NEW ZEALAND GAZETTE, No. 99 — 27 SEPTEMBER 2017

This definition incorporates the classical littoral, eulittoral and sublittoral zones.

But would the deepest part of Akaroa Harbour be included in the definition? Dr Grange provided data to show macrophytes distribution to depths of 20m on the rock walls near the harbour. However, they were not reported as growing on the soft sediment in the middle region of the outer harbour. Dr Grange contended that their absence probably relates to their requirement of firm substrates for attachment rather than a lack of light. The outer region of the harbour to 25 metres depth has not been surveyed for presence/absence of macrophytes but Dr Grange argued that water turbidity is lower her and so the depth of light penetration to support plant growth would probably be greater and thus extend to the harbour bed. Although Dr Grange’s views on these two points were unsupported by data, they were based on his considerable experience, and appeared to us to be logical and therefore persuasive, in the present context.

Thus, using Dr Grange’s definition for littoral coastal waters, and in the absence of plant or light distribution data for the entire harbour, we think that even the deeper reaches of the harbour at depths greater than 20 metres may properly be regarded as “littoral”.

11

[34] The Akaroa Harbour Taiapure Tribunal’s discussion clearly amplified the meaning of “littoral” in light of the use of that term in marine biology. That approach is consistent with the approaches taken by the earlier Tribunals and the High Court. Nevertheless, given that amplification, I offer the following summation of the meaning of littoral coastal waters for the purposes of the Act.

[35] The term “littoral” is intended to narrow the term “coastal waters” so as to mean an area close to the shoreline. It is not possible to precisely define how “close” to the shoreline the waters need to be as closeness is a relative concept. Similarly, it is not possible to precisely define how “shallow” the waters need to be as shallowness is also a relative concept. The Akaroa Harbour Taiapure Tribunal clarified that the term “littoral” qualifies the term “coastal waters” not only in the geographical sense but also in the biological sense. This is unsurprising as the taiapure regime is concerned with protecting the ecology that is made up of the “fish, aquatic life and seaweed” in the waters and not merely the physical coastal waters.

[36] In the geographical sense, littoral refers to the area where the land and sea intersect and interact. Consequently, the area would be expected to comprise mostly waters where the effect of the surf, tidal phenomena and currents is apparent. Reefs, islands, land marks, surf breaks, currents and channels may be indicative of this area.

[37] In the biological sense, the area would be expected to include those areas that are or have been significantly rich in sea life. Once again, it is not possible to precisely define how “rich” in sea life the waters need to be as richness is a further relative concept. Nevertheless, the approach taken by the Akaroa Harbour Taiapure Tribunal – that littoral coastal waters will include the littoral, eulittoral and sublittoral zones – provides some scientific parameters to the waters that may be said to be rich in sea life. These may include the inter-tidal area and the sub-tidal area where the habitat allows plants to grow; that is, to the point where light penetration is insufficient to support plant growth or macrophytes. In the Akaroa Harbour example the depth was at least 20 metres. Hence, in some circumstances it may arguably extend to the edge of the continental shelf.

[38] Finally, as I discuss shortly, the fisheries waters that may be the subject of a taiapure are further restrained by the requirement that they be an area of “special significance” to iwi or hapū.

[39] Although each proposed taiapure must be assessed on its own facts to see whether it fits within the definition of estuarine waters or littoral coastal waters, I note that some taiapure have extended up to three kilometres from the shoreline into coastal waters. These include the following (I do not include examples of taiapure granted in respect of harbours or inlets as they are more likely to be “estuarine waters):

• The Maketu Taiapure includes a three kilometre radius from the Okurei Point shoreline;
• The Palliser Bay Taiapure extends 800 metres from the shoreline at Te Kopi and 300 metres from the shoreline at Te Kumenga;
• The Porangahau Taiapure extends one nautical mile from the shoreline.

"Special significance" of fisheries waters

[40] As noted, the fisheries waters also need to have customarily been of “special significance” to iwi or hapū as per s 174 of the Act. Ronald Young J emphasised this in Sea-Right Investments Limited:

[20] ...The object of Part IX is to make better provision “for the recognition of rangatiratanga and of the rights secured in relation to fisheries by Article 2 of the Treaty of Waitangi” for littoral coastal areas that have been of special significance to iwi and hapu as a source of food for spiritual or cultural reasons. An area which has been typically used as a source of food by iwi or hapu by itself may not qualify. It must be an area of special significance. Applying the words “special significance to an iwi or hapu” to the littoral

11