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106 Taitokerau MB 210

IN THE MĀORI LAND COURT OF NEW ZEALAND

TAITOKERAU DISTRICT

A20080016506

UNDER

Sections 11 and 12, Protected Objects Act 1975

IN THE MATTER OF

Taonga Tūturu found at Kerikeri

BETWEEN

ACTING CHIEF EXECUTIVE OF THE

MINISTRY FOR CULTURE AND HERITAGE

Applicant

AND

NGĀI TAWAKE KI TAMAKI

First Interested Party

AND

TE RŪNANGA O NGĀTI REHIA

Second Interested Party

AND

THE HAPŪ OF TE WAIMATE TAIAMAI AND

KERIKERI: NGĀTI HINEIRA, TE URI

TANIWHA, TE WHĀNAU WHERO, NGĀTI

KOROHUE AND NGĀTI RANGI

Third Interested Party

Hearing:

135 Whangārei MB 87-88, dated 24 April 2009

139 Whangārei MB 242, dated 3 July 2009

56 Kaikoke MB 7-16, dated 22 September 2009

7 Taitokerau MB 3-27, dated 15 April 2010

4 Taitokerau MB 95, dated 16 April 2010

14 Taitokerau MB 216, dated 14 December 2010

16 Taitokerau MB 258-259, dated 15 February 2011

20 Taitokerau MB 281-282, dated 17 May 2011

21 Taitokerau MB 194-195, dated 27 May 2011

22 Waikato Maniapoto MB 144-145, dated 26 May 2011

22 Waikato Maniapoto MB 275-278, dated 13 June 2011

24 Waikato Maniapoto MB 224-225, dated 8 July 2011

25 Waikato Maniapoto MB 147-148, dated 3 August 2011

27 Waikato Maniapoto MB 246-247, dated 15 September 2011

29 Taitokerau MB 112-113, dated 1 November 2011


35 Taitokerau MB 1-9, dated February 2012

47 Taitokerau MB 2, dated 24 August 2012


81 Taitokerau MB 162-163, dated 4 June 2014

83 Taitokerau MB 48-209, dated 11 and 12 June 2014

(Heard at Whangārei)

Appearances:

M Tukapua for the Applicant

K Hoani for the First Interested Party


Dr B D Gilling and H E Stephen for the Second Interested Party

M Tūwhare for the Third Interested Party

Judgment:

03 July 2015

RESERVED JUDGMENT OF JUDGE M J DOOGAN

Copies to: M Tukapua and N Barber, Ministry for Culture and Heritage, Te Manatū Taonga, PO Box 5364, Wellington, [email protected] and [email protected] Dr B D Gilling and H E Stephen, Morrison Kent Lawyers, DX SP20203, Wellington, [email protected] and [email protected] M Tuwhare, PO Box 1015, Kerikeri, [email protected]

mailto:[email protected]






Introduction

[1] During construction of the Kerikeri bypass in 2006 various taonga were uncovered.

Most are wooden agricultural implements of great age. They are taonga tūturu in terms of

the Protected Objects Act 1975 (“the Act”). As such they are deemed prima facie to be the

property of the Crown.1 Competing claims for ownership and custody have been made on

behalf of various hapū of Ngāpuhi.

[2] The issue for determination is which of the interested parties has the stronger claim

for traditional ownership, rightful possession or custody, or to any right, title or interest in

the taonga? If more than one party has an interest, in whom should the taonga be vested for

safekeeping and preservation?2

Ngā Taonga Tūturu

[3] The taonga consist of:

(a) Nine kō (including parts of kō);

(b) Three pounders/patu;

(c) Two footpegs;

(d) Seven tools that have not been named;

(e) Two paddle weeders/ketu; and

(f) One pou.

[4] They were uncovered during riverbank stabilisation works undertaken as part of the

construction of the Kerikeri Heritage Bypass. They were found in an area adjacent to a

series of hāngi pits and fire-scoops in the swamp area on the south side of the Kerikeri

1 Protected Objects Act, ss 2 and 11(1).

2 Protected Objects Act, ss 12(1)(b) and (e).


riverbank. In a report prepared by Northern Archaeological Research in June 2009, Leigh

Johnson notes that in relation to the taonga:3

It appears that the archaeological remains found relate to a period of Maori cultivation and

related short term settlement of the riverbank and adjacent upland areas at some point between

750 and 420 years [before present].

[5] A charcoal sample taken from one of the earth-ovens provided a radio carbon

dating result of 422 (plus or minus 35 years) before 1950.

Preservation of the Taonga

[6] Dilys Johns of the University of Auckland has undertaken conservation treatment of

the taonga. In a report prepared by Ms Johns in July 2010, she notes that the taonga are in

an advanced state of degradation. She says:4

Ideally these taonga should be stored/displayed in fairly strict environmental conditions, with a

relative humidity (RH) of 55% and temperature of 20c. If this is not possible care should be

taken to avoid rapid and/or wide fluctuations in temperature and RH [and] care should be taken

to ensure that the artefacts are covered at all times to avoid dust accumulation.

The Proceedings and the Parties

[7] The proceedings themselves have quite a history. The original application was

lodged by the Acting Chief Executive of the Ministry of Culture and Heritage on 24

November 2008. At that time, and following notice calling for claims of ownership, the

Ministry had received only one claim. This was from Ngāi Tawake ki Tāmaki whose claim

was based on the following:

a) Historical association and interest in the area where the taonga tūturu

were found, being hapū of Ngāpuhi; and

b) Mana whenua of the area through raupatu from the time of the great

chiefs Auha and Whakaaria to the time of Hongi Hika and Rewa.

3 Leigh Johnson Archaeological Monitoring of the FNDC Kerikeri Riverbank Stabilisation Works NZHPT

Authority 2009/67 (Northern Archaeological Research, June 2009) at 5. 4 Dilys Johns Waterlogged artefacts from Kerikeri Heritage Bypass, Kerikeri, Northland: Pre-treatment

condition report (University of Auckland, 27 July 2010) at 20-21.


[8] The application was made pursuant to s 11(5) of the Protected Objects Act which

provides that where only one claim of ownership is lodged the Chief Executive may, if

satisfied the claim is valid, apply to the Registrar for an order confirming ownership. Judge

Ambler directed that an amended application be filed under s 11(2) and s 12 of the

Protected Objects Act. This was in order to give the Court the broadest possible

jurisdiction to make appropriate orders. Judge Ambler also directed that the application

proceed to hearing on notice in the Pānui.5

[9] An amended application was filed on 7 May 2009. The basis for the Ngāi Tawake

ki Tāmaki claim did not change.

[10] In a notice of intention to appear in opposition to the Ngāi Tawake application

dated 14 September 2009, Ngāti Rehia said that it is “the rightful owner of the taonga

tūturu as we hold recognised mana whenua and ahi-kā within Kerikeri. This is evidenced

through our whakapapa and historical connections, our continued kaitiaki actions within

Kerikeri and the fact that ngā hapū o Ngāpuhi as well as local and central government

representatives have consistently recognised Ngāti Rehia as the hapū that holds mana

whenua and ahi-kā within the rohe of Kerikeri.”

[11] By letter dated 1 May 2010 Hone Mihaka submitted a claim to ownership of the

taonga on behalf of ngā hapū o Taiamai/Waimate/Kororipo/Kerikeri. Ms Moana Tuwhare

was subsequently instructed and a notice of intention to appear on the application was filed

on 9 June 2011. That notice was filed on behalf of Mr Mihaka and others of Ngāti Hineira

and Te Uri Taniwha. The grounds of opposition to the Ngāi Tawake application were that

Ngāti Hineira and Te Uri Taniwha peoples have occupied and continue to occupy Kerikeri

and its surrounds for many hundreds of years and continue to have mana whenua within

that rohe. Ngāti Hineira and Te Uri Taniwha therefore claim an interest in the taonga and

seek a resolution which recognises the status and interests of these hapū. In subsequent

documents filed the claim was described as a claim on behalf of the interests of the hapū of

Te Waimate Taiamai and Kerikeri being Ngāti Hineira, Te Uri Taniwha, Te Whānau Whero,

Ngāti Korohue and Ngāti Rangi made by Mr Mihaka for and on behalf of those hapū.

5 135 Whangarei MB 87-88.


[12] Judge Ambler encouraged the parties to try and resolve their differences by

agreement and the proceedings were adjourned on a number of occasions to allow this to

happen. Agreement did not eventuate and the matter was then referred to mediation.

Mediation took place in June 2011 before Judge Clark and Wharehuia Milroy.

[13] By minute dated 8 July 2011 Judge Clark recorded that while no final outcomes had

been reached at the mediation, the parties had agreed in principle to the following:6

a) That the taonga tūturu are important and decisions need to be made as to

their ongoing actual or traditional ownership, rightful possession or

custody;

b) There is a commitment from all parties to work together “mahi tahi tātou”;

c) There was an agreement to form a working party to continue discussions.

Exact details as to the shape of that working party has yet to be agreed

upon.

[14] Judge Clark went on to note that throughout the mediation Ngāti Rehia stated that it

was the kaitiaki and ahi-kā in the Kerikeri/Kororipo area.

[15] Judge Clark adjourned the mediation to allow the parties to carry out further

discussions. By minute dated 15 September 2011, Judge Clark recorded that no agreed

position had been reached with the sticking point appearing to be who maintains ahi-kā in

the Kerikeri/Kororipo area. Judge Clark therefore concluded the mediation and referred the

matter back to Judge Ambler.7

[16] In February 2012 the parties were directed to file a statement of position on two

primary issues:8

1) Who had actual/traditional ownership of the taonga?

2) Who should be the trustees of the taonga?

6 24 Waikato-Maniapoto MB 224-225 (24 WMN 224-225).

7 27 Waikato-Maniapoto MB 246-247 (27 WMN 246-247).

8 35 Taitokerau MB 1 (35 TTK 1).


[17] On 24 August 2012 Judge Ambler recorded in a minute the following:9

I made two observations for the parties to consider. First, it is not clear to me how

any of the parties would be able to prove exclusive, traditional or actual ownership

of the taonga given the significant overlapping of interests over time in relation to

Kororipo. Second, the parties must appreciate that, if they cannot clearly

demonstrate who amongst the Māori interests should take on trusteeship of a

taonga, then the Court may conclude that trusteeship reside with a government

department or similar institute.

[18] As the parties had made some progress towards an agreement, Judge Ambler

proposed a settlement conference. The parties agreed and this conference took place in

Kaikohe on 22 November 2012. However, agreement was not reached, Judge Ambler stood

aside and the matter was subsequently referred to me.

[19] Counsel for the Ministry have throughout provided updates to the Court on steps to

preserve the taonga, and have also provided helpful submissions on the legal issues arising.

As to outcome, the Ministry takes an abiding role.

The Law

[20] The Protected Objects Act makes provision for determination of ownership of

taonga tūturu. Taonga tūturu are defined as objects relating to Māori culture, history or

society which are more than 50 years old and which had been made, modified or brought

to New Zealand by Māori. The implements discovered during excavation of the Kerikeri

bypass are taonga tūturu in terms of the Act.10

[21] Section11(1) of the Act provides that any taonga tūturu found anywhere in New

Zealand from the commencement of the Act (1976) are deemed to be prima facie the

property of the Crown. However s 11(2) goes on to provide:

Notwithstanding the provisions of subsection (1), if actual or traditional ownership,

rightful possession, or custody of any taonga tūturu referred to in that subsection is

9 47 Taitokerau MB 2 (47 TTK 2).

10 Protected Objects Act, s 2.


subsequently claimed, the chief executive or any person who may have any right,

title, estate, or interest in any such taonga tūturu may apply to the Maori Land

Court to exercise any part of its jurisdiction under section 12:

provided that no right, title, estate, or interest in any such taonga tūturu shall exist

or be deemed to exist solely by virtue of ownership or occupation of the land from

which the taonga tūturu was found or recovered.

[22] Section 11(8) provides:

For the purposes of this section, ownership, whether actual or traditional, includes

(but is not limited to) collective or joint ownership.

[23] Because there were competing claims to the taonga that could not be resolved, the

issue has been referred to the Court for determination pursuant to s 12 of the Act.

[24] Sections 12(1)(b) and (e) are of particular relevance. These provisions provide the

Court with jurisdiction:

(b) to hear and determine as between any persons applying under subsection

(2) of the said section 11 any claim, whether at law or in equity, to the

actual or traditional ownership, rightful possession, or custody of any

taonga tūturu, or to any right, title, estate, or interest therein:

[…]

(e) to vest in any person or persons as trustee or trustees any taonga tūturu for

safekeeping and preservation:

The Dispute

[25] The core of the dispute is over whether or not Ngāti Rehia can claim ownership of

the taonga on the basis that they alone hold ahi-kā and kaitiaki status in the

Kerikeri/Kororipo area where the taonga were discovered. Ngāti Rehia see their obligation

under tikanga as one which requires them to hold the taonga as kaitiaki for all hapū who

have association with the Kerikeri/Koropiro area. The other parties see this as a shared

obligation, and take issue with Ngāti Rehia’s claim that they alone exercise ahi-kā and

kaitiaki status in the area.

http://legislation.govt.nz/act/public/1975/0041/latest/link.aspx?search=ts_act%40bill%40regulation%40deemedreg_protected+objects+act_resel_25_a&p=1&id=DLM432422#DLM432422


The case for Ngāti Rehia

[26] Counsel for Ngāti Rehia, Dr Bryan Gilling, submits that the Act requires the Court

to determine either the traditional ownership of the taonga, or who can best care for and

safeguard the taonga. Ngāti Rehia are able to meet either or both of the requirements under

the Act; they can be found to be the traditional owners of the taonga, (when ownership is

considered at a tikanga level), and Te Rūnanga o Ngāti Rehia is the most appropriate body

to care for the taonga.

Ownership of the taonga

[27] Ngāti Rehia ask the Court to consider traditional ownership in accordance with

tikanga which is more flexible than legal ownership. This involves consideration of rights

deriving from consistent occupation and control, and ongoing expressions of care and

protection in the area (ahi-kā and kaitiakitanga).

[28] Counsel argue that “traditional” means “determined according to tikanga”, rather

than taking a guess, however well-informed, as to the inhabitants of the area at the relevant

time in the distant past. If the “historic” owners had been intended, then that term would

have been used. “Traditional” denotes a broader meaning, more congruent with those who

have rights under tikanga. As the concept of taonga tūturu sits squarely in Te Ao Māori, it

would be inappropriate to consider these issues in terms of Pākehā property law.

[29] It is said that the case law on taonga tūturu has not generally distinguished between

actual and traditional ownership; rather a determination of ownership has generally

resulted in awards of custody. Reliance is placed on a decision of Judge Ambler in which

two steps were identified: first, to determine who, in traditional terms, is the owner of the

taonga by way of hapū, or tupuna; second, then vesting the taonga in people living today to

hold on behalf of that hapū or that tupuna.11

[30] Judge Ambler in a later decision concerning the ownership of a waka tīwai

distinguished between actual and traditional ownership in the following way:12

11

143 Whangārei MB 74-78 (143 WH 74-78) at 75. 12

17 Taitokerau MB 277-284 (17 TTK 277-284) at 282.


The term “actual or traditional ownership” has been used deliberately in the Act. In my view,

“actual ownership” can only be determined where it is clear that a taonga was owned by a

particular person or persons. On the other hand, “traditional ownership” should be determined

where the evidence of actual ownership is not clear and so the Court is called on to determine

within whose rohe the taonga was found and, therefore, normally, which hapū held traditional

ownership.

[31] Counsel for Ngāti Rehia take issue with the idea that the extent of a rohe is

determinative of ownership. Their view is that while this may usually be the case, it is not

always so. In the present situation, the age of the taonga makes it impossible to determine

actual ownership. “Traditional” ownership must be determined by “traditional” criteria,

including ahi-kā.

[32] It is submitted that while many hapū have had interests in the area in the past, the

question should be asked as to which hapū have maintained ahi-kā consistently over time

and with the recognition of their peers; a brief period of occupation in the immediately pre-

or post-contact period does not translate to an ongoing expression of ahi-kā two centuries

later. While these past interests must be respected under tikanga, they are qualitatively

different to the maintenance of ahi-kā and kaititakitanga shouldered by Ngāti Rehia over

the past 200 years.

[33] It is submitted that ahi-kā is a dynamic process and the evidence before the Court

shows that only Ngāti Rehia has maintained a true ahi-kā relationship with the whenua,

and is an active kaitiaki of the area and its resources. An implicit requirement of ahi-kā is

to be prepared to defend that status. The reciprocity expected in exercising ahi-kā and

kaitiaki responsibilities is reflected in Ngāti Rehia’s consistent view that within their rohe,

it is their responsibility to look after interests others might also have there. Counsel for

Ngāti Rehia submit that ahi-kā has several key components:

(a) Legitimate acquisition. In this case through raupatu in the mid-eighteenth

century when the Taiamai hapū conquered the area, and the Kerikeri basin

was allocated to Ngāti Rehia’s tupuna, Toko, with Rewa subsequently

passing his interests to Ngāti Rehia as well;


(b) Constant maintenance. This takes many forms, but certainly includes the

implementation of kaitiaki responsibilities;

(c) Implementation at a hapū level, rather than the involvement of individuals,

however committed those individuals are; and

(d) An expectation of reciprocity, given the layers of interests, ahi-kā expect

that they will have the responsibility of dealing with that area, including

protecting the legitimate interests of others in the area, while expecting that

their interests elsewhere will be protected by the ahi-kā of those areas.

[34] It is argued that the evidence, confirmed by kaumatua, shows that Ngāti Rehia has

had an ongoing relationship with the Kerikeri basin for two and a half centuries, and that

they have been particularly active in establishing and working consistently with various

bodies to protect the environment and social development of Māori in the area. Although

certain individuals of other hapū have also been active in respect of certain initiatives, this

is insufficient to demonstrate the sustained and comprehensive effort required to establish

ahi-kā at a hapū level.

[35] It is therefore submitted that when the enduring exercise of rights and

responsibilities associated with the exercise of ahi-kā and kaitiakitanga are considered,

Ngāti Rehia can properly claim traditional ownership of these taonga found in their rohe.

[36] Counsel for Ngāti Rehia notes however that s 12 of the Act does not require the

Court to determine both ownership and custody. The provisions in s 12 of the Act relate to

separate elements of the Court’s jurisdiction, and do not have to be exercised together. The

elements in s 12(1)(b) are alternatives.

[37] Counsel submit that if the Court is unable to make a decision in respect of

traditional ownership in favour of Ngāti Rehia, no decision as to ownership should be

made. The age of the taonga mean that they may have originally belonged to any number

of hapū who were present in the area over the relevant timeframe. Given the arrival of the

mataatua waka some 550 years ago, that could include Ngāti Awa and numerous other

Mataatua descendants.


[38] Ngāpuhi heritage includes Mataatua whakapapa, therefore vesting the taonga in Te

Rūnanga o Ngāti Rehia on behalf of Ngāpuhi nui tonu would cover the breadth of possible

interests. Further, Ngāti Rehia is already acknowledged as the kaitiaki of Mataatua waka,

not only on behalf of Ngāpuhi, but also the other major Mataatua iwi; Ngāi Te Rangi,

Ngāti Awa, Ngāi Tūhoe, Te Whakatōhea of the Bay of Plenty and Te Whānau-ā-Apanui of

the East Coast.

Care and safekeeping of the taonga

[39] Counsel for Ngāti Rehia submit that consideration of ahi-kā and kaitiakitanga

also goes towards determining the appropriate trustees of the taonga. Of the parties, only

Ngāti Rehia is prepared and able to shoulder the responsibility of caring for the taonga. It

is submitted that this should weigh heavily when the Court is making the decision as to the

appropriate trustees of the taonga. The taonga are ancient and fragile and only Ngāti Rehia

has shown that they are able to look after them appropriately.

[40] Ngāti Rehia already has facilities available at Rewa’s Village and experience in

caring for the existing taonga held there. They have undertaken preliminary work to

establish that they are able to look after these taonga. They have professional display

cabinets in a culturally and geographically appropriate and secure environment. All hapū

with a connection to the taonga will be able to access and view them. The cabinets

currently under consideration for the taonga could cost up to $25,000.00 plus GST. This is

a sign of the commitment that Ngāti Rehia have to their ahi-kā responsibilities. The other

parties have not shown this or made provision to provide for the necessary safekeeping and

protection of the taonga. Indeed some of the suggestions would sever the taonga from the

location where they belong. Other options would be culturally inappropriate.

[41] Ngāti Rehia seek orders determining the ownership of the taonga in favour of Te

Hapū o Ngāti Rehia on behalf of Ngāpuhi-nui-tonu; vesting the taonga in Te Rūnanga o

Ngāti Rehia for safekeeping and preservation; and appropriately acknowledging the

relationship that other hapū may have under tikanga with the Kerikeri basin through the

creation of a management komiti, with a small clearly defined group committed to the

ongoing mahi and expense of safekeeping and preservation of the taonga. It is submitted


that the detail and composition of this committee will be a matter for the parties to consider

and report back to the Court on by a specified date.

The Case for the Hapū of Te Waimata Taiamai and Kerikeri

Ownership of the taonga

[42] Counsel for the Hapū of Te Waimata Taiaimai and Kerikeri, Moana Tūwhare,

submits that the Protected Objects Act requires the Court to hear and determine as between

any persons applying:13

…any claim whether at law or in equity, to the actual or traditional ownership, rightful

possession, or custody of any taonga tūturu, or to any right, title, estate, or interest therein…

[43] However, s 11(2) of the Act states that any person who may have any right, title,

estate, or interest in any taonga tūturu may apply to the Māori Land Court to exercise any

part of its jurisdiction provided that no right, title, estate, or interest in any taonga tūturu

shall exist or be deemed to exist solely by virtue of ownership or occupation of the land

from which the taonga tūturu was found or recovered. And s 11(8) of the Act states that

ownership, whether actual or traditional, includes (but is not limited to) collective or joint

ownership.

[44] Counsel submits that because of the significant overlapping customary interests in

the area where the taonga were found, it is not appropriate for the Court to determine an

exclusive traditional ownership; instead, recognition of collective or joint ownership would

be appropriate. The Court can determine traditional ownership on a broad range of

categories, including in general terms “rights and interests”, and counsel submits that all

parties can demonstrate rights and interests significant enough to warrant recognition by

way of collective ownership. Notwithstanding that the hapū have based their claims on

different rights and interests, this does not limit the Court’s ability to recognise all

legitimate rights and interests in the taonga.

[45] Counsel submits that by establishing the hapū rohe covering the area where the

taonga were found, the legitimate traditional owners can be identified. Counsel notes that

13

Section 12(1)(b).


a similar approach was taken by Judge Harvey in his decision concerning a pounamu

heitiki found at Plimmerton. Having determined that the area in which the heitiki was

found was the traditional domain of Ngāti Toa in 1840, Judge Harvey stated:14

Expert evidence confirms that the style of the heitiki cannot be ascribed to any particular iwi or

hapū. It may belong to Ngāti Toa Rangatira or any of the iwi who arrived as part of the various

waves of migration during the early nineteenth century. It may have been gifted, traded or

exchanged by both pre and post migration tribes. But these comments can only be speculative

and in the absence of detailed expert evidence it is difficult to see how any claim to actual

ownership, contrasted with traditional ownership, can be sustained. In such circumstances

therefore, I determine, on the balance of probabilities, that it is impossible to ascertain actual

ownership, and in the absence of legitimate competing claims, that traditional ownership of the

heitiki, lies with Ngāti Toa Rangatira iwi.

[46] Counsel submits that there are a number of factors in this case which make the

determination of actual ownership impossible, including the fact that the area in which they

were found can be identified as part of the rohe of a number of hapū. The area also formed

part of the main thoroughfare between Te Waimate and the coast and the archaeological

evidence suggests that the taonga are likely to be associated with a short-term settlement.

There is no way of knowing where the actual owners ended up and the age attributed to the

taonga predates Ngāpuhi. It is therefore possible that the taonga could have belonged to

any of the hapū recognised as previously occupying the area, such as Ngāi Tahuhu, Ngāti

Awa, Ngāti Pou, or Wahineiti – none of whom are identified as separate parties to these

proceedings. These hapū have either moved on, or intermarried or integrated with

Ngāpuhi to such an extent that the names of the dominant hapū have changed, even if

whakapapa to those earlier tūpuna is undeniable.

[47] The Taiamai and Kerikeri hapū claim, and have shown in evidence, their

whakapapa to Tahuhunuiorangi and Ngāti Awa and Ngāti Pou. They are also closely

connected to Wahineiti. However, later conquests by groups who now identify as

descendants of Rahiri (as Ngāpuhi) have dominated the landscape in more recent

expressions of mana whenua. Today the area in which the taonga were found is in the rohe

of various Ngāpuhi hapū, including Ngāti Hineira, Te Uri Taniwha, Ngāti Rangi, Te

14

Chief Executive, Ministry for Culture and Heritage – Taonga Tūturu found at Plimmerton (2012) 283

Aotea MB 166 (283 AOT 166) at [31].


Whānau Whero, Ngāti Korohue, and Ngāti Tautahi, although most if not all of these hapū

can also whakapapa to the earlier groups.

[48] The evidence given by Hone Mihaka identifies the rohe of these hapū, and shows

that they continue to hold intimate associations with the area where the taonga was found,

including: mana whenua in Kerikeri; mana moana in Kerikeri inlet; enduring and unbroken

occupation; numerous wāhi tapu, including ancient and recent burial places; other

significant sites such as maunga and islands; and ongoing involvement in community

affairs. It is submitted that these factors demonstrate that the hapū have retained rights,

interests, mana, ahi-kā and kaitiakitanga in this part of their rohe. Any denial of these

interests by Ngāti Rehia is misguided and unsubstantiated.

[49] Ngāti Rehia have sought exclusive rights to the taonga. However, the recognition of

other hapū interests is undeniable, and is clear in many written histories of the area. A

Ngāti Rehia witness, Te Huranga Hohaia, accepted some of these other rights and interests

in cross-examination. A non-exclusive approach would be consistent with tikanga, and

allow all the parties to freely recognise their whanaungatanga and responsibilities to each

other.

[50] Further, counsel submits that any assertion by Ngāti Rehia that the hapū have given

their rights and interests to Ngāti Rehia in a hui of Ngāpuhi kaumātua, is unfounded. The

hapū have not conferred their interests to Ngāti Rehia to act as kaitiaki on their behalf.

They have sought over many years to work constructively with Ngāti Rehia, and have

consistently been involved in the area, and have continued to uphold their responsibilities

as holders of mana whenua. The Court’s decision should recognise these rights and

interests.

[51] Counsel submits that any decision regarding the responsibility for the ongoing care

and protection of the taonga should be a matter for the hapū to determine collectively as

responsible trustees. Ngāi Tawake and Ngāti Rehia undoubtedly have interests in the rohe,

and putting all the hapū with interests on an equal footing regarding future decisions

concerning these taonga will likely create the positive and constructive working

relationship sought by the hapū.


[52] Ms Tuwhare notes that the list of hapū is not exhaustive; the list only shows those

hapū who have engaged in this process. It may therefore be appropriate to recognise the

traditional owners as the hapū of Kerikeri, past and present, albeit vesting the taonga in the

representatives of the hapū present. All hapū with legitimate interests should be

recognised, and this should be reflected in the Court’s decision.

Who should be trustees of the taonga?

[53] The Court has the jurisdiction to vest the taonga in any person or persons as trustee

or trustees for safekeeping and preservation. Vesting of the taonga in a legal entity for

safekeeping ensures the taonga are protected for, and on behalf of, the traditional owners.

In the case of the heitiki found at Plimmerton, Judge Harvey found that a valuable taonga

of this kind must be preserved and cared for by those with the necessary resources and

expertise, and it would be inappropriate to vest the taonga in any person who did not have

ready access to such facilities and knowledge. In coming to his decision, Judge Harvey

noted that:15

The Rūnanga is a registered collector of taonga. It also has secure facilities within which to

store and preserve the heitiki consistent with standards appropriate for a taonga of this kind.

Mr Rei points out that the iwi may yet secure funding to establish a whare taonga for the tribe

where taonga like the heitiki can be stored, displayed and preserved. Mr Comerford does not

have similar facilities at his disposal, apart from being able to liaise with the Pātaka Museum,

and it not a registered collector of taonga. Both points must be borne in mind in any

consideration of an application for determination of ownership and custody.

[54] Ms Tuwhare notes that both Hone Mihaka and Arthur Ashby are registered

collectors of taonga, and the hapū are capable of ensuring appropriate facilities are found

for the taonga. The fact that this has not occurred prior to the hearing should not preclude

recognition of the legitimate claims of the hapū, nor should it preclude hapū

representatives from being part of the decision-making process concerning where and how

these taonga should be cared for, stored and possibly displayed in the future.

[55] Therefore, counsel submits that the collective interests of the hapū who are party to

this application should be reflected in the trusteeship of the taonga and each should have

15

Chief Executive, Ministry for Culture and Heritage – Taonga Tūturu found at Plimmerton (2012) 283

Aotea MB 166 (283 AOT 166) at [31].


representative trustees who can whakapapa to one or more of the traditional hapū. Trustees

could either be appointed by the Court, or determined by an advertised hui-ā-hapū for this

purpose.

The Case for Ngāi Tawake ki Tamaki

[56] Mr Kyle Hoani presented submissions on behalf of Ngāi Tawake ki Tamaki. He

declined the opportunity to question witnesses of the other parties but did provide

supporting documentation. This included extracts from a range of published and secondary

sources including a research report for the Waitangi Tribunal by Tom Bennion: Kerikeri

Reserves Archaeological Survey, May 1997.

[57] Mr Hoani submitted that Ngāi Tawake claimed the whenua of Taiamai and Kerikeri

through conquest by Auha and Whakaaria and their ally Kauteawha. Hongi Hika then

inherited mana over those lands from his father and grandfather who had led the

displacement of the former occupants, Ngāti Ngeru and Wahineiti. Mr Hoani notes that Mr

Bennion’s report refers to a view of the Ngāpuhi leaders in 1933 that the Kororipo Pā site

was to be reserved for all Ngāpuhi people.

[58] Mr Hoani submits that in terms of this application the desired outcome is to support

the intention of that 1933 kōrero that the resolution is inclusive of all hapū that have an

interest or connection to Kerikeri:

Ngāi Tawake believe that if there is to be a determination of mana whenua outside

this mutual agreement to come together as one, that being Ngāpuhi, that the

determination be in favour of Ngāi Tawake ki Tuawhenua.

[59] Mr Bennion’s report notes that the origin of the pā at Kororipo headland may date

back to the time of Ngāti Awa’s occupation of Kerikeri. Mr Bennion also records that

Hongi Hika assumed control of Kororipo Pā from his father and grandfather. Mr Bennion

notes the following from The Dictionary of New Zealand Biography:

He [Hongi] was the third son of Te Hotete, born of his second wife, Tuhikura, of

Ngati Rehia. He was descended through nine generations from Rahiri, the ancestor

of Ngati Rahiri, who was in turn descended from Puhi-moana-ariki, the ancestor of


Nga Puhi. In addition to Ngati Rahiri and Ngati Rehia he was most closely

associated with Ngati Tautahi and Ngai Tawake.

Does an Order for Custody or Vesting Require a Finding as to Ownership? Further

Submissions:

[60] I sought submissions from counsel as to whether the Court was required to make an

order as to both ownership and custody of the taonga. Submissions were received from

counsel for the Ministry of Culture and Heritage dated 13 August 2014, from counsel for

Ngāti Rehia dated 15 August 2014, and from counsel on behalf of the hapū o Te Waimate

Taiamai and Kerikeri dated 22 September 2014. Further submissions in reply were then

received on behalf of Ngāti Rehia dated 2 October 2014.

[61] Counsel for the Ministry submitted that the jurisdiction available pursuant to

s12(1)(b) and 12(1)(e) of the Act was broad, enabling the Court to make orders as to actual

or traditional ownership, rightful possession or custody, or any “right, title, estate or

interest therein.” There was also discretion to vest in any person or persons as trustee or

trustees the taonga for safekeeping or preservation. Counsel argues that the various

subsections of s12(1) are stand alone and the Court may make such orders as it considers

appropriate in respect of any of those matters. Therefore the Court is not required to make

an order as to ownership, it may make an order in respect of custody alone.

Ngāti Rehia Reply Submissions

[62] In his reply submissions on behalf of Ngāti Rehia, Dr Gilling accepts that various

hapū share connections with the Kerikeri inlet area based on the same raupatu that Ngāti

Rehia look back to. However it was not accepted that those ancestral rights are sufficient to

displace Ngāti Rehia’s continuous ahi-kā and kaitiaki status, which it is argued has been

recognised by Ngāpuhi nui tonu. In terms of custody, it is submitted on behalf of Ngāti

Rehia that their proposal to house the taonga in purpose built facilities at Rewa’s Village

would be appropriate and would enable the taonga to be displayed in a Māori context at a

site close to where they were found. Preservation of the taonga requires special storage and

display facilities. Only Ngāti Rehia was prepared to assume that responsibility and so

ensure the taonga could be put on display in a whare taonga facility.


[63] As to the concern about exclusivity, it was argued that this concern can be

addressed by Ngāti Rehia’s proposal to form an advisory committee of interested parties.

[64] The alternative proposal of vesting the taonga in trustees is rejected as impractical

because an amorphous group of trustees with tenuous connection to the taonga would not

have the responsibility or resources to properly care for and display the taonga.

Discussion

[65] A notable feature of this case has been the inability of the parties to resolve the

dispute despite extensive effort over a considerable time. The parties are divided over what

they see as the implications of an order determining ownership and vesting custody upon

contemporary relationships and status. It appears the dispute over ownership of the taonga

has become a proxy for a wider dispute over tangata whenua/ahi-kā and kaitiaki status in

the Kerikeri area. This goes to relationships, not just within the hapū of Ngāpuhi but also

with local authorities and other public bodies.

[66] Standing back, the salient points are these:

(a) The taonga are of such an age that they likely predate Ngāpuhi;

(b) All hapū see the taonga as important and wish to ensure their safe

keeping in a culturally appropriate way; and

(c) The taonga are fragile and special arrangements will be necessary to

ensure their safe keeping and preservation.

(d) All of the hapū represented before the Court have historical

association with the area in which the taonga were found.

[67] The Act confers jurisdiction on the Court to hear and determine competing claims

to traditional ownership, rightful possession, or custody of taonga or any right, title, estate,

or interest in taonga.


[68] Section 12(1)(b) sets out a descending hierarchy of interest. Below actual or

traditional ownership comes rightful possession or custody. Below that is a claim to any

right, title, estate or interest. Whilst it could be said that the drafting is circular in that a

legal or equitable right, title, estate or interest could equate to actual or traditional

ownership and/or rightful possession or custody, in my view the intention is to provide the

Court with discretion to recognise gradations of interest depending upon what the evidence

shows.

[69] Ngāti Rehia acknowledge kinship links to the other hapū represented in this

proceeding and to their association with the Kerikeri Kororipo area over time. While the

evidence presented on behalf of Te Waimate Taiamai and Ngāi Tawake ki Tāmaki was less

extensive, I am satisfied that those hapū have an association with the area within which the

taonga were found sufficient to displace the prima facie assumption of Crown ownership

and to therefore require determination as to where the stronger claim now lies, be that

traditional ownership, rightful possession, custody or on the basis of a some other right,

title, estate or interest. I now turn to consider the various alternative findings open to me.

Traditional Ownership

[70] I agree with Dr Gilling that traditional ownership implies ownership in accordance

with Māori custom or tikanga. I also agree with the distinction drawn by Judge Ambler

between “actual” and “traditional” ownership. Judge Ambler concluded that a finding of

actual ownership could only be made where it was clear the taonga were owned by a

particular person or persons. Traditional ownership on the other hand could be found where

the evidence of actual ownership is not clear in which case the Court is called on to

determine within who’s rohe the taonga was found and therefore normally which hapū held

traditional ownership.16

[71] Ngāti Rehia presented substantial evidence as to their traditional and contemporary

association with the Kerikeri Kororipo area. There was no serious challenge to that

evidence, the core issue being the extent to which Ngāti Rehia could properly claim an

exclusive contemporary ahi-kā and kaitiaki status and on that basis traditional ownership.

16

17 Taitokerau MB 277-284 (17 TTK 277-284).


The other hapū assert either collective or joint traditional ownership, or a right to be

involved in decisions concerning the care of the taonga.

[72] I do not believe that any of the parties before the Court have been able to establish a

claim for traditional ownership. A claim to traditional ownership would be more

compelling in circumstances where there was evidence of a clear ancestral link to the

owners or creators of the taonga in question. Given the age of these taonga, that is not

possible. Conflict in the evidence as to the relative strength or continuity of ahi-kā and

kaitiaki status as between the various Ngāpuhi hapū who have occupied the area in which

the taonga were found calls for findings of fact that I am unable to make on the available

evidence.

Joint Ownership

[73] Section 11(8) provides that ownership whether, actual or traditional, includes (but is

not limited to) collective or joint ownership. While all parties accept that various hapū of

Ngāpuhi, including those before the Court can claim association with the area in which the

taonga were found they are divided over the relative strength of that association, and over

who in contemporary times can properly assert mana whenua or kaitiaki status. That

division makes a finding of collective or joint ownership difficult. I am of the view that I

need not decide this issue if I am able to otherwise decide between the competing claims.

Rightful possession

[74] In general terms the various claims could be characterised as claims to rightful

possession based upon long standing association with the area in which the taonga were

found.

[75] I respect the fact that Ngāti Rehia feel duty bound in accordance with their tikanga

to assert a claim to traditional ownership or rightful possession. That right is however

contested on the basis that Ngāti Rehia’s ahi-kā and kaitiaki status in the area in which the

taonga were found is not exclusive and the tikanga by which Ngāti Rehia would possess

the taonga on behalf of all hapū with interests is challenged.


[76] Therein lies a complex dispute about which I have insufficient evidence to resolve.

Nor do I need to resolve it in order to come to a decision on what should happen to these

taonga.

[77] I am mindful of s 11(2) which qualifies the extent of the Court’s jurisdiction under s

12 by making it clear that no right, title, estate or interest in any taonga shall exist or be

deemed to exist solely by virtue of ownership or occupation of the land from which the

taonga was found or recovered. Whilst none of the hapū own or occupy the section of the

bypass in which the taonga were discovered, the dispute as to mana whenua, ahi-kā and

kaitiaki status draws on customary rights said to derive from ownership and occupation in

former times. Again, I do not have sufficient evidence before me to make the necessary

findings of fact as to the relative strength of the hapū claims in order to determine as

between them who may be entitled to possession of the taonga as of right. In any event, I

need not determine that issue as all parties accept that the Court has a broad jurisdiction

under s 12(1)(b). I therefore go on to consider whether a claim to custody or to any right,

title, estate or interest has been made out.

Custody

[78] The Concise Oxford Dictionary defines custody as “the protective care or

guardianship of someone or something.”17

[79] Ngāti Rehia have made a strong case for custody of the taonga. They have a place

to store and display the taonga in Rewa’s Village along with other taonga held there.

Rewa’s Village is at Kororipo close to where the taonga were found. They are prepared to

spend up to $25,000 to purchase purpose built display cabinets necessary to store the

taonga in a way that will ensure their long term protection in accordance with expert

advice. Te Rūnanga o Ngāti Rehia is a registered collector of taonga.

[80] No other party has made a comparable proposal. While Mr Mihaka and Mr Ashby

are registered collectors no actual proposals for display, safekeeping and preservation of

the taonga were put forward on their behalf. Mr Mihaka was asked about facilities for

17

Catherine Soanes and Angus Stevenson (eds) Concise Oxford English Dictionary (11th

ed, Oxford

University Press, Oxford, 2004) at 354.


storing the taonga. He confirmed that he did not have such a facility and was not aware of

any in Kerikeri or the mid-north. He did say that he was supportive of anybody who might

have a place and is willing to look after the taonga for and on behalf of the collective

hapū.18

[81] Mr Mihaka also said: 19

You know what Judge, the taonga here, I don’t care whether Ngāti Rehia are

recognised as the kaitiaki of the taonga today, it doesn’t bother me and I’ve stated

that before to Tajim and to Ngāti Rehia in the past. It doesn’t worry me whether

Ngāti Rehia want to be the kaitiaki of our taonga tūpuna, that doesn’t bother me.

What does bother me is if somebody, if the Court was to acknowledge ahi-kā and

attach the ahi-kā to the kaitiaki status because if you are going to acknowledge for

me, if you – if the Court or anybody is going to acknowledge legally the ahi-kā

status of all of the groups that reside and occupy in that area. That has always been

my statement.

[82] I questioned Ms Tuwhare about this:20

Court: Assuming Ngāti Rehia can provide the suitable preservation facility that

these particular taonga require, am I right to understand that your clients do not

object to an order vesting the taonga in Ngāti Rehia per se? the issue that is at the

heart of this case really concerns the terms on which any decision of ownership

might be made, which might potentially exclude the recognition that your client, or

the hapū that your client represents, might also have…

M Tuwhare: An interest.

Court: …interests in these taonga?

M Tuwhare: Yes, definitely Sir in relation to that latter point. That is – a

primary consideration is that the hapū’s interests are recognised in a determination.

However, in relation to the first point that the taonga be vested in Ngāti Rehia, I

have taken instructions on that yesterday and over last evening and, my

18

83 Taitokerau MB 48-200 (83 TTK 48-200) at 72-73. 19

83 Taitokerau MB 48-200 (83 TTK 48-200) at 60. 20



instructions are Sir, that the preference would be for the taonga to be vested in a

trust that is representative of all of the hapū who have displayed interest, Sir. That

and particularly those hapū before the Court, so that every hapū would be

represented on that body. Of course, there would be the power within that trust to

confer the responsibility for ongoing care to Ngāti Rehia, or to some other

organisation for the safekeeping and preservation but, before getting to that point

Your Honour, I think the preference is based on that the power to decide that needs

to be – needs to be shared amongst all of the hapū who have interest.

Court: So the power to decide, that you are talking about, is the power to decide

in whom they are vested for safekeeping?

M Tuwhare: Well, no. So, if they were vested in safekeeping in a trust that was

representative of all of the hapū as a starting point, then the power to decide how

they are – at how they are kept for safekeeping and preserved from thereon, would

be a power that would be shared equally amongst the hapū. So that is different

from what is being suggested that Ngāti Rehia be the group that takes the vested…

Court: Yes.

M Tuwhare: …power to preserve and safe keep the taonga. So those are my

instructions, Sir…

[83] Ms Tuwhare went on to say that the issue was the exclusive nature of the assertions

of one hapū (Ngāti Rehia) over others. Her clients, she said wished to move beyond that to

a situation where they can establish an ongoing working relationship of equality.21

[84] I understand the concerns raised by Ms Tuwhare’s clients and Mr Hoani as to a

finding that ahi-kā or kaitiaki status in the Kerikeri Kororipo area is exclusive to one hapū

only. That is not however a finding I am required to make in order to make a determination

under s 12.

[85] In my view Ngāti Rehia have made out a good claim for custody of these taonga.

There is no question that they have a longstanding and enduring connection with the area

21



within which the taonga were found and that they are prepared to commit to what is

necessary for the safekeeping and preservation of the taonga.

Right, Title, Estate or Interest?

[86] All hapū represented in this proceeding can assert a legitimate interest in the taonga

given their association with the Kerikeri Kororipo area over time. The interest derives from

association and whakapapa and is more in the nature of a right or interest under tikanga

than a title or estate in the taonga themselves.

[87] Ngāti Rehia do not dispute this shared association. They have proposed that the

taonga be vested in Te Rūnanga o Ngāti Rēhia for safekeeping and preservation whilst

appropriately acknowledging the relationship that other hapū may have under tikanga.

They propose the creation of a management committee with selected representatives.

[88] Ms Tuwhare on the other hand proposes a vesting of the taonga in trustees

representative of all of the hapū in this proceeding with those trustees to then take the

necessary decisions as to ongoing safekeeping and preservation. Mr Hoani refers to

evidence that elders in the 1930’s considered that Kororipo was to be reserved for all of

Ngāpuhi and argues that this should be upheld in any decision relating to these taonga. If

the taonga are to be allocated based on mana whenua, he argues they should be vested in

Ngāi Tawake ki Tamaki.

Decision

[89] Ngāti Rehia have established a good claim to custody of the taonga. They have

appropriate proposals for safekeeping and preservation of the taonga at a suitable location

close to where the taonga were found. The fact that they can be displayed along with other

taonga from the area is also a positive feature.

[90] I have not found it possible or necessary to make a finding of traditional ownership

or rightful possession. The proposition that Ngāti Rehia have been awarded custody of the

taonga on the basis that they own or have a right to possession to the exclusion of other

hapū of Ngāpuhi does not therefore arise. In any event Ngāti Rehia accept that other hapū


of Ngāpuhi, including those represented in this proceeding, have an interest in these

taonga.

[91] Nonetheless, to avoid doubt and to promote final resolution, I will make orders

awarding custody of the taonga to Ngāti Rehia and vesting the taonga in Te Rūnanga o

Ngāti Rehia upon terms that provide for recognition of the interests of all hapū represented

in these proceedings. I do not understand this idea to be contentious. The parties are of

course free to form a joint management committee of the kind proposed by Ngāti Rehia or

to otherwise work together to promote the care and display of the taonga. It would be a

good thing if they can find a way to do so.

[92] I am not attracted to the idea that the taonga should be vested in trustees’

representative of all the hapū of this proceeding. If Ngāti Rehia are to assume the practical

and financial burden of custody I see no good reason to superimpose an additional level of

governance over and above their existing rūnanga. The rūnanga is a registered collector.

That is sufficient.

[93] Accordingly I find:

(a) That pursuant to s 12(1)(b) of the Protected Objects Act and as between the parties

to this proceeding, Ngāti Rehia have made out a claim to custody of the taonga

tūtūru listed at paragraph three of this decision; and

(b) That pursuant to s 12(1)(b) of the Protected Objects Act, Ngāti Rehia, Ngāi Tawake

ki Tamaki, Te Uri Taniwha, Ngāti Hineira, Te Whānau Whero, Ngāti Korohue,

Ngāti Rangi and Ngāti Tautahi have an interest in the taonga tūtūru listed at

paragraph three by reason of their association with the Kerikeri Kororipo area

where the taonga were found.

[94] There are orders pursuant to the Protected Objects Act under s 12(1)(b) that Ngāti

Rehia are entitled to custody of the taonga tūtūru listed at paragraph three of this judgment

and pursuant to s 12(1)(e) vesting the taonga in Te Rūnanga o Ngāti Rehia as trustees for

safekeeping and preservation upon the following terms:


(a) That possession of the taonga is to remain with The University of Auckland or any

alternate agency undertaking conservation treatment of the taonga under direction

of the Ministry until such time as the conservation treatment is complete and the

taonga are ready for transfer.

(b) That the taonga be transferred to Te Rūnanga o Ngāti Rehia once necessary

conservation treatment has been completed to the satisfaction of the Ministry and

Te Rūnanga o Ngāti Rehia have made arrangements for storage and display of the

taonga at Rewa’s Village in conditions consistent with those outlined at paragraph

six of this decision.

(c) That any public notice or display information about the taonga include reference to

the fact that the taonga have been vested in Te Rūnanga o Ngāti Rehia as trustees

for safekeeping and preservation on behalf of the hapū of Ngāpuhi who have been

associated with the Kerikeri Kororipo area over the past 250 years. Those hapū

include Ngāti Rehia, Ngāi Tawake ki Tamaki, Te Uri Taniwha, Ngāti Hineira, Ngāti

Tautahi, Te Whānau Whero, Ngāti Korohue and Ngāti Rangi.

[95] There is no order as to costs.

[96] I wish to record my appreciation for the assistance provided to the Court during the

hearing by Mr Harris Shortland, interpreter.

Pronounced in Wellington on the 3rd

day of July 2015.

M J Doogan

JUDGE