Coastal iwi could soon be stripped of their customary rights over Aotea Harbour, west of Hamilton, as the Government presses ahead with its plan to amend the Marine and Coastal Area (Takutai Moana) Act.
The legislative move would overturn recent decisions in the High Court to award customary marine title to iwi.
In November 2024, the court recognised Ngāti Te Wehi and Ngāti Whakamarurangi’s customary marine title over the harbour and protected customary rights.
But the Government wants to toughen up the test for customary marine title and its proposed law change would overturn the court’s decision.
Negotiated by New Zealand First as part of the coalition agreement, the party’s deputy leader Shane Jones said the courts have made the test too easy.
“The law from time to time needs to be refined when it falls into the hands of adventurous jurists,” said Jones.
However, Ngāti Te Wehi has vowed to fight on.
“We’ll keep fighting, mō ake, ake, ake tonu (for as long as it takes),” said iwi claimant Miki Apiti.
He said iwi members “were up in arms in joy” at the court ruling at the time, but now it could all be for nothing.
And fellow claimant lawyer Harry Clatworthy said a significant amount of time and effort has gone into their case.
“To make all these kaumātua who have spent hundreds of hours of time and effort, and three weeks in court, to possibly go back, and at a base level to tell them their customary rights don’t exist after living here for 800 years, it’s shocking.”
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‘Important to get this right’
Treaty Negotiations Minister Paul Goldsmith said he understands the frustration.
“But we believe it’s very important to get this right, because it affects the whole of New Zealand and everybody has an interest on what goes on in the coastline,” he said.
Māori currently need to prove they have exclusively “used and occupied” an area of coastline from 1840 to the present day without substantial interruption.
“What the new test does,” said Clatworthy, “it makes it easier for the Attorney-General or Crown to say there was substantial interruption to the use and occupation of the harbour.”
Goldsmith argued that everybody in the country has an interest in the coastline and that they are working on getting the “balance right”.
Under existing law there are already protections in place for the general public allowing for public access and recreational fishing and Apiti said the iwi has “never, ever” stopped anyone from entering the harbour.
Clatworthy added: “For the Crown to tell them their rights don’t exist because people have fished the area, because boats have driven through the area – something they have no ability to stop – is wrong.”
‘Every inlet is a wāhi tapu’ – Aotea Harbour steeped in significance
Apiti said the area is of particular importance to Ngāti Te Wehi.
“This is where our tūpuna lived… this used to be an old pā site, pā tuwatawata, around this particular area, until the, I would say, the late 1800s. Then they shifted from here,” he said.
He pointed out other areas where there were pā sites, as well as the place where the korotangi bird artefact – a sacred taonga that is said to have been brought over on Tainui waka – was found.
He added the ancestral waka Aotea, which the harbour is named for, is buried in the sand dunes of Oioroa at the northern entrance to the harbour.
“You might as well say every inlet is a wāhi tapu to us,” Apiti said.
Today, Aotea Harbour is surrounded by a substantial amount of Māori freehold land and has four marae on its shores.
The Government intends to pass the legislation by the end of October.
