NEW ZEALAND GAZETTE

No. 48

1098

make, in relation to areas of New Zealand Fisheries Waters (being estuarine or littoral coastal waters) that have customarily been of special significance to any iwi or hapu either:

(a) as a source of food; or

(b) for spiritual or cultural reasons

better provision for the recognition of Rangatiratanga and of the rights secured in relation to fisheries by Article II of the Treaty of Waitangi."

Section 175 goes on to provide:

"Declaration of Taiapure-Local Fisheries—Subject to section 176 of this Act the Governor-General may from time to time by Order in Council declare any area of New Zealand fisheries waters (which waters are estuarine waters or littoral coastal waters) to be a Taiapure-Local Fishery.

Section 176 (2) provides that the Minister shall not recommend the making of an order under section 175 unless he is satisfied both:

(a) that the order will further the objects set out in 174 of this Act and

(b) that the making of the order is appropriate having regard to:

(i) the size of the area of New Zealand fisheries waters that would be declared by the order to be a Taiapure-Local Fishery, and

(ii) the impact of the order on the general welfare of the community in the vicinity of the area that would be declared by the order to be a Taiapure-Local Fishery; and

(iii) the impact of the order of those persons having a special interest in the area that would be declared by the order to be a Taiapure-Local Fishery and

(iv) the impact of the order on fisheries management.

Section 177 of the proposal for the establishment of any Taiapure says that:

(2) the proposal shall:

(a) contain a description of the proposed Taiapure-Local Fishery which description shall include particulars of the location, area and boundaries of the proposed Taiapure-Local Fishery and

(b) describe:

(i) Maori traditional recreational commercial and other interest in the proposed Taiapure-Local Fishery and

(ii) the species of fish, aquatic life, or seaweed in the proposed Taiapure-Local Fishery that are of particular importance or interest.

(3) The proposal shall:

(a) state why the area to which the proposal relates has customarily been of special significance to an iwi or hapu either

(i) as a source of food or

(ii) for spiritual or cultural reasons

(b) set out the policies and objectives of the proposal

(c) contain such other particulars as the chief executive considers appropriate.

The submissions of counsel for Stewart McKay and the New Zealand Fishing Industry Board are that the proposal is in non-compliance with the statutory requirements for the establishment of a Taiapure-Local Fishery and therefore should not proceed. There were three main areas where it was submitted there is non-compliance. These areas were as follows:

(1) That the Taiapure-Local Fishery is to be an area which has customarily been of special significance to iwi or hapu either as a source of food or for spiritual or cultural reasons—sections 174 and 177.

It is submitted by the objectors that the area proposed is in substantial non-compliance with this statutory requirement in that it is not an area which has customarily been of special significance to the iwi or hapu as a source of food or for spiritual and cultural reasons. The reasons given are that the sacred sites referred to in the proposal are on land and adjacent to the Taiapure but their existence does not make the whole area of special significance for spiritual or cultural reasons. It is further stated by the objectors that the proposal in no way states why the area has customarily been of special significance as a source of food.

The proposal in the tribunal’s view gives a detailed background of the pa sites in the area and also the excavation of midden deposits from those pa sites provides evidence of the reliance upon particular types of fish and shellfish. Whilst the sacred sites may be on land they are an indication of the population that have lived in this area and have relied on fish and shellfish as a source of food. From Te Wera in the eighteenth century to the present time the local iwi and hapu in terms of the evidence received by the tribunal have used this area as a source of food. The existence of pa sites and urupa along the coastline is a further indication that the area had special significance to the iwi and hapu not only as a source of food but also for spiritual and cultural reasons.

The background information set out in the proposal was strengthened by the evidence of Mr Matt Ellison. Mr Matt Ellison detailed the significant sites along the width and breadth of the area proposed for the Taiapure and the reliance upon fishing and shellfish as a source of food for local iwi and hapu. This evidence in the tribunal’s view clearly shows that the area proposed is an area which has customarily been of special significance to the local iwi and hapu as a source of food and for spiritual and cultural reasons.

As a result the tribunal considers that the proposed Taiapure is in compliance with Part IX of the Fisheries Act 1996 in this regard.

(2) That the proposed Taiapure is to relate specifically to estuarine and littoral coastal waters. (Sections 174 and 175.)

The objections received from counsel for Mr McKay and the New Zealand Fisheries Industry Board quite correctly point out that the terms “estuarine and littoral” coastal waters are not defined in the legislation. It is necessary therefore to determine what the natural and ordinary meaning of these words may be having regard to the object and purpose of Part IX of the Fisheries Act 1996.

There appears to be no dispute with the definition of estuarine waters being waters of or belonging to an estuary or a tidal opening or inlet or a tidal mouth of a large river where the tide meets the stream (Shorter Oxford English Dictionary).