Case Review Of Re Edwards (Te Whakatōhea No 2) On The Recognition Of Customary Rights In Marine And Coastal Areas In New Zealand

Abstract

For many indigenous cultures, land means more than just property – it encompasses culture, relationships, ecosystems, social systems, spirituality, and law. Land constitutes an integral part of indigenous peoples’ identity and forms part of what keeps them grounded and connected to their origin as a people. For many, land means the earth, the water, the air, and all that live within these ecosystems. Historically, to separate indigenous peoples from their land is to strip them of their sovereignty and identity. Land and indigenous rights are inextricably linked.

The High Court’s decision in Re Edwards (Te Whakatōhea No 2)4 is a unique example of an indigenous application for a recognition order for either customary marine title or protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 (“the Act”) – Tikanga relevance before the Courts – the intersection between Tikanga and the common law – and meaning of “Exclusive use and occupation” and “substantial interruption.”

This paper reviews the Court’s approach to the interpretation and application of the statutory tests prescribed in the Act with consideration to the scale of the challenge before the Court and the Crown with thousands of further applications pending. While Re Edwards sets significant precedence for these further applications, this decision sets a standard for the Courts on the assessment of Tikanga evidence in relation to the determination of customary marine title rather than relying on the western proprietary concepts framed in the common law system. This paper briefly examines the Court’s approach to expert evidence and managing the consistency of Tikanga evidence in future cases. It also discusses the Court’s conclusion on how overlapping groups have been resolved with heavy reliance on a Tikanga model of relationship management and compliance. It raises some questions and further challenges that remain to be resolved in Re Edwards and how the Courts and the Crown will progress in terms of planning how to manage the process and formulating legal issues for resolution.