In a recent High Court decision Māori customary interests over marine and coastal areas were recognised on the basis that the applicant group had maintained their ahi-kā (fires of occupation), and had the ability to apply on behalf of others who whakapapa to the area.

The application was for a small area near the Pohowaitai and Tamaitemioka islands near Rakiura (Stewart Island).

The islands are only used between March and May each year for gathering Tītī (Muttonbirding). The rest of the year the islands are not inhabited. While on the islands the inhabitants fish from the landing area as a source of food. However, in recent times the area has been overfished by commercial fishers.

The application was made by those with houses on the island in the hope of protecting the fish stock and access to the islands.

The applicants had to prove a history of exclusive use and occupation, and that the area was held in accordance with tikanga. This was recognised by the Court as the islands had been used for Muttonbirding long before the Treaty of Waitangi, and since the mid-1800’s access to the islands had been restricted.

The applicants also had to prove that they had the mandate to bring the application. The application had been brought by those with houses on the islands on behalf of other Rakiura Māori with customary interests.

The Court held that those who exercise the fires of occupation are able to make the decisions on behalf of all those who whakapapa to the islands. The applicants had notified interested parties and provided multiple opportunities for discussion. The applicants had also acted in accordance with the tikanga of the islands. The customary interests were therefore recognised.

Sija Robertson-Stone
Māori Issues Lawyer
Wellington