations to take active steps to ensure that Mori have and retain full exclusive and undisturbed possession of their culture. In a limited way, rangatiratanga may be expressed through Mori participation in environmental decision making. 4Through the principles that have been developed to help interpret the Treaty more effectively there is also regard to the management of natural resources. The principles that relate to the application of the Treaty of Waitangi have been developed by various government organisations to assist with the interpretation of the two Treaty texts and to ensure the ‘spirit’ of the Treaty is u pheld. The Waitangi Tribunal is one such institution that has developed principles to guide their decision making processes. The principle of partnership requires th at both Treaty partners act reasonably and in the utmost good faith towards each other. Partners should be on an equal footing. Partnership extends to overall mana gement of natural resources. The Treaty places an obligation on decision makers to give equal weight to the M ori worldview, the Mori value system, and Mori law and practice. A fundamental principle of the Treaty is the protection and preservation of Mori property and taonga. The phrase “whenua o ratou k inga me o ratou taonga katoa” is used in the Mori version of the Treaty. Whenua signifies the lands and kinga habitation and the literal translation of the last three words – “all things valued or all things treasured”. Taonga may be tangible, such as fisheries, or intangible, such as the Mori language”. The Crown is obliged to take positive action in the protection of Mori Treaty interests. This principle requires the active prot ection of the relationship and customs of iwi and hap associated with natural resources. This includes the protection of the traditional relationship iwi and hap have with natural resources. Secondly, agencies including territorial authorities, with a responsibility to manage the natural environment have a responsibility to actively protect the resources of that area that are of significance to iwi and hap. Implicit in this principle is the idea that the Crown cannot avoid its duty of active protection by delegating responsibilities to others. The Treaty recognises the right of Mori individuals to retain their identity and traditional practices and where they so desire, to adopt partially or wholly their cultural practices. The integrity of tikanga Mori is enhanced by its ability to adapt and evolve as society changes. This principle recognises that culture is not static. 5The Crown has an obligation to protect, preserve and promote the economic development of Mori. This includes a duty to ensure that iwi and hap are provided with sufficient land and other resources for their maintenance and support and livelihood, and that each hap maintains a sufficient endowment for its foreseen needs. That such endowment is not merely sufficient to survive, but enough to profit and to prosper and that Mori have the right to develop and expand such resources using modern technologies and are not consigned to those technologies known at the time of the Treaty. INDIGENOUS COMPARISON The traditional Mori resource management system is based upon concepts which differ from those offered by Western society. These concepts recognise the synergetic and interdependent relationships between all living things. This concept is not unique to M ori, as other indigenous peoples are of the same conviction. In Canada, for example, the Native American Indians tried ‘by every available means to establish intellectual and emotional contact between them (all beings), so as to guarantee the – for they are all relatives – abundance, equality, and, therefore peace. This is the sacred circle of life…’ 6 Indigenous peoples developed a system of environmental management based upon this view of the relationship between human beings and the natural world. The movements, energies and patterns of the natural world were also those of human endeavour. The goal, therefore, of indigenous resource management is continued vigilance in the observation and monitoring of the environment so that humans may dwell within the design of the natural world. The Western resource management system, however, often values the natural world (trees, plants, mountains, streams, rivers and so o n), above all else and only in so much as it is meaningful to humans. Tupuna Mori would say that these things have value in themselves, that whether humans are here or not, the trees still retain their mana, the birds still retain their mauriora, and the mountains retain their tapu: they remain taonga. 6The issue of title in Australia is often dealt with in a manner quite distinct from environmental and resource management issues. The latter are generally governed or administered by environmental and resource management statutes. However, at least in relation to national parks, reserves or conservation areas there has been a growing recognition of the value of joint management regime s. Canada, as in Australia, there is a clear demarcation between the vesting of legal title and the management of natural resources within settlement areas. In the case of management of natural resources, indigenous perspectives are always considered in the decision making process. It is also clear from the agreements that within the settlement areas native interests are accorded certain exclusive uses and/or a priority of use, priority for harvesting purposes and/or a priority in the development of resources. In the United States of America with the Indian Nations within the boundaries of their reservations tribes have a significant role in the management of natural resources. This is more than the joint management arrangements found in Aus tralia and Canada. On the reservations the tribes exercise management responsibilities as limited sovereign governments. Consequently, unlike Australia and Ca nada, title or jurisdiction is not entirely separated from resource management. Outside the reservations there remain outstanding issues such as what priority is to be accorded to native use and harvesting, and the nature and scope of water, hunting and fishing rights. It has been left to the Courts to resolve these matters, at no little cost, human energy or time. Conflict between users has often erupted and battles have been bitterly fought. Ownership of natural resources has yet to be fully determined by the Courts in New Zealand. However, negotiations have in the past implicitly a cknowledged Mori ownership of natural resources. In Australia, Canada and the United States there has been some recognition of indigenous ownership of, or interest in, natural resources. 7 Australian aboriginals and Torres Strait Islanders have been concerned to be involved in the management of their natural resources as well as settling their claims to natural resources. Generally, but not always, the land claims process in Australia has only dealt with title and not environmental and resource management matters. Environmental and resource management matters there fore continue to be regulated by other existing statutes. In some of this legislation there has been a very worthwhile attempt, through the use of joint management regime s, to ensure effective aboriginal involvement in resource management of in the identification of significant cultural 7sites and heritage areas. An example of this liberal approach concerns the management of national parks and other significant conservation areas. In these situations where title to land has been handed back to Aboriginal Peoples or Torres Strait Islanders pursuant to a claims process or through negotiation, and that land was, is or is part of a national park, or where the land may become a national park or conservation area, the Australians have been prepared to experiment with joint management regimes. Joint management has been defined as: “… the sharing of control of an area by two or more different interest groups. It aims to provide for the conservation of the park and to maintain its value to the traditional owners. There is an attempt to recognise the interests of two cultures within the constraints imposed by the goal of ecosystem preservation. The model institutionalises co-operation in both long-tem planning for the park and the day-to-day implementation of a process which includes the mediation of disputes and the regulation of tourism” 8 There is acknowledgement in Canadian policy of the right of indigenous people to participate in environmental management regimes concerned with a broad range of issues including land use, water rights and their allocation, wildlife management, subsurface rights and resource revenues, and the management of development within the settlement area. In Canada there appears to be a clear demarcation between the vesting of legal title and the management of natural resources. As a consequence there may be very real differences between the management of natural resources in settlement areas and in the other areas of a particular region. Native peoples are involved in all resource management decisions, including approvals for development projects. This is sometimes reflected as mere consultation or participation but more often than not, the management arrangements provide for significant native representation on the relevant resource management boards, tribunals or agencies. Additionally as in Australian national parks and other conservation areas, native interests are accorded priority in the use of natural resources, the development of these resources or the harvest of these resources. As in Australia, there is a clear demarcation between the 8vesting of legal title and the management of natural resources within settlement areas.9 For Aborigines land and community are interdependen t. Land is not merely an economic resource, to be exploited for sustenance and for the generation of surplus wealth. It is not principally, as it is for many non-Aborigines, a commodity to be bought or sold for profit. It is inextricably linked to the vitality of society, and hence the spiritual and cultural beliefs of that society exert a strong influence on the ways in which the land is used. Decisions regarding land management, whether concerned with the harvesting of subsistence resources, the organisation and administration of pastoral activities or the control of tourist access to natural attractions, hinge on these elements, and the resultant practices may differ markedly from those which would have developed under non-Aboriginal ownership. The perceptions of the early settlers, that uncultivated land without permanent settlements is unused, unclaimed and unproductive still pervade these attitudes, and hence Aboriginal land which is not treated according to these norms is seen to be wasted. Today’s Aborigines, all of whom are in varying degrees integrated into a capitalist economy and who live in communities which are at least semi-permanent, do not totally disregard these views. Many largely accept them. But they want to be able to choose the way to go, often combining conventional forms of land use and management with others stemming from their unique knowledge and understanding of th e Australian environment and form their profound spiritual attachment to their country. That choice may be very limited. Aborigines lack all forms of capital (cas h, infrastructure, the literary and technical skills to use the opportunities available to the Australian community at large) and hence must rely largely on government as sistance to carry out their plans. Such assistance reflects the conventional perceptions on how land should be used, and thus interests of Aboriginal land-holders may not be catered for. As a result many Aboriginal groups either fail to receive the support which they need or accept the conventional approaches, possibly hoping to manipulate these to make them more appropriate to their own ends.1 0 9GLOBALISATION The relationship between the environment and globalisation is often overlooked. The environment itself is inherently global, with life sustaining ecosystems frequently crossing national boundaries; air pollution moving across entire continents and oceans; and a single shared atmosphere providing cl imate protection and shielding us from harsh UV rays. The environment is intrinsically linked to economic development, providing natural resources that fuel growth and ecosystem services that underpin both life and livelihoods. 1 1 A rapidly expanding menu of binding international economic agreements on services, investment and intellectual property aims to construct a free market on a global scale and threatens to pre-empt national options. The constraints that this imposes on domestic policy making and regulation further embed the Western paradigm and potentially lock the door against a resource management regime within New Zealand that reflects the Treaty of Waitangi and tikanga Mori. The chances of securing such recognition at the international level seem even more remote. The growing range of international economic agreements that have been signed since the 1980s are almost unknown. These agreements are designed to promote the expansion and consolidation of international capital, commonly referred to as ‘globalisation’. They have serious implications fo r Mori management of resources at a number of levels: philosophical, distributive, substantive and constitutional. There is no place in this worldview for enduring relationships, balance or reciprocity between the economic, social, cultural and spiritual. Globalisation is fundamentally about colonisation. Sewage, refuse disposal, sanitation, water and similar services have frequently been the subject of Waitangi Tribunal claims or Environm ent Court interventions by Mori. Once those services are included in these arrangements the government would have an excuse to not only reject M ori demands for stronger regulatory regimes, but it 1 0 could also insist that ‘more market’ approaches to environmental services must be introduced. In the current era, securing recognition of tikanga, kaitiakitanga, tino rangatiratanga and the Treaty in relation to natural resources cannot be achieved by focusing solely at the national level, it is a global struggle. 1 2 The recognition of indigenous knowledge and its contribution to modern day resource management is a phenomenon that is occurring worldwide.1 3 SIGNIFICANCE OF STUDY This thesis has a dual focus. It is about Mori resource development, and in particular the sustainability and utilisation of natural resources for Mori; but it is also about the retention of Mori values and practices in modern times. The first aim is aligned with academically derived objectives and seeks to explore a central research question: ‘Can custom be applied t o contemporary notions of resource management?’ Underlying the question is t he hypothesis that effective and sustainable resource management will involve a combination of approaches that have the most benefit to natural resources. It is further based on the notion that Western’ approaches to resource management will be enriched by the considered application of customary Mori knowledge. The rationale is explored more fully in the following chapters but is essentially based on the idea that Mori concepts of resource management have remained relevant over time, have transcended an environment in flux, and further embraced new ways of working, contemporary issues and challenges. The second aim is to explore Mori values as they apply to resource management and as they continue to mould understandings of resource management within a system that has at times struggled to recognise the benefits of including such values to enable sustainability. While Mori values and concepts have been more readily accepted and included to a limited degree in recent times, there are still many areas that have not 1 1 embraced the inclusion of Mori beliefs and practices in regard to resource management where they could so easily fit and have both relevance and benefit. There are many considerations when undertaking study at a doctoral level. For some it is the achievement of a higher qualification in order to pursue a particular career path. Others have academic goals, where there is a desire to contribute to the existing knowledge base in a significant way. For researchers and doctoral candidates who underta ke their study within the paradigms of a Mori world view, these objectives may reach further to encompass other imperatives, often directed at the broad field of Mori development and consistent with ensuring that ‘research’ is not mer ely conducted for ‘research’s sake’ but becomes and avenue through which Mori aspirations and objectives are considered, developed and progressed.1 4 The aims of the thesis are centered on how and where custom can be applied to contemporary resource development: to develop a framework, to examine values and concepts, to consider barriers, to identify benefits, and ultimately to contribute to the sustainability of natural resources. The last point is significant. That while the identification of knowledge has been the overarching motivation for the thesis, the underlying purpose of the thesis has been to make a useful contribution to Mori resource development. This is an important prerequisite for research activity that involves M ori resource development and is undertaken within a kaupapa Mori paradigm. In which case, the two threads of the thesis – the theoretical and practical application are not in conflict with each other and have ensured both areas are documented and examined. The thesis does not purport or represent or create a generalised, multi-tribal or broader ‘M ori’ position. Indeed, the exercise of custom is t he exclusive preserve of the tangata whenua, whether it is the whnau, hap or iwi. Custom/tikanga cannot be exercised in regard to resource management by any Mori group, unless they have particular claims of authority derived from land: manawhenua. 1 2 THESIS STRUCTURE The thesis has eight chapters. Each is made up of several sections, beginning with an introduction and ending with a conclusion. Each chapter focuses on a particular aspect of the study. Chapter 1 provides an overview of the methodology t hat was employed to undertake the research, along with the assumptions that have been made, the approaches selected, and the process through which the objecti ves of this thesis will be met. Chapter 2 examines the meanings of custom and tikan ga in regard to resource management, in order to provide a background for understanding its use in contemporary times. Chapter 3 is the first of four case studies that se t out to explore the application of customary Mori resource management in contemporary practices and processes and the opportunities and constraints involved in exercising those rights. Chapter 3 deals with land management, Chapter 4 with foreshore and seabed, Chapter 5 rivers, and lastly Chapter 6 customary fisheries. A considerat ion is made in regard to how Mori and non-Mori view custom in contemporary times and the importance of custom today in a tribal context of resource management and economic development. How custom has become an important facet of local kin group identity is examined and what the legislature has to say in regard to custom/tikanga is also investigated. Further questions such as how can tikanga be useful in mainstream issues of resource management and development will also be considered. The use of the case study approach provides a number of examples in terms of the application of custom to contemporary notions of resource management. By discussing specific resources via the case study approach, the law as it stands is analysed and different processes that affect each resource (such as Waitangi Tribunal rec ommendations, settlements, R.M.A.) are examined in detail. Chapter 7 is a discussion of what has been outlined throughout the thesis; it provides an analysis of all the relevant factors and considerations and provides a framework which aims to contribute to Mori resource development in the future. 1 3 Chapter 8 is the conclusion and is comparatively br ief. It simply draws out the main themes examined throughout the thesis. It identifies the key contributions that the thesis makes to understandings of Mori resource management and the sustainability of natural resources in New Zealand by using a comb ined (customary and contemporary) approach. 1 Merata Kawharu, (2 002), Whenua: Managing our Resources, Reed Publishing, Wellington. 2 Waitangi Tribunal, (1 997), Muriwhenua Land Report: WAI 45, Waitangi Tribunal, Wellington. 3 Jim Williams, (200 6), “Resource management and M ori attitudes to water in Southern New Zealand” in New Zealand Geographer, 62( 1), p73-80. 4 David Williams, (2 00 2), ‘Purely Metaphysical Concerns’, in Whenua: Managing Our Resources, Reed Publishing, Wellington. 5 Kawharu, (20 02) 6 Ministry of Mori Development, (1993), Mauriora ki te ao: an introduction to environmental and resource management planning, Ministry of Mori Development, Wellington. 7 C. Wicklife, (19 94), Indigenous Claims and the Process of Negotiation and Settlement in Countries with Jurisdictions and Populations Comparable to New Zealand’s: A report prepared for the Parliamentary Commissioner for the Environment, Wellington. 8 Wickliffe, (19 94) 9 Wickliffe, (19 94) 1 0 E Young, (199 3), ‘Managing the Land: land and Aboriginal comm unity development in Australia’ in Indigenous Land Rights in Commonwealth Countries, Department of Geography, Canterbury University and Ngati Tahu Trust Board for Commonwealth Geographical Bureau. 1 1 A Najam, D Runnalls, M Hale, (200 7), Environment and Globalisation – Five Propositions, International Institute for Sustainable Development. 1 2 Kawharu, (20 02) 1 3 M Solomon, R Schofield, (1 992), The Resource Management Act and the Treaty of Waitangi – a starting point and framework, a report prepared for the Taranaki Regional Council. 1 4 Evelyn Stokes, (1985), Mori Research and Development: A Discussion Paper, University of Waikato, Hamilton. 1 4 Chapter One METHODOLOGY INTRODUCTION Describing in detail relevant aims and objectives i s a necessary component of Ph.D. research. It provides evidence that a course of action has taken place and that appropriate methods were employed to understand a particular research question. The previous chapter explained the broad parameters of the study and in turn identified a target and point of focus. In order that these objectives could be effectively accomplished a factored research approach was developed. This chapter will examine the theoretical foundations, general approaches to the research and the methods used. REASEARCH PARADIGMS A paradigm can be described as a general organising framework for social theory and empirical research and therefore warrants some consideration in terms of the philosophies underpinning this investigation. It includes basic assumptions, major questions to be answered, models of good research p ractice and theory, and methods for finding the answers to questions. 1 Paradigms exhibit basic values and are associated with the necessary and fundamental principles that form and describe views of the world, and the location of people within it. These values form the basis through which notions of certainty are created. They are mostly founded on faith rather than science, and can be difficult to obtain in terms of reliability or authenticity. 2 A paradigm is sometimes explained as a specific ‘world view’ or perception that will be mostly used to take apart the intricacy of the real world and give a controllable way in which sophisticated issues can be comprehended. Paradigms establish what is necessary, rational, pertinent and genuine. In terms of the researcher, these beliefs permit essential judgements to be made, without necessitating the involvement in extensive existential or 1 5 epistemological deliberations. 3 A paradigm decides what can be contemplated as valid priorities, how issues are reflected on, as well as which methodologies and methods are suitable. 4 When considering the range of paradigms, Neuman describes three that are of particular relevance to the social sciences – positivism, interpretive social science and critical social science. The approaches are different ways of viewing the world. They are all means in which to observe measure and understand social reality. They begin at different positions, even if they all finish analysing the same idea or saying the same thing. Positivism is the oldest and most extensively used approach. The interpretative approach has maintained a sturdy minority position in discussions for over a century. Critical social science is less frequently acknowledged in scholarly journals. It has been incorporated to provide the e ntire array of discussion in regard to the meaning of social science and also as it analyses the other approaches and attempts to progress past them. 5 Positivist social science is used extensively, and positivism, can be described broadly as the approach of the natural sciences. There are variations of positivism and they carry the following terminology; logical e mpiricism, the accepted or conventional view, post positivism, naturalism, the covering law model, and behaviourism. Positivism is connected to numerous specific social theories. Positivist researchers favour exact quantitative da ta and frequently utilise trials, reviews and statistics. They search for thorough, precise determinants and “objective” research, and they investigate theories by cautiously examining figures from the determinants. Opponents allege that positivism decreases people to figures and that it’s involvement with theoretic al principles or rules is not applicable to the lives of real people. Positivism defines social science as a structured process for uniting abstract reasoning with exact experiential examinations of personal actions so that a group of probabilistic underlying rules 1 6 that can be employed to calculate broad examples of human activity can be found and verified. A positivist approach involves the researcher starting with a broad cause-effect association that he or she rationally obtains from a potential fundamental rule in general theory. The researcher remains disconnected, unbiased, and impartial as he or she determines facets of social life, analyses facts, and duplicates the research of others. These procedures guide the way to an empirical examination of and authentication for the rules of social life as summarised in a philosophy. 6 Interpretive social science is associated to hermeneutics; a theory of meaning that was derived in the nineteenth century. Hermeneutics is mostly located in the humanities. It highlights a comprehensive interpretation of text which could refer to a dialogue, written words, or pictures. A researcher carries out “a reading” to find definition entrenched within text. Each reader brings his or her personal understanding to a text. When examining the text, the researcher attempts to take up or get inside the perspective it offers as a sum total, and then advance a profound comprehension of how its sections link to the entirety. Therefore the real definition is seldom straightforward on the surface; it is only sought through a thorough examination of the text, considering its numerous messages and looking for the associations amongst its sections. There are many types of interpretive social science; hermeneutics, constructionism, ethn o methodology, cognitive, idealist, phenomenological, subjectivist, and quali tative sociology. It is often called a qualitative method of research. Interpreti ve researchers frequently employ participant observation and field research. These practices necessitate that researchers spend several hours in direct individual contact with those being studied. A positivist researcher will accurately assess particular quantitative information about thousands of people and use statistics, whereas an interpretive researcher may live a year with a dozen people and use thorough techniques to collect sizeable amounts of comprehensive qualitati ve data to gain a detailed appreciation of how they create meaning in everyday life. In comparison to positivism’s instrumental direction, the interpreti ve approach assumes a practical 1 7 direction. In general, the interpretive approach is the logical examination of socially significant action by way of the direct in depth examination of people in normal surroundings in order to reach an insight and understanding of how people produce and sustain their social worlds. 7 The interpretive approach existed for numerous years as the faithful opponent to positivism. Although some positivist social researchers recognise the interpretive approach as practical in investigative research a minority of positivists deem it to be scientific. The interpretive approach is the basis of social research methods that are perceptive to circumstance, that employ many techniques to unders tand the ways others see the world, and that are more interested in attaining an empathic comprehension of feelings and world views than with examining principles of human behaviour. 8 Critical social science presents a third option to the meaning of methodology. Types of research found in this approach are called dialectical materialism, class analysis, and structuralism. Critical social science mixes nomothetic and ideographic approaches. Critical social science is often associated with conflict theory, feminist analysis, and radical psychotherapy. It is also tied with critical theory. Both the objective, law like quantitative empirical approach of positivists and the subjective, voluntarist approach of interpr etive social science are rejected. A philosophical approach called realism has been integrated into critical social science. Critical social science agrees with the criticisms of positivism made by interpretive social science researchers. It also believes that positivism defends the status quo because it assumes an unchanging social order instead of seeing current society as a particular stage in an ongoing process. Critical researchers criticise the interpretive approach for being too subjective and relativist. In general, critical social science defines social science as a critical process of inquiry that goes beyond surface illusions to uncover the real structures in the material world in order to help people change conditions and build a better world for themselves. Critical researchers may use any research technique , but they tend to favour the historical-comparative method. This is because of its emphasis on change and because it helps researchers to uncover underlying structures. Critical researchers 1 8 differ from the others less in the research techniq ues they use than in how they approach a research problem, the kinds of questions they ask, and their purposes for doing research. 9 A researcher who adopts a positivist approach first deduces hypotheses from a general theory about majority-minority relations. T he theory is probably in the form of causal statements or predictions. The researcher next gathers data from existing statistics or conducts a survey to precisely measure the factors that the theory identifies. Finally, the researcher uses sta tistics to formally test the theory’s predictions. An interpretive researcher personally talks with and observes specific people from both the minority groups and the majority groups. H is or her conversations and observations are used to learn what each group feels to be its major problem. The researcher puts what people say into the context of their daily affairs. After he or she sees what the minority of majority people think s, he or she describes findings in terms that others can understand. A critical researcher begins by looking at the larger social and historical context. The inquiry is from a moral/critical standpoint. Positivists are likely to conduct cost-benefit analysis; interpretive researchers are likely to do exploratory research, and critical researchers favour action-oriented research. Thus, despite their differences, all the approaches say that the social sciences strive to create systematically gathered, empirically based theoretical knowledge through public processes that are self-reflective and open ended. 1 9 Table 2.1 A Summary of Differences among the Three Approaches to Research POSITIVISM INTERPRETIVE SOCIAL SCIENCE CRITICAL SOCIAL SCIENCE 1. Reason for research 2. Nature of social reality 3. Nature of human beings 4. Role of common sense 5. Theory looks like 6. An explanation that is true 7. Good evidence 8. Place for values To discover natural laws so people can predict and control events Stable pre-existing patterns or order that can be discovered Self-interested and rational individuals who are shaped by external forces Clearly distinct from and less valid than science A logical, deductive system of interconnected definitions, axioms and laws Is logically connected to laws and based on facts Is based on precise observations that others can repeat Science is value free, and values have no place except when choosing a topic To understand and describe meaningful social action Fluid definitions of a situation created by human interaction Social beings who create meaning and who constantly make sense of their worlds Powerful everyday theories used by ordinary people A description of how a group’s meaning system is generated and sustained Resonates or feels right to those who are being studied Is embedded in the context of fluid social interactions Values are an integral part of social life: no group’s values are wrong, only different To smash myths and empower people to change society radically Conflict filled and governed by hidden underlying structures Creative, adaptive people with unrealised potential, trapped by illusion and exploitation False beliefs that hide power and objective conditions A critique that reveals true conditions and helps people see the way to a better world Supplies people with tools needed to change the world Is informed by a theory that unveils illusions All science must begin with a value position; some positions are right, some are wrong Source: Neuman, 2000:85 2 0 MODIFICATION OF A WESTERN PARADIGM There are basic differences in what might be said to constitute knowledge or ‘research’ within the Mori world compared with a history of research which has been fundamental to European and North American political economies of information. Customary concepts of knowledge, research and scholarship in the ancient world are often linked to a particular social and economic environment and they are sustained through a particular gatekeeping system. Social scientific research is no less linked to a particular social and economic order, albeit a global one, and has its own forms of gatekeeping. These differences take on a critical dimension if it is accepted that the information which has been derived from the latter context has played a part in colonialism, and that research continues to help sustain the predominant position of one group over another. 1 0 Many Mori academics have criticised the use of Western paradigms as the broader framework for research among indigenous peoples. Smith1 1 asserts that Western research has developed within a positivist tradition and that in terms of indigenous research the implications can be significant as such research brings with it a different set of cultural values, alternative concepts of space and time, theories of knowledge, and language that may be highly specialised. The dominant paradigm has allowed research to sometimes answer questions that have benefited the investigators and the non-Mori academic community rather than Mori themselves. In those situations it has been the researcher who has set the research agenda, controlled research processes and reported the research outcomes. Alongside this there has been non-Mori control over decision making processes which have often proscribed or belittled certain Mori knowledge gathering and information processing methods and contexts. In contrast, kaupapa Mori research attempts to address the prevailing ideologies of cultural superiority which sometimes pervade social, economic and political institutions.1 2 2 1 Doubt has been raised as to the benefit and validity of carrying out research on Mori from within a Western paradigm. 1 3 These concerns are significant for this study due to the fact that the research is intended to provide a useful contribution to mtauranga Mori, and thereby to Mori development. A Mori Research Paradigm Mori concerns about research into their lives are being addressed by an emerging ontological base termed kaupapa Mori. In comparison with the impositional tendencies of the traditional position of researcher in relation to the people researched, kaupapa Mori positions the researcher within Mori cultural aspirations, preferences and practices. 1 4 It is important to note that kaupapa Mori, in addressing concerns about research, is not a further paradigmatic shift within a Western dominated cosmology. Kaupapa Mori research is located within an alternative world view and from within this world view solutions to problems can be generated, that is cultural aspirations can be met using the existing cultural preferences and practices of Mori culture. The world view described here is how the environment is perceived and the inter- relationship of the spiritual world, the living world and the natural world. Myths and legends support a holistic view not only of creation but of time and of people. 1 5 While colonisation has often undermined many Mori cultural values and practices, it is also true that a Mori worldview is dynamic, adapting to contemporary challenges. The notion of holism, Mori values and tradition, and the concept of integration, remain consistent with the articulation of Mori perspectives and world views. ‘Kaupapa M ori’ is a term often used to describe a M ori inquiry paradigm. Although there is no single understanding of ‘kaupapa M ori’, it is the centre for discussion of an emerging Mori inquiry paradigm. According to a kaupapa M ori paradigm, reality is shaped or determined by the cultural values through which one perceives the world. 2 2 Therefore research carried out within a kaupapa Mori paradigm will be consistent with Mori values, traditions and cultural practices. 1 6 Kaupapa Mori has been described by Linda Smith as the development of ‘insider’ methodologies that incorporate a critique of resear ch and ways for carrying out research for Mori, with Mori and by Mori. 1 7 Kathy Irwin notes that kaupapa Mori is research that is culturally safe, that involves the mentorship of kaumtua, which is culturally relevant and appropriate while satisfying the rigors of research. 1 8 Kaupapa Mori Research and Non-Mori Researchers In recent time there has been some concern expressed about researchers who are not Maori working with Maori communities. The concern is largely based around unfortunate experiences when researchers were seen as utilising Maori communities for their own ends with no obvious benefits to Maori. Cultural ignorance also increased the risks for misinterpreting Maori views, either because of language barriers or because cultural nuances were not appreciated. I was aware of those risks but considered that they would be lessened by my earlier experiences within te ao Maori. I had obtained undergraduate and post graduate degrees in Mori Studies, and had been closely involved with the local Mori communities in Te Tau Ihu. In addition, there were links to many of the local tangata whenua iwi in Te Tau Ihu through children (who had whakapapa connections) and the extended family who were heavi ly involved in the local Mori community. A readiness to undertake research within a Maori community was further strengthened by fluency in the language, involvement with various kapahaka groups, and previous work with Maori leaders in the area who had often shared tribal knowledge. Perhaps more important, however, it should be noted that this study was initiated by Mori, guided by Mori and aligned to local Maori priorities. The researcher was only part of the process and remained at all times accountable to the community where the study was undertaken. 2 3 Who should do Mori Research? Who better to research the social, cu ltural and economic dimensions of the issues facing Mori society today than, people who are closely involved with these experiences, people who have knowledge and experience in the Mori world and have appropriate skills to investigate, articulate clearly and communicate the information that is needed to confront these issues. Such researchers may be Mori or non-Mori. What is important is that the researcher can operate comfortably within a Mori context and with a contemporary reality. In practice, there is a need to be comfortable in both Mori world views and the world views of western science. 1 9 A researcher who is not only comfortable in both cultures, but can also stand back and locate both sets of cultural values in perspective, will be well placed to understand Mori needs in an environment where most Mori are living at the interface between Te ao Mori and wider society. In the process, the researcher must also ensure high standards of accuracy, presentation and communication to retain credibility in the Mori world, and translate with credibility for the non-Mori world as appropriate. 2 0 According to Bishop (1994) non-M ori should be involved in Mori research for two reasons. The first is that there is a cohort of highly skilled, professionally trained non- Mori who are becoming bicultural and are willing to work within Mori controlled contexts. The second is that leaving it all to Mori is to abrogate non-Mori responsibilities as Treaty partners. In the context of research, empowerment means that Mori people should regain control of investigations into Mori people’s lives. Ohia’s 2 1 position is that the place for Mori is as the initiators of the research process, and he implies that the role of non-Mori needs re-evaluation from their traditional role as initiators, controllers and interpreters of research. 2 4 Ultimately, research that is carried out with and for Mori, belongs to the whnau and Mori community, it should empower the community to develop strategies that enable it to survive and to flourish. Kaupapa Mori Research Paradigm As previously stated kaupapa Mori is centred in a world view that requires an understanding of Te ao Mori and te reo me ona tikanga to be able to effectively utilise this methodology. Inherent in the use of kaupapa Mori are the concepts of whakapapa and whanaungatanga, both enable linkages and relationships to be established and maintained and therefore underpin the kaupapa Mori process. Kaupapa Mori has a set of assumptions and taken for granted values and knowledge, upon which it builds. 2 2 It is necessary to acknowledge that kaupapa Mori is not a theoretical framework that provides answers by following a set agenda. As a theoretical framework kaupapa Mori is still developing. 2 3 Kaupapa Mori approaches to research are based on the assumption that research that involves Mori people, as individuals or as communities, should set out to make a positive difference for the researched. 2 4 Kaupapa Mori has been criticised for not being scientific or critical in its analysis due to the fact it is based on the own culture and world view of those it is involved with. To some academics this is not an objective approach to research methodology and they are unable to accept that kaupapa Mori is a valid theoretical framework or that Mori are able to develop theoretical frameworks that have origins in te reo me ona tikanga. 2 5 However, it is not enough to locate analysis of M ori issues within a Western framework, as Western frameworks are not able to engage kaupapa Mori and mtauranga Mori. 2 6 At times they have and can work well in parallel but not at the expense of kaupapa Mori. 2 5 Research carried out within a kaupapa Mori paradigm often utilises a range of Western and Mori methodologies. And, while there is no consistency of opinion as to what constitutes “kaupapa M ori” there is some agreement that these methodologi es must be consistent with Mori beliefs and values. Bevan-Brown, 2 7 identifies ten ‘ingredients’ that are stressed or deemed as highly desirable for Mori research, and that are relevant in terms of developing distinctly Mori methodologies. Each ‘ingredient’ is deliberately ge neric and allows the model to be applied to a wide range of research initiatives: 1. M ori research must be conducted within a Mori cultural framework and incorporate Mori concepts of knowledge, skills, experiences, attitudes, processes, practices, customs, reo, values and beliefs. 2. M ori research must be conducted by people who have the necessary cultural, language, and research expertise. They must also possess a commitment to things Mori, the trust of the Mori community being researched, and an understanding of and commitment to the obligations, liabilities and responsibilities that are an integral part of Mori research. 3. M ori research should be focused on areas of importance and concern to Mori. It should arise out of their self-identified needs and aspirations. 4. M ori research should result in some positive outcome for Mori. This may be manifest in many different ways, e.g., improved services, increased knowledge, health gains, or more effective use of resources. 5. As much as possible, M ori research should involve the people being researched as active participants at all stages of the research process. 6. M ori research should empower those being researched. This empowerment should stem from both the research process and product. 7. M ori research should be controlled by Mori, particularly in relationship to ethical requirements, assessment, funding, intel lectual property rights, and ownership and dissemination of knowledge. 2 6 8. People involved in conducting M ori research should be accountable to the research participants and to the Mori community in general. 9. M ori research should be of a high quality. It should be assessed by culturally appropriate methods and measured against Mori-relevant standards. 10. The methods, measures and procedures used in M ori research must take cognisance of Mori culture and preferences. They must take into account the previous nine requirements of M ori research. There are some culturally specific ideas which are part of what is referred to as Kaupapa Mori practices. These are not prescribed in codes of conduct for researchers, but tend to be prescribed for Mori researchers in cultural terms: 1. Aroha ki te tangata (a respect for people). 2. Kanohi kitea (the seen face, that is present your self to people face to face). 3. Titiro, whakarongo… krero (look, listen…speak). 4. Manaaki ki te tangata (share and host people, be generous). 5. Kia tupato (be cautious). 6. Kaua e takahia te mana o te tangata (do not tramp le over the mana of people). 7. Kaua e mahaki (don’t flaunt your knowledge). 2 8 A Theoretical Research Framework The research programme that underlies this thesis is located within a kaupapa Mori paradigm and takes a Mori-centred approach. This type of approach is about bringing Mori values, attitudes and practices to the fore rather than disguising them within Westernised labels. It is based on the Mori world view that is founded on creation and the relationships between all living things. It is the understanding that all objects possess 2 7 mauri and that the mtauranga or knowledge that surrounds such objects i s taonga and therefore must be protected. Six principles identified by Kingi 2 9 have provided the theoretical structure for this study. These principles and their implications for this study are outlined below: • The investigation should reflect a Mori world view and be conducted in a manner consistent with those views. Mori values, traditions and cultural practices should underpin the process. • Mori research processes should be used as appropriate. The use of Mori research methods do not mean that other methodologies cannot be used in parallel, provided they are not inconsistent with the values and methods of kaupapa Mori research. • Mori must be actively involved in the research process. A spirit of partnership should colour the relationship between the researcher and the research participants. • The manner in which information is stored and protected is important. Apart from the usual ethical standards, there is a need to investigate additional strategies to safeguard information of cultural significance. • To be of value, it is important that research information is made available to Mori. To this end, mechanisms to ensure Mori access to the research findings will need to be developed. Such processes will further ensure that the investigation is adequately critiqued, reviewed, an d ultimately applied so that its potential benefits can be realised. 2 8 QUALITATIVE VS QUANTITATIVE APPROACHES TO INQUIRY The next section discusses two different approaches to research inquiry – qualitative and quantitative, and examines the approach most suited to this investigation. Definitions and Concepts Qualitative research has been defined by Denzin and Lincoln as: …multi-method in focus, involving an interpretive, naturalistic approach to subject matter. This means that qualitative researchers study things in their natural settings, attempting to make sense of, or interpret, phenomenon in terms of the meaning people bring to them. Qualitative research involves the studied use and collection of empirical materials – case study, personal experience, introspective, life story, interview, observational, historical, interactional, and visual texts – that describe routine and problematic moments and meanings in individual’s lives. 3 0 Qualitative data involves both depth and detail thr ough direct quotation and careful description. Measurement relies on the use of instruments to provide standardised frameworks by which data collection can take place, to established criteria, or to analyse categories. The data are open-ended in order to discover what people’s lives, experiences and interactions mean to them, in their own terms, and in their natural settings. 3 1 Within qualitative research observations are made, patterns identified and eventually conclusions formulated. The strategy of the qualita tive researcher is therefore based on the premise that important dimensions will emerge from the analysis. There is no presumption as to what important issues, ideas or concepts may be expected. The naturalistic nature of a qualitative research desig n demands a focus on the research setting; understanding this without external modifi cation and within its natural context. 3 2 In comparison to qualitative research, quantitative investigations emphasise the measurement and analysis of casual relationships between variables, rather than processes. Quantitative measurement relies on the u se of instruments that provide a standardised framework and that control the collection of data to pre-identified response or analysis categories. 3 3 2 9 The purpose of quantitative study is to separate an d describe groups as succinctly as possible, before research begins, and then to ascertain the association concerning them. In comparison, the objective of qualitative study i s to separate and describe groups as the research progresses. For quantitative research, suc cinct, definite groups are the means of the research; from a qualitative perspective, resea rch groups are the object of the research. While qualitative research typically examines patte rns and associations among many groups; quantitative research centres on well defin ed associations among restricted groups, and as a result the means of information reporting will frequently be dissimilar. Quantitative studies are carried out when it is exp ected that the respondent will be able to answer questions promptly, succinctly and unequivoc ally. Qualitative inquiries are necessary when the understanding and accuracy of response is in question. Therefore, wider, more adaptable investigation practices are essential. An added variation between qualitative and quantita tive approaches is the number and type of respondents who will normally be employed as part of the research process. Quantitative research necessitates the classificati on of a sample, carefully chosen and great enough to generalise to a wider population. In contrast, in regards to qualitative research, the issue is not that of generalisability, but access. That is, the intention of the qualitative interview is not to determine how many or what kind of people match up to a certain trait, but to obtain access to certain cultural categories and uncover how they view the world. The following table illustrates the main differences between the quantitative and qualitative approaches. 3 4 3 0 Table 2.2 Quantitative and Qualitative Styles QUANTITATIVE STYLE QUALITATIVE STYLE Measure objective facts Focus on Variables Reliability is key Value free Independent of context Many cases, subjects Statistical analysis Researcher is detached Construct social reality, cultural meaning Focus on interactive processes, events Authenticity is key Values are present and explicit Situationally constrained Few cases, subjects Thematic analysis Researcher is involved Source: Neuman, 2000: 16 A Qualitative or Quantitative Approach? The reason for research, its aims and objectives, d etermines to a great degree a suitable research method. As has already been discussed, kaupapa Mori is the paradigm within which this investigation is based. In order to consider and realise the research process completely it is also important to find and rationalise the instrument by which this can or should take place. Therefore, it is imperative to reflect on the comparative merits of implementing a qualitative or quantitative approach within the kaupapa Mori paradigm. The objectives of this thesis required investigatio n of new information and ideas, categories that could not be exactly described before the investigation. To assist the application of a kaupapa Mori research paradigm, the research approach also needed to 3 1 be comparatively adaptable and dynamic. It was expected that information and responses would be collected, and that wide, adaptable investigation methods would be most suitable. A naturalistic view was considered necessary as the study would research procedures as they took place within their natural environment. The opinions and viewpoints of many groups and individuals would assist as a guide to the research and the conclusions that could be made. For these reasons a qualitative approach was considered to be the most appropriate. RESEARCH METHODS Situating this research programme within a kaupapa Mori paradigm, and the employment of Mori-centred and qualitative approaches, ensures the parameters are available in which suitable research methods can be used to achieve the objectives of the research. The methods chosen were document review and key informant interviews. Presentations also provided direct feedback on the study. A computerised software system was employed to aid with data management and analysis. The use of these procedures is examined in the following section. The reason for their employment, the way in which they were used and the scope that they covered in terms of this thesis is also discussed. Document Review Literature reviews are an important part of the research process. They ensure that the researcher becomes thoroughly familiar with a specific topic, by studying relevant concepts and issues, to identify key individuals and discourse, and to offer a broad framework through which the research might proceed. Literature reviews provide a mechanism through which ideas can be evaluated and measured and through this process, included or removed. Over the course of this research a wide range of documents were reviewed and assessed for use and importance for the study. A procedure of literature identification took place before documents were reviewed, with searches being undertaken through the use of a 3 2 range of bibliographic databases, including Eric, Miro, Cinahl, NewIndex and Index NZ. ‘Keyword’ searches were used, by trying alternative word combinations to ensure a complete evaluation of material was made. Repetition was avoided by logging each combination and filing it along with the several different ‘hits’. Key experts were also conferred with and asked to define what data would be useful, its location and what particular parameters should be used in the search. A large amount of the written material was obtained from the Massey University Library. The Ministry of Mori Development and the Waitangi Tribunal provided supplemental as well as specialist information. Primary and secondary material was also sourced from various iwi and Mori organisations within the Marlborough area. After review, relevant passages were noted including page numbers and bibliographical information. A computerised database (described later in this sect ion) was then developed and employed to house this data, the software used for this was Microsoft Access. This practice guaranteed that relevant information could be found when needed, and that more focused searches of examined data could be made. 3 5 Interviews Literature alone can restrict the degree to which important data is considered. Current developments are often overlooked and the views that are presented may only reflect those of a specific faction, or of academics, researchers, policy makers, or other people who tend to publish. Interviews provide additional opportunities to obtain information and ideas that may not be reported in the literature. In this study, key person interviews used a generic open-ended questionnaire. The interview questions and their order were decided be fore the interviews took place. However, the format was ‘open-ended’ in that partic ipants were able to articulate their own responses. The questions themselves were quite general and were only used as a guide for the interview process. Informants were then asked questions relevant to their area of expertise. The interviews took approximately an hour each. There was also the 3 3 opportunity to return and ask further questions or to clarify information after the interviews had been analysed. A series of consultations over a period of time with local people involved in the Mori community and issues related to resource management allowed for a list of experts/respondents to be gathered (a small group o f approximately 5 people over a period of six months). These people were knowledgea ble in Mori resource development, particularly Mori land tenure, customary fisheries, foreshore and seabed along with tikanga and statutes that apply to Mori resource management generally. This provided a variety of opinion from iwi members, researchers, resource planners and other experts in their relevant field. The method that was used in which to select key informants was by way of approaching key iwi representatives locally (Te Tau Ihu). The d ecision on who constituted a ‘key’ iwi representative was made in regard to the position the individual held, by whakapapa links to the area and by common assent from community members. Through these meetings the study was outlined and then the appropriate people were suggested for contact and participation in the study. After speaking with suggested participants, further key informants were suggested as being useful to the study and the questions being asked. The researcher had access to such people through whnau and other connections that had been made over the years. In terms of a key informant profile, it was important that the people approached had proven expertise in their respective area and were well respected within their community. They also needed to have knowledge of the statutes that affect Mori resource management, along with Mori customary methods of resource management. Such people included customary fisheries officers, researchers, Mori resource management experts, iwi members involved with their respective Waitangi Tribunal claim and others who had relevant expertise in the area of Mori resource development. Key academic personnel were also contacted but due to difficulties that arose out of the ethical consent process (discussed later in this se ction) participation did not eventuate. 3 4 Their initial response was positive but due to the timeframe associated with gaining ethical consent they lost interest and possibly confidence in the study. Potential participants were contacted and, if agreeable, meeting times arranged. In keeping with accepted Mori research practice, all key person interviews were conducted ‘kanohi ki te kanohi’ (face-to-face) at times and l ocations that suited each participant. Key person interviewees were given a small koha3 6 for their time (usually an item of prepared food) and offered feedback on the study. Mori Process Issues To place the research within a kaupapa Mori paradigm, while employing a Mori- centred approach necessitated that Mori process issues be considered. Various procedures were incorporated into the study to ensure the consideration of Mori issues. Guidance was provided by the researcher’s superviso rs and from family members in regard to issues of protocol and other cultural matters. The researcher is culturally competent and has experience in undertaking research within Mori contexts. She is also part of a whnau within the region where the research was focused. As described, key person and specialist interviews were conducted ‘ka nohi ki te kanohi’ with participants being offered a koha for their time (usually in the form of prepared food). In addition, these interviews were usually conducted in Mori settings where participants felt most comfortable, usually their homes, sometimes on marae or at work. Although a structured questionnaire was used (see appendix 1), the interv iews typically took place in an unprompted manner, which allowed the participant to guide the research process, how it proceeded and its duration. Formal greetings (in M ori) often took place before the interview. Where appropriate karakia 3 7 and formal poroporaki 3 8 were provided. Wider interviews (those that did not permit a face to fac e approach) were also conducted in a manner consistent with Mori values and perspectives. All participants, and others who took part in the research, were offered feedback on the study. Two presentations were given, at different stages of the research process, to fellow academics who were also familiar with or were working within a kaupapa Mori 3 5 framework. These presentations were designed to obtain direct input and comment on both the methodology employed and the content of the study. Data Quality Data quality issues must be considered, especially in regard to qualitative research, as the approach can rely on interpretation, description, generalisations and evaluative judgments. 3 9 There are many methods that can be employed to ensure data quality. Triangulation is one such mechanism, whereby multiple perceptions are used to explain meaning, or to confirm the repeatability of an observation or interpretation. Further, as no observation or interpretation is perfectly repeatable, triangulation enables clarification by identifying various ways in which the issue can be understood.4 0 Stake4 1 describes four basic triangulation protocols that while framed within a case-study strategy, usefully highlight the types of protocols that may be used within qualitative research. First, data source triangulation, which d etermines whether or not the issues being examined remain the same in other times, in other spaces, or in different situations. It involves a study of the activity, display or observation, to ascertain whether or not it is influenced by the context within which it exists. The second protocol, investigator triangulation, is employed when an investigator has access to other researchers who have some detailed knowledge or expertise. This method allows other researchers to examine data and to compare their views to your own. Theory triangulation, the third protocol, though similar to investigator triangulation, is more focused in that reviewers are selected to provide an alternative theoretical viewpoint. It is uncommon for researchers to interpret information in an entirely uniform manner, and, either intentionally or unintentionally, researchers will be influenced by their theoretical position, professional training or expertise. This diversity provides the means through which information can be examined, and considers alternative interpretations or perceptions. The last protocol is methodological triangulation, which uses interviews and document reviews, for example, to investigate a given phenomenon. While not identified as a 3 6 triangulation protocol, Stake also alludes to the process of member checking, where the accuracy of data is confirmed or otherwise by source informants. This process will usually require the researcher to review statements and experiences with the participant. By applying one or several protocols, qualitative r esearchers are able to make a more consistent evaluation of data and to draw conclusions that are well informed and perhaps more truthful. Triangulation protocols were intentionally used for this study and employed to improve the quality of data collected. The most evident use of such protocols is methodological triangulation and has been used by way of interviews with key informants and a literature review to investigate the topic of this study. Howe ver, investigator and theory triangulation protocols have also been incorporated along with member checking. These were further used to enhance data quality. Investig ator and theory triangulation protocols were employed by giving and presenting findings to other researchers and academics to compare views and consider alternative interpretations of the data. Member checking was carried out by checking the accuracy of data collected from key informants, this occurred by both the researcher and participant reviewing transcripts or notes from interviews. Data Management Data management and information quality can be of p articular concern especially in relation to qualitative research. If the large amou nts of collected data are managed inappropriately the sheer size of the data can mean that information will be lost, incorrectly filed or misinterpreted. In relation to qualitative data words may be based on interviews or documents. The method of gathering data may be unrestricted, unstructured and event driven, or more tightly defined, structured and researcher driven. However, the large quantity of qualitative data may in fact hide important issues and therefore may diminish the quality of the research and its usefulness. It is therefore necessary that raw material is effectively managed, systematically controlled, and presented in a manner that facilitates analysis and data management. 3 7 Data management has been defined as the operation needed for the systematic, coherent process of data collection, storage and retrieval. 4 2 Three essential aims of this process may be identified: • To ensure high-quality, accessible data. • To ensure documentation of exactly what analyses have been carried out. • To ensure the retention of data and associated analyses after the study is complete. The first point is designed to confront some of the systematic problems associated with conducting research: the need to have a method in which relevant (or irrelevant) source information can be stored and accessed. The second point states that once analysed, source information will need to be sorted and managed. The third point is more complex and is categorised into an additional set of three sub-processes, data reduction, data display and conclusion drawing/verification. Data display can be defined as an organised, summary collection of information that ensures that conclusions can be made, and may be a second, if not inevitable, part of the data analysis process. Because of this, the researcher will need to view a set of compacted data to consider its meaning. Conclusion drawing and confirmation of data involves the interpretation of information and finding definition within the data. This can be achieved by taking note of differences, patterns and obvious themes. Triangulation is often used to verify results and to determine their significance. By using this mechanism ‘data transformation’ takes place as information is condensed, clustered, sorted and linked. 4 3 Computerised software packages are useful tools in which data can be more effectively managed and analysed. The Microsoft Access software package has been employed extensively throughout this study. It was selected in consultation with other researchers and experts from Massey University. The package is relatively user-friendly, with easily 3 8 manipulated fields and functions; it copes well wit h large quantities of data, does not use large amounts of computer memory, and is compatible with other Microsoft software (e.g., Microsoft Word). As already mentioned, in this study the system was used to sort and manage literature and was also employed throughout the interviews. Once programmed, it further assisted the triangulation of views and perspectives. Data analysis (particularly in interviews) was also enhanced by the package through data reduction, data display, conclusion drawing and verification. Data Analysis Generally the theoretical research framework described earlier in this chapter has been used to guide data analysis. The implications of the framework are that data are analysed from a kaupapa Mori perspective, and therefore the value of Mori beliefs and perspectives is implicit. This approach incorporates the method of critical analysis whereby the data analysis is subjective and breaks down the study into discrete parts. Critical analysis provides an evaluation of the processes in question and thereby increases the reader’s understanding of such processes in reg ard to the research question. Critical analysis expresses the writer’s opinion in regard t o a topic within an objective framework. This framework provides objectivity by avoiding the use of personal pronouns and keeping the focus on the subject of th e analysis rather than on the researcher because by directly identifying personal opinions, they become weakened. The purpose of critical analysis is not to merely inform, but also to evaluate the worth, utility, excellence, distinction, truth, validity, beauty, or goodness of something. 4 4 Critical analysis has been used in this study because although the standards have been set, an open mind must be kept in order to be well informed and fair. It is possible to still express opinions but they must be evidenced. Therefore critical analysis provides information, interpretation and evaluation. The information helps with understanding the nature of the material being analysed. The interpretation explains the meaning of the analysis, therefore requiring a correct understandi ng of it. The evaluation discusses the opinions of the information in question and present s valid justification for them. 3 9 After analysis, using well-tested methods of content analysis, preliminary results were presented for discussion with other researchers who were working within a Kaupapa Mori paradigm. Content analysis involves the identification, coding, and categorisation of primary patterns in the data. This process allows identification of key themes to emerge from the data. 4 5 For the purposes of this study, content analysis w as carried out manually. This was done by applying an objective co ding scheme to the data and giving explicit rules called ‘criteria of selection’ befor e analysing the data. This was then carried out by counting or taking note of the frequency of words (single words relevant to study), themes (simple sentences with a subject), concepts (ideas) and items (entire books, interviews, articles) as they occurred within data stored in the literature database or within informant interview transcripts. Ethical Issues The ethical issues associated with this research were largely linked to the interview process, the need to obtain informed consent, and to have in place mechanisms through which data were safeguarded, especially where confidential matters emerged, including comments about other people and financial situations. In terms of obtaining informed consent this was done by providing the potential participant an information sheet which outlined the study and the role they would have in it, along with a consent form that would be signed by both the participant and the researcher on agreement of taking part. This consent form also gave the option as to whether or not the informant gave permission for the interview to be audio-taped. Both the Information Sheet and Consent Form were offered in either te reo M ori or English. After the interview the recording would be transcribed or in cases where recording was not permitted, notes collated and then filed, so that they could be easily located and secure. The data was stored in two ways, first on a personal computer with access only by use of a password and second in hard copy where it was stored in a locked cabinet. A copy of the transcription of each interview was made available to the informants, to give the opportunity for changes to be made and to obtain final approval for the material 4 0 to be used. In terms of confidentiality the participants’ names were not used at any stage and all documents associated with a particular informant were coded to ensure this. As an illustration, interview participants are identified according to their database coding number. For example ‘Personal Communication, Servic e Database Entry (kaupapa) – Record XX. Potential harm was avoided through the methods of keeping material confidential and storing data securely. Other ethical issues that were kept in mind during the study were the importance of adhering to relevant legislation in regard to the research. In terms of intellectual property the researcher was covered under the Copyright Act 1994, where in Section 14 it states “Copyright is a property right that exists in accor dance to this Act, in original works”. PhD research is usually an original work. The Human Rights Act 1993 was taken into account wh en selecting participants for the study. Participants were not chosen due to their affiliation to a particular group or due to their sex, age, ethnicity, disability, political opinion etc. Under the Act (section 21) to do so would be “unlawful discrimination”. The Privacy Act 1993 was referred to in regard to t he transfer of information from the participants to the researcher. It was important for the researcher to keep the ‘Information Privacy Principles’, stated in section 6 of the Act , in mind when handling information. These principles were mirrored in both the Information Sheet and Consent Form. There were some cultural concerns associated with the study in terms of protocol. This was due to the fact that many of the participants were Mori and were interviewed in their homes, workplaces or marae. The researcher has fluency in te reo Mori and has a good knowledge of tikanga so was therefore able to operate comfortably in such situations. Gaining ethical consent for the study proved to be a challenging exercise. This was not solely due to the fact the researcher was non-Mori (although evidence was required of 4 1 support from kaumatua from within the community), a s other researchers who were Mori and undertaking research were also experiencing the same difficulties. While the Human Ethics Committee needed to be reassured that Maori communities were not going to be exposed to unsafe research practices or that tribal intellectual property would not be appropriated, the length of time taken before approval was granted may also have reflected the Committee’s difficulty in assessing t he ethicality surrounding kaupapa Maori research methods. An important consequence o f delayed approval was loss of interest from academics who had been contacted during the initial stages of the study. Their participation had been factored around availability during the academic year and many were unable to reschedule to accommodate new timelines. As it transpired,, placing greater reliance on key experts, rather than academic informants added a different dimension and introduced a practical approach, rather than purely academic focus. The other difficulty that arose in reference to ethical issues was the process of obtaining consent from participants. For those who were famil iar with the research process or had had some university background it was not a problem. But for those who were not familiar and did not understand the process it was quite foreign and sometimes threatening. Of the informants who were personally known to the researcher it was their opinion that such processes need not take place due to the existing personal relationship. With some explanation this was usually clarified but in a few instances the informant would not put a signature on the consent form though did give oral permission, which was recorded on the audio-tape. Upon reflection perhaps the explanation and information sheet provided were not pitched in the correct manner. SUMMARY This chapter has considered three important issues. First, the relevance of a kaupapa Mori research paradigm that is able to reflect a Mori world view, contribute to Mori resource development, incorporate Mori practices and approaches, facilitate Mori participation, develop appropriate information protection and storage mechanisms, and ensure relevant dissemination of information. 4 2 Second, the qualitative nature of the investigation has been highlighted. A naturalistic outlook was applied in order to understand how certain issues, such as tikanga and statutes in relation to Mori resource management and development, behaved within their natural environment. There were no prior expectations as to what results might be revealed. Third, the research method described here was used to ensure that the objectives of the study could be met. These methods are suitable for qualitative investigations, are adaptable enough to include a kaupapa Mori perspective, and are able to ensure quality data. By addressing these issues an overarching framework was formulated in which the investigation could proceed. CONCLUSIONS In this research, the juxtaposition of a M ori-centred approach alongside more conventional western approaches did not create barriers, or reduce the significance of any one method. The process has in fact reinforced the view that research into contemporary Mori life will be enhanced by the employment of multi-methodological techniques. By defining the paradigm in which the research would take place it was easier for the researcher to concentrate on what was important in terms of data collection and analysis in relation to the study. There are arguments for and against non-Mori working within a kaupapa Mori research framework. These have been addressed and the researcher feels comfortable using this approach and believes that a purely western methodology would not do justice to the study and nor would an exclus ive focus on kaupapa Mori achieve the best result. There were also barriers in terms of ethical issues but these were overcome. The researcher has learnt from this experience and will be all the wiser when confronted with such situations in the future. The methodology employed, as outlined in this chapter, has enabled the relevant information to be collected, analysed and stored in order to fulfil the overarching objectives of this research, the outcomes of which will be explored further in subsequent chapters of the thes is. 4 3 1 W. L. Neuman., (20 0 0 ), Social Research Methods: qualitative and quantitative approaches, Allyn and Bacon, Boston. 2 N. K. Denzin and Y. S. Lincoln (eds.), (19 94 ), Handbook of Qualitative Research, Sage Publications, Thousand Oaks, Newbury Park, California. 3 M. P. Quinn, (19 9 0 ), Qualitative Evaluation and Research Methods, Sage Publications, Thousand Oaks, Newbury Park, California. 4 D. C. Phillips, (19 8 7 ), Philosophy, Science, and Social Inquiry, Pergamon Press, New York. 5 Neuman, (20 0 0 ), op cit. 6 ibid 7 ibid 8 ibid 9 ibid 1 0 C. Teariki and P. Spoonley, (19 9 2), Te Whakapakari te Mana Tangata: the Politics and Process of Research for Mori, Department of Sociology, Massey University. 1 1 L.T. Smith, (19 9 9 ), Decolonizing Methodologies: Research and Indigenous Peoples, University of Otago Press, Dunedin. 1 2 ibid 1 3 K. Irwin, (19 9 4 ), ‘M ori research methods and practices’, in Sites, 28, p31. 1 4 R. Bishop, (19 94 ), “Initiating Empowering Research ?”, New Zealand Journal of Educational Studies, 2 9 ( 1 ). 1 5 Ministry of Justice, (20 0 1 ), He Hinetore ki te Ao Mori – A Glimpse into the Mori World: Mori Perspectives on Justice, Ministry of Justice, Wellington. 1 6 T. K. R. Kingi, (20 0 2 ), “Hua Oranga”: Best Health Outcomes for Mori, PHD Thesis in M ori Studies, Massey University, Wellington. 1 7 L.T. Smith, (19 9 9 ), Kaupapa Mori Methodology: Our power to define ourselves, a seminar presentation to the School of Education, University of British Columbia. 1 8 Irwin, (19 9 4 ) 1 9 E. Stokes, (19 8 5 ), Mori Research and Development, University of Waikato, Social Sciences Committee of the National Research Advisory Council, Wellington. 2 0 ibid 2 1 M. Ohia, (19 8 9), Research for Mori Education, Address to NZARE Conference, Trentham, Proceedings of the Conference. 2 2 Smith, (19 9 9 ), Kaupapa Mori Methodology 2 3 L. Pihama, (20 0 1 ) ‘ Tihei Mauri Ora’: honouring our voices. Mana Wahine as a kaupapa Mori theoretical framework. Unpublished PhD, The University of Auckland. 2 4 Smith, (19 9 9 ), Kaupapa Mori Methodology 2 5 Pihama, (20 0 1 ) 2 6 ibid 2 7 J. Bevan-Brown, (19 9 8 ), ‘By M ori for Mori, about Mori – Is that Enough?’, Te Pumanawa Hauora (ed.), Te Oru Rangahau Mori Research and Development Conference, 7-9 July 1998 Proceedings, School of Mori Studies, Massey University, Palmerston North. 2 8 L. T. Smith, (19 9 9 ), Decolonizing Methodologies: Research and Indigenous Peoples, University of Otago Press, Dunedin. 2 9 Kingi, (20 0 2 ), op cit. 3 0 Denzin and Lincoln, (19 9 4 ), op cit., p. 2. 3 1 Kingi, (20 0 2 ), op cit. 3 2 M. Patton, (19 9 0), Qualitative Research and Evaluation Methods, Sage Publications, Thousand Oaks, Newbury Park, California. 3 3 Ibid 3 4 Newman, (20 0 0 ), op cit. 3 5 The literature database eventually contained 150 d ocuments (most relevant sections were transcribed o r photocopied). This information was then numbered an d filed (1 to 150 ) within a central repository (physical database). 4 4 3 6 A gift. 3 7 A prayer – designed in this sense to open formally a meeting or discussion. 3 8 A formal farewell. 3 9 J. Maxwell, (19 9 2 ), ‘Understanding and Validity in Qualitative Research’, in Harvard Educational Review, vol. 63, pp. 279-300. 4 0 U. Flick, (19 9 2 ), ‘Triangulation Revisited: Strate gy of Validation or Alternative?’, in Journal for the Theory of the Alternative, vol. 22, pp. 175-198. 4 1 R. Stake, (19 9 5 ), The Art of Case Study Research, Sage Publications, Thousand Oaks, Newbury Park, California. 4 2 A.Hubberman and M. Miles, (19 84 ), Innovation up Close: How School Improvement Works, Plenum Press, New York. 4 3 C. Turner, (198 7 ), Organising Information: Principl es and Practice, Bingly Press, London. 4 4 http://www2.selu.edu/Academics/Faculty/elejeune/cr itique.htm 4 5 See http://writing.colostate.edu/references/research/content/pop2a.cfm (1 February 2002 ) 45 Chapter Two CUSTOMARY MORI RESOURCE MANAGEMENT INTRODUCTION The previous chapter explained the methodology employed for the research process and has set the parameters in which the study has been undertaken. The following chapter aims to identify the broad themes, principles and tikanga (customary conventions) that were applied to M ori resource management and continue to have relevance and application in contemporary times. CUSTOMARY MORI RESOURCE MANAGEMENT Customary Mori resource management philosophies and practices were highly structured and organised. Unlike the Western division of time, the traditional Mori lunar calendar had specific names for every day of the month, each day being important for particular activities (e.g. planning, harvesting or fowling). 1 Despite the loss of some species, customary management principles were constantly being developed to ensure kin group and resource survival. Some management principles became strong because some species died out. Resource management became more ordered as a result of generations of trial and error, particularly at times of crisis or resource depletion. Where there were pressures on the group to survive, management systems adjusted to meet the needs as be st as possible. Mori managed the environment carefully, so that present and future generations could maintain a genealogical identity to the resources. It was the hap, and not the iwi, in traditional Mori society, which was the primary land and resource holding unit and therefore, the kin group who had a direct relationship with surrounding resources in terms of the overall management and exploitation. Hap  maintained a reciprocal relationship with lands and resources according to tikanga. Hap  are obliged to look after (manaaki) guests at a ga thering. Manaaki was applied in the same way in relation to resources; t hey were looked after and managed. 46 The purpose was threefold, firstly to cement the hap association with lands and resources and therefore its status. Second, to be able to receive something in return (e.g. food provided by Tane and Papat nuku), and lastly, to maintain an economic and political resource base for future generations. 2 Hap  can only assert rights in terms of resource management when association and ties to a specific area of land and water resources is proven. In customary times, this was the fundamental means by which status and identity were marked out and distinguished tangata whenua from others. In Mori terms, this is known as mana whenua, it best equates with an authority over land s. In regard to water, mana moana translates as rights in and authority over, sea, lake and river resources. Mana whenua and mana moana also have another dimension of meaning. Resources have mana according to what they produce. Human beings are in no way superior to resources of the environment as the latter sustains the existence of the former. Humans in tu rn contribute to the sustainability of resources through their role as kaitiaki. Mana whenua and mana moana are the customary equiva lents of modern and legal forms of ‘title’, however, customary title did not imply “ownership” of, or possession of resources in an absolute sense. The mana of a group would increase or decrease according to the proven resource management ability and via the provision of protection from outside acquisition. The Mori World View Creation plays a fundamental role in relation to Te Ao Mori and the way in which iwi and hap interact with the environment. The natural world came into being during the age of Te P, throughout the generation of Ranginui (sky father ) and Papatnuku (Earth Mother). From these parents came many children, who became the representatives and guardians of all elements in the natural world, including Tane of the forests and Tangaroa of the sea. 47 All elements in the environment are seen as the descendants of Rangi and Papa and people are an intrinsic part of that environment. The interconnectedness of all things means that the well being of one part of the environment, directly impacts on the well being of all other parts, including people. Tikanga Tikanga Mori remains a familiar concept but understandings of what it means vary considerably. Tikanga Mori might be described as the Mori ethic, referring in particular to a ‘system or philosophy of conduct an d principles practiced by a person or group’. The word ‘tikanga’ itself provides the c lue that tikanga Mori deals with right and wrong. ‘Tika’ means ‘to be right’ and thu s tikanga Mori focuses on the correct way of doing something.3 However, it should not be assumed that tikanga is simply a set of rules. There are variations in the way tikanga may be expressed, at different times and in different places. It is a concept that is flexible, adaptable and negotiable according to circumstances. It is a dynamic concept, which means that change can and does occur in appropriate circumstances. 4 Tikanga Mori are firmly embedded in mtauranga Mori, which might be seen as Mori philosophy as well as Mori knowledge. Mtauranga Mori is a knowledge base that underpins Mori culture and society. It defines Mori distinctiveness, identity and gives credence to existence and relationships with the natural environment.5 In its widest sense, mtauranga Mori means the knowledge, comprehension or understanding of everything visible or invisible that exists across the universe. It encompasses knowledge of the physical world, as well as the intangible world. It is the knowledge of life and death. Traditional knowledge can be described as the knowledge context, which allows understanding, relationships, philosophies, culture and communication over a lifetime. It contributes to survival and the development of a culture, of a people.6 While mtauranga Mori might be carried in the minds, tikanga Mori puts that knowledge into practice and adds the aspects of correctness and ritual support. Tikanga Mori might be described as Mori philosophy in practice and as the expression of Mori knowledge. 7 48 Tikanga in a traditional context, comprised the three kits of knowledge representing all the knowledge and the values, norms ritual and protocols of iwi, hap and whnau. The mtauranga based values are reflected within the need to protect resources and their mauri through the use of institutions such as rhui and tapu. The three kits can be described as: Te Kete Tuwari – this kit contains the scientific knowledge or that knowledge pertaining to human activities or to natural phenomena relating to the kingdom of nature (m tauranga); Te Kete Aronui – this kit consists of celestial and cosmogenic information designed to benefit humankind or whakaaro; and Te Kete Ttea – This kit comprises all the rituals, acts and formulae with all things on earth in the cosmos (kawa). 8 There was a time when tikanga Mori was the dominant code of conduct and widely observed. That is plainly not the case today because there are choices for people to make about how they conduct their lives, and tikanga Mori are code among many. Nevertheless, the underlying values that shape tikanga have ongoing relevance and by the same token tikanga has enduring value as a determinant of behaviour and understanding in modern times. Values There are a number of central values that underpin the totality of tikanga Mori. They include: whanaungatanga, mana, tapu, utu, and kaitiakitanga. These values in no way form a definitive list. Each tribal grouping has its own variation for each of these values. Some will also have slightly different understandings as to which values inform tikanga Mori. As always in tikanga Mori the values are closely interwoven. None stands alone. Some explanation of these values is given below. However no attempt is made to give each of them a precise definition. The values are discussed generally as their connotations will differ depending on context. Mori concepts 49 hardly ever correspond exactly with those Western concepts which they appear, on the surface to resemble. 9 Whanaungatanga The whanaungatanga value denotes the fact that in traditional Mori thinking relationships are everything – between people; betw een people and the physical world; and between people and the intangible concep ts. The glue that holds whanaungatanga together is whakapapa or genealogy identifying the nature of relationships between all things. The whakapapa links between Mori, the land, the sea and other physical features has traditionally been celebrated by Mori and remains celebrated today. In traditional Mori society, individual members were important as members of a collective, therefore the identity of an individual was defined through that individual’s relationship to others in the collective. Tikanga Mori emphasized the responsibility owned by the individual to the collective. Rights continued to exist only if the mutuality and reciprocity of responsibilities were understood and fulfilled. For example, the transfer of a right in relation to a resource only lasted as long as the relationship between the transferor and transferee remained healthy. Often such a transfer was made to seal the relationship and ensure its continued health and vitality.1 0 The concept of whanaungatanga assumes the primacy of kinship bonds which influence individual action, accountability, mana ( or status and self-esteem) and social rights, including the right of individuals to confirm their identity within a selected descent group.1 1 According to Mori, humanity is directly descended from Rangi (the sky) and Papa (the earth). The myths and legends concerning them, their eldest son Tne Mahuta and his siblings is an indigenous body of knowledge which seeks to explain the origins of the universe and the relationships within the natural world. This Mori cosmogony features whakapapa and the personification of natural phenomena. 50 The union of Ranginui, the sky father, and Papatnuku, the earth mother signaled the origin of the environment, along with the actions of their offspring who represent all natural resources and events. The Mori descendants are siblings to these representations. Mori thus relate by whakapapa (genealogy) to all liv ing forms and natural resources. Just as there are whakapapa for people so is there also whakapapa for fish and animal species. The use of a resource necessitated recognition of the relevant guardian. Thus, all things were perceived to originate from the gods and the ancestors as recorded in whakapapa.1 2 Within this world view, Mori identities are fused with the land, the result of direct descent from Papatnuku. Land, or whenua is represented in the whenua, or placenta, of women. Children are born out of the whenua and this is evidenced in whakapapa that links living persons with Papatnuku. 1 3 Land was viewed as being shared between the dead, the living and the unborn. The caretakers of the land were the current generation who were watching over the resource on behalf of the ancestors for the generations still to come. 1 4 Mana At the heart of all historical and modern Mori concepts of leadership is mana. It has been defined as authority, control, influence, prestige, and power on one hand and psychic force on the other. Mana also encompasses political power, which is both ascribed through whakapapa and acquired through per sonal capacity to articulate the aspirations of the people. It is a power that has a spiritual origin, derived from the collective beliefs of whnau and hap. Mori Marsden describes the triadic nature of mana 1 5 as being mana atua – God given power; mana t puna – power from the ancestors; and mana tangata – authority derived from personal attributes. Mana tpuna is ascribed mana. It meant traditionally that those with the senior whakapapa lines have an inherited role with a community expectation that they will demonstrate leadership. That expectation remains evident in many modern communities. 51 Mana tangata or political acumen and leadership qua lities were traditionally important and are perhaps given greater importance. A person (whether male or female) with impeccable whakapapa to claim a role as a rangatira may none the less be relegated to a ceremonial, minor, or only token role, unless the appropriate skills of mana tangata are shown. Mana atua emphasizes the tapu nature of the leadership role and the respect which the community owes its chosen leaders. Rangatira who wear the mantle of both mana atua and mana tpuna will be treated with a degree of awe and respect.1 6 In addition to rangatira, mana atua is also held by tohunga, both craft specialists and specialists in ritual and religious matters. Tapu There are many meanings and conditions associated with tapu. Most often it is seen to have a spiritual significance with a religious connotation. Everything has inherent tapu because everything was created by Io (Supreme God), each after its kind or species. The land has tapu as well as the oceans, rivers and forests, and all living things that re upon the earth.1 7 The tikanga associated with tapu are important in both historic and modern contexts. There is first the requirement to respect the tapu that all things carry. Tapu and noa are complementary opposites, which together constitute a whole. Noa has its own importance, as a counter and antidote to tapu, it suggests a lack of sanction and a freedom to engage without fear of repercussions. 1 8 The tikanga of tapu can be explained in various ways. On one hand, tapu is seen as linked to a code for special conduct based essentially on keeping safe and avoiding risk. 1 9 It also has political purposes in terms of protecting the sanctity of certain persons, ensuring appropriate levels of respect for hap and iwi leadership and in keeping ceremonial or special aspects of life separate from everyday encounters. On the other hand, the mechanism of tapu is seen as centered in the spiritual, and it is this aspect of both modern and traditional understandings of tapu which would seem to ensure its efficacy. The notion of wairua (spiritua lity) in association with tapu makes the spirit world a part of reality to be reckoned with, manipulated or accommodated 52 with the same diplomacy as governs interpersonal relationships. Spirituality does not necessarily imply religious or mystical observations. It can be more immediately applied to the spiritual nature of people, of the human body and of the natural world. Utu Utu has often been described to mean revenge for wrong doing. The term actually has a much wider and richer meaning.2 0 It is often explained by pkenga (experts in customary matters) as tau utuutu or reciprocity. At a human level utu denoted reciprocity between individuals, between descent groups and between the living and the departed. Therefore, mana was not achieved through the acquisition of material wealth but rather by distributing that wealth to others. It was through ritual “gift” distributions that reciprocal obligations were established. The recipient would be obliged to respond in due course with a greater gift, and so the cycle of gift exchange or tuku was initiated. Once initiated it would continue for generations, locking people into sustained relationships. An accompanying value to the principle of reciprocity is aroha. Aroha was a strong motivating principle in pre-European Mori society, however it must be recognised that it underwent some modification and redefinition after conversion to Christianity, a modification carried out as much by Mori as by the missionaries. Many famous stories exist that illustrate the exercise of aroha by chiefs of great mana where the giving of the chief’s son or daughter to a vanquish ed enemy in order to make them strong again and restore their mana would occur or the transfer of extensive areas of land to a beaten enemy in order to ensure the survival of that tribe may take place, along with the engaging in massive displays of generosity through hkari or traditional feasting and hui or traditional gatherings in order to create obligations of reciprocity and confirm relationships. In each of these examples, however, gifts were not given unconditionally. Following the principle of utu, each gift was expected to result in an appropriate return in due course (for example, offspring from the union, prod uce from the land, loyal support in war, comparable taonga); the expectation was that a n ongoing relationship with mutual obligations would endure. 53 Kaitiakitanga Kaitiakitanga denotes the obligation of stewardship and protection. Today it is most often applied to the obligation of whnau, hap and iwi to protect the wellbeing of the natural resources within their spheres of influence. It is difficult to divorce kaitiakitanga either from mana, which provides the authority for the exercise of the stewardship or protection obligation; or tapu, whic h acknowledges the special or essential character of all things, or mauri, which acknowledges the vital nucleus of all things that have a life-force and personality of their own. From the ethic of kaitiakitanga derives the traditional institution of rhui . Rhui is a custom used to ration the use of a resource. It has been adapted to suit the changing social environment. As a consequence, r hui have evolved in the purpose they serve and methodology in which they are employed. However, the definition of rhui has not changed through time. Early accounts describe rhui as a prohibition or to prohibit. Modern definitions of rhui include: banned; out of bounds, forbidden, prohibited, under sanctuary, reserved or preserved. 2 1 There were three original uses of rhui, these were firstly to claim ownership over a particular location, secondly following the loss of life that had occurred in the immediate area, and thirdly for replenishing resources. Currently, rhui are used following the loss of life, to replenish resources and for religious purposes. Therefore, by instating a rhui, it will prohibit the use of one or more resources in a given area. Seasonal rhui such as the Tt (muttonbird) r hui , where the management of Tt harvesting on Stewart Island and neighboring islands takes place to ensure the sustainability of the resource, illustrates how seasonal rhui have been incorporated into legislation. The Tt (Muttonbird) Islands Regulations 1978, Regulation 3(2) states that “no person shall enter the said land ea rlier than the 15 th day of March in any year…” The r hui forbidding people to set foot on the islands is centuries old and is a good example of how the use of rhui has been incorporated into legislation and contemporary Mori resource management.2 2 When used for replenishing resources, rhui rely on restricted access to the resource and respect of rhui by the local community to be successful. Both the length of time taken to install a voluntary rhui and the length of time a voluntary rhui 54 can be in place vary. All resources of the surrounding biodiversity are checked against this philosophical and practical strategy. Rhui can be considered a customary science as it also relies on generations of careful observation and objective experimentation. 2 3 The important point is that rhui continue to be used by people with mana, in order to fulfill the principle of kaitiakitanga and to replenish the mauri of the resource. Mauri, the life supporting capacity of all things, lies at the heart of kaitiakitanga. Mauri is the vital energy force that gives being and form to all things in the universe, providing the interconnection between people and the natural environment. The concept of mauri recognises the divine origin of all things and demonstrates the holistic way in which the environment is perceived. The presence of mauri in all things entrust people to appreciate and respect all natural resources. Tikanga is used to regulate activities concerning the conservation and use of natural resources in order to protect the mauri inherent in those resources. Tikanga provides a system of checks and balances, which ensures the correct course of action for kaitiaki.2 4 Kaitiakitanga also requires the observation of resp ect for the resources in question. Therefore each hap or iwi had and has clear prescriptions as to the manner in which fishing activity may be undertaken. It is common for example that the first fish is returned to the sea. It is also common that no gutting of fish or shelling of shell fish is allowed to occur below high water mark. The reason is that the dumping of fish or shell fish remains into the sea would provide both a spiritual and physical pollution of the sea and hence a detraction from its tapu. Kaitiakitanga embodies a flexible, adaptive approach to managing resources and is usually based on mana whenua or holding customary authority in their particular rohe. Kaitiakitanga is exercised by manawhenua on behalf of the wider group in return for a share in any excess of the resource. 2 5 Hirini Matunga has proposed a four-part framework f or understanding Mori values. He suggests that culturally responsible environment al management decisions should take into account four fundamental Mori values: taonga, tikanga, mauri, and kaitiaki. Taonga is interpreted to mean an object or resource which is highly valued. Taonga 55 was used in Article 2 of the Treaty of Waitangi as a translation for ‘other objects’, though clearly its meaning in Mori is far broader than the implied English focus on physical objects. It has been said to cover enviro nmental properties as well as economic and cultural resources. The way in which a taonga are valued varies according to particular methods of recognition practised by different tribal groups – the tikanga. Tikanga are used as ‘guides to moral behaviour’ 2 6 and within an environmental context refer to the preferred way of protecting natural resources, exercising guardianship, determining responsibilities and obligations, and protecting the interests of future generations. Tikanga is as much a comment on process and ethics as it is on fixed attitudes or knowledge. According to Mori all living things, including natural and physical resources, possess a mauri, a life force or essence. Distinctions between inanimate and animate objects are therefore blurred, because each is afforded a spiritual existence which complements the physical state. In that sense nothing is lifeless. The fourth part of the framework for understanding Mori environmental values is kaitiaki. It denotes the burden incumbent on tangata whenua to be guardians of a resource or taonga for future generations. The act of guardianship, kaitiakitanga, requires clear lines of accountability to wh nau, hap and iwi and is more frequently associated with obligation than authority. In environmental terms the kaitiaki approach is holistic and provides for restoration of damaged ecological systems, restoration of ecological harmony, increased usefulness of resources, and reduced risk to present and future generations.2 7 56 Table 2.1 – A Framework for Understanding M ori Environmental Values 2 8 Key Value Applications Taonga ancestral land water seas, rivers air minerals native animals mahinga kai (traditional food sources) taonga raranga (flax, weaving material) whi tapu estuaries, coasts atmospheric change energy (geothermal) native plants Tikanga Wairuatanga Manaakitanga Rangatiratanga manawhenua respect protection recognition authority Mauri status of resource abundance extent of pollution regenerative capacity Kaitiaki guardianship restoration of balance reduced risk to present generations future generations Source: adapted from Matunga, 19 94 Tikanga Mori is not fixed but is based on a continuing review of fundamental principles in a dialogue between the past and the present. The point is that tikanga Mori has been receptive to change while maintaining conformity with basic beliefs. Flexibility allows a proposition to be advanced but not to the extent that it conflicts with basic principles. Tikanga is part of a dynamic process. There is value in looking to the past, to the extent that is sheds light upon the present and the future. 2 9 Tohunga and Whare Wnanga Because of the strong oral tradition in Mori society, knowledge was never universally available nor fixed by written word. The tapu nature of knowledge also meant that when it was entrusted to individuals it was transmitted accurately and used appropriately. Thus ethical practice was ensured as was the survival and prosperity of the group and the maintenance of mana. 3 0 The term “tohunga” denotes an expert in any sphere. Tohunga took great care to ensure that knowledge was transmitted with accuracy and context through chant, 57 recitation of whakapapa or other oral mediums. Training was rigorous and high standards of achievement were expected. From this t raining tohunga emerged as people of advanced learning, well versed in ritual and karakia and with a deep knowledge of all aspects of tribal lore. 3 1 The tohunga was sometimes referred to as a priest because of the role of intermediary between mortals and the gods. Specialised knowledge was derived from experience, codified in language that embraced spiritual as well as temporal dimensions. Tohunga knew the appropriate karakia and ceremony and could translate knowledge into terms accessible to man. The tohunga was the guardian of the many forms of the laws of tapu. These laws formed the basis on which the social life of a community could be maintained so that the community could survive. 3 2 Whare wnanga taught students the spiritual relationship between people and the world. Its purpose was to maintain an established framework that ordered and categorised the world by whakapapa. Where as tohunga were the repositories of mtauranga Mori in traditional times, whare wnanga were the institutions in which knowledge was transmitted. Traditionally the transfer of knowledge among Mori has involved expert individuals, tohunga and wananga. However, modern influences hav e seen this system expanded to include the recording, collection and dissemination of mtauranga Mori through other forms. While many kaumtua have traditional knowledge related to cultural activities and experiences, increasingly knowledge is being disseminated without the constraints of the past. Veracity and authenticity are consequently more difficult to monitor 3 3 Karakia Karakia were performed at every stage of managing resources from early preparations of a crop to harvesting. Offerings were made to atua prior to planting and planting itself was a sacred activity. The growing season was also deemed tapu and placed under ritual protection. Fowling seasons were desig nated to tapu periods and there were also karakia that were performed before snaring kiore. Additionally, karakia 58 were recited to encourage fish into fishing grounds. Many other economic activities associated with the management of resources were sanctified with tapu through the medium of karakia. Karakia were a method of disciplining the behaviour of those directly or indirectly involved in the resource management. 3 4 Customary Law Customs and lore are the means by which an Iwi gives expression to its values, its ideals and its way of seeing the world. Lore is the way in which the Iwi ensures that its values and its taonga are regulated, protected, and made safe. Iwi lore provides the mechanisms and defines the rights and obligations that help the custom, culture and knowledge survive. The term “customary law” is usually applied to the laws and legal systems of non- state societies, and is sometimes criticized on the basis that it reflects a distinction between “law” and the ‘Customary law”. It is also s uspect for containing a built-in assumption that the former is in some way superior to the latter. Common law was itself regarded as “customary law” until the rise o f legal positivism in the nineteenth century. The term “customary law” is used to indica te only that the law is closely linked with custom and social practice and is unwritten. 3 5 Custom has often been presented as static and regarded as having historic value only. In fact, custom is only as static as the eternally altering society it represents. The vitality of the common law is not necessarily reduced by its customary origins.3 6 Mori customary law can be regarded as the customary practices and rules of Mori that continue to be practiced today. Whether such rules and practices amount to “law” is largely a semantic. Such rules and practices certainly existed and still exist, by whatever name we now choose to describe them. 3 7 The word ‘law’, however, is firmly attached to connotations of legislation and statute, that its use in other contexts can be misleading. Legal positivism, now the dominant jurisprudential tendency in Western systems sees “law” as linked with the state. The clearest exampl e of a “law” in this sense is a 60 The Waitangi Tribunal does not apply Mori customary law as such, but in the prominence it has accorded to the Mori text of the Treaty of Waitangi some Mori concepts have influenced the Tribunal’s jurispruden ce. As in the Mori Land Court, Mori customary law has been important to the Tribunal in an evidential sense. Many claimants have provided details of customary land and fisheries management practices, of rules of descent and Mori social organisation; and this material has been supplemented to some extent by academic specialists. 4 2 “Notwithstanding the withering process of attrition that Mori custom law has suffered, the tikanga that make up Mori custom law still survive, most notably in Mori controlled environments such as marae and hui, in significant number of Mori homes and with regard to the protection and management of natural resources, especially those of the forest and coast. Increasingly over the last twenty years there has been a discernible push from Mori and other quarters for Mori custom law to be applied in a number of different areas of general law, including family law, criminal justice and administration of land. The principal source of the demand is the Mori determination to use structures and processes that are essentially Mori in managing things Mori”4 3 Before the rise of legal positivism, classical common law theory was based on the assumption that the common law was itself “customar y law”, the custom or practice of the English that the Judges endorsed but did not create. One area of the common law where indigenous customary law is part of the common law and cognizable and enforceable by the ordinary Courts is the law relating to aboriginal, or native title. Native title is protected by the common law, which in turn imposes certain limitation on it. Mori customary law is thus part of New Zealand common law in the sense that the “internal” content of property rights protected by native or aboriginal title can be governed only by the customary rules.4 4 Mori customary law can also be incorporated into New Zealand common law by statute. Courts, tribunals and officials may be directed by statute to base their decision on Mori customary law. This can be illustrated by section 7(a) of the Reso urce Management Act 1991 that states particular regard w ill be given to Kaitiakitanga – 61 meaning the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Mori in relation to natural and physical resources; and includes the ethic of stewardship. A further example of custom being incorporated into statute are Sections 32-3 of the Te Ture Whenua M ori Act 1993, where the provision is made that in cases where there is a dispute about Mori custom or rights of Mori representation the Chief Judge is required to appoi nt two or more lay members expert in tikanga Mori, additional to the Judge, who are full members of the court. 4 5 While custom has always existed and typically has been defined as finite law, in reality customary policy was dynamic and receptive to change, but change was effected with observance to those essential principles and beliefs that Mori considered appropriate to administer the relationships between persons, peoples and the environment. 4 6 Customary Mori Land Tenure Mori customary tenure comprised a complex system of overlapping and interlocking rights of use and occupation, but with no right of alienation except in very special circumstances. Land was not a disposable commodity. It was not “owned”. It was inherited from the ancestors, and it was expected that it would be passed on to the descendants. Associated with rights of use and occupation was a strong sense of stewardship or trusteeship. Land rights were therefore inextricably bound up into the networks of kinship, ancestry and a social and political structure that acknowledged leadership in senior lines of descent, at iwi hap and whnau levels, and a decision making structure that emphasized consensus. The relationship between Mori and their land was not only the economic one of food, shelter and sustenance; there was also a spiritual and emotional quality of identity with place and ancestry.4 7 The Mori Land Court Judge N F Smith considered the essen tial elements in his opinion of customary Mori land tenure4 8 . In his view the four main take of customary tenure were those of Discovery, Ancestry (take tipuna), Conquest (take raupatu) and Gift (take tuku). These four take wil l now be examined more closely. 59 statute. Legal positivism in fact describes the actual structure and functioning of the New Zealand legal system reasonably well. However, legal positivism is quite unable to account for non-official laws. Within a country such as New Zealand legal positivism has difficulty in recognizing non-official laws, of which there are a substantial number.3 8 An example of this can be found in religious communities within New Zealand, such as Moslems, Jews and Roman Catholics, who are governed to a varying degree by religious laws which are extremely developed, of great historic significance and are highly organised. The government does not enforce religious law in New Zealand. Individual Roman Catholics are fre e to open their lives to the rules of catholic canon law to whatever degree desired. To dispute canon law is not “law” for these grounds is to assume a particularly restricted vision of what may or may not be legal.3 9 It is interesting that many early visitors to New Z ealand had no difficulty at all in seeing Mori customs and practices as “law”. This may be par tly because legal positivism was not yet established in either England or New Zealand. Mori culture has as one of its expressions Mori law (lore), which is integral to the culture and emanation of it and indeed, the observance of which is vital to individual wellbeing. Those who think of “M ori law” (lore) in this way differentiate it from legislation or statute, which is similarly an emanation of non-Mori or Western culture, and which is therefore founded on the cultures and norms of English culture and the Judeo-Christian traditions. In this culturalist view all cultures are self- contained systems that are entitled to preserve their own cultural identity and cultural expressions such as their own languages and laws.4 0 In most situations Mori customary law until recently has been simply invisible. This is surprising, as the New Zealand Courts have accep ted that Mori customary law is part of New Zealand common law. Further, New Zealan d does have, like many countries, a specialist Court set up to give effect to customary law as it pertains to land, the Mori Land Court. The fact that decisions of the Mori Land Court were not formally reported in published law reports and , indeed, still are not – has also helped to keep the subject of M ori customary law invisible. 4 1 62 Discovery ‘Title’ to land was for the most part acquired by d iscovery. Discovery was frequently submitted to the Native Land Court as justification of ownership if an ancestor discovered the land, appropriated it to his use, occupied it, and that such occupation has been continued by the descendants of that ancestor. Ancestry or “Take Tupuna” A right to land by ancestry involves a claim of descent from an ancestor whose right was recognised, or, in whom the right to occupy at one time rested. The lands of a tribe did not form one unbroken district over which all members of the tribe might wander. On the contrary, they were divided into a number of districts appertaining to the several sub-tribes. Each sub tribe consisted of the descendants of a common ancestor who was, in former times, the conqueror, o r in any other way the recognised owner of the district. 4 9 Conquest or “Take Raupatu” A title by conquest usually became complete upon th e material subjection of the conquered tribe. Mere raids, even if a raiding par ty was successful, were insufficient to support a title by conquest. As in the case of the other claims to land, the conquest must be shown to have been followed up by occupation of the conquered land and eventually a mutually agreed arrangement with the original tribe. Conquest was never absolute. Even after defeat, the original owners retained residual rights and even respect. An allegation that land had been acquired by conque st invariably raises questions of the degree of the relative conquest. Whether there had been a complete conquest, and whether it had been followed up in such a manner as to justify finding in favour of the person who alleged it. These are the questions of f act which, in addition to occupation, the Court has to determine according to the evidence and the particular circumstances. 5 0 On the issue of conquest or ‘take raupatu’, Smith s et out a series of varying examples of title by conquest. These included total conques t that involved the extermination of the defeated followed by occupation or conquest fol lowed by occupation but where 63 survivors of the defeated group were kept as slaves who could be permitted to occupy various portions of their former lands. Conquest fo llowed by occupation where defeat was not total and the defeated group remained on the land to be tied to the victors by marriage, alliance or the like in exchange for some form of service was also given as an example along with conquest followed by occupati on in which survivors of the defeated remained on the land perhaps hiding in the bush. They would thus retain a portion of their rights to their occupation rights or ahi k. Ballara5 1 provides some useful examples of “Take Raupatu” in traditional times. In the case of Ngti Kahungunu, after battles and readjustments had s uccessfully established colonies at Wairoa, Nhaka, Ahuriri and Heretaunga, the highest ranking men of the whole district exchanged women with each other, their tangata whenua neighbours and inland groups. Their children’s pos ition was strengthened, from the conquering group they inherited mana over the peopl e, and through their descent from the tangata whenua they inherited mana over the land. In 1867, it was explained to the then native minist er that Ngti Te Rangi only claimed the Tauranga District by conquest. They did not de stroy the original inhabitants, but allowed them to continue to occupy their lands, not as slaves, but subject to Ngai Te Rangi. Ngai Te Rangi chiefs married women of the conquered tribes, and Ngai Te Rangi women married their men. 5 2 Gift or “Take Tuku” The circumstances necessary to constitute a complete gift of land according to custom included the donor having had sufficient right to make it and that the gift must have been widely known and publicly agreed to, or understood without being stated openly by the tribe, along with the gift receiver or his direct descendants having continued to occupy the portion gifted. Where the gift receiver died without issue, or, having issue, they or their descendants failed to occupy or perform any conditions attached to the gift, the land reverted to the donors. 64 Gifts were frequently made by one tribe to another for assistance rendered in times of warfare, or danger, or for the purpose of strengthening the donor tribe against possible invasion by alien tribes; in consequence of cementi ng family connections by marriages; in payment of a death or injury suffered by chiefs and others; as compensation by one tribe to another after a conflict where the two tribes have declared a cessation of hostilities. 5 3 Occupation While occupation was usually a necessary precondition to maintaining customary rights, according to Smith there were different levels of occupation. They included those who showed complete and continuous occupation which commenced before 1840 and extended to the time of the investigation of title. Where the occupation was by virtue of ancestry possession for three generations was necessary. Where occupation arose out of conquest, it had to be demo nstrated that the conqueror seized the land into their possession and retained it following such seizure. Another level of occupation outlined were those who had never personally occupied but whose near antecedence had undisputed occupation or whose rights had been kept in existence by relatives or those who had occupied at some former period but were no longer in personal occupation and finally those who were in occupation by right of ancestry but this permanent occupation was recent in its origin. Smith also states that by the year 1895 the rules o f native custom, with regard for commonly known tribal and hap differences throughout New Zealand, became more or less clearly defined. However, Judge Durie stat es that Smith’s text on M ori land law should be distinguished as it is primarily concerned with the statute laws that replaced customary tenure. Although an early chapter describes the original determination of Native title, purportedly according to custom, there are doubts about the anthropological accuracy of the early judicial opinion on which that particular chapter relies.5 4 Conclusion There is a well known aphorism which says that Mori walk backwards into the future, i.e. that they take the past with them in advancing into the unknown.5 5 Tikanga was the fundamental means by which survival was ensured, in spiritual, 65 economic and political terms. Tikanga regulates relationships, not only within the kin group, but also between the group and the environment. While Mori values and tikanga have now re-entered the legal system, there is evidence that the system may not yet have the tools, or have developed a sufficiently informed approach, to dealing appropriately with those values.5 6 However, there is also a good deal of evidence th at shows customary practices, tikanga and custom law persists to the present day. What has become clear is that much of the philosophy and teachings of the traditional Mori world still retain their vitality, their meaning and their relevance. As a result tikanga Mori retains much of its mana, its tapu and its mauri. 1 Merata Kawharu, (1 9 98), Dimensions of Kaitiakitanga: an investigation of a customary principle of resource management, a thesis submitted in fulfilment of the requireme nts of Doctorate of Philosophy in Social Anthropology, Oxford University. 2 Kawharu, (1 9 98) 3 H. M. Mead, (20 03), Tikanga Mori: living by Mori values, Huia Publishers, Wellington. 4 E Stokes, (1 99 7), Mori Customary Tenure of Land, Department of Georgraphy, University of Waikato. 5 Aroha Mead, (20 05), ‘Emerging Issues in Mori traditional knowledge, can these be addressed by UN agencies?’ in International Workshop on Traditional Knowledge, Panama City 21-23 September. 6 ibid 7 Mead, (2003) 8 M Solomon, R Schofield, (19 92), The Resource Management Act and the Treaty of Waitangi – a starting point and framework, a report prepared for the Taranaki Regional Council. 9 ibid 1 0 J Williams, (19 98), He Aha Te Tikanga Mori, Unpublished paper for the Law Commission, p 9. 1 1 E.T.J Durie, (1994), Custom Law, Paper To New Zealand Society for Legal and Social Philosophy. 1 2 ibid 1 3 ibid 1 4 ibid 1 5 M Marsden, (197 5), ‘God, Man and Universe: A M ori View’, in M King (ed) Te Ao Hurihuri: The World Moves On, (Wellington, Hicks Smith) 1 6 Williams, (19 98) 1 7 Law Commission, (2 001), Mori Custom and Values in New Zealand Law: Study Paper No. 8, Law Commission, Wellington. 1 8 ibid 1 9 ibid 2 0 ibid 2 1 K.H. Maxwell, W. Penetito, (200 7), ‘How the use of rahui for protecting taonga has evolved over time’ in MAI Review, 2. 2 2 ibid 2 3 Kawharu, (19 98) 2 4 Te Atiawa Manawhenua ki Te Tau Ihu, (2 001), Environmental Management Plan. 2 5 R.F.R., Barclay, (200 1), ‘Kaitiakitanga raahui and ra’ui; traditional resource management ethics in Aotearoa and the Cook Islands’, in Te Taarere aa Tawhaki: Journal of the Waikato University College, 1, pp106-121. 2 6 M.H. Durie., (19 98), Te Mana Te Kwanatanga, Oxford University Press, Auckland, pp. 23-24 2 7 ibid 2 8 ibid 2 9 Law Commission, (2 001), op cit. 66 3 0 Fiona Cram, (19 97), ‘Developing partnerships in re search: Pkeh researcher and Mori research’, in Sites, 35, p44-63. 3 1 Sam Rolleston, (1 989), He Kohikohinga: A Mori health knowledge base, Department of Health, Wellington. 3 2 ibid 3 3 Mead, (20 05) 3 4 Kawharu, (19 98) 3 5 R. Boast, (200 4), ‘M ori Customary Law and Land Tenure’ in Mori Land Law, LexisNexis, Wellington. 3 6 Durie, (19 94) 3 7 ibid 3 8 ibid 3 9 R. Boast, (200 4), Mori Land Law, Butterworths, Wellington 4 0 ibid 4 1 ibid 4 2 ibid 4 3 Law Commission, (2 001) 4 4 Boast, (20 04), op cit. 4 5 B. Gilling, (1 994), ‘Engine of Destruction? An Int roduction to the History of the M ori Land Court’, in Victoria University of Wellington Law Review, vol. 24, no.2, pp. 115-13 9. 4 6 Durie, (19 94) 4 7 Stokes, (19 97) 4 8 L. Harvey, (199 9), ‘The nature of ancestral, custo mary and historical interests’ in Pu Kaea, May, pp8-9 4 9 N. Smith, (1 94 6), Native Custom and Law Affecting Native Land, Mori Purposeds Fund Board, Wellington. 5 0 ibid 5 1 A. Ballara, (19 98), Iwi: The Dynamics of M ori tribal organization from c. 17 69- c. 1945, Vict oria University Press, Wellington 5 2 Ballara, (19 98) 5 3 ibid 5 4 Durie, (19 94) 5 5 Kawharu, (19 98) 5 6 R. Joseph, (2002), Mori Values and Tikanga Consultation under the RMA 1991 and the Local Government Bill – Possible Ways Forward, Conference Address, Te Matahauariki Institute. 6 7 Chapter Three LAND MANAGEMENT INTRODUCTION “We are the children of Papatnuku, the Earth Mother, one of our divine Primal Parents. We contend that all of Nature derives from her – our lands, forests, rivers, lakes and seas and all live contained therein. As such our spirituality is deep-rooted in the earth, the lands upon which our forebears lived and died, the seas across which they travelled and the stars which guided them to Aotearoa. They were also physically sustained by the produce of Tane and Tangaroa. The sanctity of the Mauri of all things was respected.”1 The term ‘M ori Land’ refers to a particular status of land whi ch is distinctly different from all other land in New Zealand due to its form of tenure and its controlling legislation. Most Mori land has multiple owners who are genealogically linked to each other and have historic links to the land. It has cultural and spiritual importance as a source of tribal identity, and as the place in which whnau and hap have their roots, irrespective of where they may live. Mori customary land is land that is held in accordance with tikanga Mori. It is land the ownership of which has not been determined by the Mori Land Court. This status once applied to all land in New Zealand. M ori customary land is the only form of title in New Zealand that is not derived fr om a Crown grant. This is because that land has never been alienated from Mori ownership – Mori have the title as they had it in 1840. M ori customary land is inalienable. Land cannot be converted back into Mori customary land but Mori customary land can remain Mori customary land if only its status is being investigated. Today the exact amount of Mori customary land is unknown but is believed to be extremely small.2 It is estimated that there is 1,515,071 ha of M ori land, this area amounts to just 4.5 percent of the total land area of New Zealand. 3 It is the remnant of customary 6 8 interests that whnau, hap and iwi once had over the entire country. All present day land titles can be traced to an original holding by iwi/hap/whnau owners. Mori land is often marginal in quality and remote. 4 Iwi and hap were marginalised to remoter areas when alienations claimed the best land. Eighty percent of Mori land is in the poorest land use capability areas. It is more likely to be landlocked, unsurveyed, difficult to access, and not actively managed. 5 Mori land usually has multiple owners. Because of the nature of the original customary iwi and hap interest and the fragmentation of the freehold interest that has occurred since the 19 th century, it is not uncommon for a block of a few hectares to have several hundred owners. Multiple ownership means the administration of the land for the purposes of use or alienation is complex. Either all the owners have to be drawn together to approve to approve any dealing with the land or a representative body with appropriate legal powers needs to be established6 , such as an incorporation or Trust structure arrangement as provided for under Te Ture Whenua 1993. The extreme fragmentation in many blocks of Mori freehold land has reduced the economic value of individual owners’ shares to the point where they have no real option but to have the land administered on their behalf by a trustee or other body representing the owning group as a whole. 7 However, a collective interest may actually be advanced where individual interests are minimal and can be done so through the utilisation of the provisions under the 1993 Act. This chapter examines the resource of land and how for Iwi and Hap  it has served both as a source of economic and physical sustenance, along with being source of identity that provides cultural and spiritual nourishment. Traditional methodology in relation to land management is overviewed here, along with the effects legislation and other processes such as the Treaty have had on land management today. Two examples of land management are provided to further illustrate how tikanga can be applied to contemporary methods of resource management in regard to Mori land. 6 9 CUSTOMARY LAND TENURE Before the establishment of a land title system derived from England, all land in New Zealand was held under the customary rights of hap . There was no national property rights system; instead land tenure was a function o f tribal affiliation and intergenerational transfers. Human beings are descended from Papat nuku. According to whakapapa, te ira tangata (humankind) was created from the liaison be tween Papatnuku and Ranginui. Upon their separation, the night was traversed and the children of Rangi and Papa entered into Te ao Mrama – the world of enlightenment. Subsequently, one of these children, Tne-nui-a-Rangi formed the te ira wahine (females) f rom the earth at kura waka. Her name was Hine-ahu-one and together with Tane, the human genealogical descent line was initiated. It is said that all iwi can whakapapa back to this liaison.8 As to the other forms of life – the fish, the trees, the stars, the insects, etc – these all descend from Tane’s siblings, and indee d from previous liaisons of either Rangi or Papa. Together, they constitute the entire environment of which Mori view te ira tangata as but one related element. This perspective of life reflects Mori beliefs about their relationship with the environment and a distinctive way of dealing with the land. It meant, for example, that Mori took, what is now termed an “ecocentric” approa ch, to caring for the natural world. This translates essentially as viewing the environment or ecology in a holistic manner, and not from an individualistic, anthropocentric perspective. 9 The word whenua refers to land. It also has another meaning, referring to the placenta or afterbirth of a newborn infant. Traditionally the afterbirth of a child was taken and buried on the land of one’s own wh nau or hap. This process was called iho whenua or whenua ki te whenua. Afterwards a tree was planted which served as evidence in establishing territorial boundaries. The use of the one word whenua to describe both the placenta and the earth is recognition of the essential live giving nature of Papatnuku. 7 0 Complementing iho whenua is the concept of trangawaewae. Literally speaking, this means “a place for the legs to stand”. Culturally speaking, however, trangawaewae refers to the ancestral land where one’s wh nau, hap, or iwi maintain customary rights. It is therefore a place where one belongs (not a place which belongs to one), and is where members of that whnau, hap or iwi have the right to speak and be heard on issues affecting he wider body. The concept of trangawaewae was also a mark of identity. Living in a communal society, identity with a particular whnau or hap was important for support and survival. Identity, however, came not so much from individual exploits, but rather, from the land.1 0 Land was not seen as solely in economic terms. Instead, it was seen as a resource which cold be used to feed, house, clothe, and equi p. Ancestral lands were therefore regarded with veneration and not merely as economic resources. The very identity of every person attached to the land, the loss of which brought about not only deprivation and disgrace, but spiritual anguish. Ultimately, the land provided a sense of identity, belonging and continuity.1 1 Appreciating this connection to the land helps understand more clearly the value put upon the system of ownership under which the land was held. Land was not only a source of economic wellbeing, but represented one of the realms of the various Mori deities. It was also the burial ground of the placenta and bones of ancestors. Manawhenua is a term often used when describing rights in regard to land. There are two aspects to the concept of manawhenua which should not be considered in isolation of each other. On the one hand, manawhenua represented the political authority possessed by a given group over a given piece of land, while on the other; it was the embodiment of a series of cultural concepts such as wairua, tapu, mauri, whakapapa, utu, muru, rhui, kaitiakitanga. In its political sense, manawhenua represented superior power, while in the spiritual sense; it reflected the intimacy of association between the people and the land. Here, manawhenua was the power that the land itself held. Together, each aspect provided “physical” and “metaphysical” balance to land. 7 1 A possible definition of manawhenua (in its politic al sense) has been given as “traditional or customary authority or title over a particular area, usually defined by natural resources; and the rights of control of the usage of resources on the land, forests, rivers etc in question”. 1 2 In a sense, this notion of manawhenua can be compared to inherited “land tenure”, that is, the c ategorisation of productive resources into classes of property, each of which is subject to different forms of control and that in turn are defined by the unequivocal distribution of proprietary rights among members of that society or community. It is important to realise that interests in land were not viewed in terms of ‘ownership’ as understood by English law. Rather, the land owned the people and the chiefs merely exercised tino rangatiratanga or manawhenua over it on behalf of the whnau or hap. In determining who held manawhenua over ancestral land the Mori Land Court has recognised that it is proper to use Mori determinants. At the top of this hierarchy of determinants is whakapapa, with inheritance (take tupuna) playing the principal role in determining land rights. In accordance with the communal nature of Mori society, all users had to observe certain customs and rituals designed to protect and conserve the resource and its mauri. Traditionally, different aspects of mana could be held by different groups or individuals. More than one person might have mana over the same piece of land, with mana operating on different levels allowing particular individual or whnau to utilise the land differently. Take Tupuna, the traditional system of acquiring la nd rights on the basis of inheritance, was the preferred foundation upon which to claim manawhenua and was increasingly valid, the older the connection was. Thus, to show the continuous occupation of one’s people over generations with a link to a distant ancestor put the ultimate seal to a claim to authority over the land. These claims, take tupuna, varied from those asserting rights over an extensive and vaguely defined region such as made by the leaders of the traditional canoes, to a claim over a much smaller, specific area discovered or first occupied by a tupuna not many generations earlier. Rights to land, it seems, were increasingly valid the older they were. 1 3 Claims to land through this justification operated on two levels: general and specific. First, a broad claim of descent could be made from the founding ancestor. Any 7 2 proven link to that person was enough to create a basic right to membership of that group and therefore a right in the land. This group comprised the tangata whenua of any given rohe, and the land was their trangawaewae. Second was the right of individual whnau to a share in the land and its resources. The rights of individuals to utilise the land or access a resource existed only subsequent to the rights of their whnau which in turn derived from the rights of the hap and iwi). The process of allocation, therefore, was downward, from hap, to the whnau, to the individual. At the same time, a reciprocal process of obligation and loyalty operated from the bottom up. Rights to the land were allocated for the benefit of the wider group and not for the personal benefit of individuals. Membership of the group and access to its rights had to be sustained by full participation in the mutual obligations. Herein lies one of the fundamental distinctions between the Mori and Pkeh land tenure systems. 1 4 In order to assert manawhenua, the hap or iwi claiming it had to show residence or occupation. This was expressed by the concept of ahi k which was the means by which title to land was maintained in traditional Mori society. A claim to land had to be supported by continuous occupation or labour. Ahi k nevertheless encompassed more than actual residence on a particular plot of land. The hunting and gatherering nature of the time meant that each district would have its own recognised mahinga kai which would constitute evidence of occupation to support a primary whakapapa claim to the land. Most of the signs of occupation were associated with food one way or another. If those with manawhenua failed to return to the land, figuratively speaking, their fires would go cold. 1 5 Take Raupatu was a claim to land taken by conquest and followed up by occupation. Warfare over land was common amongst Iwi and hap and, once the islands had become occupied by the original explorers, breakaway whnau and hap, and iwi who wanted more land sought to obtain authority over the other’s territory via conquest. The defeat of a group was not enough by itself to entitle the victor to the conquered soil1 6 and occupation of the area was necessary to confirm the claim to the area conquered. There was usually a post–conquest relati onship between the conquering 7 3 hap and the original inhabitants, whereby the defeated group continued to retain land under regulations set down by the conquering hap . Another common basis to claim manawhenua was through gifting of land, or tuku whenua. Land could be gifted in order to forge an alliance with another tribe, for assistance in battle, as compensation for a serious breach of tapu, as a condition of peace, or though marriage. Implicit in every gift of land was the notion of mana, upon gifting of land rights, the donee was obliged to reciprocate by for example, setting aside produce for the donor or allowing a right of way. Through these acts, the donee acknowledged and upheld the donor’s mana which, importantly, continued to e xtend over the gifted land. If for any reason the recipients could not fulfil their obligations or died without issue, the land would revert to the donor. Rights to the land could only be extinguished by an action of the donor or by the recipients leaving the land. If they decided to leave the land, ownership of the land would revert to the donor. The rights to the land could not be given to anyone else without obtaining the consent of the original donors or their descendants. 1 7 The donee had to weigh up the benefits and costs of accepting the gift and the effects of the arrangement upon their own mana. The donee would have to consider whether or not they could meet the obligations of the gift and if there was scope within the arrangement for maintaining tribal identity. 1 8 Only a person with sufficient mana (Rangatira and K aitiaki) could gift land to another tribe. Even then, the support of the hap or iwi was required. Individuals alone could only transfer their existing rights within the whnau or hap, and could not enlarge upon those rights and give away more than they themselves were entitled to. A right to occupy and use land was not a right to alienate it.1 9 There are many reasons why land might have been gifted. There may have been the desire to forge an alliance with another tribe or perhaps there was an inducement for a tribe to settle with the donor tribe. There was benefit in the gifting of land in return for 7 4 assistance in times of danger - during war for example. Compensation for the murder of a chief, accidental death or other injury sustai ned by the chief could be addressed through the gift of land, along with ceding land for losses in war. Land could be gifted on marriage, along with on a person’s deathbed, oth erwise referred to as ‘take hki’. 2 0 Ringa kaha refers to the ability of an iwi or hap to hold the land against enemies or invaders. This principle could be used either in defence of Ahi k or in acquisition of land (where is would be termed raupatu). The Waitan gi Tribunal has described ringa kaha as a process by which the rights to use, occupy and control the lands were established. “ No hap could bind themselves to the land without take tupuna and they could not hold it without ringa kaha.” 2 1 Rights were clearly known and fiercely defended. Certification of title to the land came from knowing and being able to recite the minute detail and history of the land. Therefore tohunga whakapapa had much power and mana. Stone or wooden markers (pou r hui) protected by strict tapu were also used to def ine boundaries. Customary Mori land rights had the characteristics of exclusivity, enforceability, and, within individual iwi and probably with some duress, acceptability. The rights were also as universal as most other sets of property rights in that they were applicable to a wide range but not to all resources. They were, however, radically different from the “English” system of right impose d in the 19 th century, in that they were not thought of as transferable. Moreover the emphasis on group ownership of rights was at variance with the English concept of several rights.2 2 These customary rights were changed irrevocably with the arrival of the first settlers and the imposition of a national, individual based, system of property rights which provided for the almost complete transferability of real property rights. Customary rights with their emphasis on highly limited and conditional transferability, on group ownership, and on iwi ownership could not survive unchanged. As a result, over the next 160 years, attempt after attempt was made by i wi, and increasingly by Mori in 7 5 general, to preserve customary rights or adapt them to the new system, while simultaneously the central government was usurping Mori rights by legislation, and when this failed or led to protest, trying to ameliorate the effects of the usurpation with yet more legislation. Land was not a disposable commodity. It was not ‘o wned’. It was inherited from the ancestors, and it was expected that it would be passed on to the descendants. The relationship between Iwi and their land was not only the economic one of food, shelter and sustenance; there was also a spiritual and emotional quality of identity with place and ancestry.2 3 “Such was the association between land and particular kin groups that to prove an interest in land, in Mori law, people had only to say who they were. While that is not the legal position today, the ethic is still remembered and upheld on marae”. 24 An understanding of Mori land law is essential to understanding the development of the contemporary land law regime. The following sections will overview the processes and legislation that have evolved land management for Iwi, Hap  and Whnau to what it is today. TREATY OF WAITANGI PROVISION The guarantee in Article 2 of the English version o f the Treaty of Waitangi stated that there would be undisturbed possession of lands, estates, forests, fisheries and other property, until such time as Hap  and Whnau willingly agreed to sell, and then the land could only be sold to the Crown. In the Mori version of the Treaty, the Article 2 guarantee of tino rangatiratanga, full authority and control of lands and resources was seen as an undertaking that Mori would remain in control of their own affairs. 2 5 MORI LAND IN STATUE The present state of Mori land titles is not a consequence of M ori customary ownership, but of the superimposition of a form of English law upon it. 2 6 7 6 The Native Land Court was the primary instrument for altering Mori land tenure. It made three major changes to the way M ori land was managed. First, it determined who had land interests according to its understanding of Mori custom. Second, it enabled the land to awarded individuals of the hap according to defined shares, controlling the subsequent devolution of interests by transfer or succession. Finally, it supervised the lands use, management and alienation. The process used by the Native Land Court in identifying and registering Mori owners of Mori land was not Mori customary law. It was constructed by the colonial Government of the time and did not bear much, if any, resemblance to Mori customs. The main feature of the Mori customary tenure was evidence of occupation. The codification of individual title that was imposed by statue law on Mori removed the flexibility with which their customary tenure system operated. The Native Land Court was constituted by the Native Lands Act 1865. Mostly derived from statutory instructions to determine “o wnership” of M ori land in accordance to Mori ‘customs and usages”, the judges recognised fou r principal take – take kite whenua, take tupuna, take tuku whenua, and take raupatu. 27 The Land Court generally did not prioritise claims based on take tupuna over those based on conquest. It seems that in their opinion, Mori land tenure operated under the philosophy that “might was right”. Nevertheles s, the true position under tikanga Mori was not so. The paramount consideration in determining manawhenua was take tupuna, which accords with the pre-eminent role of whakapapa in Mori society. The ingredients necessary to constitute a complete gift of land, as applied by the Native Land Courts, were little different in analysis from what appears to have been the situation under tikanga Mori. The contrast between tikanga Mori and the reality of the Native Land Courts, however, was exemplified in Wi Parata v The Bishop of Wellington where land was gifted to the church for a schoolhouse to be constructed and education provided for the youth of the tangata whenua. According to Mori land tenure, as the school was never built the land was to be returned to those who had gifted it. Notwithstanding these customary notions of tuku whenua, the Court held that the Bishop of Wellington continued to have good title to it. 7 7 In contrast to the ability under Mori land tenure to maintain Ahi k through traditional evidence of whakapapa and the use of resources alone, actual occupation of the land claimed, in the Court’s view, took prec edence. Persons in possession were prima facie considered by the Native Land Court to be the owners. By applying the above principles, the Mori Land Court concluded that while it could recognise changes in land ownership through take tupuna and take tuku whenua, it would not recognise changes made by take raupatu after the imposition of British sovereignty in 1840. This guiding principle become known as the “1840 rule”. 28 The Mori Land Court can be considered as one of the most influential mechanisms employed by the Crown to achieve the objectives of colonisation. Having been established to convert communal title to individual title in order to facilitate settler access to land, the processes adopted in the Court led to the destruction of the backbone of the traditional Mori society, that is, the relationship hap and whnau have with the land.2 9 Land held under customary title was forced into an English system of ownership, with the predictable result that there was a continuous grievance and bitterness among Iwi about the legislative alienation of land which surfaced in the land wars of the 1860s and in the continuous protests over this century. The Treaty of Waitangi Act 1975, the Treaty of Waitangi Act (State Enterprises) 1988 and Te Ture Whenua Mori Act 1993 were all designed to try to redress these grie vances by recognising past wrongs, by returning public lands to Mori ownership where possible, and by ensuring that there was no further unilateral alienation of Mori land. The Mori system of real property rights differed and still differs from the English system despite the attempts that have been made to fuse the two. In particular there is no real national system of Mori property rights; there is only limited transfer ability of Mori land; and there is greater fragmentation of tit le in comparison with land held on the general register. The lack of ability to transfer land is due not only to the traditional Mori system of rights lacking individual transferability, but because history taught that transferability 7 8 was a largely one-way process of alienation which needed to be resisted politically and legislatively. 30 Customary land retained by Hap  became fragmented – a process accelerated by a provision in legislation that stated that all living children of the certified owners (not just male children as under the iwi system) were en titled to succeed to the land equally. Today much M ori land is owned by the descendants of only a few of the original owners, and is divided into portions which are incapable of generating income to the individuals, though has considerable collective value. 3 1 Attempts have been made to deal with the problem of fragmentation of title. The most important of these have been the creation of Mori Incorporations and Mori Trusts under legislation. Incorporations and Trusts are devices to reduce the high transaction costs of managing fragmented lands with numerous owners, by amalgamating the land titles under a single holding company, and by delegating the management of the company to a committee of owner representatives. 3 2 Currently there are three major constraints to econ omic efficiency in the use of Mori land. First, M ori land cannot in general move to its highest valued use, unless the highest valuer is a preferred alienee. Second, it is difficult to borrow money on Mori land, except from preferred alienees, because the procedure for transferring land to a non-preferred mortgagee in the event of failure to repay the mortgage is complex and costly. Third, while the problem of fragmentation of title can be at least partly dealt with by incorporations and trust, the limited transferability of the shares in the incorporations an the lack of contestability of directors and management , can often lead to poor management and lack of accountability. 3 3 Although provision has been made within Te Ture Whenua Mori Act 1993 for alienating Mori land, and for bringing general land on to the Mori land register, such changes are likely to be marginal. For the bu lk of Mori land, the constraint of non-transferability and the related constraint of non-mortgage ability will continue to hinder development. The lack of transferability therefore creates an impasse in which retention of the land is at odds with development. On the other hand, the lack of 7 9 transferability endorses the notion that land should be held in trust for future generations. However, if the constraint is accepted then there a re a number of promising options for development, some of which are already being explored. Mortgage of produce and of cutting rights to timber, use of retained profits, of equity and of preferred alienee finance markets all suggest ways of raising development finance without breaking the system constraint of non-transferability. Improved management skills, improved education, the sharing of information and skills between owners, and greater accountability of directors and management, are all areas in with improvements can be made to efficiency without radically changing the constraints. If such avenues were pursued, then there is a chance that despite the tension between retention and development of Mori land within Te Ture Whenua Mori Act, it may nevertheless be possible to enhance development within the constraint of retention. 3 4 Te Ture Whenua Mori Act 199 3 All Mori land is now subject to Te Ture Whenua M ori Act 1993. In contrast to earlier Mori land legislation, the Act strongly emphasises the retention of Mori land for Mori use, now and in the future. The preamble to the Act recognises that the Treaty of Waitangi established a special relationship between the Mori people and the Crown, and reaffirms the spirit of the exchange of kwanatanga for the protection of rangatiratanga. It also recognises that land is a taonga tuku iho of special significance to Mori people. The objects of the Act are the promotion of the ret ention of land in the hands of its owners, their whnau, and their hap, along with the facilitation of the occupation, development and utilisation of that land for the benefit of its owners, their whnau and their hap. The Act also outlines the requirement for the mai ntenance of a Court and the establishment of mechanisms to assist the Mori people to achieve the implementation of these principles.3 5 8 0 This legislation strengthened the ethos of the retention rather than the alienation of Mori land. Sections 32-3 provide that in cases wher e there is dispute about Mori custom or rights of Mori representation the Chief Judge is required to a ppoint two or more lay members expert in tikanga Mori, additional to the Judge, who are full members of the Court.3 6 The Act refers in its long title to the need to retain Mori land as a “taonga tuku iho of special significance to the Mori people” as well as to the need to develop that land “for the benefit of its owners, their wh nau, and their hap”. 3 7 The 1993 Act provides for various methods of manage ment in regard to Mori Land. Meeting of owners A meeting of assembled owners might be called to decide a single issue, for example whether to sell or lease the property. Decisions of such meetings take the form of resolutions, and different quorums and voting numbe rs are required depending on the resolutions being considered. A resolution to sell land will require support from the owners of 75 percent of the shares in the land. On ce passed resolutions require confirmation by the Mori Land Court. Assembled owner meetings are also a logical opportunity to discuss and pass resolutions concerning other forms of management for the land, the two most common being the formation of an incorporation or a trust. Mori incorporations Mori incorporations are administered by management committees elected by the shareholders, who work to a constitution set down by the Mori Incorporations Constitutions Regulations 1994. Before 1993 the objectives of M ori incorporations were limited mainly to primary production activities such as farming and forestry. Since 1993, new incorporations may undertake any lawful business or activity which makes a return for the beneficial owner/shareholders. 8 1 However, new ventures can prove difficult to financ e because of the numerous restrictions on the alienation of Mori freehold land. Certain types of commercial lease require consideration by all beneficial owner s and confirmation by the Mori Land Court before they can be finalised.3 8 An example of one such Mori Incorporation is Whakat Incorporation which is based in Nelson with over three thousand shareholders. Whakat has a wide range of business ventures operating under its umbrella incorporation structure. These business activities include the primary sector with three land based businesses in horticulture (kiwifruit, apple and pear orchards fo r export), viticulture (Tohu and Kono New Zealand are New Zealand’s first indigenous wines) and forestry (native plantations and commercial blocks). Whakat  also has interests in the seafood industry with two businesses currently operating, Aotearoa Seafoods – the country’s fourth largest producer of greenshell mussels and Port Nicholson Fisheries - a crayfish company that exports live crayfish to markets in Asia and America. Whakat Incorporation has diversified further by having a stake in the local tourism industry where a number of different investments have been made, along with ventures in the property market where subdivisions are currently under development and commercial land investments and developments in place. 3 9 Land Trusts Land trusts have become the most popular way to mange Mori land; this is partly due to the promotion by Mori Land Court Judges. 4 0 Like incorporations, trusts are created when beneficial owners apply for an order from the Mori Land Court. Unlike, incorporations, however, the Court appoints and removes trustees, although it must have regard to the wishes of the beneficial owners, which may be expressed by a vote at a meeting of owners. There are four types of trust: Putea Trust: This is designed for situations where excessive fragmentation of ownership through successions has made individual interests uneconomic to administer as separate interests or where the whereabouts of owners is unknown and there is a desire to pool the income from the land for common purposes. 8 2 Whnau Trust: This is useful to owners who wish to preserve the trangawaewae of the whnau by preventing separate dealings with the land by family members. The trust may apply its assets and income for the benefit of the descendants of any tipuna, living or dead. Most importantly, successions stop while the trust remains in existence. Ahu Whenua Trust: This is most useful for the general management of blocks of Mori freehold land or General land owned by Mori. They may be formed where the Land Court is satisfied the trust would “promote an d facilitate the use and administration of the land in the interests of the persons beneficially entitled”. 4 1 Whenua Topu Trust: This is the most ambitious use of the trust concept. The trusts allow the whole or a substantial part of the lands held by an iwi or hap to be managed for the iwi or hap. As with incorporations, land trusts are subject to restrictions in dealings with any Mori freehold lands which make up the trust. An example that can be provided to illustrate the trust structure under the Act is the ‘George Love Wh nau Trust’. As the name states this is a wh nau trust that was established upon the death of an ancestor to consolidate the land interests held by that ancestor and to ensure no further succession of title occurred. There are many land interests held by the trust and administered by the four appointed trustees, the benefits of which filter down to the beneficiaries who are determined through whakapapa links to the named ancestor. Although the individual land interests are small, when grouped together the dividends are of economic value to the whnau group and used to develop land interests held under the Trust, along with aiding educational costs of the beneficiaries. The restrictions experienced by this whnau trust in regard to dealings with Mori freehold land that make up the trust’s holdings , includes the requirement to consult and obtain approval from oth er land owners who are not beneficiaries of the George Love Whnau Trust but have an interest in the lands being occupied or developed by this group. This can cause difficulties as the outside interest holders may feel they are missing out on an opportunity themselves by allowing the development to take place. It is in these situations that collaborations 8 3 between trusts with interests in the same land blocks must take place to enable development and utilisation of the land. Mori Reservations A Mori reservation may be created from Mori freehold or General land for: “the purposes of a village site, marae, meeting place, recreation ground, sports ground, bathing place, church site, building site, burial ground, landing place, fishing ground, spring, well, catchment area or other source of water supply, timber reserve, or place of cultural, historical, or scenic interest, or for any other specified purpose”. 4 2 The Court has also noted that Mori reservations are the only legislative acknowledgement of the tribal and communal basis of Mori land ownership, this recognition being consistent with an obligation under the Treaty of Waitangi to protect Mori people in the ownership of significant tribal land. An example of a Mori reservation is the ‘South Island Landless Nativ es Reserves’, which are parcels of land in the South Island (main ly on Stewart Island and the Heaphy Track) that were set aside for hap  and whnau in the Marlborough area due to the lack of available local land to be allocated for such a purpose – that was similar to that allocated in Nelson, Wellington and Palmerston North (Nelson Tenths, Wellington Tenths, Palmerston North Tenths). Another useful example is the Native Reserve Block 12, commonly referred to as the Wairau P Block and situated on the banks of the Wairau River in Marlborough. This block of land is home to a marae, church and p for the local iwi, hap and whnau of the Wairau area. In close proximity to this reserve is the Township Reserve Block, which is made up by three separate titles to encompass the three individual iwi groupings of the Wairau area (Ng ti Rrua, Ngati Toarangatira and Rangitne). The Township Reserve was set aside as an occupational reserve to encourage the hap and whnau of the area to live in the rural locale rather than in the township of Blenheim itself. 8 4 Occupation orders Occupation orders allow some of the beneficial owners to erect a dwelling and live on part of the land exclusively, for the period of their lifetime. Occupation orders have been created in response to the problems Mori land owners face in obtaining the necessary finance for housing construction. Occupation orders may be made over Mori freehold land or General land owned by Mori. 4 3 Te Ture Whenua Mori 1993 unlike its predecessors, that enabled the rapid demise of Mori systems of tenure, requires via the mechanism o f the Mori Land Court to retain Mori land in Mori ownership wherever possible by balancing individual rights in land with group rights. Under the Act Mori land is seen as an inheritance to be held in trust for future generations. The Act has two main objectives, retaining land for future generations and achieving the best possible economic returns. The Act also upholds traditional forms of tenure and hap are encouraged to avoid further alienation of their holdings by giving first preference for purchase or succession to ‘preferred classes of alienees’, sourced from a close kinship group. The intention of the Act is to protect whatever remains of tribal estates for future generations. 4 4 The previous sections have outlined customary and contemporary methods of land management; the following are two examples where Iw i have taken both traditional and modern approaches to resource management in regard to land. NGTI KOATA OFFSHORE ISLANDS According to Ngti Koata traditions, the area of Durville Island and its surrounding islands was gifted to them by Tutepourangi, a chief of Ngti Kuia. Ngti Kuia themselves had held the land though conquest, but t he wheel of conquest and loss had turned once again. Defeated by Ngti Koata, Ngti Kuia gifted the western islands as ransom for Ngti Kuia prisoners captured during the fighting. When Tutepourangi also handed over his fighting weapon, a patu called Kauwaehurihia, a peace was sealed. 45 8 5 It must have been a relief to Ngti Koata when, in 1883, a sitting of the Native Lan d Court in Nelson awarded Rangitoto and the surrounding islands to some 70 members of its tribe. Protection of Takapourewa, which had become the training ground for tribal tohunga, seemed secure. 4 6 For Iwi, and then for P keh as well, Takapourewa was always important as a navigational reference point. Abel Tasman dithered about, sailing his ships in a number 8 pattern off its tip in 1642. Captain Jame s Cook passed by in 1771 and gave the island its Pkeh name, Stephens Island.4 7 In 1891, as a result of yet another shipwreck in th e vicinity, the government decided to place a light on Takapourewa. It seems that the Island was simply taken by proclamation – the publication of a notice in the New Zealand Gazette. It all was perfectly legal. The provisions of the Public Works Act of 1882 allowed the government to take land in this way. The Act made no provision for negotiations with owners preceding the compulsory acquisition of land . Moreover, under the Act, Mori landowners had no right of appeal. Official sources record no evidence of prior consultation with the Ngti Koata owners of Takapourewa. But Ngti Koata preserves memory of discussions with the Crown and believes that several important points were verbally agreed. They say transfer was agreed on the basis that only a small part of the island would be required for a li ghthouse; that that portion would be known as a lighthouse reserve and that the larger part of the island would be retained by the tribe for their own use, including annual tt harvesting. 4 8 Approximately forty islands belonging to Ngti Koata, that are associated to the D’Urville Island region are identified within a Gaz ette Notice dated Wednesday 1986, Number 44. 4 9 Ngti Koata had each island surveyed and subsequently titles for each were issued. Because of the history associated with these islands they have been given waahi tapu status and are reserved for the common use and benefit of Ngti Koata descendants (as the Gazette Notice identifies ). Each individual island has its own special character and place in Ngti Koata history. Ngti Koata has appointed trustees to the blocks that are associated with the offshore islands. Anyone who can whakapapa back to one of the seventy-nine original owners 8 6 of Durville Island is a beneficiary. The way that Ngti Koata has placed the islands in Trust ensures there is no succession to the land and so therefore the land cannot be individualised. Attached to each offshore island is a customary fishing ground. In order to be granted ownership of the offshore islands, Ngti Koata had to prove that they were tangata whenua and that they had manawhenua of the area. They had to reference back to the early 1800s when they came to settle in the South Island from the Kwhia/Raglan area. Ngti Koata are unique in that they were the only iwi that came South in the Te Rauparaha confederation that doesn’t claim they conquered anybody. Ngti Koata acquired Durville Island by a peace settle ment agreement. 5 0 In 1989, a claim was lodged with the Waitangi Tribu nal by Jim Elkington on behalf of Ngti Koata. The issues raised by the claim recalled the tribe’s understanding of a story that was now nearly 100 years old and that st ated that the land transfer was negotiated on the basis that it made a lighthouse reserve; that Ng ti Koata understood at the time that only a small part of the island would be required for the lighthouse and that the iwi would retain the larger part of the island for their own use, including annual tt gathering; and that the implementation of the Wil dlife Act over this island has abrogated these above rights. 5 1 Tuatara, the island’s most famous citizen are livin g fossils and direct descendents of a group of reptiles who roamed the earth more than 70 million years ago. Given their longevity, Iwi liken them to elders who gather knowledge in a long lifetime and as the reptiles live through many human generations they are granted kaumtua respect. The Takapourewa tuatara played a vital role in the protection of its home. Given their taonga status, they were the species that formed the basis of the Ngti Koata Waitangi Tribunal claim. These long term residents of Takapourewa account for more than half of the world population of the species. 5 2 At a very early stage the solution to the claim was seen as consisting of two remedies. One was a recognition of rangatiratanga, the search for an arrangement where Ngti Koata mana whenua, or traditional ownership for Takapourewa, could be acknowledged by the Crown. The second was that the management of the island should reflect the partnership principles of the Treaty of Waitangi. 8 7 Negotiations between the parties quietly continued and on November 29 1994, at a ceremony in the Parliament, a deed was signed between the Crown and Ngti Koata. The deed set out the terms for settlement of the claim. It provided for the recognition of Ngti Koata’s mana over the island and their role as k aitiaki. As a symbolic “gift” intended to symbolise partners hip with the Crown, Ngti Koata agreed that the deeds represented a final settlement of the claim. The deed also established the island as a nature reserve to be known as the Takapourewa Nature Reserve. In return, Ngti Koata was to be fully consulted and would participate in the management of the island. 5 3 Takapourewa (Stephens Island) was gifted to the peo ple of New Zealand by Ng ti Koata on November 29, 1994. The landmark act, cons idered to be one of the most significant conservation giftings to occur in New Z ealand, took years of negotiating and compromise. From the viewpoint of the Department of Conservatio n, Ngti Koata have added a different perspective to their understanding and appreciation of the island. They have cooperated with the department’s management program mes and assisted with species work. They are also actively involved in selecting the resident staff. GROVETOWN LAGOON / M ORI ISLAND The Grovetown Lagoon / Mori Island area holds cultural, traditional and spiritual significance to the three iwi of Ngti Rrua, Rangitne and Ngati Toarangatira of Te Tau Ihu. The Lagoon was and is viewed as a waahi tapu due to the situation of an urupa on Mori Island, which is situated in the middle of the lagoon and many other burials and koiwi in the immediate area. The Grovetown Lagoon was originally part of the Wairau River. The river went in at the Northern culvert and came out at the Southern culvert. Riverbank erosion slowly moved the inlet and outlet channels of the Wairau meander closer together. In both 1848 and 1855 there were large earthquakes, the rel ative effects of each are still being debated. However, on revision of all accounts it ap pears that the 1848 earthquake 8 8 caused some subsidence of the lower Wairau Plains and caused permanent changes to the hydrology of the Wairau Estuary and its sea outlet. The earthquake was said to have been the worst in local Iwi memory. Its magnitude has been assessed at 7.1, and the two main aftershocks at close to 6. This event may have hastened the May 1861 natural break through of the narrow neck of land that once joined the present M ori Island to the Wairau P side of the river. 5 4 Further flooding in 1868 permanently cut through the neck of this severe meander channel to leave an ox bow (now known as the Grovetown Lagoon). In the 1900s stop banks were built that completely cut off the lagoon from the new river channel, and so reduced the previous very regular flooding and sedimentation from the Wairau River. It was not till the 1990s that the stop banking work was improved to virtually eliminate flooding from the area.5 5 The Grovetown Lagoon surrounds what is known as ‘M ori Island’, there is no traditional Mori name for the Island as it was once part of the Wairau P but there used to be a p on the Island called Otamawaha. The Island was formed when in the period from 1848 through until 1868 the river cut t hrough the piece of land that once joined the Island to the Wairau P . Mori Island is split into several different land blocks most of which is Mori freehold land with a smaller amount of reserve status land. The land on the Island is used for a mixture of agriculture (dairy and cropping) and horticulture (olives and potatoes), along with a viticulture development. These land blocks are held in trust under Te Ture Whenua Act 1993 and the dividends created from the economic interests in the land return to the beneficiaries of those various trusts. There are also some occupational sites on the Island where people who descend from the original owners still live. In terms of the reserve land, this is used for conservation purposes in regard to the surrounding lagoon environment. An urupa (cemetery) is located in the middle of the island, surrounded by the other land blocks. The urupa is jointly owned by Ng ti Rrua, Ngati Toarangatira and Rangitne ki Wairau. All three iwi have buried their dead at the whenua known as “M ori Island” for over 130 years. This helps explain the high degree of cu ltural and spiritual significance Mori Island represents to the three iwi today. Customarily, the people of Ngti Rrua, Ngati Toa and prior to them Rangitne, would walk to Mori Island carrying 8 9 their dead to their last resting place.5 6 They used to use boats to come across from the P to the cemetery when the Island was cut off by the river. “There used to be a cabbage tree a few yards out in the paddock, they used to bring the bodies and tie the boats to this cabbage tree while they walked along the river to the cemetery”57 Today it requires the transportation via road from Wairau P across the Ferry Road Bridge at Spring Creek and through Grovetown to reach the urupa. Because the urupa was located on the Island, some Mori were very careful about where they obtained food. For some it was not accep table for food to be taken from the Lagoon area as there were other places to take it from and the Island was considered to be waahi tapu due to the urupa and other burials around the Island and Lagoon area. “All the land on the Island was Mori land. Because of the urupa, the Island was never farmed in the old days because they did not want to eat from it.”58 Ngti Rrua, Ngati Toarangatira and Rangitne are members of Te Whnau Hou, the Grovetown Lagoon Restoration Project. Since 2002, Te Whnau Hou has brought together local iwi and residents, the Marlborough District Council, Department of Conservation, Wairau Rowing Club, Nelson Marlborough Fish & Game and the NZ Landcare Trust to restore and enhance this wetland area. 5 9 In addition to this project there was a desire to r etain and promote traditional Mori knowledge and its use in biodiversity management in relation to the Grovetown Lagoon, this was undertaken via a research project that documented the resources available in the area and how they were traditionally used and managed. The project was funded by the Department of Conservation through the ‘M tauranga Kura Taiao Fund’, that supports tangata whenua initiatives in the revival, use and retention of traditional Mori knowledge and practices in biodiversity management; to promote biodiversity and ensures traditional knowledge and practices of Mori are respected and preserved in the management of our biodiversity and natural resources. This fund 9 0 was established by the Department because traditional Mori knowledge or mtauranga Mori, about New Zealand’s biodiversity is an importa nt source of knowledge, but is currently under utilized and vulnerable to ongoing erosion and loss and therefore its recognition, constant use and protection is central to Mori participation in Biodiversity management. 6 0 CONCLUSION This chapter has discussed Mori land management in both a traditional and contemporary context. Traditional land tenure is examined from an economic and spiritual perspective. The values, concepts and practices associated to customary Mori land tenure are overviewed and the notion of relationships in terms of people being inextricably linked to land through whakapapa is emphasised. It is from this point that a sense of identity can be illustrated and evidenced. The idea that land was about relationships rather than ownership of the resource and that with rights to land came obligations and responsibilities to retain such rights was also identified. The processes and legislation that have impacted on land management are also overviewed here and analysed in terms of the erosion they have had not only on traditional land management but also ownership – a term that has been imposed by colonisation. A discussion of the challenge that is Mori land tenure post 1840 is provided and explained as being a result of multiple ownership created through the Native Land Acts in order to alienate Mori land. The most recent developments in land management and legislation by way of Te Ture Whenua Mori Act 1993 are also examined in terms of the Act’ s main goals of retention and development and how this has been problematic but can also be overcome via the mechanisms and structures provided within the Act such as trusts and incorporations. The aim of retention is discussed in regard to the provision of ‘preferred classes of alienees’ as outlined in the Act. Lastly, two examples are provided to illustrate the use of both traditional and contemporary practices in terms of land management. Firstly, the offshore islands of Durville Island in the Marlborough Sounds and the history of management and 9 1 ownership from a Ngti Koata perspective and then the Grovetown Lagoon / Mori Island example which shows how multiple interests in an area of land can still offer opportunity for development and utilisation while still retaining the land for future generations. Both examples providing evidence that custom can be applied to contemporary notions of resource management in regard to land. 1 Waitangi Tribunal, (1 997 ), Muriwhenua Land Report, WAI 45, GP Publications, Wellington 2 www.tpk.govt.nz 3 A. Alston, (2000), Guide to New Zealand Land Law, Brookers, Wellington. 4 M. Strack, (200 1), ‘M ori land: kicking around the football’ in New Zealand Surveyor, 291, p 15-19. 5 ibid 6 Alston, (20 00) 7 ibid 8 S. Lenihan, (1 99 7), ‘M ori land in Mori hands’ in Auckland University Law Review, 8:2, p 570-58 1. 9 ibid 1 0 ibid 1 1 ibid 1 2 ibid 1 3 Manatu Mori, (1991), Customary Mori Land and Sea Tenure: Nga Tikanga Tiaki Taonga o Nehera, Manatu Mori, Wellington. 1 4 Lenihan, (1997) 1 5 ibid 1 6 ibid 1 7 Manatu Mori, (1991) 1 8 ibid 1 9 Lenihan, (1997) 2 0 Manatu Mori, (1991) 2 1 Lenihan, (1997) 2 2 Maughan, B., Kingi. T., (19 98), ‘Te Ture Whenua M ori: retention and development’ in New Zealand Law Journal, January, p 27-31. 2 3 E. Stokes, (199 7 ), A Review of the evidence in the Muriwhenua Lands Claims (Volume II), Waitangi Tribunal Review Series. 2 4 Waitangi Tribunal, (1 997), Muriwhenua Land Report: WAI 45. 2 5 Stokes, (19 97) 2 6 B. Gilling, (1 994), ‘Engine of Destruction? An Introductio n to the History of the M ori Land Court’, in Victoria University of Wellington Law Review, vol. 24, no. 2, pp. 11 5-139. 2 7 Lenihan, (1997) 2 8 ibid 2 9 ibid 3 0 Maughan, (199 8) 3 1 ibid 3 2 ibid 3 3 ibid 3 4 ibid 3 5 Te Puni Kokiri, (1 99 8), Review of Te Ture Whenua Mori Act 1993: a background paper for consultation hui, Te Puni Kokiri: Ministry of Mori Development, Wellington. 3 6 Gilling, (1 99 4) 3 7 Lenihan, (1997) 3 8 Alston, (20 00) 3 9 www.whakatu.org.nz 4 0 Alston, (20 00) 4 1 ibid 4 2 ibid 4 3 ibid 4 4 M.H. Durie,, (20 05), Nga Tai Matatu: Tides of Mori Endurance, Oxford University Press, Auckland. 9 2 4 5 M. Stone, (19 95), ‘Island in the gun’, in Mana Magazine, 7, p 26-30 4 6 ibid 4 7 ibid 4 8 Personal Correspondence – Jim Elkington, Ngati Koata 4 9 ibid 5 0 ibid 5 1 Stone, (19 95) 5 2 T. Tuckey, (2005), ‘Stephens Island the gift of Takapoure wa’ in Mana Magazine, 63, p 54-59. 5 3 Stone, (19 95) 5 4 P.A. Thomson, (200 2), The History of the Grovetown Lagoon and the Grovetown Drainage Area, Marlborough District Council, Blenheim. 5 5 Te Whnau Hou, (200 3), Community Management Plan, Te Whnau Hou, Blenheim. 5 6 Ngti Rrua ki Wairau Environmental Management Plan, (200 2) 5 7 Personal Correspondence – Hinewera Luke, Ng ti Rrua 5 8 Personal Correspondence – Amoroa Luke, Ngti Rrua 5 9 P. Wardle, (2006), Te Wh nau Hou Newsletter 6 0 www.conservation.govt.nz/community/005~Conservation -and-M ori 9 3 Chapter Four FORESHORE AND SEABED MANAGEMENT INTRODUCTION Mori have strong customary interests in the coastal area. The traditional importance of the coast and of marine resources for both subsistence and economic purposes is well documented. But while New Zealand law recogni ses the possibility of customary rights, there is a long history of legal debate and uncertainty about what customary interests there might be in the marine environment. Current statutes give significant recognition of Mori interests but do not accommodate the idea that customary interests might amount to ownership.1 In 1986, when the revised Fisheries Act was passed, an assumption had been made in respect of Mori interests in fishing; a system of transferable fishing quota had been introduced without consideration that customary rights might amount to commercial interests. But at Waitangi Tribunal hearings in relation to the Muriwhenua Claim, evidence was produced to show that an important part of customary usage was in fact a profit motive, and included the trading of fish either for exchange or, from the early nineteenth century, for cash.2 In addition, the Draft Declaration of the Rights of Indigenous People contained an article to support the right to development. Article 23 of the 45 articles in total stated, “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to determine and develop all health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”3 It is consistent with Mori views that a customary resource need not be locked into a time warp and passed onto future generations without modification, but that it should be developed so that its value and significance is consistent with contemporary indigenous needs and rights. 4 9 4 This chapter examines the foreshore and seabed and explores the place of tikanga and Mori rights in contemporary methodologies. CUSTOMARY PRACTICES Harbours were full of life sustaining resources and in past times they were jealously guarded.5 Harbours often supported many hap  and, indeed, entire iwi. They were rich in seafood, in plant life, flora and fauna. F or Mori the foreshore and seabed was and still is referred to – Te Takutai Moana and Te Papamoana respectively.6 Tikanga relating to the foreshore and seabed were part of the whakapapa linking the land and sea to the guardianship and authority of Iwi and Hap . The restrictions and regulations were based upon whakapapa although the sharing of resources could extend beyond the whnau and hap. It was a generous but careful way of doing things. The customary Mori construct of seabed and foreshore use and access thus had several interrelated parts. It flowed as all law does, from the exercise of a constitutional and political authority, specifically the mana or tino rangatiratanga of Iwi and hap.7 It was derived from the clear values of reciprocity, maintenance, and sustainability that are inherent in kaitiakitanga. Its primary purpose was the well being of those bound by whakapapa, but rather like the kawa of the marae the reach of its manaakitanga could include those not directly related. In some cases specific use covenants were negotiated to ensure access on terms consistent with tikanga. Like whakapapa it was a construct that could never be voluntarily given away nor denied by others. In a very real sense the rights and obligations were values-based in kaitiakitanga but were given expression through the political exercise of rangatiratanga. They gave meaning to tikanga not j ust as a set of rituals or ethics but also as a template for legal and constitutional authority. 8 Essentially, the rights were to control the harvest, the taking and use of places within customary lore and practices. Regulation accorded to sophisticated knowledge of the presence, absence and characteristics of the resources such as, seabirds, shellfish, fish, seaweed, rocks and shore plants and animals. Management involved ritual based on establishing ancestral connections to the place and the type of entity gathered. Some 9 5 rights were seasonal and others involved permanent occupation of places. Rights were given by tribal consents to restrict harvest and use to avoiding compromising the breeding and nursery stocks. Particular rights were often held by whnau and recognised by hap. 9 Tribal groups did not exploit areas of the foreshore and seabed. Although not clear, evidence in both archaeological and customary lore is that they operated with some resources in a similar manner to Europeans and merely gathered seasonally or throughout the year and from time to time exercised ‘r hui’ or exclusion/set limits. Other places were formally occupied or occupied from time to time on a temporary or ceremonial basis.1 0 TREATY OF WAITANGI PROVISION The Treaty of Waitangi recognised, protected, and guaranteed te tino rangatiratanga over the foreshore and seabed as at 1840. The M ori version of the Treaty agreed to give “the full chieftainship of their lands, their settlements and all their property” 1 1 the word used for “all their property” in the M ori version was ‘taonga’. The foreshore and seabed were and are taonga for many hap and iwi. Those taonga were the source of physical and spiritual sustenance. The English version of the Treaty confirmed and guaranteed “the full exclusive and un disturbed possession of their lands and Estates Forests Fisheries and other prope rties”. 1 2 Tribal estates included “lands, lakes, rivers, swamps and streams within th em, and the adjacent mudflats, rocks, reefs and open sea”. 13 Mori communities had rights of use, management and control that equated to the full and exclusive poss ession. In addition to rights and authority over whenua, Mori had a relationship with their taonga which involved guardianship, protection, and mutual nurturing. The Crown’s duty under the Treaty, therefore, was actively to protect and give effect to property rights, management rights, Mori self-regulation, tikanga Mori and the relationship with their taonga in other words, te tino rangatiratanga.1 4 Hone Mohi Tawhai, in correspondence to Henare Tomoa na and others in 1878, asserted that, “the M ori maintains his mana over the areas commencing from the seashore, to the pipi beds, to the deepwater fishing grounds, through to the hpuka 9 6 reefs, based on the authority of the Treaty of Waitangi”. 1 5 Then in 1922, Sir Apirana Ngata contended that the foreshore and seabed belonged to Mori and that is why Mori considered that their rights to these lands should have been established under article 2 of the Treaty. 1 6 The Waitangi Tribunal found in 2004 that the fo reshore and seabed were and indeed are taonga for many groups, a taonga protected by the Treaty of Waitangi. The Crown’s Treaty obligations extend ed to the foreshore and seabed every bit as much as they did to dry land: no meaningful distinction could be drawn. 1 7 We find, therefore, on the basis of the evidence before us, that the Treaty of Waitangi recognised, protected, and guaranteed te tino rangatiratanga over the foreshore and seabed as at 1840.18 FORESHORE AND SEABED IN STATUTE Definitions At common law the foreshore is the land between the high and low water mark, limited landwards by the medium line of high tide between spring and neap tides. The foreshore can also be described as the area of land which is neither always wet nor always dry due to the ebb and flow of the incoming and outgoing tide. Because of tidal variations, the boundaries of the foreshore are defined in several ways. The landward boundary can be defined as “mean high water springs”. This is the land covered by the highest spring tides of the year. Spring tides are the measurements of two successive high waters during those periods of 24 hours when the range of the tides is at its greatest. Alternatively, the landward boundary can be defined as “mean high water mark”. This is the average level of all high tides. It is the tidal line that can be seen on a beach. The distance on a beach between mean high water springs and the mean high water mark can be quite small, or quite large, sometimes hundreds of metres. Likewise, to the landward boundary of the foreshore, the seaward extent of the foreshore can be measured at “mean low high water springs” or “mean low water mark”. 1 9 9 7 The seabed is the area between low-water mark and the outer limits of the territorial sea. The seabed is that area of land permanently covered by water. It starts where the foreshore ends. Its seaward limit is practically limited by national and international law. The New Zealand Government claims full territ orial sovereignty to 12 nautical miles from the low water mark and maintains more limited control out to 200 nautical miles. 20 It is generally accepted that only areas within 12 nautical miles are in issue in terms of claims to control over the seabed. 2 1 The Foreshore and Seabed Act 2004 defines the “public foreshore and seabed” as ending 12 nautical miles from the low water mark. The baseline for the 12 nautical mile limit is calc ulated using formulae set out in sections 6 and 6A of the Territorial Sea (Contiguou s Zone) and Exclusive Economic Zone Act 1977 which determine what the baseline is for bays or other indented coastal areas.2 2 Incorporation of tikanga in statute Hap  tend to view tikanga Mori as incorporating a right to development; a righ t to manage and develop areas for cultural and economic benefit – like marine farms.2 3 But the Government’s foreshore and seabed policy an d legislation limits tikanga Mori as if it is frozen in time. It tends to define tikanga Mori to mean: discrete activities like the practice of fishing, gathering and hunting for food; hap  holding kaitiakitanga responsibilities; and, hap  having certain cultural and spiritual relationships with the foreshore and seabed in terms of urupa and waahi tapu. The measure is far form revolutionary. 2 4 Along with this the context within which common law notions of “customary use and title” are developed and perceived Mori terms are trapped in terminology that restricts kaitiakitanga to a Crown defined management role instead of situating it as a component of rangatiratanga, which necessarily involves interests that extend well beyond management. Marine Farming/Aquaculture Before the 1991 Resource Management Act (RMA), the Marine Farming Act 1971 was the primary legislation governing the establishment of marine farms around the 9 8 New Zealand coastline. In the 1971 legislation M ori interests were not referred to and marine areas were gazetted for farming without reference to any customary activities which Mori had exercised or were still exercising in the coastal marine area. Licenses and leases under the 1971 Marine Fa rming Act could contain rights of renewal and thus effectively last more than forty years. Under the RMA, decision making on the granting of marine-farming permits was devolved to regional and local consent authorities. The RMA allowed existing licences to continue under the new regime, but removed the rights of renewal. Under the new regime, marine farmers had to obtain two permits: a coastal permit, to occupy coastal marine space, and a marine farming licence from the Minister of Fisheries’, to grow and harvest marine life. Applications for coastal permits were handled on a ‘first come, first served’ basis. Only those with coastal permits could apply for a marine farming licence. Coastal permits lasted for up to thirty five years but had no right of renewal.2 5 The legislative framework under which regional government allocates marine space for aquaculture was overhauled and the new legislat ion for planning for aquaculture put in place in early 2005. Prior to this there ha d been a ban for over 3 years on granting any new aquaculture space while the legisl ation was developed. In 2004 the Aquaculture Reform Act was passed which amended several existing acts and created two new acts. The Aquaculture Reform A ct amended the Resource Management Amendment Act 2004, along with the Fishe ries Amendment Act 2004, Conservation Amendment Act of 2004, Biosecurity Ame ndment Act of 2004 and Te Ture Whenua Mori Amendment Act 2004. The two new acts that were created were the Mori Commercial Aquaculture Claims Settlement Act 20 04 and the Aquaculture Reform (Repeals and Transitional Provisions) Act 20 04. The RMA, as amended provides much of the framework for managing aquaculture in New Zealand. Under the RMA, the Minister of Conser vation is responsible for preparing New Zealand coastal policy statements, ap proving regional coastal plans and permits for restricted coastal activities, and additional monitoring activities. 9 9 The Ministry of Fisheries keeps a national registry of fish farmers, and manages and advises regional and territorial authorities on management of fisheries resources. Direct management of aquaculture occurs at the regi onal and territorial level through regional coastal plans. These plans define zones within which aquaculture is permissible, set limits on the aquaculture activiti es and related industry activities, and specifies limits on the nature, concentration, or extent of activities. The Ministry of the Environment has the authority to issue a national policy statement to guide the regional and territorial policy makers in developing policy initiatives.2 6 Resource Management Act 1991 The Resource Management Act 1991 is the primary leg islation governing resource use and development in New Zealand, both on land an d in the coastal marine area, including the foreshore and seabed. When it came into force it repealed all previous planning and environmental protection legislation and many aspects of other resource- use legislation, affecting over fifty statutes in all. The purpose of the RMA is to ‘promote the sustainab le management of natural and physical resources’. This requires that people and communities are able to provide for their social, economic and cultural well-being while also ‘avoiding, remedying, or mitigating any adverse effects of activities on the environment’. Any activity on land or in the coastal marine area must either be approved in advance in an approved plan or by a resource consent issued by a proper consent authority. Local councils are responsible for managing resources in the area and thus the development of plans and issuing of resource consents. Those undertaking resource activities pursuant to plans or consents are responsible for ‘avoiding, remedyin g, or mitigating’ their environmental effects. There is a tension between sustainability and development under the RMA. In order to uphold the principle of sustainability while development takes place can pose some issues, as development invariably means utilisation of a resource which in turn can affect its sustainability. A careful balance must be maintained in order to achieve both objectives successfully. 1 0 0 The RMA provides procedural and substantive guidance to authorities making decisions on resources and carrying out their functions and duties under the Act. The RMA provides for matters of national importance which must be recognised and provided for, other matters which must be paid particular regard to, and matters to take into account. Matters of national importance include the preservation of the coastal environment – including the coastal marine area- and the relationship of Mori and their culture and traditions with their ancestral lands, water, sites, sacred sites, and other taonga. Matters that authorities must have particular regard to include kaitiakitanga. The principles of the Treaty of Waitangi must be taken into account, which includes a duty of the Crown to actively protect Mori interests. The Crown has delegated its responsibility in the area of resource management to consent authorities. These authorities, while not partners to the Treaty of Waitangi, have thus assumed the Crown’s responsibility to tak e Treaty of Waitangi matters into account as well as to ensure that the processes – especially consultation pursuant to the duty to enable Mori to make informed decisions – enable the recognition and provision for the relevant matters of national importance. The RMA contains particular consultation requiremen ts whereby iwi must be consulted by the relevant authorities preparing plans covering lands of tribal interest. In addition, iwi have the power to prepare iwi management plans which identify the special interests iwi may have in an area. For exa mple, an iwi may identify a particular relationship with specific water mountains, spiritually significant sites or burial grounds, or both. Under the RMA, authorities must ‘take account of’ such iwi planning documents. The meaning of ‘take into account’ as outlined in t he Section 8 of the RMA 2 7 can be defined as a clause which limits the administration of the Act. This clause requires that those who administer any part of the Act must ‘take into account’ the principles of the Treaty. Consultation would be an obvious implication. In comparison to Section 9 of the State Owned Enter prises Act 1986 (SOE) 2 8 , which provides a clause that limits all aspects of the Act, whereby there is a requirement that 1 0 1 the Act as a whole conform to Treaty principles. Since the Court of Appeal case in 1987, the Government has not favoured this type of clause since it invites litigation. 2 9 Although weaker than a Section 9 SOE type clause, t he Section 8 RMA clause does have some significance both constitutionally and in a practical sense. While inclusion of these references to Mori interests is certainly a vast improvement on the previous resource management legislation, they are not sufficiently strong to guarantee that Mori interests will be protected. Mori interests are only some of several matters which must be provided for, and decision makers are certainly not required to act in conformity with the Treaty of Wa itangi if other sections of the Act are deemed to be more relevant. On many occasions, while Mori interests have been taken into account and given particular regard they have not been upheld in the final decision and have instead been outweighed by other considerations also provided for in the Act. This is particularly the case in respect of individual resource consents affecting Mori interests, such that Mori has repeatedly been denied substantive protection of their interests, even while the RMA has been followed and its requirements upheld. Mori land is not exempt from the provisions of the RMA. The regulation of the uses of Mori land for the purposes of sustainable management and environmental protection is considered to be an exercise of the Crown’s Treaty of Waitangi right to govern, delegated through the RMA to local authorities. Land that is not designated Mori land, but in respect of which Mori have historically had a special interest, is also managed under the RMA according to the considerations mentioned above. Thus Mori must apply for resource consents to use land for activities – even traditional activities – in the same way that others must do so. Such applications are evaluated according to the same criteria as other applications, such that Mori interests may still be outweighed by other considerations provided for in the RMA. The RMA includes the potential for iwi to exercise powers under the RMA, including the power to grant resource consents, for example, in respect of lands in which they may have a special interest. This may be achieved through delegation from existing consent authorities, following a process which includes broad public consultation. 1 0 2 However, this potential has never been realised and no such powers have been delegated to iwi since the passage of the RMA. Mori interests have been singled out for special attention in the RMA and are specifically provided for in several places, from the process of decision making to substantive outcomes. But there is no guarantee that they will be upheld in any final decision, either on the adoption of a planning document or decision on a resource consent. It was this lack of protection of Mori interests in respect of marine-farming decisions in the Marlborough Sounds that sparked the decision of iwi to apply to the Mori Land Court for a declaration of customary title over the foreshore and seabed and which in turn led to the Court of Appeal Attorney-General v Ngti Apa decision and the subsequent foreshore and seabed legislation .3 0 MARLBOROUGH SOUNDS CASE In 1997, the eight Iwi of Te Tau Ihu (Ng ti Apa, Ngata Koata, Ngti Kuia, Ngti Rrua, Ngti Tama, Ngti Toa, Rangitne and Te Atiawa) sought a status order via the Mori Land Court, under Te Ture Whenua Mori Act 1993, declaring the foreshore and seabed in their area to be customary land – land held according to tikanga Mori and protected as their property by the doctrine of native title. The Mori Land Court has jurisdiction to determine and de clare, by status order, land in New Zealand. The Act states that no land can acqui re or lose the status of Mori customary land other than in accordance with the Act, or as expressly provided in any other Act that direction is a reflection of the common law doctrine of native title – native title can only be extinguished by clear and plan legislation. 3 1 The reason why Iwi in the Marlborough Sounds region sought to apply for a status order to declare stretches of foreshore and seabed as Mori customary land lay, not in a wish to prohibit public access, but in order to assert mana whenua and have a better opportunity to participate in the commercial use of the land. The Iwi were frustrated at being denied the ability to establish marine farms over land that they believed was customarily theirs. The Resource Management Act 19 91 stated that land in the coastal marine area (defined as including the fores hore and seabed) vested in the regional council could only be occupied if expressly allowed by a rule in regional 1 0 3 coastal plan or by a resource consent. Without a resource consent, Te Tau Ihu Iwi had no right to occupy the foreshore and seabed for the purposes of erecting a marine farm. But the procedure of applying to the Marlborough District Council for a resource consent had been fruitless; the Council de nied their marine farm applications. The Iwi therefore sought to challenge the Council’s mandate by seeking to have the land declared Mori customary land. When the Resource Management Act 1991 came into for ce, a ‘gold rush’ 3 2 of applications were made to the Marlborough District Council for marine farming permits in the Marlborough Sounds. In many areas there were competing applications covering the same space, and many applications covered marine areas that were currently being used by Mori in accordance with custom. The industry began to take off in the Marlborough Sounds; and space suitable f or marine farming became increasingly short in supply. Iwi were involved with the permit application process, both as objectors to some applications and as applicants in others. Because of the several references to the protection of Mori interests in the RMA, Mori expected much better protection of their interests in the coastal marine area than before. Unfortunately, their success rates as both objectors and applicants were low. In some areas outside the Marlborough Sounds, iwi were able to be involved extensively in aquaculture and marine farming. For example, Te Atiawa Manawhenua ki te Tau Ihu Trust, through its corporate subsidiary Totaranui Ltd, has extensive interests in Tasman Bay and Golden Bay; a s does Ngti Tama ki te Tau Ihu. 33 However, in other areas, iwi had a much lower succe ss rate and felt excluded from the increasing marine farm developments. In relation to the Marlborough Sounds, local iwi felt their interests had been ignored in respect of coastal permit decisions made by the Marlborough District Council. For example, in the early 1990s Ng ti Tama is reported to have made at least thirty-five applications for marine farming licences in the Marlborough Sounds, of which none were granted. Iwi also failed in opposing other applications on the grounds of customary usage. 1 0 4 Some iwi however, were successful in gaining marine-farming permits, even in Marlborough. Te Atiawa Manawhenua ki te Tau Ihu Trust, via its fishing company Totaranui Limited, has mussel, oyster and pua farms in the Marlborough Sounds. However, they were outnumbered significantly by suc cessful non-Mori applicants. For example, in the period 1991-1996 only one appli cation from an iwi trust for marine farm space in the Marlborough Sounds was successful while in one year alone (1996) ten permits were granted to non-M ori applicants. Most importantly, much of the non-Mori marine farming was taking place in areas that had customarily been used by Mori, even while Mori were unsuccessful at gaining coastal permits in their own traditional areas. These customary uses were thus being nudged out by marine farming structures anchored to the seabed without any kind of redress or compensation. And this was occurring despite the relative sensitivity of the RMA to Mori interests. As marine farming was effectively privatising asserted customary rights over some of the marine space, Te Tau Ihu Iwi felt that they should at least get some of the financial benefit – even if only redress for the extinction of their usage rights. But they also wanted the rights recognised so as to be able to continue to exercise them. It was these two factors – the lack of success in the marine farming applications, along with the issue of allocation by tendering – which led to the lodging in 1996 of the Mori Land Court claim for recognition of customary title to areas of the foreshore and seabed in the Marlborough Sounds. A preliminary decision was made in December 1997. This decision cast doubt on the majority view that the Crown had owned the foreshor e and seabed by virtue of common law. Claim to the foreshore was investigated in the Ninety Mile Beach case before the Court of Appeal in 1963. The case in the M ori Land Court was heard before Judge Hingston who found that the Ninety Mile Beach case should be limited to its essential finding concerning land where customary title was investigated by the land court prior to any disposition of the land. The decision should not be extended to lands purchased before the land court came into being. In areas of early land sales such as 1 0 5 the South Island, the New Zealand purchases and ear ly sales where the foreshore was not expressly dealt with, customary rights might remain. 34 In Judge Hingston’s view 3 5 customary rights to the foreshore had not been extinguished unless the Court had investigated title to adjoining land above the high water mark; or they had been included (extinguished ) in any sales of adjoining land; or they had been extinguished by clear and unambiguous legislation. In regard to the seabed Judge Hingston concluded th at with respect to Mori customary rights to the seabed the radical title to the seabed had vested in the Crown but that title was still subject to M ori customary rights. 3 6 The Crown appealed to the Mori Appellate Court, where to save time and costs, it was agreed that certain questions might be better r eferred to the High Court for an opinion. Justice Ellis heard submissions and then proceeded to answer the questions, where the basic reasoning of the Ninety Mile Beach case was followed. Consequently the Mori Land Court decision was overturned. However, t he Court did find that customary rights over the foreshore, the seabed, and the sea, short of a right of exclusive possession, might exist, and could be established through the RMA, fisheries legislation, and the Waitangi Tribunal. 37 The eight iwi who had initiated litigation against the Crown were not prepared to accept the decision of the High Court, and petition ed the Court of Appeal. The case was heard by a full bench of Court of Appeal judges , headed by Dame Sian Elias and delivered a decision on 19 June 2003. The case that came before the Court of Appeal was not actually about marine farming space. By that time, the only issue was whether the Mori Land Court had jurisdiction to consider customary title claims to the foreshore and seabed. This was a much narrower legal issue, divorced from any facts concerning activities in the Marlborough Sounds. As further background, also during the 1990s, a new regime was introduced for management of non-commercial Mori customary fishing, with substantial Mori input into and control of the new regime. Iwi in the Marlborough Nelson area were involved with the negotiation for development of the new regime and are currently using it. For example, they have established tangata kaitiaki to 1 0 6 authorise customary fishing within their rohe moana, in accordance with tikanga Mori, and Marlborough Nelson iwi are some of the few to have established a taipure fishing area under the regime. However, while negotiations on the new regime began in the early 1990s, these developments were not finalised until after 1996. This presumably added to iwi frustration wit h the overall management of fisheries in the area. In June 2003 the Court of Appeal handed down its un animous decision that: “The M ori Land Court has the jurisdiction to determine th e status of the foreshore and seabed.” This was significant because of the incisive views about the nature of Mori residual rights under common law.3 8 The decision made by the Court of Appeal in June 20 03 did not mean that M ori had rights to the foreshore and seabed but that they could go to court to have their rights investigated. This investigation could potentially determine that Mori had customary title, and subsequently a form of freehold title, t o areas of foreshore and seabed. The significance of the case is that it overturned the Crown’s assumption that it owned the foreshore and seabed, a result the Crown was not prepared for. After the June 2003 Court of Appeal decision re Ngti Apa the Government immediately stated it would pass legislation to remove the ability of the Mori Land Court to create freehold titles to areas of foreshore and seabed. Although the Government could have appealed the case to the Privy Council, it considered that changing the law was necessary. The reasons stated for doing so were that firstly, public access must be protected, and would be threatened if Mori possessed ownership rights and secondly, that Mori customary rights would be protected by extending the range of customary interests, the Mori Land Court could recognise. A consultation document was made public in August 2003, with a feedback form for completion before 3 October 2003. It was a draft p roposal for legislation affecting the foreshore and seabed, and represented the Government’s initial attempt to reconcile 1 0 7 Mori claims of customary title with popular assumptions that the beaches belonged to no one in particular but to everyone. The draft proposal was based on four principles – access, regulation, protection and certainty. In late December 2003, after the very quick consult ation round (2 months) and a period for development of the Government’s response , the Government released official policy statements in outlining proposals for legislation. The statements confirmed the Government’s intention to legislate a s proposed in the Policy and contained a full framework for reforming ownership, management and regulation of the coastal marine area. In relation to Mori the Crown took the opportunity to resolve and extinguish all remaining Mori interests in the coastal marine area. Some changes were made to the proposed treatment of the resource management regime: it would be improved in order to better protect Mori customary rights at the same time as a new system would be devised to recognise them. This had apparently emerged as a ‘major issue’ during the consultation period over the proposals and, unlike some of the other major concerns, the Government felt able to address this. The key elements of the proposals were that the coastal marine area would be vested in the ‘public domain’, that M ori customary rights would be recognised by a new form of ‘customary title’ that would acknowledge ma na, allow the continuation of customary practices, and enhance participation in decision making over the use of the coastal marine area. The Crown would negotiate with all other persons with rights in the foreshore and seabed to gradually put the land into the public domain and all other government work on marine issues e.g., Oceans Policy, Marine Reserves and aquaculture law reform would be on hold. Most iwi, considered the policy to be unfair and discriminatory because only Mori property rights were to be affected and that the policy would recognise lesser and fewer customary rights than existed then, which amounted to extinguishing property rights, without consent or compensation. It was the opinion of iwi that the proposal to enhance decision–making capacity would not work in practice and that the Government was not listening to the objections of M ori, and refused to make any meaningful changes to the policy, which was contrary to its role as a Treaty partner. 1 0 8 The policy noted that the RMA did offer some protection for Mori interests, including decision making and taking ‘direct contro l of certain areas’ and even stated that ‘there are concerns with the effectiveness of some of these mechanisms. For example, many Mori have been dissatisfied with the way in which some local authorities give effect to the requirements of the Resource Management Act’. The other reference to the RMA regime in the Policy was that Mori customary rights recognised would be ‘subject to regulation through the Resource Management Act to ensure sustainability. While the precise parameters for this regulation were still unclear, it was expected that the current standards for regulation of an activity in the RMA would be applied, and that it would be possible to decline or prohibit the exercise of a customary right for reasons of environmental sustainability. The Government identified its intention to finalise the relevant legislation including consideration of an anticipated report of the Waitangi Tribunal on the Policy and introduce legislation in March 2004. Mori were extremely unhappy with the Government’s pr oposals and lodged a claim with the Waitangi Tribunal that the Crown had breached the principles of the Treaty of Waitangi. An urgent hearing was held in late January 2004 and the Tribunal released its report on March 4. 3 9 The Tribunal’s finding was that the Government’s po licy ‘breaches the Treaty of Waitangi in ways that we regard as fundamental and serious’. A primary reason for this finding was the lack of detail provided in the December Policy about the replacement customary rights regime and thus uncertainty entailed in the Government’s proposals, when a right of access to t he courts was being removed particularly where the right of access was for the determination of a property right. Aspects explicitly mentioned as contributing to the uncertainty include ‘how the interface with the Resource Management Act will be handled’ and ‘how parts of the policy will work in practice’. The Waitangi Tribun al singled out for criticism the likely achievement of the proposed ‘enhanced role i n decision making’. The Tribunal suspected that Mori were being promised this when they should have already achieved it under the RMA and the customary fishing regulations regimes. 1 0 9 The Waitangi Tribunal found that the seabed and foreshore policy proposals breached articles two and three of the Treaty of Waitangi. The Tribunal’s conclusions were that Mori exercised te tino rangatiratanga over the foreshore and the sea in 1840. Their use, management, and authority was sourced in tikanga Mori. The coastal marine area was a taonga. Their relationship with their taonga involved mutual guardianship and nurturing. The British legal concepts of dry land, foreshore, and seabed had no relevance in the holistic Mori worldview, although they were of course relevant later to the Crown. Under the Treaty, the Crown gave a guarantee to Mori that it would protect te tino rangatiratanga over the foreshore and seabed. In terms of te tino rangatiratanga over the sea, it was noted that the findings of other Tribunals were that the territorial waters of Muriwhenua and Ngi Tahu hap were a zone stretching 12 miles from shore. During the past 164 years, the Crown has not protec ted Mori tino rangatiratanga but has instead assumed ownership of the foreshore and seabed. The Treaty provided for Mori and Pkeh to share and develop the country and its resources in the interests of both. It provided for the customs and laws of both to be respected and for both peoples to reach mutual accommodation. As at 1840, a situation was being reached where Mori and settlers were using the beach and sea in accordance with their different needs, but with respect for tikanga Mori. In 1848, the Crown recognised that every acre of land in New Zea land was claimed legitimately by Mori under tikanga Mori, and has not resiled from that position ever since, except with regard to the foreshore and navigable waterways. The Tribunal did not think the Crown was justified in making this except ion. The Crown’s assumption of ownership has resulted in the grant of both public rights and private rights in the foreshore and seabed. As part of its assertion of sovereignty, the Crown has also undertaken to regulate and manage the coastal marine area, overlaying the public and private rights conferred by it. In the process of colonisation, Mori have lost the great majority of their land and resources, often in serious breach of the Treaty. This has included much sea-frontage 1 1 0 land, and along with it usually the ability to assert de facto control. There has been a gradual infringement of Mori authority on the ground as a result of these developments, differing from place to place and over time.4 0 The Tribunal recommended that the Government start afresh, and endeavour to reach a negotiated settlement with Mori, that respects tino rangatiratanga, the equalit y of Mori as citizens, and provides compensation in the event rights are removed or reduced. The discrimination in the Foreshore and Seabed Act 2004 has been pointed out by the United Nations Committee on the Elimination of Racial Discrimination (CERD) in its decision on the Act. This confirmed the opinion of the Waitangi Tribunal that the Government’s policy in relation to the foreshore an d seabed was unfair and prejudicial to M ori. 41 The Government effectively ignored the Waitangi Tribunal report and introduced legislation in early April 2004. The substance of some areas of the legislation differed from the December policy, and arguably the detrimental effects on iwi/hap were increased. The Foreshore and Seabed Bill was introduced to the House of Representatives on Thursday 6 May 2004, the day after a 15-20,000 stro ng hkoi against its passage arrived at Parliament. Some provisions were significantly different from what was foreshadowed in the previous policies, which had been subjected to Waitangi Tribunal scrutiny. For example, in response to the critici sm by the Waitangi Tribunal for the denial of access to the court system for determination of customary titles, a new codified High Court jurisdiction to determine custo mary titles and rights was included in the Bill. 42 The resource management aspects of the Bill largely followed what had been indicated. Yet there were also some significant changes which had not been foreshadowed in the previous discussions on policy. A significant change was that Mori customary rights activities would not be subjec t to the RMA regime in the normal way, as earlier suggested. Instead, they would be exempt from the existing 1 1 1 resource consent and compliance procedures, subject to their own separate compliance regime. The system introduced by the Bill included three different types of orders: orders from the Mori Land Court for ancestral connection and non – exclusive, non- territorial customary rights; and orders from the H igh Court for exclusive territorial customary rights. The proposed effect of an ancestral connection order was to ‘acknowledge kaitiakitanga and to provide opportuni ties for more effective participation in decision making processes by Mori groups who have traditionally cared for the coastline.’ It allowed for the trans fer of powers under the RMA to iwi authorities, which is currently available under section 33. It also allowed for holders of ancestral connection orders to be consulted during the preparation of regional coastal plans, policy statements and district plans; and any planning document prepared by the holder of such an order must be ‘ta ken into account’ by regional and district councils when preparing their relevant plans. The ancestral connection orders were criticised particularly on the basis that they did not offer much that was not already available under the RMA. It was therefore not worth the time and resources to apply for such an order. In summary the proposed bill would vest the ownership of the foreshore and seabed in the Crown and provide for the Mori Land Court or the government to recognise an ‘ancestral connection’ of M ori with particular areas of foreshore and seabed. It would also provide for Mori and non-Mori to apply to the Mori Land Court and the High Court respectively to have their rights re cognised by a customary rights order and would provide for groups to apply to the High Court or negotiate directly with the government for recognition of ‘full territ orial customary rights’ had the government not vested ownership in the Crown, and where established, seek redress. There was also a provision for a general right of public access and navigation along and over the foreshore and seabed. There is extensive history of Marlborough iwi exercising customary rights in the coastal and marine area, both in the past and present. Most of those rights are fishing related. This has translated into involvement in some marine farming activities in the area, but this is only a small amount considering both their historical involvement and 1 1 2 the extent of current non Mori involvement. In addition, it has come at the expense of some customary activities. The Government has reformed much of its marine legislation and policy, including aquaculture, and as part of that reform has agreed to resolve the issue about lack of Mori access to marine farming permits. The Marlborough Sounds Foreshore and Seabed case is abo ut much more than access to marine farming in the Marlborough Sounds, but it was marine farming which provided the primary impetus for initiating the claim before the Court.4 3 Foreshore and Seabed Act 2004 (FSA) The background to the passage of the FSA can be des cribed as an outcome of the Court of Appeal’s judgements in Ng ti Apa v Attorney-General 2003 and the government’s response. The legislation was a polit ical fix which tries to do several things at once, struggling to placate several constituencies with mostly incompatible interests and outlooks. 44 The FSA governs title to the foreshore, public righ ts of access to it, and questions of propriety and non-proprietary customary title relating to it. For the first time in New Zealand’s legal history property rights regarding t he foreshore and seabed are now set out in a single statue, which gathers many former points of statute law together and which also replaces much of the former common law relating to the foreshore and seabed with a new statutory regime. The FSA is a mechanism for the recognition of M ori rights over the foreshore and seabed. However, the legislation is not concerned only with the native title issue, but this is nevertheless a key aspect of the content of the FSA. According to the Explanatory Note, the legislation “establishes a co mprehensive framework for recognising rights and interests in the foreshore and seabed”. 4 5 The FSA attempts to do two key things at once. It vests foreshore and seabed in the Crown and protects public access to the area, along with a range of ancillary rights. It also endeavours to provide for the recognition of Mori customary rights to the foreshore and seabed by establishing statutory processes for two different kinds of 1 1 3 orders, territorial customary rights orders (TCRs) and customary rights orders (CROs). Instead of the possible recognition of rights to the foreshore and seabed at common law and in the Mori land which arose in the wake of the decision in Ngti Apa, there is now an entirely statutory regime into which the claims of Mori – and, perhaps, some non-Mori – have to be fitted. 4 6 In terms of the structure of the Act there are a series of provisions outlined to enable the key objectives to occur. Firstly, there are th e “preliminary provisions” that deal with the object and purposes of the Act. Secondly are the provisions that deal with the “Public Foreshore and Seabed”. This is the ves ting part of the Act. Thirdly, are the provisions relating to Territorial Customary Rights in the High Court. Fourthly, there are the provisions relating to Customary Rights Orders in the Mori Land Court and finally, there are the provisions relating to the public foreshore and seabed register, recognition agreements, and other matters. Some of these provisions will now be examined in more detail. Territorial Customary Rights Territorial customary rights are defined as customary rights and interest in the foreshore and seabed that would have amounted to exclusive property rights, had an act not extinguished them. If the High Court decid es the group had these rights, the Crown must enter into discussion with the group, potentially leading to compensation or redress. However, any redress is at the Governm ent’s discretion. Groups can also approach the government directly on this matter; th is opportunity does not amount to an ability to seek and effective legal solution to the removal of rights. Territorial customary rights are based on the exclusive occupation and use of a particular area of the public foreshore and seabed. Any group of Mori or non-Mori that can prove exclusive occupation and use, and meet the other criteria in the Act, can claim territorial customary rights. The group must hold title to the land adjoining the relevant area of the foreshore and seabed before it can claim territorial customary rights. 1 1 4 The first application to be made in regard to TCRs came from Ngti Porou ki Hauraki who are in negotiation to secure a TCR claim over Kennedy Bay in the Thames Coromandel District and Mataora Bay south of Whiritoa. To be successful they must prove exclusive use and occupation of those areas between 1840 and 2004. 4 7 Examples of possible redress are the establishment of a foreshore and seabed reserve, statutory acknowledgement, place name additions/changes, protocols and memoranda of understanding. Where a group obtains a territorial customary rights order from the High Court, it is also able to obtain a High Court order establishing a reserve over the claimed area. The reserve is managed by a board whose functions and membership have been agreed upon by the rights holder, the local regional council and central government. The primary function of the board is the preparation of a management plan, similar to the iwi management plans prepared under the RMA. Indeed, the plan must be prepared in accordance with Part II of the RMA and be consistent with the New Zealand Coastal Policy Statement. The importance of the management plan is that regional and local councils must recognise and provide for it in preparing their regional policy statements and regional and district plans. Once a new foreshore and seabed management plan had been finalised and lodged with the relevant council, the council must within six months commence a review of the policy statements and plans, and then make any changes necessary in order to recognise and provide for the management plan. As it is likely that any Mori customary activities in the area would be provided for under the management plan, they have the potential to then be protected by the regional and local plans and statements. While they will already be listed as matters of national importance, this provides an additional, reinforcing avenue for protection, perhaps through more specific controls. The effect may be that greater weight will be given to recognised customary rights over other rights or matters of national importance. Therefore, although a foreshore and seabed reserve itself could have little real impact, if the board does produce an effective management plan then there is the opportunity for the group which held the territorial customary rights to obtain some significant controls through complete new mechanisms. 4 8 1 1 5 Another potentially important feature is the capability for a board to be delegated or transferred powers under the RMA, for example, including powers to issue resource consents for the area. It is considered to be an important feature because it illustrates the potential for co-management of the resource. In this sense, it provides a better model of partnership in resource management decision making than has been witnessed to date. The primary drawback to this aspect, from the perspective of the resource management system, is that a similar power already exists in the RMA in respect of iwi authorities. The amendment extends the range of bodies which can exercise the power, but his may not amount to offering much more than should already be available to those wishing to exercise kaitiakitanga over a foreshore and seabed area. This is because the holder of a territorial customary rights order, and thus the Mori membership of the relevant board, is likely to be the local iwi. They should thus have been able to obtain the delegated RMA powers on their own, without having to establish and foreshore and seabed reserve board because the provision had already been made under Section 33 of the RMA but up until this time has not been utilised by local or territorial authorities. The delegation of powers as noted already has never been exercised in favour of an iwi authority. This maybe due to the public input required, that is, it is subject to broad public consultation under the new special consultative procedure set out in the Local Government Act 2002. There is therefore the fear that this would be a hindrance to any actual delegation of powers to a foreshore and seabed reserve board. 4 9 Customary Rights Orders The legislation provides for a group of Mori to go to the Mori Land Court and have their customary rights recognised by a customary rights order. Section 48(1) states “a whnau, hap, or iwi, through its authorised representative, may apply to the Mori Land Court for a customary rights order that relates to a specified area of the public foreshore and seabed”. Non-M ori can seek similar recognition of a customary rights form the High Court. The legal test for establishi ng customary rights requires, amongst other things, that the activity, use or practice has been integral to the culture of the group, has been exercised substantially uninterrupted since 1840 and continues to be exercised. The test is severe and likely to result in lesser and fewer customary 1 1 6 rights being recognised by the Court than exist in practice, and as are provided for by tikanga. Perhaps most important, any activities relating to fishing including gathering live seaweed are excluded by virtue of the 1992 fisherie s settlement. Examples of what kinds of activities might remain once fishing is excluded include: the right to gather rocks, sand, shells and seaweed from the foreshore; the right to launch waka from the foreshore; and the right to protect access to sites of spiritual significance. At the time of writing the author was unaware of any customary rights orders that had been granted to groups and was therefore unable to provide examples. This maybe due to the limited amount of activity that remains once fishing is excluded from the type of activity that a CRO can be granted for. Ho wever, a favourite example of how a CRO may be used is the gathering of hangi stones, although why anyone would bother going to the length of obtaining a CRO merely to occasionally take a few stones from the beach is not easy to see. 5 0 There are types of fishing activity such as taking whitebait, which are not controlled under the fisheries legislation and which can therefore be protected by a CRO. There would also be no reason it seems to have a CRO provided for the exercise of kaitiakitanga provided that it manifests itself as an activity, use or practice, which it typically is or if exercised in association with other activities. Resource Management (Foreshore and Seabed) Amendmen t Act 200 4 Under the legislation the exemption from RMA compliance is a major feature of customary rights orders. Under the RMA, any activity with adverse environmental effects is prohibited without a resource consent or express permission in a coastal plan. Even where a resource consent has been obtained, every person has a duty to avoid, remedy or mitigate any adverse environmental effects of that activity. However, customary rights orders have been exempted from these requirements. Under the Act customary rights orders are included in section 6 of the RMA as a matter of national importance and must be recognised and provided for in all functions under the RMA. It accords a high priority for Mori customary activities 1 1 7 without compromising environmental protection. The legislation provides for the protection of customary rights orders in the New Ze aland Coastal Policy Statement. Other useful aspects include the creation of a public register, so that councils are able to see a list and location of all activities. So is the fact that coastal occupation charges will not be applicable for customary activities which are normally applicable for coastal activities. Another feature of the customary rights activities system is that district plans may not include any rule which would prevent or have a significant adverse effect on a recognised customary activity. If the holder of the customary rights order believes that such a rule exists in the plan, they may apply to the relevant authority and the Environment court for its change. A strong feature is what has been referred to as the ‘veto’. When other resource consents are applied for, consent authorities must consider whether the proposed activity would have any adverse effect on any recognised customary activity. An authority must not grant a resource consent for any activity that will, or is likely to, have a significant adverse effect on a recognised customary activity, unless written approval is given for the proposed activity by the holder of the relevant customary rights order. Activities undertaken pursuant to a customary rights order are exempt from the requirements to obtain resource consent, even thoug h the activities are in the coastal marine area. There are some limits or controls on customary activities, but these are not the usual resource management controls. Such controls may be imposed only where an activity has, or may have, a significant adverse effect on the environment. Controls can only be imposed after an adverse effects report has been obtained in relation to that activity and after consultation. While a recognised customary activity may have a commercial aspect, it is not possible for it to increase in its scale, extent or frequency after recognition in an order. Indeed, if it does exceed the scale, extent, or frequency specified in the order, then the exemption from the RMA does not apply. 1 1 8 The legislative changes associated to customary rights orders seem very through considering the limited amount of activity available under the provision of a customary rights order. RECENT DEVELOPMENTS In February 2008 the first recognition of territori al customary rights in the foreshore and seabed occurred. The Crown reached a Heads of Agreement with both Ngti Porou and Te Whnau--Apanui. This represents extremely slow progress in recognising customary rights to the foreshore and seabed since the Crown appropriated ownership rights in 2004. To date onl y three groups (including these two iwi) have entered into negotiations with the Cr own, while a further nine have applied for customary rights orders in the Mori Land Court. The first hearing of a customary rights order application also happened in February 2008, with the hearing of the Ng ti Pahauwera application in Mhaka . The two (Ng ti Porou and Te Whnau--Apanui) iwi agreements have been a long time in the making; the background sections of both of them con firm that negotiations had begun before the enactment of the Foreshore and Seabed Ac t in November 2004. Both iwi have pointed out in the background section of the agreements that they don’t accept the Crown’s foreshore and seabed policy. Instead t he agreements record that the parties “have entered in this Deed to secure the le gal expression, protection and recognition of their mana “in relation to their res pective foreshore and seabed “but still do not agree with the Act and in particular section 13(1)”which vest legal and beneficial title in the Crown. Under these agreements the Crown has agreed to acknowledge that the mana moana of both parties “is unbroken, inalienable and endur ing; and… is held and exercised…as a collective right”. This acknowledge ment by itself has no legal effect, and is no different from the acknowledgement given by the Crown to Ngti Pahauwera in their first customary rights order application. The acknowledgement is given effect by the Crown “contributing” to the “le gal expression, protection and recognition” of that position through eight differe nt instruments outlined in the agreements, namely statutory overlay; environmental covenant; protected customary 1 1 9 activities instrument; wahi tapu instrument; relati onship instruments with government departments; fisheries mechanism (new iwi-specific kaimoana regulations); place names changes; and a right to establish pouwhenua. The statutory overlay, relationship instruments, changes to place names and the right to establish pouwhenua are all available, in substantially similar form, through the historical Treaty settlement process (although hist orical claims can no longer be lodged). The environmental covenant has the same e ffect as an iwi management plan under the RMA, while there are already variations in the kaimoana regulations, although not at an iwi level. Likewise the outcomes available under the protected customary activities and wahi tapu instruments are identical available from the Mori Land Court in a customary rights order application, although instead of the Mori Land Court being the decision maker, the parties must now convince Crown officials, and have no right of appeal. This raises the question as to why the Crown contin ues to require the hap  to go to the High Court to prove their territorial customary rig hts when the agreements provide that the Crown itself is satisfied that he hap hold territorial customary rights and has agreed to support the applications to the Court. Given that legislation will be needed to give effect to the agreements in any event, there seems to be no reason, other than Crown policy, that would preclude the Crown from deeming in the settlement legislation that the hap held territorial customary rights. Instead the parties are required to expend significant resources in prepari ng evidence and going to court and thereby risking the settlement for something that does not appear to be in dispute. The unnecessary nature of this litigation is even more poignant when it is considered that legal aid is not available for the applicant hap. Unless significant tangible benefit is subsequently identified, further negotiations could be hampered, particularly given that the territorial customary rights can only be recognised where iwi own the adjoining land. 51 In terms of development for the iwi of Te Tau Ihu post Foreshore and Seabed Act 2004 enactment, although there hasn’t been a claim or application lodged for either a customary rights order via the Mori Land Court or a territorial customary rights 1 2 0 order via the High Court or through the mechanism o f direct negotiation with the Crown, there has been a concentrated effort on reaching a settlement in regard to the Aquaculture Agreement which is currently in draft a nd due to be finalised in the near future. The Te Tau Ihu Fisheries Forum is the body that has been utilised to progress Aquaculture issues and was originally established f or the development of the customary fisheries regulations. The Aquaculture Ag reement is in relation to pre 1990 space allocation and has a total monetary value of $96 million, divided between Ng i Tahu ($2million), Pare Hauraki – Waikato ($20 milli on) and the iwi of Te Tau Ihu ($74 million). The monetary compensation is due to the lack of available marine space and the Deed of Settlement is the next step in the process. The outcome from this agreement will ensure access to marine space for iwi in Te Tau Ihu, along with the resources to undertake development. 52 From this point customary boundary issues will need to be addressed before any claims or order applications are lodged. The post 1990 arrangements are in relation to the t wenty percent allocation of any new water space for aquaculture development. New s pace can be defined as space that is approved by the local authority, there is a possible 250 hectares and this area is set up in harbours or areas to assist in the boundary debate. 5 3 There are currently conflicting views between Te Tau Ihu iwi, where each has a differing perspective and common ground will need to be established before going forward, at which stage Te Tau Ihu iwi will consider their options in terms of arrangements in regard to the foreshore and seabed under the new legislation. 5 4 CONCLUSION Customary title is not the same as freehold title. From a M ori custom perspective, it is not an alienable property right. It is based almost solely on the establishment of ancestral rights of the local Mori to a specific shoreline. Those rights cannot be transferred. In terms of the foreshore and seabed, Mori did not seek a freehold title, did not suggest that customary title would necessarily allow them to exclude others, and made it clear that it would not unduly impinge on the rights of others. What they suggested was that not only would they be able to exercise their customary rights but they may be more involved in the management of their foreshore and seabed areas. Mori already had some role in resource management on the basis of their ancestral 1 2 1 relationship with an area. Enhancing local Mori input in management seemed to provide the most satisfactory way of recognising Mori customary rights. 5 5 The foreshore and seabed debate has highlighted different interpretations of custom, common law, and entitlement, but rather than simply reflecting uncertainties about meaning within customary Mori understandings, it had drawn attention to the limitations of British law and the difficulties of transposing customary concepts, including aboriginal title into a legal system based on other principles.5 6 1 ‘Foreshore report guarantees public access’, (200 3), in New Zealand Herald, 19 August 200 3, pA14- 15 2 M.H.Durie, (200 5), Nga Tai Matatu: Tides of Mori Endurance, Oxford, Auckland. 3 www.wikisource.org 4 Durie, (20 05) 5 M. Jackson, (200 3) ), ‘There are obligations there: a cons ideration of Mori responsibilities and obligations in regard to the seabed and foreshore’, in Turanganui a Kiwa Pipiwharauroa, 11:7, p 7-10 6 ibid 7 ibid 8 ibid 9 R. Harris, (20 04), ‘Customary rights and the foreshore and seabed debate’, in Resource Management Journal, 12:1, p 8-14. 1 0 Harris, (20 04) 1 1 C. Orange, (19 87), The Treaty of Waitangi, Allen and Urwin, Wellington 1 2 Orange, (19 87) 1 3 Waitangi Tribunal, (1 998b), Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Department of Justice, Wellington, p. 36. 1 4 Waitangi Tribunal, (2 004), Report on the Crown’s Foreshore and Seabed Policy: WAI 1071, Legislation Direct, Wellington. 1 5 A. Frame, P. Meredith, (2 00 3), ‘M ori Customary Rights: the Hard Yards’, in Te Matahauariki Newsletter, (7): 3-5. 1 6 ibid 1 7 R. Boast, (2 00 5), Foreshore and Seabed, Lexis Nexis, Wellington. 1 8 Waitangi Tribunal,(20 04), Report on the Crown’s Foreshore and Seabed Policy, WAI 1071, p 19. 1 9 T. Bennion, M. Birdling, R. Paton, (20 04), Making Sense of the Foreshore and Seabed: a special edition of the Mori Law Review, Wellington. 2 0 ibid. 2 1 ibid 2 2 ibid 2 3 J. Ruru, (20 03), ‘Denial of customary rights: seabeds/f oreshores’, in Red and Green: the New Zealand Journal of Left Alternatives, 2, p 10 9-11 2. 2 4 ibid 2 5 “Foreshore and seabed”, (2004), in Te Karaka: The Ngai Tahu Magazine, 24, p 10-13. 2 6 www.fao.org/fishery/legalframework 2 7 ‘In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi’ 2 8 ‘Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi’ 2 9 Massey University, (20 07), 150.201 Study Guide, Te Ptahi a Toi, p 89. 3 0 C. I. Magallanes, (200 7), ‘Resource and Marine Manageme nt Issues’ in Mori Property rights and the Foreshore and Seabed: the Last Frontier, Victoria University Press, Wellington. 1 2 2 3 1 J. Ruru, (20 04), ‘A politically fuelled tsunami: the fo reshore/seabed controversy in Aotearoa me Te Wai Pounamu – New Zealand’, in Journal of the Polynesian Society, 11 3:1, p 57-72. 3 2 M. Love., (19 98), ‘Customary Rights’, in New Zealand Engine ering, April, p 34-35. 3 3 ibid 3 4 ibid 3 5 Preliminary decision made by Mori Land Court in 19 97 3 6 G. Lanning, (199 8), ‘The battle for control of the coas t – Mori vs the Crown’, in Property Issues Journal, November 19 98. 3 7 Durie, M.H., (20 05), Nga Tai Matatu: Tides of M ori Endurance, Oxford, Auckland. 3 8 ibid 3 9 Waitangi Tribunal, (2 004), Report on the Crown’s Foreshore and Seabed Policy: WAI 1071, Legislation Direct Auckland. 4 0 ibid 4 1 K. McNeil, (20 07), ‘Legal rights and legislative wrongs’ in Mori Property Rights and the Foreshore and Seabed: the last frontier, Victoria University Press, Wellington. 4 2 Magallanes, (2 00 7) 4 3 ibid 4 4 B. Arthur, (2005), Foreshore and Seabed Act, the RMA and Aquaculture, New Zealand Law Society. 4 5 Explanatory Note, p1. 4 6 R. Boast, (2 00 5), Foreshore and Seabed, Lexis Nexis, Wellington. 4 7 Ngti Porou ki Hauraki Newsletter, (2 00 7), August - October 4 8 Magallanes, (2 00 7) 4 9 ibid 5 0 Boast, (20 05) 5 1 G. Powell., (200 8), ‘The emperor’s new clothes’ in Mana Magazine, 81, p 34-35. 5 2 Personal Correspondence – Molly Luke, Ngti Rrua/Ngti Toarangatira 5 3 Personal Correspondence – Joe Puketapu, Te Atiawa 5 4 Personal Correspondence – Anaru Wilkie, Ngti Rrua/Te Atiawa 5 5 M. Strack, ( 20 04), ‘Time for negotiation with M ori over foreshore, seabed issue’, in Otago Daily Times, 12 August, p 13. 5 6 Durie, (20 05) 1 2 3 Chapter Five MANAGEMENT OF RIVERS INTRODUCTION Rivers are economically, culturally and spiritually important to Mori. Traditionally rivers have served as routes for transport, have provided fresh water and other resources, including mahinga kai. Rivers are also important markers of identity for hap and are often include in whakapapa and whai krero. For many hap  rivers are viewed as taonga. 1 Taonga can be defined as treasures, precious and prized property o nga iwi Mori. 2 “…nga awa are regarded as being taonga representing the spiritual and physical mana of the iwi and for food resources providing for the sustenance of the iwi”3 The banks and bed of the river are inseparable from the body and flow of the water itself. Rivers are accorded a mauri of their own and depending on the state or wellbeing of the river’s mauri, will depend on how it is described and how well it will benefit its people as a resource. Everything has a mauri, including people, fish, animals, birds, forests, land seas, and rivers. The mauri is that power which permits these living things to exist within their own realm and sphere. 4 In reference to resource management, with the oceans, rivers and forests; when the food supplies become depleted it is possible to return this mauri through conservation (r hui) and the appropriate ritual ceremony. The wellbeing of the mauri of a river is often a reflection on the mana of the hap/iwi associated with the river. 5 The sustainable management of rivers is recognised within the concepts of rangatiratanga and kaitiakitanga. Rangatiratanga can be understood as meaning ‘full authority, status and prestige with regard to possessions and interests’. 6 Mana is the personalisation of that authority. Kaitiakitanga refers to environmental management systems evolved to protect and enhance the mauri of taonga and ensure the 1 2 4 sustainable use and management of natural and physical resources.7 In regard to rivers rangatiratanga is a birthright which denotes the right to have interests and to make decisions, where as kaitiakitanga is the guardianship of the mauri of a river.8 Such concepts are practiced by the hap and iwi who have customary rights to a particular river. A contemporary issue is about having rangatiratanga acknowledged and accepted as a right provided under the Treaty of Waitangi and also at common law so that resource management in regard to waterways can be a more effective means to sustaining a valuable resource. CUSTOMARY PRACTICES To Mori all water is seen to have originated from the separation of Ranginui and Papatnuku and their continuing tears for one another. Rain is Ranginui’s tears for his beloved and mist is regarded as Papa’s tears fo r Rangi. The deity for all water is Parawhenuamea, daughter of Tane and Hine- Tupari-Ma uka, and seen as the personification of rivers and streams, especially flood waters. She is the wife of Kiwa, personification of the ocean. Thus estuaries are the shared domain where they meet. Rivers are part of the domain of Ttewehiwehi, who was a mokopuna of Tangaroa. 9 Pre-contact Mori regarded land and water as a single entity, with a common regime of resource management practices. Underpinning these practices was a world view that involved unique spiritual concepts, the most i mportant of which was mauri: the notion that a body of water had its own life force. Waters were classified according to the state of their mauri. The different Mori terms for water help to explain the importance of pure water. EMK Douglas1 0 has described five terms for water. Waiora – the purest form of water is used in sacred rituals to protect and sustain life. Sacred sites (wahi tapu) are frequently associated with pure water, and destruct ion of one, in turn, damages the other aspects of the site. A polluted stream or estuary within a burial ground or sacred mountain is a desecration of the area itself. Waimori – is normal running water, which is clean, clear and unrestrained. Waikino – is water that has either been polluted or has a destructive force. Angry, swirling water eddies are waikino. 1 2 5 Polluted water has the potential for the mauri of the water body to bring retribution on the local people. Waimate – is water that is so polluted that its lifeforce has expired. It cannot rejuvenate itself or other living things. The mauri has left the water – it might also be sluggish or inert. Waitai – is water under the dominion of Tangaroa, the powerful sea god – rolling boisterous surf. The mauri and wairua of water and water bodies are inextricably linked to the pride and self esteem of tangata whenua, the group of people who share their being with a particular locality. The mana of a tribe has its basis in the health and productivity of the surrounding land and water area. Coastal and river tribes link their mana with the sea and fresh water more closely than, for instance, inland tribes such as Thoe who identify more closely with forest entities. 1 1 Rivers are of major economic importance to hap  and whnau. They are mahinga kai and provide a plentiful supply of food. There are accounts of fishing for many different species, including whitebait, eels and freshwater shellfish, along with the food source provided by waterfowl.1 2 Various concepts give an insight into M ori world views relating to the management of waters and the life within them. Many hap continue to view matters through this customary lens. Such concepts included tapu, which was a permanent or semi- permanent restriction, usually over a small locality 1 3 ; restricted access, where as with land, restrictions were applied to water bodies in a number of ways. Rhui were temporary restrictions, usually imposed at species level to allow the species to be reserved, or build up after being depleted. Wakawaka were divisions, facilitating the sharing of a resource between kin groups. Access to particular stretches of water was limited to certain descent groups. Eel drains at H pua are still operated in this traditional way and the licensing of whitebait stands on West Coast rivers is a contemporary usage consistent with the wakawaka principle 1 4 ; owheo, where sometimes whole catchments were permanently proscribed. This was a conservation measure to allow land or water to remain unchanged. It could not be cleared, burnt for fern root, have houses or weirs constructed there. Unlike rhui, owheo were permanent and applied to all species in the area1 5 ; habitat enhancement where the objective in all cases was to improve a local ecosy stem; population improvement 1 2 6 ensured the mauri of the waters where seeding stock took place must be compatible with the mauri of the waters from which the seed-stock originated; kaitiaki were guardians of the waterways and could be spiritual or a local group. One of the most prominent spiritual notions Mori have about waterways is that they were guarded by taniwha. They may act as guardians of a particular area, of particular people or as messengers, signalling the end to a fishing season or impending misfortune. This has given rise to the common, over simplified translation of taniwha as ‘water monster’. 16 According to tribal tradition the purification process for water to remove any noxious elements required the water to pass through papat nuku or the earth. There the elements which had caused the impurity would be removed and the water would attain its usable properties when returned to lakes, rivers or the sea. Water is a precious resource in all cultures and for tribes it was integrated into an environmental ethic as a source of food and life. The life force in water, or of water, the mauri, may be unique to each water body and, as with other living things can be destroyed by abuse such as pollution. TREATY OF WAITANGI PROVISION The Treaty of Waitangi in the second article provided for the “full exclusive and undisturbed possession of their Lands and Estates F orests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession” and in the M ori version”…te tino rangatiratanga o o ratou wenua o ratou kinga me o ratou taonga…” In effect, the Treaty provided for a range of natural resources including water. The water resource is implicitly included in all villages, estates, forests and fisheries as water is an integral part of those resources and water, especially particular bodies would be classified as taonga for whnau, hap and for iwi. Under article two of the Treaty of Waitangi tino rangatiratanga was guaranteed over all taonga, rivers included. 1 2 7 The water resource unlike the land was rarely if ever alienated and under the Doctrine of Aboriginal Title if specific alienation was carried out then ownership of the resource persisted. 1 7 The Doctrine of Aboriginal Title is a common law concept and as such is enforceable in the ordinary courts irrespective of whether or not the Treaty of Waitangi or the Treaty principles have been expressly incorporated into legislation. The Te Weehi18 case is particularly interesting as the judgement relying upon the common law doctrine of aboriginal title admits a legal pluralism directly in New Zealand law without the need for express incorporat ion of native rights by legislation. 19 Aboriginal rights exist as a doctrine of common law. Since it is a rule of common law it can be enforced without statutory recognition of the right, unless the aboriginal right has been extinguished by statute. Where aboriginal title rights are extinguished by statute, the statute must exhibit “ a clear and plain intention” to extinguish that right. 2 0 Customary title cannot be extinguished otherwise than by the fee consent of the native occupiers. The Doctrine of Aboriginal Title may recognise the right to use water, although it is not clear in the water context whether this extends to the right to use water in ways in which it was not historically or traditionally used.2 1 The right of use recognised under the general doctrine appears to be consistent with the general common law position that natural water is not ‘owned’ as such. 2 2 That is, it preserves a right of use rather than the right of ownership. RIVERS IN STATUTE Iwi argue that they have existing aboriginal or customary rights to water and that these rights have not been extinguished by either the common law or by statue. The Court of Appeal has recognised the application of the common law doctrine of aboriginal title in New Zealand. “Aboriginal title is a compendious expression to cover the rights over land and water enjoyed by the indigenous or established inhabitants of a country up to the time of its colonisation. On the acquisition of the territory, whether by settlement, cession or annexation, the colonising power acquires a radical or underlying title which goes with sovereignty. Where the colonising power 1 2 8 has been the United Kingdom, that title vests in the Crown, but at least in the absence of special circumstances displacing the principle, the radical title is subject to the existing native rights.”23 Aboriginal title can be extinguished by the Crown in the exercise of sovereignty. Where it has not been extinguished, aboriginal title will continue to exist provided that the relevant group continues to maintain its traditions. The type and extent of traditional activities and uses are matters of fact to be determined in each case. Mori clearly exercised some kind of aboriginal title over water and waterways before European settlement. The exact attributes or incidents of the aboriginal rights held by hap and whnau would have differed for each location depending on the traditions observed. 2 4 While the Crown does have a right and duty to make laws for the conservation of natural resources, this process need not be inconsistent with the exercise of rangatiratanga. In legislation such as the Resource Management Act (1991), and more particularly in the settlement of treaty claims, various levels of recognition have been accorded Mori in regard to the management of waterways. 2 5 Two examples of such recognition are a Deed of Recognition and a Nohoanga. A Deed of Recognition is a formal agreement between iwi and the Crown, providing a basis on which iwi can register their right to advocate their interests in a given area, in the Resource Management Act and Conservation Act processes. Deeds of Recognition have been registered in relation to 12 named lakes, vesting t he lake beds in the iwi, in this particular case – Ngi Tahu. 2 6 A nohoanga is a revival of a traditional concept which provides iwi with temporary campsites adjacent to n ominated waterways for the express purpose of harvesting customary fisheries and other natural, water-based resources such as raup. Entitlements have been provided for 13 lakes and 19 rivers in the Ngi Tahu rohe. 2 7 Water and Soil Conservation Act 196 7 Section 21 of the Water and Soil Conservation Act 1 967 (WSCA) extinguished all common law rights to water, and the sole right to take, use, dam, divert, or discharge into natural water was vested in the Crown. This position is maintained under the 1 2 9 Resource Management Act 1991 (RMA) by section 354. The key restrictions on the taking and use of, and discharges into water are now contained in sections 14 and 15 of the RMA and in essence provide that unless allowed “as of right” under paragraphs 14(3) (b)-(e) the taking and use of water and disch arges into water remain prohibited unless expressly authorised by a resource consent or a rule in a regional plan or relevant proposed plan. These provisions do not change the proposition that there can be no ownership of water itself. Resource Management Act 1991 (RMA) The Resource Management Act 1991 requires “all pers ons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources,” to “take into acco unt the principles of the Treaty of Waitangi” (s8). It also recognises that the “relat ionship of Mori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga” is a matter of “national importance” (s6(c)) and that al l persons exercising powers and functions under the Act shall have particular regard to “Kaitiakitanga”(s7(a)), meaning the exercise of guardianship (s2). Under the Resource Management Act, local authorities are responsible for the management of river and associated resources and for approving consents for uses in these areas. The Crown is entitled to devolve its duties under the Treaty, through carefully worded legislation, to another authority. Nonetheless, it cannot divest itself of its Treaty obligation actively to protect rangatiratanga over taonga.2 8 The RMA 1991 does not intend that regional plans wi ll be made for particular rivers, but rather plans concerning the use of water and waters in the regional generally. However, particular waters can be managed, for exam ple, for specific cultural purposes.2 9 Under the RMA, regional councils and unitary authorities have the primary responsibility for managing freshwater in New Zeala nd. They have the power to (amongst other things) control land use to maintain and enhance water quality and aquatic ecosystems, and maintain water quantity, al ong with controlling the use, 1 3 0 taking, damming, and diversion of water and the qua ntity, level and flow of water in water bodies, including setting maximum or minimum flows, and controlling the range or rate of change of flows or levels. Regional councils and unitary authorities also have the power to control the discharge of contaminants and water into water, along with establishing rules in a regional plan to allocate, the taking or use of water and the capacity of water to assimilate a discharge of a contaminant. These provisions allow regional councils and unitary authorities to establish specific rules regarding allocation of freshwater, including allocating water among competing uses such as irrigation, hydropower generation, environmental values, and recreation. 30 These provisions provide a model of allocation which should prevent the over allocation of water. This is because water permits, like other resource consents, must be considered in order of application. Once a water permit has been granted, a subsequent permit cannot be granted “if the grant would have the effect of reducing the amount of water available to satisfy the first consent” 3 1 The consequence of this is that in fully-allocated catc hments newcomers must attain a transfer of an existing permit, or wait until the expiry of an existing permit. As the number of fully allocated catchments appears set to rise, the notion of water trading is emerging as serious issue.3 2 Sustainable Water Programme of Action (SWPA) The SWPA is the Government’s strategy to improve th e management and ultimately, condition, of freshwater. It is based on the assumption that water is a public resource that will continue to be managed by regional councils (and unitary authorities). M ori aspirations to participate in freshwater decision making and management as Treaty partners is acknowledged in the SWPA. The Government proposes to work with “M ori to develop and implement opportunities for engagement, to improve participation in statutory decision-making processes, and to develop guidance for councils on incorporating Mori values in policy making and planning”. Consist ent with the Government’s proposals in the SWPA, engage ment should lead to initiatives that enable Mori to participate in freshwater decision making in a meaningful way, and for Mori values to be given practical effect in regional plans.3 3 1 3 1 The SWPA questions what ownership means in terms of the water rights debate and the extent to which strengthened co-management arrangements could satisfy claims to the ownership of the freshwater resource. There is a concern that implementation will create transferable property rights in water without adequate recognition of M ori rights to the resource, accordingly there have been calls for the SWPA to deal directly with the issue of ownership. 34 WAITANGI TRIBUNAL CLAIMS OVER RIVERS The Waitangi Tribunal has stated in its reports on the Whanganui River and Mhaka River that water was a taonga. There was no evidence that customary title had been extinguished by common law or statute law. 3 5 Mhaka River The claim made by Ariel Aranui on behalf of Ngti Pahauwera concerned the tino rangatiratanga of Ngti Pahauwera over the Mhaka River. The claimants stated that their tino rangatiratanga over the river was confirmed and guaranteed in article 2 of the Treaty of Waitangi and had never been relinquis hed. They claimed that the river, including its waters, bed and fisheries, is a taonga of Ngti Pahauwera. In particular they placed great emphasis on the role the river plays in their tribal identity. The claimants stated that the Crown through legislation, in particular the Water and Soil Conservation Act 1967 had failed to recognise and give effect to their rangatiratanga over the Mhaka River. They claimed that this legislation was inconsistent with the principles of the Treaty because it failed to recognise tribal authority and provide appropriate mechanisms for its exercise. The claim was prompted by the recommendation of the Planning Tribunal3 6 that was made to the Minister for the Environment that a national water conservation order be placed over the Mhaka River. The making of a water conservation order without Ngti Pahauwera consent would be a breach of the principles of the Treaty and would undermine Ngti Pahauwera’s rangatiratanga. 3 7 The Waitangi Tribunal recommended the water conservation order should be put aside until Ngti Pahauwera and the Crown discussed and come to an agreement over 1 3 2 the management and control of the river and that the order should then include that agreement. Gravel extraction from the Mhaka has been ongoing since the 1930s and in this time the river had provided gravel for Hawkes Bay, Taupo and Gisborne. The Tribunal said about 32,500 cubic metres of gravel had been t aken from the river each year since the 1960s, when the first records of gravel e xtraction were kept. Each cubic metre is worth about $1 which meant that Ng ti Pahauwera should be compensated for about $1 million. Ngti Pahauwera did not, by the sale of adjoining land in 1851, relinquish te tino rangatiratanga over the river or transfer of the river bed and waters. However the report concluded that by the sale, Ngti Pahauwera did grant Pkeh non-exclusive rights to the river, subject to tino rangatiratanga guaranteed to the tribe under the Treaty. The wording of the deed of sale had different interpretations in its reference to the river boundary. The Tribunal said the ambiguity should be resolved in favour of the tribe excluding the river from the sale. The basis of the Tribunal’s argument was to be in support of Ngti Pahauwera as in accord with the contra proferentem rule that sates when a document is ambiguous the words are to be interpreted against the party who drafted it or whose document it is. 38 This stance was justified because Ng ti Pahauwera should not be deprived of their taonga unless all or part of the river was clearly and unambiguously include within the terms of the deed. Because the Crown did not make this clear, the Crown must accept the consequence that the river was not included. In addition to this, statutory provisions which assumed the Crown owned the river bed and waters were in conflict with the principle of the Treaty in which the Crown must actively protect the property of Mori. The Mhaka River was a taonga of Ngti Pahauwera when the Treaty of Waitangi was signed in 1840 and remains so today. 3 9 The mana and rangatiratanga over the lower Mhaka river as far as the Te Hoe confluence was hel d by Ngti Pahauwera and confirmed and guaranteed by article 2 of the Tr eaty of Waitangi. 1 3 3 In terms of the customary rights Ngti Pahauwera exercised over the lower reaches of the Mhaka , these were at a hap level and based on descent. Individual rights were inherited from ancestors or acquired through enterp rise and user rights were to particular resources. For Ng ti Pahauwera the Mhaka was a mahinga kai, it provided hangi stones and water, moreover there were many wahi tapu along its shores. In conclusion the Waitangi Tribunal recommended, among other things, that the Crown should begin discussions with Ngti Pahauwera with a view to reaching agreement on the vesting of the bed of the river in Ngti Pahauwera and on a system for the future control and management of the river. It was also stated that a water conservation order should not be made until discussions between Ngti Pahauwera and the Crown resulted in an agreement on a system for the control and management of the river, in which case the order should include that agreement. Any removal of gravel or hangi stones in the future should also require the approval of Ng ti Pahauwera.4 0 The Tribunal reached their decision based on what they described as a ‘crucial’ principle presented by the claimant counsel. The principle states that the Crown had breached ‘the affirmative obligation of the Crown t o protect taonga to the fullest extent reasonably practicable.” 4 1 This principle was also recognised in 1987 in the landmark Mori Council decision by the Court of Appeal, where it was stated that “a breach of a Treaty provision must be a breach of the principles of the Treaty” 4 2 Along with failing to actively protect the Ngti Pahauwera interest in Mhaka River, the Crown had also actively undermined that interest through promoting legislation and adopting practices which had given inadequate r ecognition of the position of Ngti Pahauwera. Based on this the Tribunal had the j urisdiction to make the recommendations to the Crown. The findings in this case were consistent with long-standing precedents such as the Lake mpere decision. In the Lake mpere case, the Crown’s contention that the ownership of the bed of the lake passed by the Treaty of Waitangi to the Crown was rejected with the court emphasising that in 1840 it would have been impossible for the 1 3 4 Crown to assume a right of ownership, dependent as the early settlers were on the Treaty of Waitangi. It was held that: “it is unreasonable to suppose that the Natives at the time of the Treaty intended to give up Lake mpere or its bed to the Crown, and that it is equally unreasonable to suppose that eh Crown at the time of the Treaty intended to claim the lake or its bed in opposition to the Natives.”43 The approach was also consistent with the agreement between the Crown and Ngti Twharetoa over Lake Taupo. In the Mhaka River case the Tribunal recommended for the Crown to work with Ngti Pahauwera by communicating and reaching agreement in regard to the control and management of the river. Effective collaboration between the Crown and Ngti Pahauwera would facilitate the use of customary resource management practices in regard to the river alongside contemporary measures such as the Resource Management Act 1991, the combination of the two ens uring effective utilisation and sustainability of the water resource. Whanganui River The Whanganui River claim was brought to the Waitangi Tribunal on behalf of the people of the river, Te Atihaunui-a-Paparangi. The essence of their claim was that Atihaunui for many hundreds of years; possessed and controlled the Whanganui River and its tributaries, and they have never since 1840 freely and knowingly relinquished their rights and interests in the river. The critical question asked by the tribunal was whether the interests of Whanganui Mori in the river had been extinguished and, if so, whether this was done in accordance with Treaty of Waitangi principles. It was found that in Mori terms the Whanganui River is a water resource, a single and indivisible entity, which was owned in its entirety by Atihaunui in 1840. It was also found that the Treaty had been breached by the Crown in various ways. Broadly, the Tribunal found that the acts of the Crown in depriving Atihaunui of their possession and control of the Whanganui River and its tributaries and its failure to protect Atihaunui rangatiratanga in and over their river were and were contrary to the 1 3 5 principles of the Treaty of Waitangi. Atihaunui had been and continued to be prejudiced as a consequence. Hikaia Amohia and nine other members of the Whangan ui River Mori Trust Board brought the claim before the Waitangi Tribunal on behalf of the Te Iwi o Whanganui seeking, among other matters, restoration of their tino rangatiratanga over the river and adjoining lands. The trust board was establish ed under the Whanganui River Trust Board Act 1988 and was empowered to negotiate the settlement of outstanding claims of the iwi of Whanganui to the river. The approach taken by the tribunal was to examine and contrast English land tenure and Mori customary tenure in relation to waterways before the turn of the century. Riparian rights under English common law presumed that non-tidal waterways were held by the owners of adjoining land to the centre line, with no general public right of use or access (the ad medium filum aquae rule). 4 4 The common law did not allow for ownership of water in its natural flowing state, but there were various rules governing its use, with associated rights. The Crown gradually assumed control over many of those rights and that has continued under the Resource Management Act 1991 in which the Crown assumed the right to control, manage and allocate water uses. The claimants argued that the river was traditionally viewed as a single entity, not split into separate parts and that the ad medium filum aquae rule should not have been applied. “ We are satisfied that, in Mori terms, the river was a single and indivisible entity, a resource comprised of water, banks, and bed, in which individuals had particular use rights of parts but where the underlying title remained with the descent group as a whole, or conceptually, with their ancestors. Thus, the river is called a tupuna awa, or a river that either is an ancestor itself or derives from ancestral title.”45 An overview of Mori social dynamics was required so that isolated o bservations from the historical record and individual protests could thus be placed in context and the underlying beliefs and values ascertained use rights, personal identity and 1 3 6 executive functions all arose from ancestral devolution and existed at the levels of the individual, hap and the people of the common descent group as a whole. Use rights for individuals and to a large extent for hap were in the form of a particular licence to access resources, not a general licence. Rights to access resources were rarely absolute. Personal use was related to social obligations to the group. Consequently, a complex web of uses resulted with the same resource accessible by different people or groups at different times or at the same time. While hap had primary user rights, those were constrained or assisted by the larger concerns of the principal rangatira who controlled or protected the resources for the people as a whole.4 6 The Tribunal considered the specific values Mori associated with the Whanganui river and found that it was a roadway for the many communities along it. There were 143 marae along its 300km length. It provided plent iful staple foods in terrain which was otherwise marginal for major food crops. It pro vided a source of emotional support, going beyond personification. For the Ati haunui people it was “a doctor, a priest, a larder, a highway, a moat to protect their cliff-top p, and, with the cliffs, a shelter from winds and storms.” 4 7 There were specific rituals concerning fishing, which reflected beliefs in the gods associated with the river. The mauri or lifeforce of the river was accorded respect, and this included all things connected with it i.e. river flats, tributaries etc. It followed from this that the river was seen as a whole, not divisible into constituent parts of water, bed, banks, tidal and non-tidal areas as in English law. The river was also regarded as tapu or sacred. Water rites were associated with it. Taniwha and ngrara were understood to inhabit the river. The waters were seen to have a mauri and to be sacred. The river was seen as a taonga, an ancestral treasure and a living entity whose relationship with the people had been sanctioned by antiquity and ancestral beings. It w as not therefore a commodity which could be traded. 4 8 In the Mori scheme the river was not ‘owned’ in the English sense. But outsiders required permission before using it. M ori therefore saw themselves as permitted users of ancestral resources, but also as ‘possessi ng’ and ‘controlling’ the river in terms of outsiders. 1 3 7 The nature of the interest in Treaty terms was that, in terms of Article 2, the river and its tributaries were possessed by Atihaunui. The river was a taonga and the hap and iwi of Whanganui tupuna awa, and was considered as a whole and indivisible entity. Ownership of the river in English law terms was now required to express the nature of the Mori interests. “Customary rights and interests are not enough in an English legal framework”. 4 9 English law could recognise that the river was a private tribal waterway to which access was controlled. It was also a private fishery. Water was included because it was necessary to the character of the river. Article 2 of the Treaty guaranteed continuing possession of things possessed including ‘taonga’. The river as a taonga was a property and it was the taonga which was owned. The term ‘taonga’ can include rivers. Mori were guaranteed their possessions, not possessions at English law. The test of possession in this context was a question of fact not law, and the nature of possession was not to be judged by pr operty rights in England, which allowed for ownership of rivers in parts of sections. Fisheries too were protected by the Treaty, and the river clearance work and pollution, including indirect pollution through abstraction of water, affected that guarantee. Continuing Mori control was also guaranteed. The Mori interest was larger than a mere right of user which the Crown argued. Atihaunui continued to assert control over the river, particularly its upper reaches and the Mori interest was not extinguished simply because they were willing to share the river. 50 The acts of the Crown which removed the possession and control of the river and its tributaries, include the Coalmines Act Amendment Act 1903 which expropriated the riverbed and the Resource Management Act 1991 which vests authority or control in other than Atihaunui without their consent. Although “management” is the term used in the Resource Management Act, the powers are more akin to “ownership”, and, in reality the rangatiratanga of Atihaunui had been removed. The Tribunal found legislation specifically in breach of the Treaty. Legislation assuming Crown control of the resources of the river bed namely the Coal-mines Amendment Act 1903 and successors in as far as they affect ownership of river beds, including s354 RMA 1991. Statutory constraints on c ustomary interests, including certain provisions of Te Ture Whenua Mori Act 1993, which effectively deny the ability of Mori to question a Crown assertion that customary in terests have been 1 3 8 extinguished. The Water-power Act 1903, Public Work s Act 1905 and successors and the Water and Soil Conservation Act 1967 in as far as they authorised interference with the waters of the river without reference to Atihaunui.5 1 There was no evidence that Atihaunui had relinquish ed their river rights in practice. The resistance to land sales, the attempts to place areas under a tribal trust, the attempts to close the river to outsiders, and protests against river clearances in the 1890s showed that Atihaunui “went beyond exhaustion ” to maintain their rights. Unrestricted navigation by large vessels had led to destruction of eel weirs, damage to riverbed, banks, rapids and fisheries. Authority over the river and harbour/foreshore had been granted to other than Atihaunui by government and therefore Iwi rangatiratanga had been detrimentally affected by legislation. According to the Tribunal attacks had been perpetrated against taniwha, wahi tapu, and other spiritual properties of value to Mori in regard to the Whanganui River. Fishing rights had been denied and Section 261 of t he Coal Mines Amendment Act 1903, which vests ownership of the beds of navigabl e rivers in the Crown, had hindered rangatiratanga along with customary and common law rights. The Tribunal examined the RMA 1991 and the provisio ns securing the continuing ownership of the riverbed to the Crown and permitting regional councils to make plans and issue resource consents for activities involving the river, including consents to continue taking the headwaters for use in the Tongariro power scheme. The Act also permitted Water Conservation Orders to be made, conceivably against Mori wishes. The Tribunal examined the interaction of the trust board with the regional council, and the concern of the board that while it was invited to consult and make submissions on matters, it retained no control over activities on the river. The Tribunal found that the Treaty did not contemplate that the rangatiratanga guaranteed to Mori could be qualified by requiring it to be balanc ed against other interests, as the RMA 1991 appeared to do. Rangati ratanga was absolutely protected and was a qualification on the governance exercised by the Crown. Consequently, the RMA 1991 was inconsistent with the principles of th e Treaty in as far as it did not 1 3 9 require all persons exercising functions and powers under the Act to do so in a way consistent with, and which would give effect to, the Treaty of Waitangi. Generally, the Crown had failed to protect Mori economic interests, ownership rights and Treaty rights. These interests were interfered with but not extinguished and included gravel extraction – expropriation without consultation or compensation; compulsory takings under the Public Works Act; frag mentation of title under the Native Lands Act; taking of large volumes of water for hydro-electric schemes without consultation; failure to protect the river from pollution, poisoning it as a source of food. In terms of proposals for a settlement of the claim, the legislation did not adequately recognise the role which Atihaunui should play in river management. The desirability for national uniformity in the management of river resources should not prevail over the need to do justice in the particular case. All mechanisms under the RMA 1991 left ultimate power and control in the hands of regional or territorial authorities. On the other hand, given the complexities of modern river management, a collaborative approach was required. Accordingly, the tribunal r ecommended compensation for the taking of water for the Tongariro power scheme (eve n thought it had not been specifically sought by the claimants), including bo th exemplary damages for the use of a private resource without consent and compensation for the deleterious impact of a large water abstraction. This compensation would provide the funding base for ongoing activities of the trust board. It was also recommended that compensation for gravel extraction be granted. The government had already recognised that this was required. This money should not go towards the fut ure operation of the trust board, but should be held for projects for Atihaunui as a whole, or for distribution to marae at the discretion of the trust board. The Tribunal recommended that costs of the claimants should be paid for past litigation, for the taking of this claim, and for any settlement negotiations.5 2 In terms of proposals to consider in settlement negotiations, the Tribunal mentioned the application for a water conservation order to be deferred until a settlement was reached, along with recognition in legislation of the Atihaunui right of ownership of the river “as an entity and as a resource, without reference to the English legal 1 4 0 conception of river ownership in terms of riverbeds.” 5 3 It was also noted that existing use rights should be protected for their current terms and public access to continue within a permissive regime (as opposed to as of rig ht), within broad parameters to be negotiated. Joint management of the river, involving Atihaunui people and appropriate funding for the trust board, which could come from local authority levies was recommended. It was proposed that this joint management could ta ke either of two forms, owner approval where the river in its entirety be vested in an ancestor or ancestors representative of Atihaunui, with the trust board as trustee. Any resource consent application under the RMA 1991 in respect of the ri ver would require the approval of the trust board as owner. The relevant part of the regional plan would require amendment accordingly. The other option was consent authority where the trust board would be made a ‘consent authority’ in terms of the RMA 1991, where the Whanganui River is involved, to act severally and j ointly with the current consenting authority for any particular case, and that “both m ust consent to an application for a consent to be exercised.” 5 4 A plan specific to the river would need to be join tly drafted. This proposal would “fall short of effect ive recognition of the authority of Atihaunui” 5 5 since the final decision regarding an application would still rest with the courts. After five years, independent representatives appointed by Parliament and Atihaunui would review this arrangement with a view to making Atihaunui the sole consent authority. In addition, the RMA 1991 would be amended to provide that all persons exercising functions and powers under it shall act in a manner that is consistent with, and gives effect to, the principles of the Treaty of Waitangi. In conclusion, the Waitangi Tribunal Whanganui River report recommended that the river be vested with the Atihaunui with the Whanganui River Mori Trust Board who would be the sole legal trustee approving consent applications, or that the trust board become a consent authority alongside the Minister of Conservation, the regional council and territorial authorities. What the tribes might lose in full ownership the trust board would gain through management. The Crown would pay compensation and consider some form of joint management. 56 1 4 1 For many years the Whanganui tribes had sought a re turn of the Whanganui River, maintaining that ownership had been wrongfully assumed by the Crown. Although Judge Brown at a Native Court hearing in 1939 concl uded that the Whanganui tribes were the owners of the river, the Crown appealed first to the Mori Appellate Court and then to the Supreme Court. Concerned that other tribes might take similar action, Judge Hay ruled that the Coal Mine Amendment Act 19 03 had vested ownership of the river bed in the Crown. Whanganui interests were overlooked in a series of actions, including the diversion of the river headwaters into Lake Taupo in 1960. A lengthy hearing before the Planning Tribunal regarding water flows in the river again raised the issues of ownership and in 1991 negotiat ions with the Crown commenced regarding river ownership. They were, however, soon suspended pending a wiser river policy. The Whanganui River Mori Trust Board published a charter setting out principles which should determine the ownership, use, and management of the river in 1993. The text of the charter appears below: The Whanganui River Charter hereby affirms the following principles of Tino Rangatiratanga and calls upon all concerned to actively redress the political and ecological imbalance which has occurred. 1. THE PRINCIPLE OF TINO RANGATIRATANGA AND KAITIAKITANGA (INTERGENERATIONAL RESPONSIBILITY) Hap  and Iwi have inherited and intergenerational responsibility to ensure that they pass on to their descendants an environment which has been enhanced by their presence and efforts. 2. THE PRINCIPLE OF HAP /IWI DETERMINATION Hap  and Iwi continue to apply their own tikanga in respect of the Tiakitanga of their waters. Any negotiations with Hap  and Iwi must therefore recognise the uniqueness of their interes ts and aspirations. 1 4 2 3. THE PRINCIPLE OF INTERDEPENDENCY Waters are taonga and are interdependent with all other taonga of the environment, physical, social and cultural. Any activity involving waters will there fore directly impact on the rest of the environment. 4. THE PRINCIPLE OF COLLECTIVITY Hap  and Iwi are collective identities whose responsibilities and aspirations extend beyond any individual, organisation and generation. 5. THE MAURI PRINCIPLE Waters come from Papatnuku and Ranginui; they are part of the Mauri of the peoples. If the Mauri of waters is damaged so too will be the Mauri of the peoples. 6. THE PRINCIPLE OF DEVELOPMENT Hap  and Iwi have the right to development of their resources. 7. THER PRINCIPLE OF USE MANAGEMENT In the exercising of Tino Rangatiratanga, Hap  and Iwi maintain the right to grant or withhold permission for the use or development of their environment. The charter reiterated Mori views of the environment as a network of interrelated components and stressed not only tribal control and authority but also the right to develop the resource. Quite apart from its impact on the Crown, which had anyway decided that Mori claims on waterways were untenable, the significance of the charter was its clear signal that Mori had not abandoned a claim to ownership of natural resources such and rivers and that every opportunity to have the claim recognised would be taken.5 7 CONCLUSION The significance of rivers to Mori can be closely related to the concepts of rangatiratanga and kaitiakitanga. Rangatiratanga can be validated for Mori in respect 1 4 3 of their customary rights over rivers via the provisions found in article 2 of the Treaty of Waitangi and also through the use rights conferred to hap and iwi under common law. Kaitiakitanga is the ethic of resource management that hap employ to sustain a resource, including rivers and waterways. In order to practice kaitiakitanga the individual or group must hold the accompanying rangatiratanga over that particular resource – in this case the particular river or waterway. Rivers hold contemporary importance to Mori. They are markers of identity and through the mauri that each river possesses have spiritual, cultural and economic significance to those hap/iwi whom claim rights to them. Rivers are significant in terms of being a resource in themselves and are not viewed as being separate from their banks and river beds. The water and land that combine to make a river are viewed as a taonga in their entirety. Inclusion of Mori values in statue has gone some way to incorporating a Mori resource management ethic in terms of rivers and their sustainability. This is most obvious within the Resource Management Act 1991 (se ctions 6(e), 7(a), and 8). However, more development is required in this area to ensure Mori are accorded their rightful participation in regard to river management decisions. This development includes increased understanding around Mori values and concepts such as mauri, taonga, kaitiakitanga and rangatiratanga in mainstream resource management arenas in regard to rivers. Management and control of rivers should acknowledge these concepts to give effect to successful management of water resources via the use of traditional resource management principles in policy development to ensure sustainability. Management and control must go beyond consultation and discussion and include joint decision making processes, along with membership on relevant boards and authorities to ensure Mori interests are being acknowledged and upheld in regard to rivers. In addition, there needs to be recognition of the fact that for Mori rivers have an economic significance, along with cultural and spiritual and that there is evidence of this economic interest traditionally. 1 4 4 The Waitangi Tribunal Reports (M haka and Whanganui) are examples of how hap  and iwi have evidenced their rangatiratanga in regard to rights over rivers in order to exert their kaitiakitanga in conjunction with conte mporary methods in order to sustain and enhance the river ecosystem. Iwi and hap will continue to evidence such rights and strive to have traditional methods incorporated into management plans, especially so where such methodology has proven benefits for the resource itself and those who benefit from it. The application of custom to contemporary river management has only been allowed since the passage of the RMA (sections 6(c), 7(a) & 8), and after the lodging and successful hearing of Waitangi Tribunal claims in regard to rivers, such as the Mhaka and Whanganui claims. These provisions have only been able to apply customary practices in regard to river management to a limited degree. The more recent Sustainable Water Programme of Action (SWPA) acknowledges the aspiration of Mori to participate in decision making in regard to river management as Treaty partners. The SWPA proposes to work with Mori to ensure opportunities are developed and implemented to improve participation in decision making processes, along with developing advice for councils on incorporating Mori values in policy making and planning. It also states that Mori values will be given practical effect in regional plans. It is too early to make judgements or to review the effectiveness and sincerity of the provisions outlined in the SWPA but if given effect, they have the potential to merge customary and contemporary practice for the benefit of the future. 1 D. Menzies, (1988), ‘The kaupapa is sewage in the sea’ in Landscape, 37/38, pp. 12-14. 2 Waitangi Tribunal, (1 992), Mohaka River Report: WAI 119, Waitangi Tribunal, Wellington. 3 ibid 4 C. Barlow, (199 4), Tikanga Whakaaro: key concepts in Mori culture, Oxford, Auckland. 5 Menzies, (1 988) 6 Waitangi Tribunal, (1 992) Mohaka River Report: WAI 119, Wa itangi Tribunal, Wellington. 7 www.nzqa.ac.nz/nzfdocs 8 www.envbop.govt.nz/water 9 Menzies, (1 998) 1 0 E. Douglas, (1 991), ‘Five classes of water – a classifica tion system or typology’ in Terra Nova, August, p 17. 1 1 Menzies, (1 988) 1 2 Waitangi Tribunal, (1 999), The Whanganui River Report: WAI 167, Waitangi Tribunal, Wellington. 1 4 5 1 3 J. Williams, (200 6), ‘Resource management and M ori attitudes to water in Southern New Zealand’ in New Zealand Geographer, 62( 1), P 73-80. 1 4 ibid 1 5 ibid 1 6 ibid 1 7 M. Gibbs, (200 7), ‘M ori claims to ownership of freshwater’ in Resource Management Journal, August, p13-18. 1 8 Te Weehi v Regional Fisheries Officer ( 19 86) 1NZLR 680 1 9 A. Sykes, (2 00 3), Te Takutai Moana: economics, politics and colonisation, prepared by Tino Rangatiratanga for publication as a volume of the IRI, Economics Politics and Colonisation Series. 2 0 ibid 2 1 Ministry for the Environment, (200 4), Property Rights in Water: a review of stakeholder understanding and behaviour, Ministry for the Environment, Wellington. 2 2 ibid 2 3 Te Rnanga o Te Ika Whenua Inc Soc v Attorney-General [19 94] 2 NZLR 20, 23-24 (CA) per Cooke 2 4 Gibbs, (2 00 7) 2 5 Williams, (20 06) 2 6 ibid 2 7 ibid 2 8 Waitangi Tribunal, (1 992), The Mohaka River Report: WAI 119, Brooker and Friend Ltd., Wellington. 2 9 Waitangi Tribunal, (1 999), ‘The Whanganui River Report 19 9 9’ in Mori Law Review Online. 3 0 Gibbs, (2 00 7) 3 1 Aoraki Water Trust v Meridian Energy Limited [200 5] NZLR 268, at para 62 3 2 Gibbs, (2 00 7) 3 3 ibid 3 4 ibid 3 5 Waitangi Tribunal, (1 992), Mohaka River Report: WAI 119, Brooker and Friend Ltd., Wellington. 3 6 It was found that in the mid 1980s the electricity industry gave a report to the Government which identified three potential dam sites along the Mohaka River. Environmentalists called for a protection order for the upper reaches of the river as it was feared dams would damage the Mohaka River, the order was agreed upon by a special Planning Tribunal but the order was extended to the whole river. This included the stretch claimed by Ngati Pahauwera who argued they had not been consulted over the future of the river. The report said Ngati Pahauwera felt they should have control over the future development of the river and the river should not be locked from development which would benefit the tribe. 3 7 Waitangi Tribunal, (1 992), Mohaka River Report: WAI 119, Brooker and Friend Ltd., Wellington. 3 8 ibid 3 9 L. Gullery, (1 99 2), ‘Waitangi Tribunal – Mohaka River’, i n Te Reo o Tatou Tipuna, Nov/Dec p 14. 4 0 Waitangi Tribunal, (1 992), Mohaka River Report: WAI 119, Brooker and Friend Ltd., Wellington. 4 1 ibid 4 2 New Zealand Mori Council v Attorney-General [198 7] 1 NZLR 641, at 664, p693 4 3 Native Land Court decision on Lake mpere pp. 24. 4 4 Waitangi Tribunal, (1 992), Mohaka River Report: WAI 119, Brooker and Friend Ltd., Wellington. 4 5 Waitangi Tribunal, (1 999), The Whanganui River Report, GP Publications, Wellington. 4 6 ibid 4 7 ibid 4 8 ibid 4 9 ibid 5 0 ibid 5 1 ibid 5 2 ibid 5 3 ibid 5 4 ibid 5 5 ibid 5 6 R. Taonui, (1 999), ‘Sacred river much more than just a wate rway’, in New Zealand Herald, 5 July, pp. A13. 5 7 M.H. Durie, (1 998), Te Mana Te Kawanatanga, Oxford, Auckland, pp. 40-41. 1 4 6 Chapter Six CUSTOMARY FISHERIES INTRODUCTION Fisheries are an important source of economic wealt h for iwi and hap. Being able to provide fish or shellfish to feed whnau or manuhiri has always been part of the Mori economy and an integral aspect of the culture of manaakitanga. Mori customary fishing is still firmly based on the knowledge and practices which have been handed down over many hundreds of years though is now influenced by new technologies and the commercial interface. Whnau and hap of the coast continue to maintain a very detailed day to day knowledge of the fish stocks in their specific areas. The combined knowledge of hap around the coast remains the most extensive and accurate database on coastal wild fish stocks that exists.1 The sustainable management of those stocks has become increasingly difficult as a result of overfishing. Mori fisheries management practices provide that rhui be placed on depleted species or areas, banning any harvesting until the fish stocks have recovered. Whnau and hap have frequently imposed r hui which most commercial and recreational fishers are happy to respect. ‘Customary fishing rights’ is the term given to the gathering of kaimoana, or seafood, for customary purposes in accordance with Mori traditional practices. They are designed for non-commercial fishing only. The rights define who manages the customary right to fish. Such rights are held by the iwi or hap who hold traditional authority over that area of land and sea. Simply being Mori is not enough to prove a customary right. Legally customary rights exist only within specific tribal domains with the permission of kaitiaki. 2 Mori customary fishing rights were first formally recognised and provided for in the Treaty of Waitangi, where the English version of the Treaty states that iwi and hap will be guaranteed, ‘…the full exclusive and undisturbed possession of their lands, estates Fore sts Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession;’ 1 4 7 For many M ori, traditional fisheries are now too depleted or polluted to be harvested for customary purposes. The Waitangi Tribunal Manukau Report 1985 illustrates the point: “ Last year for the first time the Whatapaka marae had to purchase the seafood to entertain guests at the marae’s annual poukai. These people can no longer maintain their traditional obligations to supply seafood to their related inland tribes or to provide their important guests… with the seafood for which they were once renowned.”3 For hap , the inability to demonstrate appropriate hospitality to guests, visitors or relations is a source of embarrassment. Potential loss of mana remains a compelling factor in the careful and controlled management of mahinga kai by Mori. Since 1900, M ori involvement in fishing has been reduced from that of the industry leader and acknowledged regulating authority to that of minority user. Fisheries themselves have also undergone vast change. Variou s factors have contributed to this, such as commercial harvesting, the demands of greater numbers of users, and the effects of pollution. Because of these changes, the traditional sense of duty and responsibility Mori have toward fisheries has not always been easy to maintain and yet the sense of stewardship (kaitiakitanga) remain s alive. CUSTOMARY PRACTICES Mori used fisheries as an important source of food and to uphold customary obligations within, and between, whnau, hap, and iwi. Because the fulfilment of these duties depended on safeguarding their fisheries, hap developed systems of checks and balances to manage this important resource. These practices reflected a philosophy that extended to the entire natural world. They formed part of a holistic system of environmental management by which Mori ensured the sustainability of each natural resource. 4 A traditional Mori view is that fisheries originate, like all elements of the natural world, from the gods and are thus imbued with mana atua (the prestige and power of 1 4 8 the gods). Like all living things, fisheries posses s mauri and are mahinga kai, along with being taonga because of their origins and benefits. The rules and practices by which hap managed their fisheries reflected the significance of this view. 5 In the past ‘marine tenure’ was no different to M ori than land tenure. Fisheries were seen as whnau, hap or iwi property. 6 In most cases, ownership rights rested with those in occupation of the adjacent coastal lands, i.e., those with mana moana. The fisheries themselves were clearly defined areas with known rights of access. Poles and markers, though common, were often unnecessary. 7 Knowledge of particular fishing grounds was closely guarded by whnau and community and care was taken to pass on this knowledge. Landmarks were sometimes named after both the species found in the fishing grounds and the season or month when they could be fished, in that way, marks told the fisher not only where to look, but also when to look and what to look for. Although fisheries were community-owned, they were subject to traditional forms of authority. This was usually administered by Rangatira, for it was their responsibility to ensure the sustainability of the resource.8 Traditionally the customary Mori fishing industry depended on six interacting factors: the collation of a body of knowledge to understand and regulate fishing activities; entitlement of the resource; technologi cal facility to catch fish; access to fisheries; the organisation of labour to enable coo perative endeavours; and a range of markets where fish could be traded for other commodities. 9 Traditionally, amongst the people who used a given resource, there were individuals who ‘watched over’ the resource. Known as kaitiaki, they were considered custodians of that resource and regulated its access on behalf of the whnau, hap and iwi. The ethic of kaitiakitanga refers to the decision making authority over a particular natural resource. It is linked directly to mana. Kaitiakitanga is not a passive custodianship. Neither is it simply the exercise of traditional property rights. It is an active exercise of authority in a manner than 1 4 9 benefits the resource and ensures its continuation. Kaitiakitanga involves the granting or withholding of access to a resource. 1 0 The decisions made by kaitiaki are based on an intricate knowledge of that resource. Examples might include the shortening of some fishing seasons, or imposing of conservation rhui. Kaitiaki used a system of rules and prohibitions which were based on spiritual concepts. Tapu and rhui found everyday use in the regulating of fisheries. Rhui were used, for example, to retire grounds that were in danger of being over fished. The form of rhui used depended on the strength of the tapu which underpinned it. The consequences of breaking these rules ranged fro m supernatural punishment to the practice of muru. The use of tapu and rhui was guided by ethics of custodianship and conservation. Where divine retribution failed to deter potential transgressors, more down-to-earth measures like muru prevailed. Rhui are a form of tapu that serves as a function to restrict the use of land, sea, rivers, forests, gardens, and other food resources such as fisheries.1 1 If a place is under this ritual restriction, access to it is forbidden to unauthorised people, so if it was a fishing ground that was in question then ther e can be no fishing undertaken there. A rhui would be placed by an individual, whnau, hap or iwi who had the mana to do so and would stay in place until such time as it was lifted. Muru was a form of ritual plunder meted out by whnau or hap to those who disobeyed tapu or rhui, or who were merely careless. Not only offenders, but also their immediate kinfolk might be involved, depending on the seriousness of the offence. Muru has been described as an appropriate system of abuser pays. 1 2 Kaitiakitanga is an iwi environmental decision making system. Based on the principle of sustainability, it implies an active responsibility to the natural resource itself along with the whnau, community and future generations who have a stake in, and will derive benefit from, the resource and the guiding imperatives, obligations, duties and outcomes sought by those shareholders. 1 5 0 The other concept that is inherently connected to kaitiakitanga is mana. Mana has many aspects and is partially demonstrated when fulfilling the obligations of manaakitanga. To manaaki someone is to show respect for, and hospitality to, that person. The mana of the Mori is based in part on this ability to contribute and share within a set of rules developed to protect the resources which contributed to mana. If fisheries were thriving, users could offer suitable hospitality and enhance their mana. Moreover, whnau could enjoy higher standards of living. The extent to which iwi and hap were involved in fishing in New Zealand has been well documented by early European settlers. 1 3 Mori fishing was seen as a national industry. Although early Mori had the knowledge and fishing equipment to catc h some deep-sea fish species, preferred stocks were abundant inshore. By the early 1890’s commercial steamers had eliminated some fish species from inshore areas. Mori would have had little choice but to become regular deep-sea fishers in order to meet demand for some preferred stocks. In the Ngi Tahu Claim, the claimants rejected the concept of a seaward boundary to their fisheries, maintaining that given their maritime expertise they had the potential to fish where they wished. 1 4 Fish was used extensively for trade, or exchange. Not only did Mori provide for their own communities, they also became the main supplier of seafood to European settlements. Customary Mori exchange took the form of reciprocal, delayed repayments. Whether within or outside the tribe, the general principle of exchange was that of utu. According to this practice, for every gift given, another of at least equal value should be returned. Often repayment wa s more lavish than the original gift. This enhanced a group’s social reputation an d prestige – its mana. Obligations to related inland tribes were also met, in part, through exchange. If reciprocal obligations were not met, the result was social disapproval and the loss of mana. Fear of punishment also hung over the head of the debtor. Conservation has always been important to iwi and hap. Customary Mori fishing practices included measures to maintain the habitat, preserve fish stocks, and regulate fisheries use. This knowledge has been retained and customary measures are still practised in modern times. Mori have traditionally taken great care to maintain fish habitats in a balanced state. The gutting of fish, disposal of waste, excess bait, food or 1 5 1 rubbish as sea or on shoreline fishing areas has always been strictly forbidden. It was thought by some hap that such disposal of waste advantaged predators and upset the natural balance of species at particular grounds. In general, baskets and kits were not dragged over shellfish beds for fear of damaging the beds.1 5 For the same reason, nets were not allowed to drag along the sea bed. Where shellfish dredging was permitted, it was strictly controlled. In some places, people were restricted to gathering shellfish with their hands, making sure that rocks were put back as they had been found. Kits were used in preference to sacks, and people took only enough for their immediate needs. 1 6 Some Mori became so adept at managing the ecosystem that techniques were developed to actively enhance the state of their fisheries. Ngti Tama and Te Atiawa, in the South Island, have transplanted shellfish beds taken from Taranaki, to their own mahinga kai at Blue Bluffs, Whakapuaka.1 7 At Kaikura, it is not uncommon for pua to be moved to clean rock when in danger from invading sand. Where shellfish beds were in danger of over-population and the fish were not growing, the beds were, and still are, thinned by controlled but heavy fishing. Where shellfish beds were under populated, fishers would target predator species in order to help the shellfish repopulate.1 8 Mori are recognised as knowing at least one third of the total fish species.1 9 The knowledge of the pre European Mori was substantially greater, but much of this knowledge was never recorded. Mori used a variety of nets, hooks, lines, rods and traps for fishing. Each was designed to lure different species of fish, or to catch them at differing stages of their life cycles. Depending on the fish species, some hap thought it was more sensible to take undersized stock and leave mature fish for breeding. Others chose to catch only mature stock. Whatever the case, the aim was to ensure that species could replenish themselves. To conserve fisheries, prohibitions such as tapu and rhui were applied. Whnau also showed restraint with amounts taken. During expeditions, fishers took only enough bait for the size of catch required. Limits on kit size restricted the amount that could be taken from shellfish beds. The Mori lunar calendar (maramataka) helped regulate customary Mori fishing. Elsdon Best tells of a written calendar which listed phases 1 5 2 of the moon throughout the lunar month. Alongside these was listed the suitability of the different days for taking various species of fish by different methods.2 0 For fishing out of season, offenders were subject to muru. Fishing was an activity which involved all members of the community. Women were skilled in the management of shellfish beds. They also taught children food-gathering techniques. The education of the young in fishing methods and practices was a parental and community responsibility guided by rules and customs known and enforced by the entire community. Despite the eventual decline of fish stocks and the sidelining of iwi as users, fishing practices and marine craft have remained alive in Mori society. The fisheries conservation methods traditionally employed by iwi are clearly applicable today. Increasingly, iwi are calling for the Crown to acknowledge these methods and to provide for their implementation in fisheries management systems such as taipure and mtaitai reserves. TREATY OF WAITANGI PROVISION Customary rights are those enjoyed by Iwi before 18 40, rights that the government has an obligation to honour under of the Treaty of Waitangi. The basis for Mori customary fishing is the property right guaranteed under Article II of the Treaty of Waitangi. “ Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession…”21 Two acts of Parliament support the Treaty by allowing provision for regulations to give effect to customary rights. The Fisheries Act 1983 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, commonly kn own as the ‘Sealord Deal’, both 1 5 3 contain relevant provisions. The 1992 Act requires anyone making decisions that affect customary non-commercial fishing to act in accordance with the principles of the Treaty of Waitangi. 2 2 This Act marked a new era for Mori fishing interests and made New Zealand a world leader in the regulated tr ansfer of commercial and customary fishing resources to indigenous people. 2 3 In the Waitangi Tribunal Muriwhenua Fisheries Repor t it was concluded that in terms of Treaty fishing interests, the Treaty guaranteed to Mori full protection for their fishing activities, including unrestricted rights to develop them along either or both customary or modern lines and that in order for the full protection Mori were guaranteed, the Crown was obliged to support their economic initiatives in fishing, or otherwise to seek arrangement where by Mori and non-Mori fishing could proceed to the mutual advantage of both sides. 2 4 The Treaty confirmed a role for hap quite unlike that of any other fishery user which was that of traditional authority and active guardian and decision maker. 2 5 Since the signing of the Treaty, iwi and hap have voiced grievances about breaches of their negotiated rights. It was more than a century before these concerns were seriously addressed by the Crown. FISHERIES IN STATUE The Oyster Fisheries Act 1866 was the first piece o f fisheries legislation in New Zealand. The Act provided for the leasing of oyste r beds for commercial purposes. There were no specific provisions in regard to iwi and hap apart from not allowing them to sell oysters from their own reserves until 1874 when it was envisaged they would have ‘acquired other tastes’. 26 The Fish Protection Act of 1877 provided that nothing in the Act could take away Mori rights secured by the Treaty. The Act refers to the provisions of the Treaty rather than the principles: ‘Nothing in this Act shall be deemed to repeal, alter or affect any of the provisions of the Treaty of Waitangi…’ However, the Act assumed that M ori fishing rights were limited in some way. The overall purpose of the Act was to regulate the general fish resource, and in so doing it assumed that the public was entitled to exploit it, and that Mori interest would not encroach upon it.2 7 By 1884 when the Sea Fisheries Act was enacted, r eference to the 1 5 4 Treaty had been omitted altogether and the limitation of iwi and hap rights was unambiguous. Any acknowledgement to rights in regard to fisheries had been reduced to subsistence levels. When the Crown introduced a moratorium on fishing permits in 1982, some small scale Mori fishing interests were adversely affected. Under the moratorium, fishers had to earn 80 percent of their annual income (or $ 10,000 per annum) from fishing to qualify for a permit. In 1983 the Fisheries Act wa s passed with the aim of improving the management and conservation of fisheries in New Zealand. The Act stated in section 88(2) that ‘nothing in the Act shall affect any Mori fishing right’. 2 8 This was a new expression of a provision that had existed in fisheries statutes for many years. The legislators were simply assuming, as their predecessors had done, that rights were synonymous with personal needs and customary purposes and were not of a commercial nature. Three years later, the strength of section 88(2) wa s tested. After being apprehended by a fisheries officer for taking undersized shellfish, Tom Te Weehi defended his activities in the High Court. He claimed, under se ction 88(2), that he was exercising a customary Mori fishing right to collect kaimoana for personal or community needs. Te Weehi won his case. The High Court found that t he Fisheries Act did not affect the exercise of customary rights, in fact these rights continued until they were expressly removed in 1944. The decision set the sc ene for a number of fisheries claims later brought by Mori. 2 9 In 1986 the ability to participate in the fishing i ndustry was further compromised. The Fisheries Amendment Act 1986 introduced individ ual transferable quotas. These quotas were given in perpetuity and were tradable. This meant that the fishing industry became privatised into the control of existing fishers. Although there was agreement with some aspects of the conservation function of the Quota Management System (QMS), it was considered th at in allocating a fisher an individual transferable quota, the Crown was exprop riating a property right from Mori and permanently giving it to someone else. They saw the allocation of quotas 1 5 5 as both inconsistent with the Treaty of Waitangi and unlawful by being in conflict with section 88(2). 3 0 On this basis, a number of iwi and the New Zealand Mori Council applied to the High Court for an interim declaration to prevent fu rther species being added to the QMS. The High Court was satisfied that the QMS had been developed without taking into account Mori rights in fisheries, and that it was possible that the QMS may breach these rights. The Court, therefore, approved the declaration. 3 1 In 1988 at a national hui in Wellington, M ori negotiators had the duty of securing a fair and honourable settlement of fishing claims. With the passing of the Mori Fisheries Act in 1989, an interim settlement of the se claims was achieved. The Act established the Mori Fisheries Commission and the commercial fishing company, Aotearoa Fisheries Limited. The M ori Fisheries Commission was allocated ten percent of all total allowable catches. One half of this quota was to be leased to M ori fishers, and the other vested in Aotearoa Fisheries Limited. The Act also allowed for areas of estuarine or littoral coastal waters to be declared taipure – local fisheries. These taipure would be managed by committees nominated by the local Mori community and approved by the Ministers of Fisherie s and Mori Affairs. However, the Act was not received enthusiastically by Mori and the negotiators refused to accept it as being the final decision. The Act offered a level of quota (10%) far short of the 50% expected and the establishment of an int ermediary body (the Commission) was seen as an unnecessary compromise of tribal rights because the Commission would receive the quota rather than it being direct ly allocated to iwi. 3 2 Negotiations between Mori and the Crown culminated in 1992 with the agree ment that the Government would fund Mori into a 50/50 joint venture with Brierley Investments Ltd to buy the company Sealord Products. The Crown also agreed to transfer to Mori a 20 percent share of new species added to the QMS. In return for this, negotiators and signatory iwi agreed to the repeal of Mori fishing rights recognised in law. They also agreed to withdraw all Treaty of Waitangi claims relating to commercial fisheries.3 3 1 5 6 The agreement was set down in a Deed of Settlement. There was much debate about the terms of the Deed of Settlement, in particular its provisions for removing the right to take commercial fishing claims to the Waitangi Tribunal. It was emphasised in the negotiations that Mori customary fishing rights were more important than the Sealord purchase. In settlement, it was agreed that customary non-commercial rights should be upheld and would continue to be considered by the Waitangi Tribunal. 3 4 Treaty of Waitangi (Fisheries Claims) Settlement Ac t 1992 A key element of the 1992 Fisheries Settlement nego tiations was the protection of customary fishing rights. For M ori, the protection and sustainable management of non-commercial, or customary, fishing rights has always been a critical issue and was an essential part of the settlement process. As a result of the negotiations between Mori and the Crown, the Treaty of Waitangi (Fisherie s Claims) Settlement Act 1992 provides for the establishment of reserves where customary and modern day management practices can work together. When the Treaty of Waitangi (Fisheries Claims) Sett lement Bill was introduced to Parliament by the Hon Doug Kidd (Minister of Fisher ies and Minister of Mori Affairs), the Minister stated: “The Bill requires that the Minister of Fisheries, after consultation with Mori, is also to implement regulations to recognise Mori customary food gathering interests and that give effect to the special relationship between Mori and those places that are of customary food gathering importance to them… It is contemplated that the regulations… will do two basic things: first they will expand the existing provisions whereby kaitiaki, or guardians, will authorise Mori to take fish for customary non-commercial purposes… Second, they will provide for the identification of mtaitai reserves and the creation of kaitiaki committees for the management of those reserves. These regulations will not permit commercial harvesting by Mori … Nor will these regulations provide for gathering areas of exclusive use. The regulations will provide for management by Mori of an area that will provide 1 5 7 for the Mori community to give permission for any person to harvest within the reserves upon the terms and conditions developed by that community.” The Treaty of Waitangi (Fisheries Claims) Settlemen t Act 1992 repealed section 88(2) of the Fisheries Act 1983. The Act provides for the full settlement of all Mori claims in respect of commercial fishing. Its provisions also allow for non-commercial customary food gathering interests of iwi, hap and whnau and for the protection of these interests via the mechanism of kaitiaki for places of customary food gathering importance. Under the Act there is a requirement t o consult with iwi and hap about, and develop policies to help recognise the “ Use and management practices of Mori in the exercise of non-commercial fishing rights.” In reaching a final settlement of fisheries claims in 1992, M ori negotiators were resolute that customary non-commercial fishing rights should be preserved.3 5 Combined with existing legislation, the Treaty of Waitangi (Fisheries Claims) Settlement Act both enables the establishment of fishing reserves, and recognises the rights of iwi to manage these. Under the Act, the Minister of Fisheries was able t o declare any part of New Zealand waters to be a mtaitai reserve. Regulations may empower any Mori Committee, marae committee, or any kaitiaki to make by-laws restricting or prohibiting the taking of kaimoana. These by-laws were subject to the Minister’s approv al and they applied to Mori or non-Mori and had to be consistent with sustainable management. If a reserve was closed for harvesting, the committee was still able to approve the taking of kaimoana for marae purposes. The Minister also received applications for mtaitai reserves. Before recommending that the Governor General approve the establishment of mtaitai, consultation must occur with the community to weigh up the needs and interest of all people affected. Although provision for mtaitai reserves is a feature of the Treaty of Waitangi (Fisheries Claims) Settlement Act, reserves are not a new development. As far back as the 1870s, M ori reserves were recognised in legislation. In the early 1900s after 1 5 8 much protest, oyster reserves were established in several northern harbours. These harbours were areas that had long supported Mori populations. The first reserve to be established was in Kaipara in 1913 and then four more were set aside later in the same harbour due to the original reserve being depleted through commercial operators previous to the reserve being established. Other harbours where reserves were established included, Whangaroa, Whangaruru and Mangnui Inlet in the Bay of Islands. This all occurred before 1933 when the la st Mori oyster reserve was established. 3 6 In 1945, the M ori Social and Economic Advancement Act empowered the Governor General to reserve… any pipi ground, mussel-bed, other shellfish area or fishing ground or any edible seaweed area for the exclusive use of Moris or of any tribe or section of a tribe of Moris. More recently, section 439 of the M ori Affairs Act 1953 provided for land to be set apart: As a Mori reservation for the purposes of a village site, marae…fishing ground…or for any other specified purpose whatsoever. Seventy five fishing reserves were established under the Mori Affairs Act. When the Act was replaced by Te Ture Whenua Mori 1993, the provisions for reserves were incorporated in section 338(1). Through the passing of the Act the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) was established and had the task of assis ting Mori into the business and activity of fishing. Under the legislation, regulations and by-laws were developed so that Mori customary fishing rights could be safeguarded. The Minister of Fisheries is required to consult with the Treaty of Waitangi Fisheries Commission so that M ori traditional interests are balanced with those of all users. CUSTOMARY REGULATIONS The need for customary regulations arose out of the passing of the Treaty of Waitangi Fisheries Claims Settlement Act 1992 which changed the status of customary fishing rights. Under the Act, if any aspect of customary rights was not provided for in regulations, iwi would have no recourse to the courts for claims on that issue.3 7 Following the fisheries settlement and the repeal o f section 88(2) of the Fisheries Act, Te Ohu Kaimoana facilitated the establishment of a joint M ori/Crown Customary Fisheries Working Party which eventually produced a set of regulations designed to give substance to Mori non-commercial customary fishing rights. 1 5 9 The 1992 Treaty of Waitangi (Fisheries Claims) Set tlement Act determined not only that non-commercial Mori fishing would be governed by regulations but also set out very specifically how the regulations would be developed. The regulations aimed to formalise the customary management practices of individual whnau, hap and iwi. They ensured that depleted areas would be notified, closed and allowed to recover. Permission to take in excess of the amateur take from a particular area for Mori customary purposes required the permission of the a ppointed tangata kaitiaki of the hap of that particular area. Those who took without permission would be punished according to the law and information on catches and the state of resources would be fed into the national fisheries management system. Individual whnau, hap and iwi would work in cooperation with Government fisheries officers and scientists. The first draft set of regulations was prepared in 1993 with both commercial and recreational fishing representatives regularly attending consultation meetings. 38 There was significant difference in the opinions of the iwi and Crown members of the Customary Fishing Working Party (CFWP) that drafted the regulations. In regard to bylaws, iwi wanted to move beyond mtaitai reserves, while the Crown wanted to take a more limited approach. In addition to this the use of Mori terminology in the regulations was the cause of considerable debate, as the Crown wanted more specificity in the regulations, which the Mori words did not seem to be able to offer. The authority for kaitiaki to make prosecutions attracted protest from the Crown also. In regard to these areas of disagreement the Minister of Fisheries appeared to be in favour of the Crown members views. 3 9 The two incidents in 1997, that involved John Hikuw ai, (acting on behalf of the Confederation of United Tribes) where to the dismay of both the government and iwi, custom was being used to justify what appeared to b e an obvious breach of the law and a profitable commercial operation. John Hikuwa i was eventually charged but the incident highlighted the lack of agreement in regard to the nature of customary fishing rights. It could be argued that because some of the fish involved in the incident were left at many marae in the Northland area, that there was an aspect of customary practice but when the fish were then advertised for sale at ‘koha prices’ many iwi and hap were offended that customary practice could be bent to suit the situation and that 1 6 0 true customary practice would have ensured that the fish was the koha and not the price being asked. 40 However, this situation was also a response to the local socioeconomic issues, where a loophole in the regulations was seen as an opportunity to improve the economy.4 1 The establishment of statute in 1998 with the provi sion of regulations to control customary fishing activity was the answer to addressing such incidents. There were three main features of the regulations. Firstly, the exclusive control of mtaitai reserves by adjacent hap  or marae, then the appointment of kaitiaki to control customary take and lastly, the appointment of honorary officers to protect and enforce customary fishing rights. 4 2 The Kaimoana Customary Fishing Regulations 1998 and the Fisheries (South Island Customary Fishing) Regulations 1998 strengthen some of the rights of iwi and hap to manage their fisheries. These regulations allow management of non-commercial fishing in a way that suits local practices, without having a major effect on the fishing rights of others. When the government sets the total catch limits for fisheries each year it allows for the customary use of fisheries. 43 Under the current regulations, kaitiaki or tangata tiaki must obtain Ministerial approval before being allowed to issue permits. This person is then able to issue fishing permits covering all or parts of the designated area. Normally a written authorisation on an approved form must be issued, but there is provision for oral authorisations. The authorisation will specify the date of the fishing, the names of the people entitled to fish, the species and quantity t o be taken, the size limits, the method of fishing, the area to be fished, and the purpose for which the catch is being taken. If an offence is suspected by a fisheries officer, a record of the authorisation will have to be shown by the person granting it. The person fishing must report back to the tangata tiaki within five days on what was caught, and the tangata tiaki must to supply quarterly reports to the Ministry. 4 4 The regulations also allow three specific mechanisms for conserving stocks – taipure reserves, mtaitai reserves, and rhui or closure. Taipure reserves involve a form of 1 6 1 community management, while mtaitai reserves focus more specifically on the needs of the marae. For m taitai, by-laws are set by the marae community, but they are subject to public consultation and approval by the Minister. The by-laws apply to Mori and non-Mori, but if closure is ordered for individual fishing seafood can still be collected for marae purposes. Anyone who does not comply with the regulations is subject to a conviction with an attached fine. In m anaging a mtaitai reserve, by laws should be consistent with best conversation practice, which is a major objective of the regulations. 4 5 The customary fishing regulations do not remove the right of iwi and hap to catch their recreational limits under the Amateur Fishing Regulations. But the regulations do not provide for commercial fishing. Any authorisation issued under the customary fishing regulations cannot be used to take fish for trade, exchange for money or for any form of financial gain. The Customary Fishing Regulations apply to all fish eries resources managed under the Fisheries Act 1996. This does not include spec ies managed under the Conservation Act 1987, such as whitebait and mudfis h. Appointing Tangata Tiaki/Kaitiaki Tangata Tiaki/Kaitiaki are individuals or groups who may authorise the taking of fish for customary food gathering purposes in a designated area. It is up to iwi and hap of the particular area to determine who the Tangata Tiaki/Kaitiaki are to be and where their area of responsibility is within the rohe moana. The responsibilities of a Tangata Tiaki/Kaitiaki include helping to ensure the sustainability of the area’s fisheries by issuing a uthorisations for customary fishing on behalf of the iwi and hap, along with keeping accurate records of authorisations given and quantities of fish taken under each autho risation and reporting to the Ministry of Fisheries (MFish) to provide informatio n on the authorisations issued. Tangata Tiaki/Kaitiaki are also expected to prepare management plans for approval by the iwi and hap that will guide the issue of authorisations for the rohe moana and then consult with the iwi and hap regarding the management of customary fisheries. 1 6 2 Responsibilities of Fishers The regulations require that any person fishing mus t have an authorisation at the time of fishing and must adhere to all conditions associated with the authorisation. If a person is given an authorisation to take fish for customary purposes and they are also taking fish for commercial purposes under their commercial fishing permit on the same trip, fish taken for customary purposes must be kept in separate containers, clearly identifying the fish as being taken for customary purposes. If the fish is not kept in separate containers, it will be considered to be taken without authority of the Customary Fishing Regulations. Since enactment, the regulations have been effective in many parts of the country. However, in 2004 there were some concerns about fis hing of a fraudulent nature on the East Coast which attracted public attention. A group of poachers set up false Trust Boards to operate as Kaitiaki and then proceeded to issue invalid permits to enable the collection of large amounts of crayfish and pua. This incident highlighted the defect in regard to policing the regulations, rather than the regulations themselves. This particular incident was revealed and at least one offender was convicted. 4 6 Management of Reserves It is envisaged that reserves will encourage greater involvement of iwi and hap in fisheries, as well as providing for customary food gathering interests. A Taipure is a local management tool that is established in an area that has customarily been of special significance to an iwi or hap as a source of food or for spiritual or cultural reasons. Where taipure are established, advisory committees are formed to promote the concerns of hap and iwi about the use and condition of these fisheries. In this way, iwi or hap can advise the Minister of Fisheries on the regulations most appropriate for the sustainable management of fish resources in the taipure. This tool offers a way for iwi and hap to become involved in the management of both commercial and non-commercial fishing in their area.4 7 New Zealand’s first two tai pure were Te Kopi and Te Kumenga on the Southern Wairarapa Coast.4 8 1 6 3 Mtaitai reserves are areas of traditional importance to tangata whenua. They can exist with taipure. Mtaitai are established on traditional fishing grounds for the purpose of recognising and providing for customary management practices and food gathering. Commercial fishers may not fish in a mtaitai reserve; however recreational fishers are able to do so. Mtaitai are managed by committees nominated by tangata whenua and approved by the Minister of Fisheries. These committees can make by-laws specific to the local fishery, and relevant to the needs and concerns of the local community. Mtaitai reserves may be areas where both tikanga Mori and modern resource management techniques are u sed in a complementary way. Both taipure and mtaitai benefit from the support of local communities. Committees have the task of balancing the customary rights of local iwi and hap with the general rights of all fisheries users. These local fisheries management systems can be iwi and hap led and community-driven. The priority is the sustainable management of a valued resource. Seasonal or temporary rhui provide an example of how the regulations might apply. The committees can consider creating by-laws to req uire those other than local iwi and hap to obey rhui. Other fishing method restrictions and closures for customary purposes are also available under section 186A and B of the Fisheries Act 1996. Under these sections of the Act the Minister of Fisheries is allowed to temporarily close an area to fishing. The specific purpose is to provide for the use and management practices of iwi and hap in the exercise of customary rights and they are designed to respond to localised depletion of fisheries resources. 4 9 Establishment of Mtaitai Reserves Customary Regulations enable Tangata Whenua to apply for mtaitai reserves. Only the iwi and hap, or nominated Tangata Tiaki/Kaitiaki, can apply for a mtaitai reserve in their rohe moana. A mtaitai reserve application can be approved if there is a special relationship between the iwi and hap making the application and the 1 6 4 proposed mtaitai reserve. The proposed management must be consistent with the sustainable management of the fishery in the area of application. The proposed mtaitai reserve must also be an identified traditional fishing ground and of an appropriate size to be effectively managed by Tangata Tiaki/Kaitiaki. A mtaitai reserve must not unreasonably affect the ability of the local community to take fish for non-commercial purposes and must not prevent persons with a commercial interest in a species from taking their Quota or annual catch entitlement within the Quota Management Area for that species. The proposed mtaitai reserve must not be a marine reserve. Bylaws Customary Regulations provide Tangata Tiaki/Kaitiaki with the power to manage fishing in a mtaitai reserve through bylaws. It allows the Tangata Tiaki/Kaitiaki to enhance the fish stocks in the reserve. Tangata Tiaki/Kaitiaki can make bylaws to manage non-commercial fishing within mtaitai reserves. Bylaws include such details as the species that can be taken, the quant ity of each species taken, the size limits relating to each species, the method used, and the area in which fishing may occur. Such bylaws are established to ensure the sustainable management of fisheries resources. Bylaws that are made under the regulations generally apply to all persons fishing in a mtaitai reserve. If the mtaitai reserve is closed to general fishing by a bylaw, the Tangata Tiaki/Kaitiaki for that mtaitai reserve can provide permission for the taking of fish, within that mtaitai reserve for the purpose of sustaining the functions of a marae. As a conservation measure, the Tangata Tiaki/Kaitiaki of a mtaitai reserve may authorise the removal of fish from within the mtaitai reserve and then the release of that same fish within another part of the mtaitai reserve to enhance the fishery. Commercial fishing is generally prohibited within a mtaitai reserve. The exception to this is where the Tangata Tiaki/Kaitiaki proposes to the Minister of Fisheries a commercial harvest be allowed for specified species and quantities of fish, for a 1 6 5 specified period. Any commercial fishing must be conducted under the provisions of the Fisheries Act and relevant commercial fishing r egulations. There has been an increase in the number of applications for mtaitai reserves in the last two years, which points to the fact that it is a preferable way to manage customary fishing. There are now a total of ten established mtaitai reserves around the country with four new reserves being established in 2008. t he first in Mount Maunganui and Tauranga Harbour in the Bay of Plenty, Aotea Harbou r on the South West Coast of Waikato, Waikawa/Tumu Toka in Southland an between Tirohanga and O-Waea (Campbell Point) in South Otago. 50 Mataura Te Awa is the country’s first fresh water m taitai, officially opening in 2006. The mtaitai reserve covers a 10km section of the river a nd includes both the Mataura and Tuturau Falls. The m taitai was put in place to protect the eel and lamprey (piharau) fishing grounds. Since the establishment of the mtaitai a joint research programme has been in place to investigate the use of eels as an environmental indicator, to learn more about piharau and gain a better understanding of the fishery itself. The Tangata Tiaki appointed to this mtaitai have developed a management plan and are now working on bylaws for recommendation to the Minister. 5 1 Planning for Customary Fisheries Management The development of management plans by iwi and hap for their particular rohe moana can be declared “Iwi Planning Documents” for the purposes of the Resource Management Act 1991. They can also be deemed existi ng management controls with considering sustainability and other management measures under the Fisheries Act 1996. The Minister of Fisheries will supply all in formation and assistance as may be necessary in order to administer customary regulations, including any information to assist in developing management plans. RECENT ACTIVITY There has been much recent development in the customary fishing arena that is of a positive nature and signals the intention of iwi and hap going forward. The renewal of Tangata Tiaki appointments in the Ngi Tahu region provides evidence that ten 1 6 6 years after the enactment of the regulations they are still working effectively in this area. There have been mtaitai reserves established near Kk Point and in areas around Waikawa in the Southland region. There are now six mtaitai in the South Island, including the fresh water reserve on the Mataura River in Southland that has been examined earlier in this chapter. A customary fishing project being undertaken by Ng i Tahu has identified areas of significance that could possibly become mtaitai reserves in the future. As an outcome of this investigation, nineteen applications have been lodged with the Ministry with the expectation that there will be further applications in 2009. 5 2 Up until recently fresh water areas in the North Island and Chatham Islands have been unrecognised, even with the importance they hold for inland iwi and hap. There is now the opportunity for these areas to become mtaitai reserves. This opportunity has been created via the Kaimoana Regulations that have been subject to an amendment that has provided such opportunities for iwi and hap in the North Island and Chatham Islands as there are no longer two separate customary fishing management regimes. The amended regulations are an important development in customary fisheries management. The amended regulations came into effect on the 20 th of November 2008. 5 3 The South Island Customary Regulations already applied to freshwater and Tangata Tiaki are currently using the provisions effectively. In addition to the mtaitai in place on the Mataura River in Southland there are two other applications in place for fresh water environments currently being processed. These are the rari /Opihi Catchment in South Canterbury and the Waihao River Catchment south of rari /Opihi Catchment. 5 4 A customary fisheries management qualification has been made available to Tangata Tiaki/Kaitiaki and is a National Certificate that provides an understanding of legal duties and sustainable management. The certificate is part of the National Qualifications Framework and was developed by MFish and the Seafood Industry Training Organisation (SITO). It is accessible to any appointed Tangata Tiaki/Kaitiaki or those progressing through the nomination process. The first 1 6 7 graduates of this course were a group of Tangata Kaitiaki from Tainui and Waikato who manage the area around Aotea Harbour. 5 5 The qualification is another example of combining t raditional with contemporary, where as well as teaching the mandatory functions of the kaitiaki the history of customary fishing is also dealt with. The course is taught in the community, (usually at marae), and therefore the training is grounded i n local history and customary practices. There is also a higher level Diploma qu alification in customary fisheries management under development and will be made available in the foreseeable future. CONCLUSION The importance to Mori of their traditional fisheries is strongly linked to the concepts of mana and manaakitanga. Access to, and protection of, traditional Mori fisheries occurs within the context of rangatiratanga and the role of kaitiaki. These represent rights secured and guaranteed by the Treaty of Waitangi. Fishing has occupied a prominent place in the conte mporary discussion on Mori tenure and resource rights for a number of reasons. Pressures on the extremely valuable commercial sea fishery and the corresponding need for increased regulation of that fishery, coupled with the determination that any remaining rights are not further eroded, has prompted consideration of the place of iwi and hap in the sea fisheries regime. This has led in turn to a re-examination of customary sea fishing rights and practices, Treaty of Waitangi fishing guarantees, and the history of iwi and hap involvement in commercial fishing. With respect to freshwater and tidal fisheries, it has been recognized that there is a continued exercise of customary fishing rights in many areas, despite the decline in quality and quantity of the resource. The establishment of the Waitangi Tribunal and recent fisheries and environmental legislation has made it easier for iwi and hap to further prevent damage being caused to these fisheries by pollution or ‘development’. 5 6 There are some limitations to the use of customary regulations in regard to fisheries. For example in order for Tangata Tiaki/Kaitiaki to ensure the sustainability for a particular area they need to know where fishers are collecting from. There has been a 1 6 8 call for defined fishing zones to be developed so that any data collected is more useful and can determine the best places to fish. There is also a reliance on customary permit holders to report their catch and this should take place preferably on the same day as the fish is collected to ensure the quality of the information being collated for reporting purposes. Obtaining quality information from customary fishers in invaluable, it enables the management of customary permits to be more effective because the Tangata Tiaki/Kaitiaki will know which areas should and should not be fished. Iwi and hap will continue to manage fisheries. The management practices now being developed will embrace traditional values and customs as well as modern technology. Translated into practical everyday techniques, the strong spiritual and cultural values of iwi and hap provide a plan for the management of a resource which will enrich future generations. 57 1 C. Robertson, (19 98), ‘What are customary rights?’, in Evening Post, 13 January, p. 5 2 ibid 3 Waitangi Tribunal, (1 989), Manukau Report: WAI 8, Waitangi Tribunal, Wellington. 4 M. Mutu, (1 998), ‘State intransigence kills dealing on cust omary fishing’, in New Zealand Herald, 14 January, p. A15 5 Waitangi Tribunal, (1 988), Muriwhenua Fisheries Report: WAI 22, Waitangi Tribunal, Wellington. 6 ibid 7 ibid 8 ibid 9 ibid 1 0 Te Puni Kokiri, (1 99 3), Nga Kai o te Moana: kaupapa tiakina – Customary Fisheries: Philosophy and Practices, Legislation and Change, Mori Environmental Resource Management, Ministry for Mori Development, Wellington. 1 1 C. Barlow, ( 19 94), Tikanga Whakaaro: Key Concepts in Mori Culture, Oxford, Auckland 1 2 Ministry for Mori Development, (1 99 3) 1 3 ibid 1 4 ibid 1 5 ibid 1 6 ibid 1 7 ibid 1 8 ibid 1 9 ibid 2 0 ibid 2 1 Article 2: Treaty of Waitangi, English Version 2 2 Ministry of Fisheries, (1 99 8), A guide to the Kaimoana Customary Fishing Regulations 1998, Ministry of Fisheries, Wellington 2 3 ibid 2 4 Waitangi Tribunal, (1 988), Muriwhenua Fisheries Report, WAI 22, Waitangi Tribunal, Wellington. 2 5 ibid 1 6 9 2 6 R. Walker, (19 90), Ka Whawhai Tonu Matou: Struggle Without End, Penguin, Auckland, p. 142. 2 7 M.H. Durie, (1 998), Te Mana Te Kawanatanga: The Politics of Mori Self Determination, Oxford, Auckland, p. 150. 2 8 Section 88( 2) 2 9 Te Puni Kokiri, (1 99 3), Nga Kai o te Moana: Kaupapa Tiakina – Customary Fisheries: Philosophy and Practices Legislation and Change, Mori Environmental Resource Management, Ministry for Mori Development, Wellington, p. 21. 3 0 Te Puni Kokiri, (1 99 3), p.22 3 1 ibid 3 2 Durie, (19 98), p.155. 3 3 Te Puni Kokiri, (1 99 3), p. 22 3 4 Te Puni Kokiri, (1 99 3), p. 23 3 5 Te Puni Kokiri, (1 99 3), p. 25 3 6 Waitangi Tribunal, (1 988), Muriwhenua Fisheries Report: WAI 22, Waitangi Tribunal, Wellington. p. 87 3 7 M. Tipa, (1 997), ‘Ngati Tahu forerunners in customary fi sheries development; customary fishing regional coordinators appointed’, in Te Karaka: the Ngi Tahu Magazine, 8, p 30-65 3 8 M. Mutu, (1998), ‘State intransigence kills dealing on customa ry fishing’, in New Zealand Herald, 14 January, p A15. 3 9 Durie, (19 98) 4 0 M.H. Durie, (2 005), Nga Tai Matatu – Tides of Mori Endurance, Oxford, Auckland, p. 130. 4 1 Durie, (20 05), p. 130. 4 2 Durie, (19 98) 4 3 Ministry of Fisheries Internet/M ori/Customary Management 4 4 www.fish.govt.nz/customary/southcfr.html 4 5 ibid 4 6 M.L. Ho-Sang, (200 4), ‘M ori Fish Scams’, The Dominion Post, 20-21 March 200 4. 4 7 Ministry of Fisheries Internet/M ori/Customary Management 4 8 Te Ohu Kaimoana, (1 99 5), Hui-a-Tau Report, 7 July 199 5, Treaty of Waitangi Fisheries Commission, Wellington, pp. 20-21. 4 9 Ministry of Fisheries Internet/M ori/Customary Management 5 0 Ministry of Fisheries, (2 00 8), Hi Ika, November 20 08. 5 1 ibid 5 2 ibid 5 3 ibid 5 4 ibid 5 5 ibid 5 6 S.M. Doig, (199 6), Customary Mori Freshwater Fishing Rights: an exploration of Mori evidence and Pakeha interpretations, PhD Thesis, University of Canterbury. 5 7 Te Puni Kokiri, (1 99 3), Nga Kai o te Moana: Kaupapa Tiakina – Customary Fisheries: Philosophy and practices legislation and change, Mori Environmental Resource Management, Ministry for Mori Development. 1 7 0 Chapter Seven DISCUSSION The following chapter is an overview and summary of the information presented in the thesis thus far. An analysis of the main points for consideration is also provided, along with a framework that outlines where and how custom can be applied to contemporary management of resources. TIKANGA Mori have employed systems of environmental management and viewed these as key to ensuring a strong, healthy, and resilient tribe. Natural resources were not viewed as a commodity, but rather a source of identity, belonging and continuity to be shared between the living, the dead and the unborn. Whakapapa and the rights of the collective were used to manage the land and natural resources. Control and authority of the land rested with the communities that held the land in their care. The land was regarded as an ukaipo by hap who recognised their obligation to treat it as a source of sustenance. The principle of ahi k also operated to ensure that the rights to land remained with the group who exercised kaitiakitanga over it.1 Durie 2 , in his paper on custom law examines the values that are inherent in terms of regulating society. The four values that are described are: whanaungatanga –kinship bonds that determine personal action and responsibility; mana – which includes social rights, the right of the individual to validate their identity within a chosen descent group; utu – the responsibilities for the regular p erformance of social obligations; and manaakitanga – the need to respect and care for others, not to advantage oneself to others’ detriment. All these values are important for effective resource management. In broad terms, Mori customary rights are collective in nature and belong to whnau, hap and iwi. They are rights of use, as well as rights to occupy land rather than rights to exclusively own land (as under common law ). Another distinctive feature is that together with the rights to occupy areas and use resources there is a reciprocal obligation to sustainably manage those resources (k aitiakitanga). 3 Resource 1 7 1 management practices have been effective as human needs have been met for more than one thousand years while also ensuring resource sustainability.4 This section has discussed the values and concepts associated to tikanga Mori that were applied to resource management traditionally. The following section examines how the same tikanga has been applied to resource management legislation in modern times and how effective this application has been to date. CONTEMPORARY MORI RESOURCE MANAGEMENT Between 1986 and 1991, Parliament reviewed all legi slation for the protection and use of New Zealand’s natural resources. A new legislat ive framework was established for the management of natural resources, and changes were made to the way that management decisions were made and implemented.5 Insofar as the existing legislation permits, tikanga Mori is of current practical relevance. This is especially so where a statute expressly requires consideration of tikanga in situations where it can be said that custom law survives unaffected by any subsequent legislation. 6 The following is an account of the application of tikanga Mori in statute in regard to Mori resource development. The legislation is of interest in that it attempts to consider and apply notions of tikanga Mori. This is exemplified in statutes that expressly require tika nga to be recognised. Resource Management Act 1991 The Resource Management Act 1991 (RMA) was designed to promote the sustainable management of natural and physical resources - inherent with this is the protection of Mori interests relating to those resources. Recognition of iwi/hap aspirations and values is provided for in the RMA. Sections 6, 7 and 8 each provide for recognition of M ori cultural values. Identified as a matter of national importance is ‘the relationship of Mori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga (s6(e)). Section 7(a) also requires regard to be given to ka itiakitanga - ‘the ethic of 1 7 2 stewardship’. Section 8 requires all persons exerc ising functions and powers under the Act to take into account the principles of the Treaty of Waitangi. 7 Section 6(e) of the Act requires those with discret ions under the Act to “recognise and provide for … the relationship of M ori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. This provision cannot be applied without a knowledge of tikanga Mori. Section 6 provides for matters of national importance. Territorial authorities must give practical effect to s6(e) in relevant policies, plans, statements and rules. Some specific methods to provide for this section are: financing iwi in protecting resources against impacts of proposed development; consultation; the incorporation of iwi management plans into district and regional policies; and protection of waahi tapu though regional policies and plans. Any attempt to define Mori concepts within a new indigenous framework is difficult. A concept such as kaitiakitanga cannot be accurately translated into an equivalent non-Mori concept, as its origin is derived from a spiritual rather than an English jurisprudential base. In addition, there is no sin gle Mori definition of kaitiakitanga which is consistent across all iwi and hap. Nevertheless, the concept of kaitiakitanga has been given a statutory definition by the RMA. 8 Kaitiakitanga is a critical element in activities impacting on resource management and fisheries. The ethic of kaitiakitanga is becoming increasingly important as iwi and hap assert their mana and respond to the obligations under current environmental legislation. This became a matter of some significance for the Environment Court which, under section 7(a) of the Resource Managemen t Act 1991, must apply a statutory definition of kaitiakitanga. This definition, or previous applications of it, did not always conform with the understandings of iwi appearing to give evidence of the meaning of kaitiakitanga. Therefore a 1997 amendmen t to the Resource Management Act now defines “kaitiakitanga” as “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Mori in relation to natural and physical resources; and includes the ethic of stewa rdship”. The nature of tikanga 1 7 3 Mori is therefore of direct relevance to the court’s jurisdiction when considering kaitiakitanga issues. The incorporation of kaitiakitanga into the RMA has presented a dilemma. Its moral purpose is at odds with the objective of economic g rowth. Commercial values dominate the interpretation and implementation of the RMA, whilst kaitiakitanga, centralizing the ethics of relationships, respect and care of the environment, is at times overlooked. 9 Kaitiakitanga could apply to commercial resource development so long as metaphysical and physical aspects of both the resource and the local kin group are protected and managed accordingly. 1 0 Kaitiakitanga is a central Mori ethical principle of resource management. In effect it “encapsulates the entirety of the M ori resource management regime and provides a distinctly Mori code of rules for human interaction with other natural resources”. 1 1 Its inclusion in the RMA as a Mori concept with its basis in tikanga Mori is a partial requirement of the promise made to M ori in Article 2 of the Treaty that M ori were to be protected in the management of resources according to customs and traditions for so long as it was desired to be so protected. Kaitiakitanga was unrecognised by legislation until it was included in section 7(a) of the RMA, and the wider community knew little about it. But, as the Act implies, the functions and role of kaitiaki are relevant to resource management in modern times. Kaitiaki are ‘guardians’ or protectors but also man agers and administrators. In the environmental world, the role of kaitiaki is to monitor the exploitation and preservation of physical resources. 1 2 Section 8 of the Resource Management Act requires t hose with discretions to take into account the principles of the Treaty of Waitangi. This section has been cited more than any other in considering the protection of Mori interests under the Act. In particular, the principle of consultation has been subject to extensive judicial discussion. Other Treaty principles that have been applied in this context include those of partnership, active protection, informed decision-making and rangatiratanga.1 3 There are many advantages in utilising Treaty principles rather than the provisions of the Treaty (what the Treaty actua lly provides for). The use of 1 7 4 principles can overcome the difficulty of trying to understand the intended meanings of specific words and can take into account the intentions and provisions of the Treaty so that the texts do not form the entire basis of debate. Treaty principles allow for changing situations over time and also enable the Treaty’s relevance to particular situations to be determined in a more comprehensive manner. There is no ‘one set’ of Treaty principles that are applied to all situations but rather each matter that presents itself can have principles developed to specifically meet the requirements that may be presented. However, there are also disadvantages in utilising Treaty principles where the determination of principles by certain groups may give the Treaty new meanings not acceptable to both partners and where principles could be applied in isolation from the Treaty, along with becoming fixed and detracting from evolving understandings. The Act pertains to an enormous area of law in which local government, central government and the mainstream courts have been requ ired to understand and apply tikanga Mori.1 4 Recent court cases have seen a significant shift away from the narrow(and more usual) focus on consultation, to e ncompass a holistic application of sections 6(e), 7(a) and 8 to the whole decision mak ing process. These cases reflect a move away from a narrow consultative approach to a wider interpretations and understanding of all the relevant Treaty and Mori provisions within the RMA.1 5 Iwi management plans are another source of information about values held by Mori communities. The production of iwi planning documents enables iwi and hap to consolidate concerns and preferred management options for the environment. Production of these documents is of immense value to both parties, and provides a proactive means for establishing partnership between Mori and local government.1 6 Although there is no one set format in terms of content for an iwi management plan, the type of information that is usually contained within these documents includes: tikanga that is particular to that iwi in regard to the resources they have an interest in; traditional history of the areas identified as having significance; waahi tapu sites; resource management issues and strategies around coastal areas, freshwater, flora and fauna, land, and air quality; and the preferred pro cess of consultation between Crown agencies and iwi. 1 7 5 However, these plans do not seem to have had the im pact that was possibly expected when the Act was passed. One sign of this is that there is almost no case law on the issue. 17 There is no procedure set ou in the Act for producing such plans. This is in contrast to the extensive procedures for producing district and regional plans and policy statements. This alone would make the courts cautious about placing great weight on iwi management plans.1 8 The requirements of iwi management plans are that r egional councils in preparing regional policy statements, regional councils in preparing regional plans, territorial authorities preparing district plans, or changes to such documents ‘shall have regard to’ any relevant planning document recognised by an iwi authority affected by the [regional policy statement/regional plan/district p lan]’. This has been operationalised as an ‘iwi management plan’. However, there is no d efinition of ‘iwi management plan’ in the Act. The phrase ‘shall have regard to’ means that iwi management plans must be given consideration, but any rules and policies in the document do not necessarily have to be followed. A local authority does not have to consult until a consensus is reached with and iwi over any planning matter. In the event of any direct inconsistency between a regional policy statement or plan or a district plan and an iwi management plan, the former would prevail. While regional policy statements and plans and district plans must not be ‘inconsistent’ with other plans, there is no simila r provision regarding iwi management plans. Consequently, a district plan ca n be inconsistent with an iwi management plan. Iwi management plans inform the statutory planning process, but beyond that are not referred to in the legislation. There is for example no requirement to consider an iwi management plan when determining whether a resource consent should be issued. The RMA provides a range of mechanisms for the protection of Mori interests. The courts in the resource management field have made genuine and successful attempts to honour the directives found within the Act. This is evident in the many decisions where consent for a proposed activity has been declined on the basis that it would infringe the relationship of Mori with the particular resource. The reality of these 1 7 6 types of resource consent proceedings is that a court is required to balance the interests of Mori with those of the applicant and at times the community at large. The provisions of the RMA that deal with Mori provisions place the Court directly at the interface between the concepts of British common law and the concepts of Mori customary law which is founded on tikanga Mori. In many cases resource management outcomes have been quite different to th ose which occurred prior to the enactments of the RMA, when Mori cultural and spiritual values could be virtually ignored or sidelined. However, while M ori values may now have been recognised in statute, there is evidence that the system of juris prudence may not yet have the tools, or have developed a sufficiently informed approach, to dealing appropriately with those values.1 9 For the most part, rangatiratanga is poorly conside red in both the RMA and in plans developed under it. Section 8, backed up by s 6(e) and 7(a) might suggest that iwi/hap would have at least limited rights to manage resources in accordance with cultural priorities. But the existence of section 8 does not alter the fact that ultimate decision-making power is still vested in local authorities, as has been confirmed by the courts on a number of occasions. The RMA improved recognition of matters of importance to Mori and dealt with some of the grievances created by the earlier regimes. However, it still does not adequately pro vide for recognition of rangatiratanga over resources in which Mori have an interest.2 0 Moreover, section 8 is only one section that needs to be considered and probably is secondary to the goal of sustainability. A possible demonstration of rangatiratanga could be perceived as the transfer of powers from local authorities to iwi via s33 of the Act. One criticism of the RMA is the contradiction between encouraging Mori involvement in resource management on the one hand, and only recognising ‘iwi authorities’ (in many instances) on the other. At present, the RMA provisions delegating certain powers to Mori are restrictive where only ‘iwi authorities’ ha ve rights within those provisions. A further way to recognise customary management is to give greater status to iwi and hap policies, policies that integrate iwi plans with those of local communities at hap and marae level, and then considering them in tandem with council policies and plans. A locally focused approach would address 1 7 7 the criticism that the RMA is global in nature. More flexibility would enable different levels of hap and iwi involvement in resource management to be given due consideration. 2 1 The principles of the Treaty are not defined in the Resource Management Act 1991 and this has left the door open for the courts to resolve issues on a case-by-case basis. However, the Waitangi Tribunal has the authority to identify Treaty principles and the courts not infrequently draw on those interpretatio ns. The Court of Appeal has similarly provided for Mori values to be re-interpreted to coincide with jurisprudential requirements. Section 8 of the RMA requires the principles of the Treaty ‘to be taken account of, although recent cas e law has suggested that sections 6(e), 7(a) and 8, which cater for M ori interests, are to be considered holistically. The approach of the courts in recent cases has shifted significantly from a narrow focus on consultation, to encompassing a holistic application of sections 6(e), 7(a) and 8 to the whole decision making process. The RMA has empowered local authorities to consider and incorporate Mori interests in ways that will help avoid future grievances. The main trends evident in recent environmental case law emphasise the necessity of consultation with iwi and hap. Regardless of the emphasis on the rights and role of Mori in resource management there are limits to the applications of sections 6(e), 7(a) and 8. The sections of the RMA that cater for Mori interests should be read in the context of the whole Act, that is the ultimate purpose of the Act is to promote sustainable management of resources. The courts have found that those sections of the RMA designed to protect Mori interests should not be read in isolation, but considered with regards to achieving the purpose of the Act.2 2 Resource consent applicants and local authorities have generally avoided a ‘direct approach’ to confronting M ori under the RMA until recent times. There are a number of reasons for this change to a direct approach including: a growing sophistication in the utilisation of the Mori provisions; the various RMA ‘successes’ achieved by Mori; and the increasing utilisation of M ori academics/cultural advisors by resource consent applicants and others. 2 3 From this direct approach there 1 7 8 is a growing judicial testing of the M ori spiritual and cultural paradigm including values and tikanga. The RMA highlights how laws created by the legislature have been critical in determining the parameters for Mori resource management. In specific terms, the constraints and limitations of the Act are: the inadequacy in dealing with Treaty of Waitangi implications; the limited legislative inte rpretation given to kaitiakitanga where a range of ideas associated with the term including resource management, administration, sustainable development and customary trusteeship are omitted. Reference is only made to kaitiakitanga and not mauri; the difference between the terms can be summarised as: kaitiakitanga being the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Mori in relation to natural and physical resources, and includes the ethic of stewardship, where as mauri is the life supporting capacity of all things and provides the interconnection between people and the natural environment. Mauri lies at the heart of kaitiakitanga because its presence in all objects entrusts people to appreciate and re spect all natural resources. Kaitiakitanga is downplayed in the Act, being only one part of s7, despite its meanings which are very similar to s5’s ‘sustainabl e management’. Moreover, were the relationships between kaitiakitanga and rangatiratanga properly understood, the term could be inserted into s5 and therefore be pri oritised as of right. Further there is not enough guidance on how to apply the Treaty, that is, how to balance Article one with Article two in local policies and consent procedures. The RMA has wide ranging implications for the involvement of Iwi/hap groups in resource management policy and practice. It has not met iwi expectations fully. The weakness of the Treaty provision (s8) and the Kaiti akitanga provision (s7(a)), the lack of specific recognition of the relationship between rangatiratanga and kaitiakitanga, definitional problems and the failure of the legislators to include the concept ‘mauri’ in the Act have caused considerable concern to some hap. ‘To take into account’ is non-specific and does not require those exercising functions under the Act to actively provide for Treaty guarantees. It is not about how concepts like mauri or kaitiakitanga can be defined by a select committee or Environment Court but rather how the law can incorporate an accurate interpretation of concepts like mauri and kaitiakitanga in a general sense, while also allowing tangata whenua to substantiate 1 7 9 the meanings of these terms as they relate to specific circumstances. It is not the function of law to provide concrete definitions. When legislating for customary values, it is difficult to include only one aspect of the socio-environmental philosophy and make conclusions without understanding the holistic context within which they find meaning. This section has examined the Resource Management Act in terms of how effectively tikanga has been included and what the implications for iwi and hap have been in terms of resource management policy and practice. The following section overviews the provision for tikanga in regard to the management of Mori land via Te Ture Whenua Mori Act 1993. Te Ture Whenua Mori Act 199 3 Te Ture Whenua Mori Act 1993 replaced the M ori Affairs Act 1953. The Act affects everyone who owns or who will inherit Mori land. The Act has moved away from earlier Mori land legislation agendas of alienation and fragmentation, towards an approach which actively protects Mori landholdings. The Act is based on customary approaches to Mori land lore. The principles of the Act are: the promotion of the retention of land for whnau, and hap ; the facilitation of the occupation, development a nd utilisation of that land for the benefit of its owners, their whnau and their hap ; the maintenance of a Court; and the establishment of mechanisms to assist Mori to achieve the implementation of these principles. The Court must act in a manner which best furthers these principles. In practice, this has meant that the Court has had to balance the principle of retention with the principles of occupation, development and utilisation.2 4 The Act sets out the Court’s powers and duties. The Court has a judicial role i n resolving disputes, and deciding matters relating to the status, alienation, and management of land. The Court also has an administrative role recording, and providing access to, land ownership information. The Court has broad powers to call and hear evidence, and can accommodate aspects of tikanga Mori and marae kawa in its proceedings. 1 8 0 In order to cater for multiple ownership, two different kinds of management structures are provided in the Act: trusts and Mori incorporations. There are five different types of trusts. The Act sets out what may happen to the Mori freehold land interests of a person who dies. Succession operates essentially through blood ties. The Act also makes provision for whngai (children adopted according to tikanga M ori) in certain circumstances. The Mori Land Court is essentially a family court where te reo Mori may be spoken, and where tikanga is observed in the processes of the court. 2 5 The specialist knowledge that the Mori Land Court possesses, is not a knowledge of custom but of the complex laws it introduced to replace customary tenure. However, there is some scope for the Mori Land Court to apply Mori custom law in its special jurisdiction. Section 29 Te Ture Whenua M ori Act 1993 allows the Minister of M ori Affairs, the Chief Executive of Te Puni Kokiri, or the Chief Judge of the Mori Land Court to refer any matter for inquiry to the Court. Where s uch and inquiry concerns a matter of tikanga, the Chief Judge shall appoint two or more persons with “knowledge and experience of tikanga Mori” to the Court. Section 61 of the Act also allo ws the High Court to state a case to the Mori Appellate Court on matters of custom. The Act reaffirms Mori concepts of land ownership and represents a legal interpretation of whnau and hap relationships and their joint interest in a partic ular piece of land. The two main objectives of the Act are sometimes at odds with each other. The retention of land and the increased utilisation of the land can at times have competing interests. This is due to the nature of Mori land in terms of multiple ownership and the barriers associated with obtaining finance to facilitate further development and utilisation of the land. It would appear to some that by selling a portion of Mori land to finance the development of another would be the simplest answer but the Act’s provision for having preferred classes of alienees so that Mori land is retained in Mori ownership and not lost often makes this process very difficult for those wanting to sell to raise finance for land development. So although the lack of transferability provides a guarantee that Mori land will be retained for future generations, it does hinder development at times. At stake is whether short term gains are outweighed by long term guarantees for future generations. 1 8 1 The same multiple ownership situation can present difficulties in terms of the administration of land. This has been addressed in the Act through the provision of incorporations and trusts, which manage the interests of many owners via a committee of owner representatives. However, there are still issues in terms of poor management and lack of accountability due to the lack of contestability of directors and management on such committees. It has been discussed previously in the land management case study that the issues or short comings of the Act can be overcome by investigating other options to raise finance, such as mortgaging the produce or products of the land, instead of the land itself and by addressing the management and accountability of those involved in incorporations and trusts through education and improved information sharing. The implementation of custom in regard to the management of Mori land via Te Ture Whenua Mori Act has been considered here. The following section provides an analysis of the Foreshore and Seabed Act 2004 and t he provisions for recognising tikanga that are currently available. Foreshore and Seabed Act 2004 The development of the Act was a direct outcome of the Court of Appeal’s judgements in Ng ti Apa v Attorney-General 2003 and the resulting re sponse from government. The legislation was a political remedy that attempted to achieve multiple objectives but struggled to find favour with many c onstituencies, who had largely incompatible interests and outlooks. The decision made by the Court of Appeal in Ngti Apa v Attorney-General 2003 meant that M ori could go to court to have rights to the foreshore and seabed investigated. The significance of the decision was that it overturned the Crown’s assumption that it owned the foreshore and seabed. The decision made by the Crown to pass legislation to remove the ability of the Mori Land Court to create freehold titles to areas of foreshore and seabed was made on the desire to protect public access. For M ori the Act was deemed discriminatory and unfair due to the fact that only Mori property rights would be affected by the provisions contained within the Act. 1 8 2 The Act provided less recognition and fewer customary rights than already existed, which resulted in property rights being extinguished without consent or compensation. A claim and resulting report from the Waitangi Tribunal confirmed that Mori were being treated unfairly and that the Crown was not acting in good faith in terms of its Treaty partnership. The Bill was introduced into Parliament a day after the hkoi of over twenty thousand marchers reached Parliament and although changes had been made to the previous policies, subsequent to the Waitangi Tribunal scrut iny, it still vested ownership of the foreshore and seabed with the Crown. The Mori Labour members of Parliament had borne much of the weight of the whole debate. Their initial opposition to the government response had subsided to a weakened attitude and to legislation that only went so far in terms of recognising Mori aims. However, the compromise that had been ne gotiated did not satisfy all Mori and Associate Minister of Mori Affairs, Tariana Turia, broke ranks to support the protestors rather than her parliamentary colleagues. Before the hkoi was over, Turia was acknowledged for her loyalty to the Mori cause and defiance of the Crown; she was identified as the leader of the next Mori political party and returned to Parliament with a huge majority as a M ori Party representative. 2 6 Under the Act there is provision for two types of orders that give recognition to customary rights, Territorial Rights Orders and Customary Rights Orders. Territorial customary rights are defined as customary rights and interest in the foreshore and seabed that would have amounted to exclusive property rights, had an act not extinguished them. If the High Court decides the g roup had these rights, the Crown must enter into discussion with the group, potentially leading to compensation or redress. However, any redress is at the Government ’s discretion. Groups can also approach the government directly on this matter; th is opportunity does not amount to an ability to seek and effective legal solution to the removal of rights. Territorial customary rights are based on the exclusive occupation and use of a particular area of the public foreshore and seabed. Any group of Mori or non-Mori that can prove exclusive occupation and use, and meet the other criteria in the Act, can claim territorial customary rights. The group must hold title to the land adjoining 1 8 3 the relevant area of the foreshore and seabed before it can claim territorial customary rights. The first application to be made in regard to Territorial Customary Rights came from Ngti Porou ki Hauraki who are in negotiation to secur e a Territorial Customary Rights claim over Kennedy Bay in the Thames Coromandel District and Mataora Bay south of Whiritoa. To be successful they must prove exclusive use and occupation of those areas between 1840 and 2004. The legislation allows Mori to approach the Mori Land Court and have their customary rights recognised by a customary rights order. Section 48(1) states “a whnau, hap, or iwi, through its authorised representative, may apply to the Mori Land Court for a customary rights order that relates to a specified area of the public foreshore and seabed”. Non-M ori can seek similar recognition of customary rights form the High Court. The legal test for establishi ng customary rights requires, among other things, that the activity, use or practice has been integral to the culture of the group, has been exercised substantially uninterrupted since 1840 and continues to be exercised. A review of the Foreshore and Seabed Act was provid ed for in the Confidence and Supply Agreement between the National government and the Mori Party. The terms of reference and members of the ministerial panel to review the Act were announced in March 2009. A three person Ministerial panel, ch aired by former High Court judge and Waitangi Tribunal chair Justice Edward Taihakurei Durie, and including Richard Boast and Hana O’Regan was appointed. It had the r esponsibility of considering the state of the law around Mori customary interests in the foreshore and seabed prior to the Court of Appeal’s 2003 decision in Attorney Gen eral v Ngti Apa. It was also to look at the options that were open to the government in deciding how it chose to respond to the court’s decision. The overall aim o f the review was to examine whether the Foreshore and Seabed Act as it stood ad equately balanced M ori customary interests and the rights and interests of all New Zealanders in using the beach. The panel was to report back by 30 th June 2009. 2 7 The limited measures that are provided within the F oreshore and Seabed Act in regard to recognising customary use rights have been examined here. The following section 1 8 4 details the measures provided for customary use of the fisheries resource under the Fisheries Act 1993. Fisheries Act 1996 The Ministry of Fisheries has introduced ‘temporary closures/method restrictions’, to legislation due to the use of voluntary rhui being increasingly ignored in areas of New Zealand that are readily accessible to larger p opulations. These temporary closures are also referred to as rhui. However, temporary closures are not designed t o replenish the mauri of the species in accordance with kaitiakitanga but are designed to replenish the resource so that the iwi can continue to utilise the resource for the purpose of manaakitanga. Section 186A (North Island) and Section 186B (South Island) of the Fisheries Act 1996 allows the Minister of Fisheries to temporaril y close an area to fishing, or to restrict a method of fishing, in order to provide for the use and management practices of iwi in the exercise of non-commercial fishing rights. This legislation is designed to respond to the local depletion of fisheries resources which may be affecting the ability of iwi to catch fish for customary purposes. 2 8 The current Minister of Fisheries is the only perso n who can install these temporary closures, based on anyone’s recommendation, so long as they have the support of the majority of the community. This has meant that eff ectively the traditional role of tohunga and chiefly members of hap and iwi have become the same as any other New Zealand citizen, as an advisor to the Minister of Fisheries and not an authority on the use of rhui. Temporary closures can only be instated for a period of two years. If the resource has not been replenished in this time the temporary closure can be reinstated for another maximum duration of two years. The temporary closures can only be reinstated twice so a resource can only be protected by a temporary closure for six years in total. This is shorter than the length of a traditional rhui. However, temporary closures are legally enforceable, and allow Fisheries Officers to apprehend anyone caught violating the terms of a temporary closure. If found guilty they can be financially penalised. 1 8 5 There are currently six temporary closures in New Zealand, most of these areas were in voluntary rhui status prior to a temporary closure application being lodged, and indicate that a new method of enforcement to ensure effectiveness was necessary.2 9 Sections 186A and 186B of the Fisheries Act 1996 r eflect the contemporary use of rhui by providing iwi and hap groups with the authority to request a temporary closure on a marine species in an area that the demonstrate ‘tino rangatiratanga’ over and the ultimate ‘authority’ of the Minister of Fis heries in instating the temporary closure and legally enforcing it. The provision of adding a legislative requirement t o the traditional use of rhui is on the one hand an acknowledgement of the concept’s va lue and use in terms of incorporating customary Mori practice into modern times. However, the way i n which the Act defines rhui and its dimensions does not fully recognise the full and true intentions of this process as a means of resource management. The legislation provides teeth to a voluntary system that at times has been ignored and therefore enforces the measure so that the resource in question can be replenished for manaaki purposes for iwi. However, the legislation limits the notion of rhui by not acknowledging its purpose in terms of the revitalisation of the resource’s mauri. This is reflected in the time limits that are able to be implemented for a temporary closure in any one area, where a much extended period of time would be applied traditionally to ensure this occurs. The Act also limits the rights of iwi to practice kaitiakitanga over a particular resource as it is the Minister who has the final say in terms of any recommendations made, no matter how well founded. This ultimate authority has the potential to undermine the knowledge and experience of iwi and reduce their rights to those of any other New Zealand Citizen, as opposed to a Treaty partner. Provisions regarding the customary management of fisheries within the 1996 Act have been overviewed here. The following section details the non-commercial aspects of the Treaty of Waitangi (Fisheries Claims ) Settlement Act 1992. 1 8 6 Treaty of Waitangi (Fisheries Claims) Settlement Ac t 1992 Among other things, (The main part of this Act is a bout quota and commercial interests in fishing), the Act allows for non-comm ercial customary food gathering interests of iwi, hap and whnau and for the protection of these interests via the mechanism of kaitiaki for places of customary food gathering importance. Under the Act there is a requirement to consult with iwi and hap about, and develop policies to help recognise the “ Use and management practices of Mori in the exercise of non- commercial fishing rights.” Combined with existing legislation, the Treaty of Waitangi (Fisheries Claims) Settlement Act both enables the establishment of fishing reserves, and recognises the rights of iwi to manage these. Under the Act, the Minister of Fisheries was able to declare any part of New Zealand waters to be a m taitai reserve. Regulations may empower any Mori Committee, marae committee, or any kaitiaki to make by-laws restricting or prohibiting the taking of kaimoana. These by-laws were subject to the Minister’s approv al and they applied to Mori or non-Mori and had to be consistent with sustainable management. If a reserve was closed for harvesting, the committee was still able to approve the taking of kaimoana for marae purposes. The Minister also received applications for mtaitai reserves. Before recommending that the Governor General approve the establishment of mtaitai, consultation must occur with the community to weigh up the needs and interest of all people affected. The Act provided enforcement for a customary method of resource management in the form of Mori fishing reserves. Customary practice was to be formalised and regulated but for Mori the Act did not go far enough and limited any ability to exercise kaitiakitanga. The provision to develop bylaws could have moved beyond the mtaitai reserves and the use of Mori terminology was not specific enough for the Crown so that Mori felt the essence of what had been intended was lost in translation. The customary aspects of fisheries management that are provided for within the 1992 Settlement Act are discussed here. The following section examines the management 1 8 7 of customary fishing in more detail by discussing the Customary Fishing Regulations that were enacted in 1998. Customary Fishing Regulations 1998 The need for customary regulations arose out of the passing of the Treaty of Waitangi Fisheries Claims Settlement Act 1992 which changed the status of customary fishing rights. Under the Act, if any aspect of customary rights was not provided for in regulations, iwi would have no recourse to the courts for claims on that issue.3 0 The Kaimoana Customary Fishing Regulations 1998 and the Fisheries (South Island Customary Fishing) Regulations 1998 strengthen some of the rights of iwi and hap to manage their fisheries. These regulations allow management of non-commercial fishing in a way that suits local practices, without having a major effect on the fishing rights of others. When the government sets the total catch limits for fisheries each year it allows for the customary use of fisheries. 31 Under the current regulations, kaitiaki or tangata tiaki must obtain Ministerial approval before being allowed to issue permits. This person is then able to issue fishing permits covering all or parts of the designated area. Normally a written authorisation on an approved form must be issued, but there is provision for oral authorisations. The authorisation will specify the date of the fishing, the names of the people entitled to fish, the species and quantity t o be taken, the size limits, the method of fishing, the area to be fished, and the purpose for which the catch is being taken. If an offence is suspected by a fisheries officer, a record of the authorisation will have to be shown by the person granting it. The person fishing must report back to the tangata tiaki within five days on what was caught, and the tangata tiaki must to supply quarterly reports to the Ministry. 3 2 The regulations also allow three specific mechanisms for conserving stocks – taipure reserves, mtaitai reserves, and rhui or closure. Taipure reserves involve a form of community management, while mtaitai reserves focus more specifically on the needs of the marae. For m taitai, by-laws are set by the marae community, but are subject to public consultation and approval by the Minister. The by-laws apply to Mori and non-Mori, but if closure is ordered for individual fishing seafood can still be 1 8 8 collected for marae purposes. Anyone who does not comply with the regulations is subject to a conviction with an attached fine. In m anaging a mtaitai reserve, by laws should be consistent with best conversation practice, which is a major objective of the regulations. 3 3 The customary fishing regulations do not remove the right of iwi and hap to catch their recreational limits under the Amateur Fishing Regulations. But the regulations do not provide for commercial fishing. Any authorisation issued under the customary fishing regulations cannot be used to take fish for trade, exchange for money or for any form of financial gain. The Customary Fishing Regulations apply to all fish eries resources managed under the Fisheries Act 1996. This does not include spec ies managed under the Conservation Act 1987, such as whitebait and mudfis h. The regulations through strengthening the rights of iwi and hap to manage fisheries have acknowledged the value of Mori customary knowledge and practice in regard to this resource. The regulations are an example of how management by iwi and hap can be beneficial to the whole resource without having an adverse affect on the use rights of others. The renewal of Tangata Tiaki appointments in the Ngi Tahu region ten years after the enactment of the regulations is evidence that the system is working effectively in this area. This can be further highlighted by the many mtaitai reserves that have been established around the country and the additional areas that have been identified for this purpose, including freshwater reserves. A National Certificate in customary fisheries management has been made available to tangata tiaki/kaitiaki to provide an understanding of legal duties and sustainable management. The development of the nationally recognised qualificat ion highlights the importance the role of customary fisheries management has by ensuring those undertaking the duties are suitably qualified. The acknowledgement of tikanga and its implementation in terms of management of customary fishing has been detailed here. The following section overviews the role of the Department of Conservation and its governing act in regard to the recognition and 1 8 9 inclusion of tikanga in the management of those resources under the Department’s care. Department of Conservation The Conservation Act 1987 This Act was introduced for the purpose of establishing a Department of Conservation and thereby to promote the conservation of natural and physical resources. The Conservation Act impacts on the management of many important natural resources, both through the direct responsibilities which the Department of Conservation has in the administration and management of resources under its control and through its advocacy role on other issues. Section 4 of the Act states that “This Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”. This is perhaps the strongest legislati ve statement pertaining to the Treaty within natural resource law but is less powerful than the State Enterprises Act (“Nothing in the Act shall contradict the principle s of the Treaty of Waitangi”). The obligation imposed under Section 4 has caused t he development of the Kaupapa Atawhai Strategy. This strategy guides staff in their working relationship with tangata whenua and provides a vision for DOC and their relationship with Mori. It is through the development of Iwi Management Plans that individual iwi are therefore able to influence the individual conservation management strategies prepared for each area and also the more focused management plans prepared for particular resources. Section 26ZH provides that nothing in that Part of the Conservation Act which deals with freshwater fisheries is to affect any Mori fishing rights. Section 27A provides the Nga Whenua Rhui Kawenata can be created over any Mori land or Crown land leased by Mori, where the Director-General is satisfied the land should be managed for conservation purposes so as to protect: its natural and historic values; or its spiritual and cultural values to Mori. The Department of Conservation works with iwi and hap in almost all aspects of its work. Its national network of 14 Kaupapa Atawhai Ma nagers in each conservancy keeps in close contact with Mori communities. The Department has a strategy setting out how it will work with Mori. The Kaupapa Atawhai Strategy’s vision is 1 9 0 “The Department, M ori and the community at large are working cooperatively to conserve the natural and historic heritage of New Z ealand for present and future generations”. 3 4 The strategy has eight goals, with the first three relating to the Treaty of Waitangi, as well as biodiversity, cultural heritage, visitor services, public awareness and staff issues. Membership on Conservation Boards would also provide for direct involvement in the management of resources in any particular area of interest. In order to become involved in the management of the Conservation Estate it is also important for iwi management plans to state the issues, objectives an d outcomes with respect to this estate. One particular issue could be the concessions given (permits/consents) for the use and development of the conservation estate.3 5 The Department has funding for Mori conservation initiatives, such as the Nga Whenua Rhui and Mtauranga Kura Taiao Fund. The purpose of Nga Whenua Rhui is to protect indigenous ecosystems on Mori land that represent the full range of natural diversity originally present in the landscape by providing incentives for voluntary conservation .The Mtauranga Kura Taiao Fund supports tangata whenua initiatives in the revival, use and retention of traditional Mori knowledge and practices in biodiversity management. 3 6 The Act through its provision to build relationships with iwi and take into consideration the management objectives and strateg ies within iwi management plans acknowledges the importance of customary knowledge in regard to the resources under the Department’s care. An example of this partnership arrangement can been evidenced in terms of the joint management of endangered species on Takapourewa (St ephen’s Island) by the Department of Conservation and Ngti Koata, the tangata whenua of that area. The way in which the Department of Conservation has attempted to involve Mori customary practice and knowledge in terms of managing the conservation estate has been overviewed here. The following section explains how tikanga and Mori 1 9 1 involvement is included in regard to Crown owned minerals within the provisions of the Crown Minerals Act 1991. Crown Minerals Act 1991 This Act was introduced as a result of the law reform governing the management of Crown owned minerals. Section 4 requires regard to be given to the principles of the Treaty of Waitangi. The Ministry of Commerce considers permit applications under this Act. During this consideration process the Minister of Commerce will consider: whether any iwi management plans are in place that detail the area of importance; what it is about the specific area of land that makes it important to the mana of the hap or iwi; whether the area is known as waahi tapu; whether the unique ness of the specific area of land is one of many mahinga kai areas or the only waka tauranga; whether the importance of the area to hap and iwi has already been demonstrated; whether gra nting the permit would impair the prospect of redress, grievances, or any relevant Treaty claims; the area’s land ownership status; whether the area is a lready protected under other legislation e.g. RMA, Conservation Act, Historic Pl aces Act; and the size of the area and the value of the resource if the area is excluded.3 7 Article II of the Treaty states that iwi will be protected in the continued possession of, and te tino rangatiratanga over, their lands and all other treasures for so long as they desire to retain them. Arguably then, in regard to those resources deemed by iwi to be taonga, which were used, managed and controlled by Mori as part of their exercise of tino rangatiratanga (and to which title had not bee n transferred by sale or any other means of lawful extinguishment) the Crown (under th e Treaty) would guarantee this right until such time as they willingly relinquishe d it. 38 This Act is another example of the importance placed on the content of iwi management plans as tools to ensure Mori aspirations in regard to resource management are achieved. Customary values and concepts are acknowledged and taken into consideration when considering permit applications under the Act. Although the Minister of Commerce has the final say in regard to the approval of 1 9 2 permits, consideration is made in terms of an area that has demonstrated importance to iwi and hap. This is important to iwi, especially if there are any claims over a particular area where there could be possible redress that would further acknowledge iwi association to that area or site via statute. TREATY OF WAITANGI PROVISION In a multicultural society the values of minorities are often marginalised by those of the dominant culture. In New Zealand however, the T reaty of Waitangi affords Mori values some recognition especially when taonga are adversely affected. But unless the Treaty is contained in legislation it has no legal significance. The Waitangi Tribunal considers that Article 2 of t he Treaty would have conveyed to Mori that amongst other things they were to be protected not only in the possession of lands and estates, forests, fisheries and other properties, but in the authority to control them in accordance with custom and having regard to cultural preferences.3 9 The Treaty promised protection of Mori custom and cultural values. This right extends to the control of property in accordance with custom and having regard for cultural preferences. It also extends to the protection of tino rangatiratanga, being the full authority, status and prestige as regards Mori possessions and interests. The right also encompasses the preservation of Mori customary title and the Crown’s obligations to take active steps to ensure that Mori have and retain full exclusive and undisturbed possession of their culture. In part rangatiratanga is expressed through Mori participation in environmental decision making. These assertions are contested by iwi and hap in many different areas of resource management. The protection of Mori customary values in regard to resources is guaranteed to some extent through the mechanism of statute, whereby customary practice is formalised and regulated. However, the extent of its inclusion and the resulting rights given to iwi can be limited. This is reflected in customary fishing regulations and statute that provides for traditional methods to be implemented but with the overall authority remaining with the Crown. 1 9 3 The inclusion of iwi in environmental decision making is on the surface a representation of the Treaty partnership in regard to resource management. However, although iwi concerns are taken into consideration when drafting policies or approving permits and consents, the final decision rests with local authorities or the representative Crown agency. The end product can result in a watered down approach that could have been more effective if given proper regard as originally suggested by iwi. The use of iwi management plans is evidence of this occurring. Where the Resource Management Act 1991 provides for the docum ents to be taken into consideration when making environmental decisions but that the Act’s overall goal of sustainable management and the best interests of all can over ride any specific iwi interests. The Crown has an obligation to protect and promote the economic development of Mori. Mori have the right to develop and expand resources using modern technologies and are not consigned to those technologies known at the time of the Treaty. This is consistent with trends towards iwi based social and economic development. 40 A fundamental issue for resource management in New Zealand is the tension between the current framework and the concepts implicit in rangatiratanga. Rangatiratanga incorporates concepts of both ownership and control of resources. Because of this it does not easily fit within New Zealand’s current re source management framework. The existing framework resides on the belief that the Crown owns the resource and that iwi have some rights to it, as determined by the Crown. These rights include joint management and decision making, along with use rights. The term rangatiratanga implies that there is ownership of the resource as well as the right to make decisions in regard to it. The notion of ownership by iwi does not fit within the current system as outlined by the Crown. Section 33 is potentially the most powerful tool in the RMA for recognising rangatiratanga as it is the only provision which allows for a shift in the locus of decision making from the local authority to iwi authorities, even if the power to approve policy statements and plans still remains with the local authority. However s33 has never been used for this purpose. A reason for this situation is because of the requirements of the legislation, which set up preco nditions, and procedural 1 9 4 requirements that are onerous. The essential eleme nts of s33 are that a local authority with ‘functions, powers, or duties’ under the RMA, may transfer them to another ‘public authority’ which includes an ‘iwi authority ’, government department or statutory authority, as well as other local authorities. Even after functions and powers are transferred, local authorities remain responsible for their exercise. This suggests that local authorities have to monitor the activities of the transferee. Local authorities would want to avoid actions being taken, and costs being incurred from poor decisions. A transfer of powers may be changed and withdrawn at any time by the local authority, or relinquished by the public authority. 4 1 If an iwi authority had a s33 transfer of power in relation to a resource, it would have to act judicially when it considered any applicatio ns relating to the resource. For example, it would have to weigh Mori concerns in balance with other matters of national importance. It would also be bound by decisions of the Environment Court and other courts on the way in which Mori interests are to be considered under the RMA, even if it disagrees with the approach and result of those decisions. Its decisions may also be appealed in the Environment Court. The concepts of kwanatanga and tino rangatiratanga create a hierarchy of interests in natural resources. First in the hierarchy is the C rown’s obligation or duty to control and manage the resource in the interests of conservation and the wider public interest. Second is the tribal interest in the resource, and then follows those who have commercial or recreational interests in the resource. The Tribunal’s recommendations in its Whanganui Riv er Report are consistent with this recognised need to balance the Crown and Mori interests in resource management. The Tribunal have suggested that where Mori have a rangatiratanga relationship with a resource, then the resource management regime should give this special recognition, to the extent even that Mori be sole or joint decision makers, but within the overarching sustainable management framework. Taking the Whanganui River findings as a guide, it would seem that a resource management regime for Mori land that was consistent with the Treaty would 1 9 5 theoretically include: formal recognition of Mori land as a unique resource with special significance to Mori; provision for the overarching role of the Crow n for conservation and other matters of public interest; provision for Mori (at a hap  and iwi level) to have a significant degree of authorit y and control in resource management on Mori land. Internationally, governments are increasingly moving towards agreements with indigenous groups for the collaborative management of indigenous lands and resources in which they have an interest. Agreements generally involve the exercise of traditional management methods and a degree of autonomy albeit within limits set by government. Such approaches are consistent with contemporary international environmental law and international human rights instruments. The Conservation Act’s requirement to give effect t o the Treaty principles also appears to have inspired new initiatives in co-operative conservation management between the Crown and iwi, including joint protocol s for action, resourcing iwi to participate in the granting of concessions, developing co-operative conservation management programmes, referring applications for material for cultural use directly to relevant iwi, rnanga, trusts, hap or whnau for their recommendations and advice, and supporting the development of iwi resource management plans. The relationship between the Department of Conservation and Ngti Koata for example has provided a new dimension in regard to the management of Takapourewa (Stephens Island), where there are joint initiative s in terms of the management programmes, species protection and even selection of staff who reside on the island. This ensures the essence of Ngti Koata’s special association to Takapourewa as kaitiaki is not lost but rather enhances the strategies put in place by the Department of Conservation. Examples such as these, together with increasing Mori expertise in resource management, mean there are some models on which to base a new approach to resource management. A resource management regime for Mori that is consistent with the Treaty could be achieved by devolving an agreed range of resource management functions to iwi or hap organisations within an overarching purpose 1 9 6 such as sustainable management. It would be flexible enough to incorporate traditional concepts of resource management as well as contemporary techniques. An example of where this has occurred is the Whanganui River Mori Trust Board acting in the capacity of a consent authority alongside the Minister of Conservation, the regional council and territorial authorities and illustrates where what the iwi had lost in terms of ownership was gained in management capacity for the Trust Board. A joint management approach was recommended and the c ontribution by the Trust Board to this regime was a set of principles that emphasised Mori views in regard to the environment and the importance of iwi within that approach. Implementation of such a regime could occur to a limited extent with the current structure of the RMA. Actions to achieve this could include: better recognition within district plans of Mori aspirations to develop their resources in accordance with their cultural practices, in a manner that achieves the purpose of the Act; pilot projects could be set up whereby Mori are given the opportunity to test out a variety of approaches to resource management, incorporating a range of traditional and modern methods. Such projects could be monitored over a n umber of years and would not only add to the knowledge base of resource management techniques, but would also encourage Mori to redevelop and pass on effective management practices to subsequent generations. The Te Whnau Hou Restoration Project at Grovetown Lagoon is a partnership between local iwi and the Marlborough District Council, Department of Conservation, Fish and Game and the New Zealand Landcare Trust to restore and enhance the wetland area. As a component to the revitalisation of the wetland environment there was also the desire to retain and promote traditional Mori knowledge and its use in biodiversity management in regard to the lagoon. The project was funded by the Department of Conservation and was undertaken by iwi. The joint research programme at Mataura Te Awa, the country’s first fresh water mtaitai has been put into place to investigate the use of eels as an environmental indicator, to learn more about piharau and gain a better understanding of the fishery itself. The mtaitai was put in place to protect the eel and piharau fishing grounds and 1 9 7 the tangata tiaki who are appointed to this mtaitai have developed a management plan and are currently preparing by-laws for approval by the Minister. The active involvement of Mori in resource management in New Zealand is not on ly implied in the Treaty of Waitangi but also has much to offer in helping the country to achieve sustainability. 4 2 CUSTOM APPLIED TO CONTEMPORARY POLICES While there are clear differences between Mori and non-Mori in resource management value and process, the ultimate goal of sustainable management is linked to a shared concern for sustainability. Bicultural processes and approaches have been successfully implemented in a number of other fields but are largely undeveloped in resource management. In order to accommodate the co-existence of an indigenous resource management system, reshaping of processes, institutions, and possibly laws would be required. Local authorities currently use a number of mechanisms for involving iwi in their work. While systems around the country are variable, councils have opted for different combinations of such mechanisms including: iwi liaison officers or Mori planners; M ori advisory committees; discussion hui; training f or councillors and/or staff; and assistance for special projects and the development of iwi environmental management plans. An example of where assistance has been provided by a local authority for a special project is the Te Wh nau Hou Restoration Project, where consideration wa s made of the special relationship local iwi had with the area and inviting involvement in the project at the conceptual stages, right through to its implementation and ongoing management. Sustainable management from a customary perspective is not only about present processes of using, developing or protecting resources, but also about context, resource use, development or protection within an historical framework of how rights to exercise resource management are justified. 1 9 8 From an iwi/hap  perspective, the environment encompasses physical as well as metaphysical dimensions. Non-customary technical criteria alone cannot be used to assess the state of the environment. Cultural criteria and methodologies are equally important. Rather than denigrating their status as being less than scientific, static or belonging to an antiquated, or archaic belief syste m, Mori resource management practices are based on observation and objective ex perimentation, built up over many generations and in relation to a wide range of resources and socio-political circumstances. Moreover, such practices are closely intertwined with all aspects of life for they promote socio-economic and political survival. The question is not whether Mori customary criteria are labelled ‘scientific’, b ut rather what particular role they play in sustainable management. The case studies in this thesis suggest that customary values can be applied to resource consent, proposals to build wastewater treatment plans, dams, or any structure which may affect waahi tapu areas, and are relevant to modern times. 4 3 The concept of iwi management planning is not new. Iwi have been managing resources for centuries. However, the act of codif ying collective iwi thought, preferences and values relating not only to the natural environment but the social, economic, administrative and cultural well-being of the iwi, into a written statement, is largely new and still imperfect. A need for a relationship between iwi and local authorities is now required in statute. It is essential that links are forged between local authority planning staff, and iwi members responsible for resource management matters.4 4 In order to have customs and associated cultural and spiritual values expressed in the way resources are managed, iwi/hap must be able to take part in the setting of resource management and conservation agenda, along with the development of policies relating to those objectives and the metho ds used for implementation. Participation can be viewed along a continuum from lesser to greater participation and influence. It can range from basic consultation, such as iwi being notified of resource consent applications, to more involved consultation, where hui and ongoing dialogue is maintained in the preparation of council policy statements and plans, to active participation, where iwi are involved by actually managing a resource. 1 9 9 For iwi there are a number of ways in which relatio nships with councils and Crown agencies could be improved. These relate to the way in which consultation is undertaken. Through face to face contact, a greater opportunity is provided to gain respect and understanding of issues and values people hold. This is a preferred communication method for iwi. The iwi management plan developed by Ngti Koata ki Te Tau Ihu for the purpose of recognising and acknowledging iwi perspectives when drafting policy and considering consent applications provides a clear process for what is acceptable in terms of consultation with iwi. This system of engagement emphasises the importance of ‘kanohi ki te kanohi’ as a preferenti al means of meeting to discuss issues that give effect to the relationship between the local authority and iwi. To be effective, consultation needs to occur at an early stage, before decision making occurs. It is not appropriate for iwi to be asked to participate in projects or processes when directions have already been set, frameworks and policies established and budgets allocated. Effective consultation and participation requires that the appropriate (mandated) people be contacted at the o utset. Current legislation contains specific provisions for iwi involvement but does not provide for the resource needs of iwi to effectively participate in resource management processes. Territorial authorities and Crown agencies need to be aware of the constraints iwi are under when planning proj ects requiring iwi involvement. In contemporary times the exercise of customary resource management has emerged within the framework of government institutions, namely the Courts and the Waitangi Tribunal. In its findings, the Waitangi Tribunal has articulated Mori concerns with the natural world and as such has acted as an environmental watch-dog. Such concerns arose from Crown policies that were impacting negatively on the environment. The Waitangi Tribunal has pointed out the need for iwi to have their right to control and manage their resources restored. The Waitangi Tribunal Mhaka River Report reflects this where it was recommended that a water conservation order should not be made until discussions between iwi and the Crown resulted in an 2 0 0 agreement on a system for the control and management of the rive, in which case the order should include that agreement. It was the finding of the Tribunal that the Crown had not protected the Ngti Pahauwera interest in Mhaka River; the Crown had also actively undermined that interest through promoting legislation and adopting practices that had given inadequate recognition of the positi on of Ngti Pahauwera. Mori knowledge of the environment was accorded equal standing alongside scientific findings; in fact the Tribunal found no conflict between the two. In relation to the Motunui-Waitara and Kaituna reports, it was found the government had not considered traditional Mori law regarding the natural world when developing and implementing policies that impact on the environment and on Mori. The Tribunal has the ability to give practical advice on environmental management within the principles of the Treaty of Waitangi but it does not have the power of enforcement in most places. While iwi/hap are able to highlight grievances via the Tribunal, the process itself, in some cases, contains a flaw. The Waitangi Tribunal hears a case after the environmental degradation has occurred. There are exceptions to this for instance; where a proposed scheme will breach Mori environmental law is placed before the Tribunal. However, where the Tribunal hears a case after the environmental degradation has occurred, it is forced into a reactive position (ra ther than proactive). In the pursuit of environmental quality and M ori rights this is problematic. Iwi/hap environmental concerns need to be heard and acted upon before the damage is done. The RMA does not empower iwi – the RMA is an expression of the Crown’s sovereignty, which in relation to natural resources entails an expression of ownership and control over those resources. The RMA does not provide for an interaction between customary resource management and environmental law as passed in parliament. However, customary resource management may be articulated through the consultative process undertaken by regional and local councils. 4 5 The RMA highlights how laws created largely by Parliament have been critical in determining the parameters for Mori resource management. The RMA has provided 2 0 1 Mori with new opportunities in managing their resources according to custom and non-customary processes, and being involved in decision/policy making principally through sections 6(e), 7(a) and 8. Tikanga is given a prominence in the Te Ture Whenua Act 1993 unlike the RMA (or any other act), whereby the M ori Land Court or the higher Mori Appellate Court has jurisdiction to appoint appropriate M ori with expertise on tikanga issues – to provide direction and interpretation on tikanga matters. A judge of either Court may also apply marae kawa where appropriate. The relevance of these provisions is that the customary values and lore which Mori people consider as ‘tikanga’ are the very principles which define the framework for exercising resource management. Tikanga embodies a range of values which focus on laws of tapu, mauri, and mana. The provision also gives kaumtua a leading role as kaitiaki to determine how issues of resource management can be addressed. Law and custom are thus given an equal status in interpreting the exercise of kaitiakitanga. Tikanga is given a status in the Act unlike earlier times, which directly bears upon acknowledging the relevance of resource management principles in contemporary land management. The TWMA seems to be the best resource law to provide the greatest opportunities for implementing customary resource management, particularly where it builds on customary concepts of management as demonstrated in the trust structure. The RMA has attempted to provide for Mori resource management practices but there are still a number of areas that need improving. Mori perspectives are not adequately considered in the Act, particularly where the actual involvement of iwi in some areas, such as decision making is limited and instead put on local councils. It appears that where Mori lands or Mori – owned lands are concerned, there are less problems in exercising customary resource management. As soon as Mori resource management issues fall outside these areas, there are more hurdles to overcome. Table 7.1 is a framework to highlight the legislati on and processes that impact on natural resources, along with the inclusion of custom within those structures and policies. The framework identifies the limitations and opportunities in terms of the application of custom to contemporary Mori resource development for future planning and management. 2 0 2 The framework is a tool for future resource management that provides three levels of information. First, it identifies the resources cas e studied in the thesis where customary and contemporary methodology are currently being utilised. Second, it outlines the alignment and synergies that exist, and finally it identifies the barriers and opportunities to amalgamation and integration of both approaches. This framework provides an opportunity to consider Mori values and practices alongside western views and perspectives. The tool can contribute to more effective strategy, policy and planning through the consideration of two systems of management to improve the sustainable utilisation of natural resources in Aotearoa. 203 T ab le 7.1 – A Fr am ew or k to I de nt if y th e A pp lic at io n o f C us to m to C on te m po ra ry M ao ri R es ou rc e D ev el op m en t R E SO U R C E ST A T U T E R E C O G N IT IO N O F T IK A N G A P R O C E SS E S L IM IT A T IO N S O P P O R T U N IT IE S L A N D T e T ur e W he nu a M o ri A ct 1993 • O bje ct iv es o f A ct • Pr ea m bl e • Se ct io ns 32-33 • R es er va tio ns • Pr ef er re d C la ss es o f A lie ne es M o ri L an d C ou rt T en si on b et w ee n re te nt io n an d de ve lo pm en t Pr ov is io n of T ru st s, In co rp or at io ns a nd O cc up at io n O rd er s R IVE R S T re at y of W ai ta ng i A ct 1975 R es ou rc e M an ag em en t A ct 1991 • D ee d of R ec og ni ti on • N oh on ga • Se ct io ns 6(c ) , 7(a) an d 8 • Iw i M an ag em en t Pl an s W ai ta ng i T ri bu na l E nv ir on m en t C ou rt T L A s D O C L ac k of in vo lv em en t i n de ci si on m ak in g, m an ag em en t a nd co ns ul ta tio n pr oc es se s In cr ea si ng u nd er st an di ng a ro un d M o ri r es ou rc e m an ag em en t Jo in t d ec is io n m ak in g pr oc es se s SW PA Im pr ov ed c on su lta tio n pr oc es se s FIS HE R IE S T re at y of W ai ta ng i (Fi sh er ie s C la im s) Se ttl em en t A ct 1992 Fis he ri es A ct 1996 K ai m oa na C us to m ar y Fis hi ng R eg ul at io ns 1998 • Iw i c on su lta tio n re qui re m en t • R eg ul at io ns /b y- la w s • Se ct io n 186A & B • K ai tia ki /ta ng at a tia ki • ta ip ur e/ m ta ita i • rh ui T e O hu K ai m oa na M A F D at a Qua lit y Im pr ov ed d at a qua lit y co lle ct io n m et ho ds U ps ki lli ng k ai tia ki /ta ng at a tia ki FO R E SHO R E & S E A B E D R es ou rc e M an ag em en t A ct 1991 For es ho re a nd S ea be d A ct 2004 R es ou rc e M an ag em en t A ct (For es ho re S ea be d A m en dm en t) A ct 2004 • Se ct io ns 6(c ), 7(a ), 8 • IM Ps • T R O s • C R O s • R es er ve s • M an ag em en t P la n • C R O s ex em pt f ro m R M A • C us to m ar y ac ti vi ty gi ve n pa rt ic ul ar re ga rd E nv ir on m en t C ou rt T L A s Hig h C ou rt M o ri L an d C ou rt E nv ir on m en t C ou rt T L A s T en si on b et w ee n su st ai na bi lit y an d de ve lo pm en t D ef in iti on o f tik an ga N at ur e of e vi de nc e R equ ir ed f or C R O O ff er s lit tle m or e th an R M A U ti lis at io n of S ec ti on 33 K ai tia ki ta ng a co ul d be re co gn is ed a s an a ct iv it y Pr ot ec tio n of ti ka ng a R es er ve m an ag em en t p la n Se ct io n 33 – p ow er s co ul d be tr an sf er re d to R es er ve B oa rd 2 0 2 CONCLUSION It is clear that local iwi/hap interests in resource management require better legislative understanding, recognition and executive support. It would be beneficial to give marae, hap and tribal structures statutory powers in resource management issues, similar to that of local or regional councils. Marae hearings could then be recognised for certain consent application purposes. In addition, consultation could become replaced by negotiation between kin groups and non-Mori (councils, business and private owner). 4 6 There is no question that the changes to legislatio n and the long overdue recognition of the role of Mori in resource management has resulted in much greater participation by Mori in all aspects of resource management. There are few areas where iwi and hap have not established relationships with Councils and which allow applicants to consult more effectively with Mori. The difficulty is that the role and function of Mori within the process is very much dictated by the confines of the legislation and that legislation is further interpreted by the Courts – the Environment Court, the High Court, the Court of Appeal, the Sup reme Court and occasionally the Privy Council. Adapting and adopting skills reflective of the majority Court system may bring about changes in the process that will explore ways of upholding Mori values rather than determining means of dealing with them in a ways that undermine them. 4 7 1 Ministry of Justice, (2001), He Hinatore ki te Ao Mori: A glimpse into the Mori World – Mori Perspectives on Justice, Ministry of Justice, Wellington 2 E. Durie, (1994), ‘Custom Law’, address to the New Zealand Society for Legal and Soci al Philosophy, in Victoria University of Wellington Law Review, vol. 24, no. 4, pp. 32 5-33 1. 3 G. Lanning, (199 8), ‘The battle for control of the coast – Mori vs the Crown’, in Property Issues Journal, November 19 98. 4 M. Kawharu, (1998), Kaitiakitanga – Rangatiratanga – A Review concerning the Resource Management Act 1991 and the Te Ture Whenua Mori Act 1993, Report for Te Puni Kokiri, Ministry of Mori Development, Wellington. 5 Waitangi Tribunal, (1 999), Whanganui River Report: WAI 167, GP Publications, Wellington. 6 Law Commission, (20 01), Mori Custom and Values in New Zealand Law: Study Paper No. 9, Law Commission, Wellington. 7 Ngti Koata Iwi Environmental Plan, (2 00 2), Ng ti Koata Iwi Trust ki Te Tau Ihu, Nelson. 8 S. Hayes, (1 998), ‘Defining kaitiakitanga and the Resourc e Management Act 19 91’ in Auckland University Law Review, 8:3, pp 893-899 9 S. Lee., (20 00), ‘Caretaker, take care…’ in Tu Mai, 11, pp 38-31 2 0 3 1 0 Kawharu, (1 998) 1 1 T. Ruru, (19 97), The Resource Management Act 1991 and Nga Iwi Mori, A thesis submitted for the degree of Master of Laws at the Faculty of Law, Univer sity of Otago, Dunedin. 1 2 Kawharu (199 8) 1 3 P. Beverley, (199 8), ‘The mechanisms for the protection of Mori interests under Part II of the Resource Management Act 1991’ in New Zealand Journal of Environmental Law, 2, pp121-155 1 4 ibid 1 5 Case Law on RMA Decision Making and Consultation involving Tangata Whenua 1 6 Ruru, (199 7) 1 7 R. Joseph, (2002), Mori Values and Tikanga Consultation under the Resource Management Act 1991 and the Local Government Bill – Possible Ways Forward, Conference Address, Te Matahauariki Institute. 1 8 R. Joseph and T. Bennion, (2002-2 003), ‘Challenges of Incorpor ating Mori Values and Tikanga’ in Yearbook of New Zealand Jurisprudence, vol. 6, no. 1, pp. 9-34. 1 9 Joseph, (20 02) 2 0 J. Stephenson, (2001), ‘Recognising rangatiratanga in resource management for Mori land’ in New Zealand Journal of Environmental Law, 5, p 15 9-193 2 1 ibid 2 2 H. Hope, (2 001), ‘Environmental case law in relation to Trea ty issues’, in Te Tarere a Tawhaki: Journal of the Waikato University College, 1, p186-196. 2 3 Joseph and Bennion, (2 002-2 00 3) 2 4 Te Puni Kokiri, (1 99 8), Review of Te Ture Whenua Mori Act 1993: A background paper for consultation hui, Ministry of Mori Development, Wellington. 2 5 Law Commission, (20 01) 2 6 M.H. Durie, (2 005), Nga Tai Matatau: Tides of Mori Endurance, Oxford University Press, Auckland, p 99. 2 7 www.beehive.govt.nz/release/foreshore 2 8 Ministry of Fisheries Internet, (20 06) 2 9 K.H. Maxwell, W. Penetito, (200 7), ‘How the use of rahui f or protecting taonga has evolved over time’’ in M AI Review, vol. 2. 3 0 M. Tipa, (19 97), ‘Ngati Tahu forerunners in customary fi sheries development; customary fishing regional coordinators appointed’, in Te Karaka: the Ngai Tahu Magazine, 8, p 30-65 3 1 Ministry of Fisheries Internet/M ori/Customary Management 3 2 www.fish.govt.nz/customary/southcfr.html 3 3 ibid 3 4 www.doc.govt.nz/Community/007~Conservation-and -M ori/index.asp 3 5 Ngti Koata Iwi Management Plan, 20 02 3 6 ibid 3 7 ibid 3 8 Ruru, (199 7) 3 9 ibid 4 0 Te Atiawa kiTe Tau Ihu Trust, (200 1), Environmental Management Plan, Draft, Te Atiawa ki Te Tau Ihu Trust, Picton. 4 1 Joseph and Bennion, (2 002-2 00 3) 4 2 Ruru, (199 7) 4 3 M. Kawharu, (2 00 2), Whenua: managing our resources, Reed Publishing, Wellington. 4 4 H. Matunga, (1 99 2), ‘Benefits for both Parties’ in Planning Quarterly, December, pp. 7-9. 4 5 V. McLean, (19 95), The Resource Management Act 1991 and Mori: Ngati Rangiteaorere and the Geothermal Resource, a thesis submitted to the Victoria University of Wellingt on in fulfilment of the requirements for the degree of Master of Arts in Politic s, Victoria University of Wellington. 4 6 Kawharu, (1 998) 4 7 ‘Strategies for M ori under the Resource Management Act’, (2002), in Tu Mai: offering an indigenous New Zealand Perspective, 34, p 14-15, 17.i 2 0 4 CONCLUSION “We as M ori have to look back, have to look back to see what’s happening, or what might happen in the future. If we just keep lookin g at the future and change the future with no historical reason while we are changing it we will make stuff up after stuff up. Customary practices weren’t brought in lightly. Th ey were brought in to protect something and preserve something and if you take them out of the equation you have got no ‘past’ measuring rod”. 1 Mori environmental perspectives are based on a strong conservation ethic and sustainability is an over-riding consideration. The Mori world is one where spirituality is a pervading force, where people are genealogically tied to the earth, and where respect for the natural environment is given tangible expression. These values are still embraced by Mori today as part of a living tradition. Mori often look to the past as a way of mapping the future, to learn from the wisdom of ancestors and the knowledge acquired over a millennia. The M ori world view holds valuable lessons for all New Zealanders as opportunities for environ mental protection and sustainability are explored.2 The challenge for Mori is to apply traditional forms of resource management and conservation, while at the same time adopt, adapt and apply new concepts, techniques and institutions. The challenge for the Crown and local authorities is to accept the real involvement of Mori in resource management planning and decision-making, and enter into agreements that will accelerate the goal of environmental sustainability. 3 The significance of ‘The Application of Custom to C ontemporary Mori Resource Development’ will depend not only on whether it pro ves a point and contains a reasoned argument, but whether it can find a place within the business of resource management. While the current system leaves room for development, the applicability of traditional concepts and practices will be of limited value if they do not lead to increased sustainability of natural resources. 2 0 5 This thesis emphasises the importance of focusing on relationships, rather than solely on the ownership of resources. There has to be a more meaningful engagement on the relationship between customary rights, commercial rights and recreational rights. It is about trying to find ways to bring those relationships together so they work. The approach to how a variety of legal relationships held by different rights holders over a particular resource are managed needs to become more sophisticated. 4 A number of broad conclusions can be drawn from this thesis: Custom has endured throughout generations, in spite of colonisation and other influencing factors to remain a fundamental part of Mori culture. This is due in part to the dynamic nature of custom and culture - the ability to be flexible and change to meet new challenges has ensured its survival into modern times. There is practical relevance of custom to contemporary resource management. Custom has a place and combined with Western methodologies provides an effective means to ensure sustainability. Custom has been applied to contemporary practice via statute. Although at times limited, the inclusion of Mori values and concepts in legislation has enabled increased participation by Mori in resource development, along with providing opportunities for co-management of resources. Resource management for Mori is based on relationships as opposed to an exclusive focus on ownership. Traditionally there was no concept of individual ownership nor for that matter collective ownership. Hap  had a relationship with the environment that was reciprocal. This notion of relatedness originates from the creation story of Rangi and Papa and contains the idea that the relationship between man and the environment is symbiotic whereby one will provide for the other thereby enhancing each other. This concept of relationships included use-rights to natural resources and was based on whakapapa links and occupation to and of a specific area. Moreover, implicit in the relationship was an expectation of wise guardianship; a use-right imposed an obligation to protect the resource, partly for the use of future generations but also for the sake of environmental integrity. The notion of relationships between people and the environment is not unique to M ori but is a defining characteristic of indigenous peoples. According to Durie 5 all indigenous peoples have a tradition of 2 0 6 unity with the environment which builds on a close relationship with defined territories, land and the natural world. This tradition is reflected in song, custom, subsistence, approaches to healing and birthing, and the rituals associated with death. The Treaty of Waitangi is a starting point for exploring the significance of relationships in modern times and the relevance of custom to resources. This recognition is reflected in the guarantee of ‘full exclusive and undisturbed possession of the lands and estates, forests, fisheries and other properties which they may collectively or individually possess’. 6 In the Mori version a relationship between resources and tribes is reflected in the use of the word ‘rangatiratanga’, the ‘full chieftainship (rangatiratanga) of their lands, thei r villages and all their possessions (taonga)’. 7 The importance of natural resources to Mori and their subsequent management was about maintaining not only a spiritual base but also and economic and political base that could be nurtured for future generations. Status and identity were strongly linked to natural resources and are reflected in terms such as ‘mana whenua’ and trangawaewae. The state or well-being of the hap resources was often a reflection of the mana of a tribal group. A hap with abundant resources that was able to show generosity in the exercise of manaakitanga was held in high regard and thought to possess great mana due to their resource management (kaitiakitanga) abilities. This economic significance is as relevant now as it was in distant times. Although rights and management practices may have derived from a customary context the economic interest in all natural resources persists. A conclusion from this thesis is that future resource management opportunities for Mori must extend beyond consultation and include joi nt decision making processes to ensure Mori interests in resource management and development are considered and upheld. There are many avenues that could be developed further to allow for increased application of Mori values and practices to resource management and development. By recognising the limitations and identifying opportunities, further improvements can be made to current policies. 2 0 7 In the introduction to the thesis the question was posed: ‘Can custom be applied to contemporary notions of resource management?’ The t hesis has shown that effective and sustainable resource management involves a combination of approaches that contribute to resource sustainability. It has also concluded that Western approaches to resource management can be enriched by the considered application of customary Mori knowledge just as customary approaches can be m ade more relevant when combined with some western models. Clearly, custom can be applied to contemporary resource management. This has been confirmed by the fact that Mori concepts of resource management have remained relevant over time; they have transcended environme ntal uncertainties, and further embraced new ways of working with contemporary structures. Custom has also been applied to contemporary notions of resource management through statutes – many of which have been examined within the thesis. It has been noted that at times the benefits of including such values to enable sustainability have been questioned. While M ori concepts have been more readily accepted and included, even if to a limited degree, in recent times, there are still many areas that have not embraced the inclusion of Mori beliefs and practices even though they could have relevance and lead to benefits. The thesis has highlighted both the limitations of including custom, along with opportunities for future consideration. Custom should not to be considered a static element of a culture. It is dynamic and constantly adapting to the socio-environmental circumstances of the iwi/hap/whnau. It has developed in ways which allow iwi/hap to meet the contemporary needs of their members. Certain core values persist, such as – mauri, mana and tapu; practises change but the philosophic al foundations do not necessarily hold less relevance. It is the combination of customary and non-customary practices that is crucial in maintaining effective programmes of resource management. 1 Personal Correspondence – Jim Elkington, Ngti Koata 2 T. Ruru, (1 997), The Resource Management Act 1991 and Nga Iwi Mori, a thesis submitted for the degree of Master of Laws at the Faculty of Law, Univer sity of Otago, Dunedin. 3 J. Stephenson, (2 001), ‘Recognising rangatiratanga in resource management for Mori land’ in New Zealand Journal of Environmental Law, vol. 5, pp. 159-19 3. 4 H. Keene, (200 7), ‘Customary rights: where cultures colli de’ in Te Karaka, vol. 34, pp. 8-11 2 0 8 5 M.H. Durie, (20 05), Nga Tai Matatu: Tides of Mori Endurance, Oxford University Press, Auckland, p 137. 6 Article 2, Treaty of Waitangi, English Version 7 Article 2, Treaty of Waitangi, M ori Version 2 0 9 GLOSSARY OF MORI TERMS A Ahi k Burning fires of occupation, title to land through occupation Ahu Whenua (Trust) A Trust to administer land under Te Ture Whenua Mori Land Act 1993 Ahuriri Napier Aotea (Harbour) The harbour of Aotea - Waikato Aotearoa Land of the Long White Cloud Aroha Love, sympathise Atua A deity Awa River, stream, creek H H kari Feast, banquet H ngi Earth oven Hap  Sub tribe H pua Lagoon H puka Groper Heretaunga Hastings H koi March, stride Hine-ahu-one First woman created by Tane-Nui-a-Rang i and Io Hine-Tupari-Mauka Wife of Tane and mother of Parawh enuamea – the personification of rivers and streams Hui Gathering of people 2 1 0 I Iho whenua A genealogical link to the land Io Surpreme being Iwi Tribe K Kai moana Seafood Kaikura A place on the East Coast of South Island – meaning Crayfish Kinga Home, residence Kaipara Tribal area of Ngti Whatua Kaitiaki Guardian Kaitiakitanga Guardianship/stewardship Kk (Point) Large native forest parrot (place name) Kanohi ki te kanohi Face to face Karakia Prayer Kaumtua Mori elder (both male and female) Kaupapa Strategy, theme Kaupapa Atawhai Policy division and regional network (Department of Conservation) to coordinate and monitor the establishment of cooperative working relationships with customary owners Kauwaehurihia The weapon of Tutepourangi Kawa Protocol Kwanatanga Government, dominion, authority Kwhia A harbour in the Waikato region Kiore Rat Koha A gift to cement a relationship Kiwi Bones 2 1 1 Krero prkau Legend, story Kura waka Place where Tane created first woman M Mahinga kai Garden, cultivations – land or sea Mana Integrity, prestige Mana atua Authority derived from deities Mana moana Authority over sea, lake and river resources Mana tangata Power and Status accrued through demonstrated leadership Mana tpuna Authority based on lineage Mana whenua The local tribe/Authority over land Manaakitanga Caring Mangnui (Inlet) Place name Manuhiri Guest Mori Indigenous person of New Zealand Marae Traditional Mori place of gathering Maramataka Calendar for planning/fishing Mtaitai Fish/Shellfish sea reserve area for customar y useage Mataora (Bay) Place name Mataura Te Awa Name of a Customary Fishing Reserve Matauranga Kura Taiao Department of Conservation Fu nd to support hapu/iwi initiatives to promote and retain traditional Mori knowledge in regard to biodiversity management. Mtauranga Mori Customary Mori knowledge Maunganui (Mount) Place name Mauri Life principle Mauriora A vital and sustainable spirit Mhaka (River) Place name 2 1 2 Mokopuna Descendant/grandchild Motunui-Waitara Place name Muriwhenua Far North of Kaitaia Muru Confiscate, the taking of personal property for compensation N Nga Whenua Rhui Kawenata A covenant placed over land by the Department of Conservation Ngi Tahu Southern Iwi from Kaikoura to Murihiku Ngrara reptile, insect Ngti Apa Iwi group Ngti Kahungunu Iwi group Ngti Koata Iwi group Ngti Kuia Iwi group Ngti Pahauwera Iwi group Ngti Porou ki Hauraki Iwi group Ngti Rrua Iwi group Ngti Rrua ki Te Tau Ihu Iwi group Ngti Tama Iwi group Ngti Te Rangi Iwi group Ngti Toarangatiratanga Iwi group Ngti Twharetoa Iwi group Nohoanga Iwi group Nhaka Place name O O-Waea Campbell Point mpere (Lake) Place name rari (Catchment) Place name Otamawaha Name of P site on Mori Island 2 1 3 wheo Waters that flow into western end of Otago Harbour P P Fortified village Pkeh Non-Mori Papatnuku Earth mother Parawhenuamea Personified form of water Pare Hauraki Place Pua Abalone Piharau Blind eel Pipi Shellfish Poroporoak Farewell Pou rhui Marker used to identify temporary ritual prohibition area Poukai Demonstration of loyalty to Kingitanga Pouwhenua Carved post erected to symbolise relationship between Mori Iwi, Hapu and the land Pkenga Knowledgeable person Putea (Trust) Trust to administer land under Te Tur e Whenua Mori Land Act 1993 R Rhui Temporary protection of resources Rangatira Chief Ranginui Sky father Rangitne Iwi group Rangitoto Durville Island Raupatu Confiscation Raup Green swamp plants 2 1 4 Ringa kaha Strong, capable, industrious Rohe Area, boundary Rohe moana Area of coastline, sea Rnanga Council and to discuss in assembly T Taipure Stretch of coast set aside as a reserve for customary purposes Takapourewa Place name (Island) Take Cause, reason Take hki Last words, dying speech Take raupatu Refers to land acquired by conquest Take tipuna Refers to land acquired through descent Take tuku Refers to land gifted Tne Mahuta Guardian spirit of the forest Tne-nui-a-Rangi The source of life beyond this realm Tangaroa Guardian of the sea Tangata kaitiaki A guardian Tangata tiaki A guardian Tangata whenua People who have customary rights in particular land areas Taniwha Representations of guardianship and awe Taonga Prized possession Taonga tuku ihu Treasures passed down through generations Tapu and noa Risk and safety Taranaki Place name Tau utuutu Protocol on the marae where speakers alternate between hosts and visitors Tauranga Place name Te ao Mori The Mori world, a Mori dimension, a Mori world view 2 1 5 Te ao Mrama The world of light Te ao troa Physical environment Te Atiawa Manawhenua ki te Tau Ihu Trust Trust for Te Atiawa in the Top of the South Te Atihaunui-a-Paparangi Iwi Group Te ira tangata Human lfe Te Iwi o Whanganui Iwi group from Whanganui Te Kete Aronui The knowledge of the natural world Te Kete Ttea The knowledge of spiritual realities Te Kete Tuwari Scientific knowledge Te Kopi A wildlife sanctuary Te Kumenga Name of a Taiapure Te Ohu Kaimoana Treaty of Waitangi Fisheries Commis sion Te Papamoana Seabed Te P The night Te Puni Kkiri Ministry of Mori Development Te Ptahi a Toi School of Mori Studies, Massey University Te Rauparaha Ngti Toarangatira Rangatira Te reo Mori language Te Takutai Moana The foreshore Te Tau Ihu Top of the South Island Te Ture Whenua Mori (Act) M ori Land Act Te Weehi (Case) A Court Case regarding customary fi shing rights Te Whnau--Apanui Iwi group Te Whnau Hou Environmental group established to restore Grovetown Lagoon Tiakitanga Guardianship Tika Correct Tikanga Mori Mori customary practices Tino Rangatiratanga Mori self-determination Tirohanga Place 2 1 6 Tt Mutton bird Tohu & Kono wines Wine label Tohunga Expert Tongariro Mountain/Place name Totaranui (Ltd) Te Atiawa Fishing Company Tuatara Indigenous reptile Thoe Iwi group Tuku To permit Tuku whenua To permit use of land Tupuna Ancestor Trangawaewae A place to stand Tutepourangi Ngti Kuia Rangatira Ttewehiwehi God of reptiles Tuturau (Falls) Place name U kaip The place of nurturing Urup Burial grounds Utu Reciprocity W Whi tapu Sacred place Waihao (River) Place name Waikato Place name Waikawa Place name Waikino Bad water Waimori Freshwater Waimate Stagnant water Waiora Water of life (rainwater) Wairarapa (Coast) Place name Wairau P (Block) Place name 2 1 7 Wairoa Place name Wairua Spirit Wairuatanga Spirituality Waitai Sea water Waitangi Place name Waka Canoe/affiliation derived from Mori migratory vessels Wakawaka Divisions facilitating the use of resources between kin groups Whai krero Formal speech Whakaaro Opinion Whakapapa Ancestry Whakapuaka Place name Whakat (Incorporation) M ori/Iwi based company Whnau Family Whanaungatanga Establishing contact within a Mori context/integration Whngai Adpoted Whanganui (River) Place name Whangaroa Place name Whangaruru Place name Whare Wnanga Higher learning institution Whatapaka (Marae) Place name Whenua ki te whenua From the land to the land Whenua Topu (Trust) Trust to administer M ori land under Te Ture Whenua Mori Act 1993 Whiritoa Place name 2 1 8 BIBLIOGRAPHY Acheson, F., (1913), The Ancient Mori Systems of Land Tenures: some few aspects of, a thesis written for the Jacob Joseph Scholarship, Vi ctoria College University, Wellington. Alston, A., Bennion, T., Slatter, M., Thomas, R., Toomey, E., (2000), Guide to New Zealand Land Law, 2 nd edn, Brookers, Wellington. Aoraki Water Trust v Meridan Energy Limited [2005] NZLR 268 Arthur, B., (2005), Foreshore and Seabed Act, the RMA and Aquaculture, New Zealand Law Society. Ballara, A., (1998), Iwi: The Dynamics of Mori Tribal Organisation from c. 1796 – c. 1945, Victoria University Press, Wellington. Ballara, A., (2001), ‘Customary M ori Land Tenure in Te Tau Ihu 1820-1860: An Overview Report on Te Tau Ihu’, in WAI 785, Waitangi Tribunal, Wellington. Barclay, R. F. R., (2001), ‘Kaitiakitanga raahui an d ra’ui: traditional resource management ethics in Aotearoa and the Cook Islands’ in Taarere aa Tawhaki: Journal of the Waikato University College, vol. 1, pp. 106-121. Barlow, C., (1994), Tikanga Whakaaro: Key Concepts in Mori Culture, Oxford University Press, Auckland. Barns, M., (1988), Resource Management Law Reform: A Treaty based model – the principle of active protection: Working Paper No. 27, Ministry for the Environment, Wellington. 2 1 9 Bay of Plenty District Council, (1993), Nga Tikanga Tiaki i te Taiao: Mori Environmental Management in the Bay of Plenty: Consultants Report on Mori Environmental Management and Issues of Significance to Mori for Inclusion in the Regional Policy Statement, Bay of Plenty District Council. Bennion, T., Birdling, M., Paton, R., (2004), ‘Maki ng Sense of the Foreshore and Seabed’ in A Special Edition of the Mori Law Review, Wellington. Bevan-Brown, J., (1998), ‘By M ori for Mori, about Mori – Is that Enough?’, in Te Pumanawa Hauora (ed), Te Oru Rangahau Mori Research and Development Conference: 7 – 9 July 1998 Proceedings, School of Mori Studies, Massey University, Palmerston North. Beverley, P., (1998), ‘The mechanisms for the prote ction of Mori interests under Part II of the Resource Management Act 1991’, in New Zealand Journal of Environmental Law, vol. 2, pp. 121-155. Bishop, R., (1994), ‘Initiating Empowering Research ’, in New Zealand Journal of Educational Studies, vol. 29, no. 1. Blomfield, L., (1997), The Resource Management Act 1991 and The Treaty of Waitangi, a dissertation in partial fulfilment of the require ments of The University of Auckland for the degree of Bachelor of Laws (Honours), The Unive rsity of Auckland, Auckland. Boast, R., (2004), ‘M ori Customary Law and Land Tenure’, in Mori Land Law, LexisNexis, Wellington. Boast, R., (2005), Foreshore and Seabed, LexisNexis, Wellington. Boast, R., Erueti, A., McPhail, D., Smith, N., (200 4), Mori Land Law, 2 nd edn, LexisNexis, Wellington. 2 2 0 Brookfield, F. M., (2000), ‘The Waitangi Tribunal a nd the Whanganui River Bed’, in New Zealand Law Review, vol. 1, pp. 1-16. Charters, C., Erueti, A., (2007), Mori Property Rights and the Foreshore and Seabed: the last frontier, Victoria University Press, Wellington. Cotton, M., (1988), Resource Management Law Reform: town and country planning and the Treaty of Waitangi: Working Paper No. 28 – Part A, Ministry for the Environment, Wellington. Cram, F., (1997), ‘Developing partnerships in resea rch: Pkha researcher and Mori research’, in Sites, vol. 35, pp. 44-63. Denzin, N. K., Lincoln, Y. S., (1994), Handbook of Qualitative Research, Sage Publications, Thousand Oaks, Newbury Park, California. Doig, S. M., (1996), Customary Mori Freshwater Fishing Rights: an exploration of Mori evidence and Pkha interpretations, PhD Thesis, University of Canterbury, Christchurch. Douglas, E., (1991), ‘Five Classes of Water – a cla ssification system or typology’, in Terra Nova, August, p.17. Durie, E. T. J., (1994), ‘Custom Law’, address to t he New Zealand Society for Legal and Social Philosophy, in Victoria University of Wellington Law Review, vol. 24, no. 4, pp. 325-331. Durie, M. H., (1998), Te Mana Te Kwanatanga, Oxford University Press, Auckland. 2 2 1 Durie, M. H., (2005), Nga Tai Matatu: Tides of Mori Endurance, Oxford University Press, Auckland. Feist, R., Rudland, G., Smith, J., (1997), Mori Land – What Every Practitioner Needs to Know, New Zealand Law Society Seminar. Firth, R., (1972), Economics of the New Zealand Mori, Government Printer, Wellington. Flick, U., (1992), ‘Triangulation Revisited: Strate gy of Validation or Alternative?’, in Journal for the Theory of the Alternative, vol. 22, pp. 175-198. ‘Foreshore report guarantees public access’, (2003) , in New Zealand Herald, 19 August 2003, pA, pp. 14-15. ‘Foreshore and Seabed: where is the debate at?’, (2 004), in Te Karaka: The Ngai Tahu Magazine, vol. 24, pp. 10-13. Frame, A., Meredith, P., (2003), ‘M ori Customary Rights: the hard yards’ in Te Matahauariki Newsletter, no. 7, pp. 3-5. Gibbs, M., (2007), ‘M ori Claims to Ownership of Freshwater’, in Resource Management Journal, August, pp. 13-18. Gilling, B., (1994), ‘Engine of Destruction? An Int roduction to the history of the Mori Land Court’, in Victoria University of Wellington Law Review, vol. 24, no. 2, pp. 115- 139. Gullery, L., (1992), ‘Waitangi Tribunal – Mohaka Ri ver’, in Te Reo o Tatou Tipuna, November/December, p.14. Harris, R., (2004), ‘Customary rights and the fores hore and seabed debate’, in Resource Management Journal, vol. 12, no. 1, pp. 8-14. 2 2 2 Harvey, L., (1999), ‘The nature of ancestral, custo mary and historical interests’, in Pu Kaea, May, pp. 8-9. Hayes, S., (1998), ‘Defining kaitiakitanga and the Resource Management Act 1991’, in Auckland University Law Review, vol. 8, no. 3, pp. 893-899. ‘He Hinatore ki te Ao M ori – A Glimpse into the Mori World’, (2001), in Mori Perspectives on Justice, Ministry of Justice, Wellington. Hinde, G.W., M cMorland, D.W., Sim, P.B.A., (1986), Introduction to Land Law, 2 nd ed, Butterworths, Wellington. Hope, H., (2001), ‘Environmental case law in relati on to Treaty issues’, in Te Tarere a Tawhaki: Journal of the Waikato University College, vol. 1, pp. 186-196. Ho Sang, M.L., (2004), ‘M ori Fish Scams’ in The Dominion Post, 20-21 March. http://writing.colostate.edu.references/research/content/pop2a.cfm , (1 February 2002). http://www2.selu.edu/Academics/Faculty/elejeune/cri tique.html Hubberman, A., Miles, M., (1984), Innovation up Close: How School Improvement Works, Plenum Press, New York. Irwin, K., (1994), ‘M ori Research Methods and Practices’, in Sites, vol. 28. Jackson, M., (2003), ‘There are obligations there: a consideration of Mori responsibilities and obligations in regard to the seabed and foreshore’, in Turanganui a Kiwa Pipiwharauroa, vol. 11, no. 7, pp. 7-10. 2 2 3 Joseph, R., Bennion, T., (2002 / 2003), ‘Challenges of Incorporating Mori Values and Tikanga’, in Yearbook of New Zealand Jurisprudence, vol. 6, no. 1, pp. 9-34. Joseph, R., (2002), Mori Values and Tikanga Consultation under the Resource Management Act 1991 and the Local Government Bill – Possible Ways Forward, Conference Address, Te Matahauariki Institute. Kai Tahu ki Otago, (199 5), Kai Tahu ki Otago: Natural Resource Management Plan, Kai Tahu ki Otago, Dunedin. Kawharu, I. H., (1997), Mori Land Tenure: Studies of a Changing Institution, Oxford University Press, Oxford. Kawharu, M., (1998), Dimensions of Kaitiakitanga: an Investigation of a customary Mori Principle of Resource Management, a thesis submitted in fulfilment of the requirements of the Doctorate of Philosophy in Soci al Anthropology, Oxford University. Kawharu, M., (1998), Kaitiakitanga – Rangatiratanga – A review concerning the Resource Management Act 1991 and the Te Ture Whenua Mori Act 1993, Report for Te Puni Kokiri, Ministry of Mori Development, Wellington. Kawharu, M., (2002), Whenua: Managing our Resources, Reed Publishing, Wellington. Keene, H., (1998), ‘The Tangle Over Customary Fishi ng Rights’ in The Press, 19 January, p.5. Keene, H., (2007), ‘Customary rights: where culture s collide’, in Te Karaka, vol. 34, pp. 8-11. Kingi, T. K. R., (2002), Hua Oranga: Best Health Outcomes for Mori, PHD Thesis in Mori Studies, Massey University, Wellington. 2 2 4 Lanning, G., (1998), ‘The battle for control of the coast – Mori vs the Crown’, in Property Issues Journal, November 1998. Law Commission, (2001), Determining Representation Rights under Te Ture Whenua Mori Act 1993: An Advisory Report for Te Puni Kokiri, Wellington. Law Commission, (2001), Mori Custom and Values in New Zealand Law: Study Paper No. 9, Law Commission, Wellington. Lee, S., (2000), ‘Caretaker, take care …’, in Tu Mai, vol. 11, pp. 38-31. Lenihan, S., (1997), ‘M ori land in Mori hands’, in Auckland University Law Review, vol. 8, no. 2, pp. 570-581. Love, M., (1992), Sustainable Management of Water and Kaupapa Mori: a study based on the traditional and modern aspects of water and waste management from a Mori perspective, Te Atiawa, Wellington. Love, M., (1998), ‘Customary Rights’, in New Zealand Engineering, April, pp. 34-35. MacCormick, C. E., (1941), ‘Native custom as relati ng to the ownership of land’, in New Zealand Law Journal, 19 August, pp. 173-175. Magallanes, I. C., (2007), ‘Resource and Marine Man agement Issues’, in Mori Property Rights and the Foreshore and Seabed: the Last Frontier, Victoria University Press, Wellington. Manatu Mori, (1991), Customary Mori Land and Sea Tenure: Nga tikanga tiaki taonga o Nehera, Manatu Mori, Wellington. ‘M oris explain sovereignty claim’, (1995), in The Dominion, 24 March, p.6. 2 2 5 Marsden, M., (1975), ‘God, Man and Universe: A M ori World View’, in M King (ed.), Te Ao Hurihuri: The World Moves On, Hicks Smith, Wellington. Marsden, Rev M., (1988), Resource Management Law Reform: the natural world and natural resources: Mori value systems and perspectives: Working paper No. 29 – Part A, Ministry for the Environment, Wellington. Massey University, (2007), 150.201 Study Guide, Te Putahi a Toi, School of Mori Studies, Massey University, Palmerston North. Matunga, H., (1992), ‘Benefits for both Parties’, i n Planning Quarterly, December, pp. 7- 9. Maughan, B., Kingi, T., (1998), ‘Te Ture Whenua M ori: retention and development’, in New Zealand Law Journal, January, pp. 27-31. Maxwell, J., (1992), ‘Understanding and Validity in Qualitative Research’, in Harvard Educational Review, vol. 63, pp. 279-300. Maxwell, K. H., Penetito, W., (2007), ‘How the use of rahui for protecting taonga has evolved over time’, in MAI Review, vol. 2. McHugh, P., (1983), ‘M ori Land Laws of New Zealand’, in Studies in Aboriginal Rights, vol. 7, University of Saskatchewan Native Law Cen tre. McLean, V., (1995), The Resource Management Act 1991 and Mori: Ngati Rangiteaorere and the Geothermal Resource, a thesis submitted to the Victoria University of Wellington in fulfilment of the requi rements for the degree of Master of Arts in Politics, Victoria University of Wellington . 2 2 6 McNeil, K., (2007), ‘Legal rights and legislative w rongs’, in Mori Property Rights and the Foreshore and Seabed: the last frontier, Victoria University Press, Wellington. Mead, A., (2005), ‘Emerging issues in M ori traditional knowledge, can these be addressed by UN Agencies?’, in International Workshop on Traditional Knowledge, Panama City, 21-23, September 2005. Mead, H. M., (2003), Tikanga Mori: living by Mori values, Huia Publishers, Wellington. Menzies, D., (1998), ‘The kaupapa is sewage in the sea’, in Landscape, vol. 37-38, pp. 12-14. Ministry for the Environment, (2004), Property rights in water: a review of stakeholder understanding and behaviour, Ministry of the Environment, Wellington. Ministry of Fisheries, (1998), A guide to the Kaimoana Customary Fishing Regulations 1998, Ministry of Fisheries, Wellington. Ministry of Fisheries, (2008), He Ika, November. Ministry of Fisheries Website (2006) Ministry of Fisheries Website/M ori Customary Management Ministry of Justice, (2001), He Hinatore ki te Ao Mori: A glimpse into the Mori World – Mori Perspective on Justice, Ministry of Justice, Wellington. Mutu, M., (1998), ‘State intransigence kills dealin g on customary fishing’, in The New Zealand Herald, 14 January, p.A15. 2 2 7 Najam, A., Runnalls, D., Halle, M., (2007), Environment and Globalisation – Five Propositions, International Institute for Sustainable Development. Neuman, W. L., (2000), Social Research Methods: Qualitative and Quantitative Approaches, Allyn and Bacon, Boston. New Zealand Mori Council v Attorney General [1987] 1NZLR 641 Ngati Koata Iwi Environmental Plan, (2002), Ngati Koata Iwi Trust ki Te Tau Ihu, Nelson. Ngati Porou ki Hauraki Newsletter, (2007), August – October. Ngati Rarua ki Wairau Environmental Management Plan, (2002), Ngati Rarua Trust ki Te Tau Ihu. Ohia, M., (1989), Research for Mori Education, Address to NZARE Conference, Trentham, Proceedings of the Conference. Orange, C., (1987), The Treaty of Waitangi, Allen and Urwin, Wellington. Parliamentary Commissioner for the Environment, (19 98), ‘Kaitiakitanga and Local Government: Tangata Whenua Participation’ in Environmental Management, Wellington. Patton, M., (1990), Qualitative Research and Evaluation Methods, Sage Publications, Thousand Oaks, Newbury Park, California. Personal Correspondence, (2002), C Elkington, Ngati Koata. Personal Correspondence, (2002), J Elkington, Ngati Koata. 2 2 8 Personal Correspondence, (2002), U Passl, Resource Management Advisor - Te Atiawa Personal Correspondence, (2006), A Luke, Ngati Raru a. Personal Correspondence, (2006), H Luke, Ngati Raru a. Personal Correspondence, (2008), A Wilkie, Ngati Ra rua/Te Atiawa Personal Correspondence, (2008), J Puketapu, Te Ati awa Phillips, D. C., (1987), Philosophy, Science and Social Inquiry, Pergamon Press, New York. Pihama, L., (2001), ‘ Tihei Mauri Ora: honouring our voices: Mana Wahine as a kaupapa Mori theoretical framework, unpublished PhD, The University of Auckland. Powell, G., (2008), ‘The emperor’s new clothes’, in Mana Magazine, vol. 81, pp. 34-35. Quinn, M. P., (1990), Qualitative Evaluation and Research Methods, Sage Publications, Thousand Oaks, Newbury Park, California. Riseborough, H., Hutton, J., (1997), ‘The Crown’s E ngagement with Customary Tenure in the Nineteenth Century’, in Rangahaua Whanui National Theme C, Waitangi Tribunal, Wellington. Robertson, C., (1998), ‘What are Customary Rights?’ in The Evening Post, 13 January, p. 5. Rolleston, S., (1989), He Kohikohinga: A Mori Health Knowledge Base, Department of Health, Wellington. 2 2 9 Ruru, J., (2003), ‘Denial of customary rights: seab eds/foreshores’, in Red and Green: The New Zealand Journal of Left Alternatives, vol. 2, pp. 109-112. Ruru, J., (2004), ‘A politically fuelled tsunami: t he foreshore / seabed controversy in Aotearoa me Te Waipounamu - New Zealand’, in Journal of the Polynesian Society, vol. 113, no. 1, pp. 57-72. Ruru, T., (1997), The Resource Management Act 1991 and Nga Iwi Mori, a thesis submitted for the degree of Master of Laws at the F aculty of Law, University of Otago, Dunedin. Smith, L. T., (1999), Decolonizing Methodologies: Research and Indigenous Peoples, University of Otago Press, Dunedin. Smith, L. T., (1999), Kaupapa Mori Methodology: Our power to define ourselves, a seminar presentation to the School of Education, University of British Columbia. Smith, N., (1942), Native Custom and Law Affecting Native Land, Mori Purposes Fund Board, Wellington. Smith, N., (1946), Native Custom and Law Affecting Native Land, Mori Purposes Fund Board, Wellington. Solomon, M., Schofield, R., (1992), The Resource Management Act and the Treaty of Waitangi – A starting point and framework, a report prepared for the Taranaki Regional Council. Stake, R., (1995), The Art of Case Study Research, Sage Publications, Thousand Oaks, Newbury Park, California. Stephenson, J., (2001), ‘Recognising rangatiratanga in resource management for Mori Land’, in New Zealand Journal of Environmental Law, vol. 5, pp. 159-193. 2 3 0 Stokes, E., (1985), Mori Research and Development, University of Waikato, Social Sciences Committee of the National Research Advisory Council, Hamilton. Stokes, E., (1997), ‘A Review of the Evidence on th e Muriwhenua Lands Claims (Volume II)’, in Waitangi Tribunal Review Series, vol. 1. Stokes, E., (1997), Mori Customary Tenure of Land, Department of Geography, University of Waikato, Hamilton. Stone, M., (1995), ‘Island in the gun’, in Mana Magazine, vol. 7, pp. 26-30. Stone, M., (1995), ‘Island in the gun: part 2’, in Mana Magazine, vol. 8, pp. 69-73. Strack, M., (2001), ‘M ori Land: kicking around the football’, in New Zealand Surveyor, vol. 291, pp. 15-19. Strack, M., (2004), ‘Time for negotiation with M ori over foreshore, seabed issue’, in Otago Daily Times, 19 May 2004, p. 13. ‘Strategies for M ori under the Resource Management Act’, (2002), in Tu Mai: offering an indigenous New Zealand Perspective, vol. 34, pp. 14-15, 17. Sykes, A., (2003), Te Takutai Moana: economics, politics and colonisation, prepared by Tino Rangatiratanga for publications as a volume of the IRI, Economics and Colonisation Series. Taonui, R., (1999), ‘Sacred river much more than ju st a waterway’, in New Zealand Herald, 5 July, p.A13. Teariki, C., Spoonley, P., (1992), Te Whakapakari te Mana Tangata: the Politics and Process of Research for Mori, Department of Sociology, Massey University. 2 3 1 Te Atiawa Manawhenua ki Te Tau Ihu Trust., (2001), Environmental Management Plan, Draft, Te Atiawa Manawhenua ki Te Tau Ihu Trust, Picton. Te Ohu Kaimoana, (1995), Hui-a-Tau Report, 7 July, Treaty of Waitangi Fisheries Commission, Wellington. Te Puni Kokiri, (1988), Review of Te Ture Whenua Mori Act 1993: A background paper for consultation hui, Ministry of Mori Development, Wellington. Te Puni Kokiri, (1993), Mauriora ki te Ao: an introduction to environmental and resource management planning, Te Puni Kokiri: Ministry of Mori Development, Wellington. Te Puni Kokiri, (1993), Nga kai o te Moana: Kaupapa Tiakina - Customary Fisheries: Philosophy and practices, legislation and change, Mori Environmental Resource Management, Ministry of Mori Development, Wellington. Te Puni Kokiri, (1998), Review of Te Ture Whenua Mori Act 1993: a background paper for consultation hui, Te Puni Kokiri: Ministry of Mori Development, Wellington. Te Runanga Ika Whenua Inc Soc v Attorney General [1994] 2NZLR20, 23-24 (CA) per Cooke. Te Weehi v Regional Fisheries Officer (1986) 1NZLR 680 Te Whnau Hou, (2003), Community Management Plan, Te Whnau Hou, Blenheim. Thomson, P. A., (2002), The History of the Grovetown Lagoon and the Grovetown Drainage Area, Marlborough District Council, Blenheim. 2 3 2 Tipa, M., (1997), ‘Ngai Tahu forerunners in customa ry fisheries development; customary fishing regional coordinators appointed’, in Te Karaka: the Ngai Tahu Magazine, vol. 8, pp. 30-32. Tomas, N., (1999), Changing Judicial Attitudes Towards Strengthening the Incidents of Mori Customary Title, Faculty of Law, The University of Auckland, Auckl and. Tuckey, T., (2005), ‘Stephens Island the gift of Ta kapourewa’, in Mana Magazine, vol. 63, pp. 54-59. Turia, T., (1998), ‘Catch the sharks – not the minn ow’, in Turangahui a Kiwi Pipiwharauroa, p.52. Turner, C., (1987), Organising Information: Principles and Practice, Bingly Press, London. Waitangi Tribunal, (1989), Report of the Waitangi Tribunal on the Manukau Claim (WAI 8), Waitangi Tribunal, Wellington. Waitangi Tribunal, (1992), Ngai Tahu Sea Fisheries Report: WAI 27, Waitangi Tribunal, Wellington. Waitangi Tribunal, (1992), The Mohaka River Report: WAI 119, Brooker and Friend Ltd, Wellington. Waitangi Tribunal, (1997), Muriwhenua Land Report: WAI 45, GP Publications, Wellington. Waitangi Tribunal, (1998), Muriwhenua Fishing Report: WAI 22, Waitangi Tribunal, Wellington. 2 3 3 Waitangi Tribunal, (1998b), Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Department of Justice, Wellington. Waitangi Tribunal, (1999), The Whanganui River Report: WAI 167, GP Publications, Wellington. Waitangi Tribunal, (1999), ‘The Whanganui River Rep ort’, in Mori Review Online. Waitangi Tribunal, (2004), Report on the Crown’s Foreshore and Seabed Policy: WAI 1071, Legislation Direct, Wellington. Walker, R., (1990), Ka Whawhai Tonu Matou: Struggle Without End, Penguin, Auckland. Wardle, P., (2006), Te Whnau Hou Newsletter. Wickliffe, C., (1994), Indigenous Claims and the Process of Negotiation and Settlement in Countries with Jurisdictions and Populations Comparable to New Zealand’s: A Report prepared for the Parliamentary Commissioner for the Environment, Wellington. Williams, D.V., (1999), Te Kooti Tango Whenua: The Native Land Court 1864-1909, Huia, Wellington. Williams, D.V., (2002), Whenua: Managing Our Resource, Reed Publishing, Wellington. Williams, J., (1998), He Aha Te Tikanga Mori, Unpublished paper for the Law Commission. Williams, J., (2006), ‘Resource Management and M ori attitudes to water in Southern New Zealand’, in New Zealand Geographer, vol. 62, no. 1, pp. 73-80. 2 3 4 www.beehive.govt.nz/release/foreshore www.conservation.govt.nz/community/005-Conservation -and-Mori www.doc.govt.nz/Community/007~Conservation-and - M ori/index.asp www.envbop.govt.nz/water www.fao.org/fishery/legalframework www.fish.govt.nz/customary/southcfr.html www.historic.org.nz/heritage/Moriheritage_project.html www.nzqa.ac.nz/nzfdocs www.tpk.govt.nz www.whakatu.org.nz www.wikisource.org Young, E., (1993), ‘Managing the Land: land and Abo riginal community development in Australia’, in Indigenous Land Rights in Commonwealth Countries, Department of Geography, University of Canterbury and Ngai Tahu Trust Board for Commonwealth Geographical Bureau, Christchurch. 23 5 APPENDIX I Questionnaire 23 6 QUESTIONNAIRE ‘The Application of Custom to Contemporary Mori Resource Development’ 1. How would you define ‘Customary M ori Land Tenure’? 2. What does ‘Contemporary Land Tenure’ mean to you? 3. Do you think that both concepts can operate toget her, whether they are integrated or working parallel to each other? 4. How well do you think Te Ture Whenua M ori 1993 serves M ori and their interests in land? 5. In terms of other M ori resources such as rivers, harbours and fisheries – How can Mori custom be used to ensure quality resource manag ement? 6. The Resource Management Act 1991 states its main purpose as being: “to promote the sustainable management of natural a nd physical resources” How well then do you think the Act carries this out in terms of Mori Resources? 7. Does your hap /iwi have Resource Management Plans in place to protect your local resources? Or are you aware of Resource Manag ement Plans that have been put in place to protect resources by iwi groups? Do es this resource management include both customary and contemporary practices? 8. Do you think it is important for M ori to use customary practices in terms of their resources? And if so why or why not? 9. How well do you think M ori in general understand customary tenure and tikanga that pertains to resources? 10. How could customary M ori land tenure and customary Mori resource management be developed further to ensure the survival of both the culture and the resources themselves? 23 7 APPENDIX II Information Sheets and Consent Forms 23 8 “The Application of Custom to Contemporary Mori Resource Development” INFORMATION SHEET 1. Who are the researcher and the supervisors of thi s study. No Waiharakeke ahau Ko Tapuaeuenuku te maunga Ko Wairau te awa Ko Ngai Tauiwi te iwi Ko Melissa Love taku ingoa. I am a PhD student at Massey University, currently undertaking research in order to complete my thesis. I am particularly interested in the application of Mäori custom to land in modern times but have found that there has been little research published in the area of applying tikanga Mori to contemporary practices. By addressing the issue myself I hope to provide a useful resource for others to use in the future. Although I am not of Mori descent myself, I believe that I have access to Mori communities through being married to my husband, George Love (who is of Te Atiawa, Ngati Rarua and Ngai Tahu descent) and through the family connections that have been made over the years due to my relationship with George and his family. I have also completed a post-graduate degree in Mori Studies and would say that this reflects my knowledge of tikanga and access issues. The supervisors for my PhD research are Professor Mason Durie and Dr. Monty Soutar, both of who are based at the Palmerston North campus of Massey University. Prof. Mason Durie is the Head of the School of M ori Studies and Dr. Monty Soutar is the co-ordinator of postgraduate students within the same School. 23 9 2. How the researcher and supervisors can be contact ed. My contact details if any other information is requ ired: Melissa Love 23 McCallum Street Blenheim My supervisors contact details are: Prof. Mason Durie Dr. Monty Soutar Te Putahi-a-Toi Te Putahi-a-Toi School of Mori Studies School of Mori Studies Private Bag 11222 Private Bag 11222 Massey University Massey University Palmerston North Palmerston North PH: (06) 3569099 PH: (06) 3569099 3. What the study involves. The nature and purpose of this study involves an exploration of the interface between Mori custom and contemporary practice in terms of Mori resource development. A series of case studies will be carried out to illustrate the point and will cover the areas of land, harbours, rivers and fisheries. In discussing the specific resources, the law as it stands will be analysed and different processes that affect each resource (such as the Waitangi Tribunal recommendations, settlements, R.M.A.) will be examined in detail. A connection will be made between customary and contemporary tenure. This will be done through an analysis of the Ture Whenua Mori Act 1993 and the 1862 and 1865 Native Land Acts. An analysis of the Resource Management Act 1991 will also take place. As a final output of the study a framework will be developed to assist in further Mori resource development. 4. The requirements of the participant in this stud y. The reason for your involvement in this research will be to provide information on the project, whether it is at a general level or on a s pecific case study. This will include an interview (taped if you agree) and then follow-up q uestions where required. It is important for me to obtain the correct information from the appropriate people. 24 0 The initial interview could last for up to an hour and then after that you will be contacted if information needs clarification or more question s need to be asked. 5. How the researcher obtained participant’s name f or involvement in project. I (Melissa Love) obtained your name from other pa rticipants or contacts associated with this study. 6. How the information obtained from the participan t will be used. In participating in this study you will be interviewed by the researcher on the specific area pertaining to your knowledge. This interview will come in the form of a series of general questions relevant to the study and then a more specific line of questioning, depending on your area of expertise. During the interview, provided you agree, a dictaphone will be used to record the interview. Any information given by you will be used along with other material, as from books and articles to form the base from which I will work to complete the Thesis. 7. What happens to the information once it is obtai ned. If permission is given for recording the interview, then after the interview the researcher will transcribe the interview for further study. All the transcriptions and notes from interviews will then be collated and stored in secure manner. A summary of the research findings will be available to all participants if requested. 8. Confidentiality. I assure you that information given will be confidential to the researcher and no names or other identifying data will be included in the final document, or in any other publications associated with it, unless there is specific agreement. The security of the data will be paramount at all times and steps will be taken to ensure its safety during the study by coding the interviews, separating names from interview material, ensuring that computer records are backed up, and holding any written material in a locked cabinet. 24 1 9. What will happen to data on completion of the pro ject . The ownership of the recorded interviews, transcriptions or notes remains the property of the participant at all times. At the conclusion of this study options will be given to all participants in regard to their data. The participants may wish to retain the tapes, agree to the tapes being destroyed or consent to their storage in a research archive. 10. The participant has rights in regards to their involvement with this study, including their right to: • to decline to participate; • to refuse to answer any particular questions; • to withdraw from the study at any time; • to ask any questions about the study at any time du ring participation; • to provide information on the understanding that your name will not be used unless you give permission to the researcher; • to be given access to a summary of the findings of the study when it is concluded. This project has been reviewed and approved by the Massey University Human Ethics Committee, PN Protocol 02/36. If you have any conce rns about the conduct of this research please contact Professor Sylvia V Rumball, Chair, Massey University Regional Ethics Committee: Palmerston North, telephone 06 35 0 5249, email S.V.Rumball@massey.ac.nz 24 2 ‘Te Whakapiri o Tikanga ki Tipu Matatiki M ori No Taua Wa Tonu’ HE PEPA PNUITANGA 1. Ko wai te kairangahau me nga rangatira mahi o ten ei akoranga. No Waiharakeke ahau Ko Tapuaeuenuku te maunga Ko Wairau te awa Ko Ngai Tauiwi te iwi Ko Melissa Love taku ingoa He tauira au e mahi ana i te tohu kairangi ki Te Kunenga ki Purehuroa, i tenei wa e mahi rangahau mo te whakamutunaga o taku take korero. Ka nui taku aro atu i te whakapiri o tikanga ki whenua Mori i roto i nga wa hou engari ka kitea e ahau tena he iti te rangahau pnuitia i te wahi o te whakamahi tikanga Mori ki nga ritenga no taua wa tonu. Ka tuhi ahau ki te whakawhiwhi he whai painga matatiki mo ratou i mahi ana i roto i te wa heke mai nei. Ahakoa ehara i te whakapapa Mori ahau, e whakapono ana ahau kua whai te whakaahei au ki te iwi kainga Mori ma roto i te moe ki taku tane a George Enoka Tureiti Love ( Ko Te Atiawa, Ngati Rarua raua Ko Ngai Tahu ana iwi) ma roto hoki i nga hononga whnau e mahi ana au i roto i nga tau na te mea te whnaungatanga au ki a George me tana whnau. Kua mutu ahau hoki he tohu Pae Tuarua i roto i nga akonga Mori, no reira i tenei i whakaata taku mohiotanga o nga tikanga me nga take whakaahei. Ko Ahorangi Meihana Durie raua ko Takuta Monty Soutar aku rangatira mahi, ko raua tahi i noho ki te Putahi-a-Toi i te Whare Wananga o Manawatu. Ko Ahorangi Meihana Durie te matua o Te Putahi-a-Toi raua Ko Takuta Monty Soutar te kaiwhakarite o nga tauira ata kei nga Pae Tuarua e mahi ana. 24 3 2. Me pehea te kairangahau me nga rangatira mahi i a ua kaupapa. Mehemea i hiahia era pnuitanga, whakapa mai ki a: Melissa Love 23 McCallum Street Blenheim Ko nga wahanga iti hei whakapa mo aku rangatira awhina: Prof. Mason Durie Dr. Monty Soutar Te Putahi-a-Toi Te Putahi-a-Toi School of Mori Studies School of Mori Studies Private Bag 11222 Private Bag 11222 Massey University Massey University Palmerston North Palmerston North PH: (06) 3569099 PH: (06) 3569099 3. He aha te akoranga whakauru Ko te ahua me te koronga o tenei akoranga he whakauru o te horonga tahi i waenganui i te tikanga Mori me te mahi mo taua wa tonu i roto i nga kupu tipu matatiki Mori. Ka amo atu he tohu o nga akoranga take ki whakaahua te take me i korerotia nga wahi o te whenua, nga aka, nga awa me nga tauranga ika. I roto i te korerotia o nga matatiki tino tuturu, te ture hei whakaturia i tataritia me nga mahi rereke, i whakaawe ia matatiki, ia matatiki (Nga tutohutanga na te Ropu Whakamana i te Tiriti o Waitangi, nga whakataunga, R.M.A.) i whakamatautau i roto i nga w ahanga iti. Ka mahi he panga i waenganui i te tikanga me te pupuri no taua wa tonu. Ka mahi tenei i roto he tataritanga o te Ture Whenua Mori 1993 me nga Ture Toi Whenua o 1862 me era atu t au. He tataritanga o te Ture Matatiki Whakahaere 1991 i tu ria hoki. Ka whakatupu he anga te hua whakamutunga o te akoranga ki te tautoko i roto i te whakatupuranga matatiki Mori. 4. Ko nga whakaritenga o te kaiwhakauru i roto i ten ei akoranga Ko te mea nui mo tenei whakaurutanga i roto i tenei rangahau i te tuku pnuitanga i runga i te kaupapa, ki taumata te hakirikiri, i roto i te rangahautanga tino tuturu ranei. Ko tenei i whakaurutia he uiuitanga (I hopukina, mehem ea i whakaaetia koe) katahi nga patai 24 4 muri mai kia hiahiatia. I mea tino whakahirahira mo au ki te tangohia te pnui tika mo nga tangata tika. Ko te uiuitanga tuatahi i roa mo te oho ki he haora me i muri tena katahi i whakapa koe mehemea te pnuitanga i hiahia te whakamaramatia o he etahi atu patai i hiahia ki pataitia. 5. Me pehea te kairangahau te tangohia o te ingoa ka iwhakauru mo te whakauru i roto i te kaupapa. Kua tangohia e ahau tou ingoa mo nga kaiwhakauru era, nga tangata ngaio ranei i whakahoa i tenei akoranga. 6. Me pehea te whakamahi o te p nuitanga i tangohia mo te kaiwhakauru. I roto i te whakauru i tenei akoranga te whakauiuitanga a te kairangahau i runga i te wahi tino tuturu e pa ana ki tou mohio. I tenei uiuitanga i puta mai te ahua o he rarangitanga o nga pnui kakirikiri e pa ana ki te akoranga. Katahi, he rarangi tino nui atu o nga patai, whakawhirinakitia i runga i tou wahi tika. I te wa o tenei uiuitanga, engari ki te whakaae koe, he pouaka hopu reo hei whakamahi ki tuhi te uiuitanga. I etahi pnui i hoatu ki a koe i whakamahi ngatahi he papa tuhi era, penei mo nga pukapuka me nga tuhi pnui ko te putake mo te mahi whakamutunga o te take i korero ahau. 7. Ka ana te p nui i tangohia,. Mehemea kei whakaae i hoatu mo te hopukanga o te uiuitanga, i mua i te uiuitanga te kairangahau i tuhi-a-ringa te uiuitanga mo nga akoranga o etahi atu. Ko nga tuhinga korero katoa me nga tuhinga mo nga uiuitanga i whakarite me i putu i roto i te ahua whakamau. Mehemea he tono, he whakarapopoto o nga whakataunga rangahau i watea ki nga kaiwhakauru katoa. 24 5 8. Munatanga Ka mau koe, taua tenei te pnuitanga i hoatu i muri ki te kairangahau me kaore nga ingoa o nga whakaaturanga e mohiotia ana i whakauru i roto i te pepa whai mana whakamutunga, i roto i etahi atu pnuitanga i whakauru tenei ia pepa whai mana whakamutunga ranei, engari he whakaaetanga tuturu. Ko te maru o te whakaaturanga i tino teitei rawa ki nga wa katoa me nga upane i taea ki te whakapumau oranga i roto i te akoranga i te tuhinga ngaro o nga uiuitanga, i wehea nga ingoa mo te papanga tuhi uiuitanga, whakapumau tena tuhi rorohiko i tautokotia, me i mauria etahi atu papanga tuhi i roto i te kapata taonga i whakamaua. 9. I te whakamutunga o te kaupapa, he aha te whakaat uranga. Ko te rangatiratanga o nga uiuitanga hopukanga, tuhinga korero, tuhinga ranei i noho me te kaiwhakauru i nga wa katoa. Ka hoatui nga whiringa ki nga kaiwhakauru katoa ki te mutunga o tenei akoranga hei tautoku i a ratou. Ko nga kaiwhakauru i ahei ki te pupuri i nga ripene, i whakaae ki nga ripene i whakahoroa, i whakaae ki whakaputunga ratou i roto i te tukunga korero rangahau ranei. 10. Kei te kaiwhakauru te mana me aha ratou ki te wh akaurutanga i tenei akoranga, ka whai wahi atu ratou ki: • kia whakakore ki te whai wahi; • kia whakakahore ki te whakautu etahi atu patai na;. • kia unua mo te akoranga i etahi wa; • kia pataitia i etahi atu patai mo te akoranga i etahi wa i te whakaurutanga; • kia homai te pnuitanga i runga i te mohiotia tena kahore tou ingoa i whakamahia me i kore i homai tou whakaaetanga ki te kairangahau; • kia homai te putanga ki te whakarapopoto o nga whakataunga o te akoranga kia ia akoranga i oti. 24 6 This project has been reviewed and approved by the Massey University Ethics Committee, PN Protocol 02/36. If you have any conce rns about the conduct of this research, please contact Professor Sylvia V Rumball , Chair, Massey University Regional Human Ethics Committee: Palmerston North, telephone 06 350 5249, email S.V.Rumball@massey.ac.nz 24 7 “The Application of Custom to Contemporary M ori Resource Development” CONSENT FORM I have read the Information Sheet and have had the details of the study explained to me. My questions have been answered to my satisfaction, and I understand that I may ask further questions at any time. I understand I have the right to withdraw from the study at any time and to decline to answer any particular questions. I agree to provide information to the researcher on the understanding that my name will not be used without my permission. ( The information will be used only for this research and publications arising from this research project.) I agree / do not agree to the interview being audio taped.. I also understand that I have the right to ask for the audio tape to be turned off at any time during the interview. I agree to participate in this study under the conditions set out in the Information Sheet. Signed: ………………… … … … … … … … … … … … … … Name: … … … … … … … … … … … … … … … … … … … … Date: … … … … … … … … … … … … … … … … … … … … 24 8 ‘Te Whakapiri o Tikanga ki Tipu Matatiki M ori No Taua Wa Tonu’ HE PUKA WHAKAAE Ka pnui au te pepa whakamohiotanga me i marama nga wahanga iti o te akoranga ki ahau. Kua whakautu aku patai ki taku ngata, me ka whakamarama tena au i pataingia ki etahi atu patai ki etahi wa. Ka whakamarama au te mana ki unuhia mo te akoranga ki etahi wa me ki whakakore ki whakautu etahi patai. Kei te whakaae ahau ki te tuku whakaatu ki te kairangahau i runga i te whakamaramatanga tena e kore te whakamahi o taku ingoa e kore taku tukunga. (Ko te p nuitanga i whakamahi anake mo tenei rangahau me nga pukapuka i puta ake mo tenei kaupapa rangahau.) Ka whakaae au / Ka whakahe au ki te ripene hopu reo o te uiuinga. Kei te whakamarama ahau hoki tena he mana toku ki te pataingia mo te ripene hopu reo hei whakapirau i etahi wa i te uiuinga. Ka whakaae ahau ki a uru mai i roto tenei akoranga i raro i nga ahuatanga whakararangitia i roto i te pepa pnuitanga. Hainatanga: … … … … … … … … … … … … … … … … … … Ingoa: … … … … … … … … … … … … … … … … … … Ra: … … … … … … … … … … … … … … … … … …