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NEW ZEALAND GAZETTE, No. 194

18 NOVEMBER 2005

Introduction

This is the report and recommendations to the Minister of Fisheries on the establishment of a taiāpure-local fishery at Akaroa Harbour.

The report and recommendations that follow are made by the taiāpure tribunal established under section 181(2) of the Fisheries Act 1996 (‘the Act’) for the purpose of inquiring into objections and submissions received on the proposal to establish a taiāpure-local fishery at Akaroa Harbour, and reporting to the Minister with recommendations on the proposal.

The area that is the subject of the application is those waters of Akaroa Harbour, Haylocks Bay and Damons Bay that are enclosed by a line commencing at Ōunuhau Point (at 43°53.15′S and 173°00.70′E), then proceeding on a true bearing of 150° for 500 metres to a point at 43°53.38′S and 173°00.88′E, then proceeding in a westerly direction on a true bearing of 252° to a point at 43°54.23′S and 172°57.14′E, then proceeding on a true bearing of 330° for 500 metres to Timutimu Head (at 43°53.99′S and 172°56.96′E).¹

Background

Previously, on 16 January 2004, I reported to the Minister of Fisheries on behalf of this tribunal. As now, we then comprised Dr Wharehuia Milroy (a leading expert on tikanga Māori, and former Professor at and recent recipient of an honorary doctorate from Waikato University), Dr Tish Pankhurst (a Māori marine biologist working as a senior lecturer at the School of Marine Biology and Aquaculture at James Cook University, Townsville, Queensland, Australia), and myself. Our report and recommendations to the Minister were made under section 181, and were to form the basis upon which he would make a decision on the taiāpure.

Sea-Right Investments Limited (‘Sea-Right’) had made submissions to the tribunal in opposition to the proposed taiāpure. Following the circulation of the tribunal’s report and recommendations, Sea-Right appealed against the tribunal’s report and recommendations by way of case stated. The main thrust of the appeal was that the tribunal had misinterpreted the meaning of the phrase “littoral coastal waters” as used in section 174 of the Act. The result of the tribunal’s mistaken view, the appellant said, would be to bring into the taiāpure “an area much larger than Parliament ever intended when it established a special management regime for such areas.”²

In his judgment dated 20 May 2004,³ His Honour Justice Ronald Young determined that the tribunal had applied the wrong test. He considered that, in applying the phrase “littoral coastal waters”, we had given insufficient emphasis to the limiting effect of the adjective “littoral” on the words “coastal waters”. His Honour also said that we had not adequately explained how the whole of Akaroa Harbour had been of special significance as a food source or for spiritual or cultural reasons. He emphasised that an area that is occupied by Māori and used for food gathering may not necessarily have the special significance required by the statutory tests. His Honour expressed no view on whether the whole of Akaroa Harbour could or could not come within the concept of littoral coastal waters of special significance to hapū and iwi, nor on whether further evidence was required. He set aside the

¹ While these are the general parameters of the area, two zones lying within the area described have now been excluded from the application. See below at the heading ‘Application amended’. Please note that the area description provided in the first version of our second Report and Recommendation, dated 13 July 2005, is incorrect. The description above is accurate and contains the correct co-ordinates.

² Sea-Right Investments Limited v The Minister of Fisheries and Te Runanga of Ngāi Tahu, (Unreported judgment of the High Court, Hearing 26 April 2004, Judgment 20 May 2004, per Ronald Young J.), page 3[1].

³ Sea-Right Investments Limited v The Minister of Fisheries and Te Runanga of Ngāi Tahu, (Unreported judgment of the High Court, Hearing 26 April 2004, Judgment 20 May 2004, per Ronald Young J.)