NEW ZEALAND GAZETTE, No. 99 — 27 SEPTEMBER 2017

the shoreline for the purpose of considering s 175 to s185 of the Act.

[15] The use of the word littoral is there to emphasise and restrict the words "coastal waters". I do not consider, however, it is intended to restrict them to an area between the high and low level mark as contended for by the appellants. This interpretation does not fit either with the statutory regime or with the words used in s174, s175 and s176 referring as they do to areas of "New Zealand fisheries waters". The statutory regime is concerned with the management and conservation of fish, aquatic life and seaweed in the littoral coastal waters and estuarine waters. This implies sea life beyond the area between the high and low tide mark. The sections of the Fisheries Act are concerned with littoral coastal waters. The phrase within which littoral sits contemplates coastal water rather than a tidal area.

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[25] To return to the phrase littoral coastal waters. The context of the use of the phrase, the various definitions of littoral quoted and the Hansard references make it clear that what was intended by Parliament was an area of water close to the shoreline. Definitions of littoral involving "pertaining to" or "adjacent to" the shore all illustrate a close connection with the shore was intended. While it is not possible to define the area covered by littoral coastal waters precisely it is the close connection with the shore that is the important aspect. The addition of the word "littoral" to "coastal waters" is therefore in my view intended to more closely define or narrow the words coastal waters. And as I have explained the area available for a taiapure-local fishery is further restrained by the need to establish that the area of littoral coastal water sought to be subject to an order was of special significance to iwi and hapu for food gathering and/or spiritual and cultural reasons. While a pedantic narrow approach to such a question is hardly likely to be helpful or practical, Maori occupation of an area and food gathering there may not by itself be enough to satisfy the statutory test set by Parliament. (emphasis added)

[33] The Sea-Right Investments decision resulted in the Tribunal tasked with considering the Akaroa Harbour Taiapure reconvening to hear further evidence. In its subsequent report, the Tribunal discussed the meaning and application of littoral coastal waters in light of the further evidence. That evidence included marine scientists’ explanations of the use of the term "littoral" in the context of marine biology. This had not been addressed previously. The Tribunal observed:

The classical definition of "littoral zone" when applied to marine environments relates to the sea-land margin that is influenced by tidal movements: the region between the maximum spring-tide high water mark and maximum spring-tide low water mark (spanning the region of largest tidal variation). Eulittoral has been used to define the narrower region of tidal influence within the littoral zone that is exposed and submerged on a daily basis (irrespective of maximum tidal range that varies in conjunction with the lunar cycle).

However, like other taiapure tribunals before us, we rejected this narrow interpretation of "littoral" as inapplicable to the taiapure legislative context. His Honour Justice Young supported this view in his judgment.

He said:

[15] The use of the word littoral is there to emphasise and restrict the words "coastal waters". I do not consider, however, it is intended to restrict them to an area between the high and low level mark as contended for by the appellants. This interpretation does not fit either with the statutory regime or with the words used in sl74, sl75 and sl76 referring as they do to areas of "New Zealand fisheries waters". The statutory regime is concerned with the management and conservation of fish, aquatic life and seaweed in the littoral coastal waters and estuarine waters. This implies sea life beyond the high and low tide mark. The sections of the Fisheries Act are concerned with littoral coastal waters. The phrase within which littoral sits contemplates coastal water rather than a tidal area. [Emphasis original]

Witnesses told us that the term sublittoral has been used to describe the biological zone beneath the region of immediate tidal influence. This is the region of most prolific plant and animal life and extends from the water surface to the depth of light penetration sufficient to support growth of large attached foliose plants (macrophytes). Drs Kenneth Grange and John Zeldis agreed that for the purpose of this application, understanding the term littoral to include this sublittoral zone made most sense with respect to future fisheries management. Because this zone contains the greatest biological diversity and abundance it is essential that it is included in the fishery management area if management practices are to be effective. There is a precedent for adopting this broader meaning of "littoral" because in the field of fresh water biology it is accepted that the littoral zone extends from the land/water margin to the depth at which macrophytes presence ceases.

After considering a number of sources, Dr Kenneth Grange told us:

It is my interpretation, therefore, that the term "littoral" encompasses the intertidal area (including the splash zone) [35] and the area that supports the majority of plants in the subtidal area (where suitable habitat allows plants to grow). The outer (or depth) limit is where light penetration is insufficient to support plant growth and it may even extent across the continental shelf...

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