4860

NEW ZEALAND GAZETTE, No. 194

18 NOVEMBER 2005

In the Report and Recommendations of the tribunal relating to the Whakapuaka taiāpure application, Judge Carter determined what constituted littoral coastal waters within the meaning of the Act:30

I have already determined that coastal waters applies to the waters along the entire coastline of New Zealand and the word “littoral” qualifies their breadth or extent. While littoral can mean between high and low watermark, it would make a nonsense of the legislation to apply this meaning. In this regard I prefer the meaning which relates to of or pertaining to the shore of the sea or adjacent to the shore. In this regard the littoral zone would comprise mostly shallow waters where the effect of tidal phenomena and currents is apparent. It would generally include those areas which have been significantly rich in sea life.

I would be loathe to prescribe a finite limit to how far a littoral zone or region might extend. To be constituted a taiāpure the fishery must be of special significance. Reefs, islands and other landmarks might well play a part on interpreting whether a particular area fell within the littoral coastal area.

We agreed with these statements.

The High Court judgment

When His Honour Justice Young reviewed our interpretation of “littoral” in the context of the Act, he determined that we had given insufficient weight to the limiting effect of the word “littoral” as an adjective for “coastal waters”.31 In essence, we had not identified sufficiently clearly what we considered the meaning of “littoral coastal waters” to be.32

Taking that criticism on board, we determined to investigate the question further. In his judgment, His Honour Justice Young had (like Māori Land Court judges before him) considered a number of dictionary definitions of the words “coastal waters” and “littoral”. Considering the meaning of words inevitably leads to looking at dictionary definitions, and that is of course a conventional part of statutory interpretation. But it seemed to us that the range of definitions in dictionaries really offered no more than smorgasbord of options. They did not give real insight into the term “littoral” in a way that would enable us to move to another level of understanding of the connotations of the word in the present legislative (section 174) and physical (Akaroa Harbour) contexts. Unlike His Honour, we were in the fortunate position of being able to seek evidence on the issue, and that is what we did.

The new evidence

At our re-hearing, we heard the evidence of four marine scientists on their understanding of what coastal waters would be considered “littoral” in the context of Akaroa Harbour. The applicant rūnaka called as expert witnesses Dr John Zeldis, a senior marine scientist from NIWA, and Derek Todd, a consulting coastal geomorphologist; Sea-Right called Dr Derek Goring, a consulting engineer specialising in coastal hydraulics; and the Department of Conservation called Dr Kenneth Grange, a marine ecologist from NIWA. As noted earlier, in our first report we had not seriously addressed the question of whether Akaroa Harbour might also be considered “estuarine”. This was because nobody who appeared before us contended that it was, and also because we supposed – wrongly, as we now know – that an absence of significant rivers running into the harbour meant that it would not be estuarine in nature.

We found the new evidence very helpful in illuminating for us the concepts of “littoral” and “estuarine” in the coastal marine area. We set out below our understanding of the substance of the evidence, and our application of it to the facts before us.

30 6 June 2000, pages 4-5.

31 Sea-Right Investments Limited v. The Minister of Fisheries and ors, op.cit., paragraph 30, page 11.

32 Ibid, paragraph 26, pages 13-14.