NEW ZEALAND GAZETTE

No. 94

used, in part, to frame the proposed boundary of the taiapure.

The taiapure application carefully researches Tainui association with the area back to the great canoe voyages and lists some 37 Urupa and Wahi Tapu located adjacent to the boundaries of the proposed taiapure. The customary use of the area, including some 76 named, site specific fisheries, is provided in great detail.

MAF Fisheries is not in a position to judge to what extent this area is of customary significance to the applicants, but from the information provided in the application it would appear that this criterion has been satisfied.

I have pursued the Proposal and evidence very closely and have been unable to find reference to the 70 Marae and hapu referred to by Mr Greenwood. Likewise I have been unable to find anything like the 76 named, site specific fisheries referred to by Mr Drey in his report.

From my own specialised knowledge I am aware of the scale of occupation of Waikato-Maniapoto hapu along the coastal region adjacent to the taiapure. Evidence of that occupation is illustrated by the list of 37 urupa and wahi tapu. I have no doubt that the area of taiapure, being an area of customary fishery within the rohe potae was an area of significance to those hapu.

The reference in section 174 of the Fisheries Act 1996 is to areas of ‘special significance’ and I have already acknowledged the argument of Tom Hollings for the New Zealand Fishing Industry Board that the use of the word ‘special’ denotes something more than ordinary significance. That section refers to areas of New Zealand fisheries 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.....”

In referring to the construction of statutes the authors of Halsbury’s Laws of England, 4th Edition, state at page 915, (para 1484):

“Construction as a whole requires that, unless the contrary appears, every word in the Act should be given a meaning.”

Applied to section 174 this confirms that the word “special” must be given its full meaning.

Special is defined in the Shorter Oxford English Dictionary as: ‘of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree.’

In seeking to justify the area’s special significance the Proposal refers to its importance as being part of the rohe potae, its historical significance and the recognition given to it by King Tawhiao who knew of its fishing resources and the necessity to protect its spawning grounds. Mr Greenwood in his submission in support of the application seems to simply adopt the proposition that this was an area of significance without considering the precise words of section 174. He said:

“Details of this ‘Rohe Potae’ area and its history are well recorded in the application so I will not recapitulate them here, suffice to say the ‘Rohe Potae’ was recognised by the Maori Land Court in 1886 as an area of significance to the local iwi.”

I have no doubt that the area of the rohe potae is regarded by the tribes supporting the application as an area of significance, even of special significance. However when in section 174 of the Fisheries Act 1996 the reference is to areas of New Zealand fisheries waters that have customarily been of special significance to any iwi or hapu as a source of food or for spiritual or cultural reasons. These are the criteria for special significance. As I commented earlier the legislation imports to taiapure the need for the area to be something more special or precious than just being all or part of a traditional fishery or within the rohe of a hapu. If the latter was the case then virtually the whole of New Zealand could be ringed by taiapure out to distance of two or three nautical miles which from the wording of section 174 is clearly not the intention of parliament.

I accept that the rohe potae was an area of significance to iwi and hapu. Having regard to the context of section 174 there was a need to show that the area of taiapure was of special significance, that is, that it was an area of the fishery that was exceptional or of extreme importance compared with the rest of the customary fishery.

Dependence on the protected waters of the Kawhia and Aotea Harbours was evidenced by the number of Marae that surrounded them and the Tribunal has no doubt that these harbours were areas of special significance. Evidence from the fishing industry has emphasised the stormy nature of the west coast waters and the inability of fishing boats to venture into the open sea at times for safety reasons, particularly during winter months. Accordingly the protected areas would have provided a safe haven for year round fishing by the many Maori who lived within their environs and even from further afield and thus constituted areas of special significance to hapu.

A similar case may also be made for the Gannet Island area, that is, Area 3. Although access must have depended upon suitable weather conditions evidence was presented as to expeditions to this island to catch hapuka which were plentiful in the deep waters around it. I can accept that this also was a fishing ground of special significance and although Gannet Island is about 10 nautical miles offshore it is a coastal island within New Zealand coastal waters and the waters in its immediate vicinity constitute littoral coastal waters within the context of the Fisheries Act 1996.

The nature of the evidence leads me to conclude that part of Area 2 situated outside the harbours, that is the area of taiapure from Taranaki Point to Albatross Point, would also be an area of special significance to the hapu. The shallow nature of the harbours and the fact that they are largely bereft of water at low tide leaves little doubt that the hapu would, when weather conditions allowed, also rely heavily on the area immediately outside the harbours and in an integral part of their fishing operations. The two points are natural landmarks, they are less than 10 nautical miles apart and the waters are largely protected by Albatross Point from the south-westerly swells.

As far as the rest of the area of taiapure is concerned, that is, Area 1, the area running along the outer coastline from Tirua Point to Albatross Point, I can accept this was widely used by the hapu and Marae dotted along the coast as part of the traditional fishery. However while this area was of significance to the tribes as part of their traditional fishery, there is nothing in the Proposal or the evidence in support to convince me that this was an area of special significance within the meaning of the Act.

The primary emphasis in the Proposal appears to be on the lack of fish in the two harbours in comparison to the abundance of fish there 30 or 40 years ago. Similar reference is made as to lack of fish in the waters of the taiapure along the coast. However the emphasis on the coastal waters seems to a large extent aimed at being able to control fishing in them and thus lead to an increase in fish in the harbours rather than at any special features in those waters. Mr John Greenwood, an Environmental