4864 NEW ZEALAND GAZETTE, No. 194 18 NOVEMBER 2005

There is also an appeal both logically and in terms of customary usage in the inclusion of the
whole of the harbour in the taiāpure. A management regime that left out part of the harbour is
less likely, we think, to achieve the desired outcomes – although, as we have said, we think
different management regimes can work in conjunction.

We said in our first report and recommendations that although it was suggested to us at the
hearing that the use of the words “being estuarine or littoral coastal waters” (section 175)
carried with them an implication that taiāpure would be generally smaller than that
contemplated here, we did not think that is necessarily the case. We said that provided that
the criteria in the Act relating to customary association are met, the only physical criterion is
that the coastal waters in question are estuarine or littoral. We pointed out that estuarine and
littoral waters are not necessarily small in dimension.

In his judgment, His Honour Justice Young agreed with this approach as a matter of
principle. As we have observed, His Honour thought we needed to do more to identify how
the whole of Akaroa Harbour had been of special significance either as a food source or for
spiritual or cultural reasons, and to explain our understanding of littoral coastal waters. That
is what we have now sought to do. But, speaking of our earlier report, His Honour said:

Clearly the Tribunal were correct when they observed that measuring physical
dimensions of the proposal is not by itself determinative. If the total area is seen as
“too large” then the Minister deciding whether to recommend the appropriate taiāpure
is entitled to take this into account (see s176(2)(b)).

And later,

I express 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 for
the reasons given. The issue is not size per se of any taiapure-local fishery, but
whether the evidence satisfies these statutory requirements of special significance of
littoral coastal waters for the purposes identified in s174.

We have set out above (issues 1, 2 and 3) our conclusions that the statutory requirements
have been fulfilled. This analysis of whether these requirements have been met is the thrust
of our statutory task. We do not think there is any statutory basis for considering that the area
proposed for the taiāpure at Akaroa Harbour is too large. Its dimension is in keeping with
taiāpure gazetted in other parts of the country; and for rangatiratanga and fisheries
management reasons, we consider that its size is appropriate.

Issue 5

Should the taiāpure include the Dan Rogers area, which is the subject of a marine reserve proposal?

It was to this issue that the bulk of hearing time was devoted at our initial hearing.

The area proposed as a marine reserve at Dan Rogers is a small zone lying on the
south-eastern arm of Akaroa Harbour, extending around the head of the Harbour to Gateway
Point. It lies completely within the area proposed for the taiāpure, and comprises 8% of its
area. In this report, we will refer to the area proposed as a marine reserve as “Dan Rogers”.

38 Sea Right Investments Limited v. The Minister of Fisheries, op. cit., paragraph 24, page 13.

39 Ibid, paragraph 27, page 14.

40 530 hectares.

41 Boundaries of the proposed Dan Rogers marine reserve are from the entrance of Manukatahi Stream, near
Nine Fathom Point (at 43°51.48′S and 172°56.55′E) following a line bearing 220° to the line described as the
Wainui Leading Lights. From Gateway Point (at 43°53.52′S and 172°59.05′E) following a line bearing 200° to
the line described as the Wanui Leading Lights.