A dead sperm whale washed up at Marfells Beach in July 2018. Photo: STUFF
Whale jawbones held in safekeeping before being delivered to one iwi without telling another, was a breach of the Treaty of Waitangi, a High Court decision has ruled.
The Department of Conservation was meant to be looking after the bones as both iwi claimed they were entitled to them as kaitiaki, but agreed they could decide among themselves what to do with them.
So when Te Rūnanga a Rangitāne o Wairau heard through the "kūmara vine" DOC had dug up the bones from their takiwā and handed them to Ngāti Kuri/Ngāi Tahu, they challenged the move in the High Court.
The jawbones were from two sperm whales that were stranded on the south Marlborough coast, one near the Awatere River mouth in November 2009, and one at Marfells Beach in July 2018.
Both were in the northern end of Ngāi Tahu's takiwā, and near the southern boundary of Rangitāne's takiwā, an area both iwi had cultural associations with.
Both iwi had representatives attend the strandings, as they both had cultural associations with whales, and both claimed to be entitled to taonga recovered from them, including the jawbones and teeth.
DOC, Rangitāne and Ngāti Kuri agreed on both occasions the whales would be buried, while the jawbones would be separated and remain with DOC until the iwi agreed who was entitled to them.
The sperm whale that was washed up on Marfells Beach is buried as iwi members watch on. Photo: STUFF
The jawbones were buried by DOC on nearby conservation land in Rangitāne's takiwā, to ensure the mana of the whales was "respected".
There did not appear to be any "meaningful discussions" between Rangitāne and Ngāti Kuri about the jawbones after that time, the High Court decision said.
On 11 February, 2021, a representative of Ngāti Kuri wrote to DOC saying they were establishing a whare tāonga (treasure house) at Kaikōura, where the jawbones could be displayed.
Two days later, Minister of Conservation Kiri Allen attended a pōwhiri where Ngāti Kuri "asserted an entitlement" for the jawbones. The minister then told the director-general of DOC to make an "allocation decision".
Then in April, the deputy director-general of DOC held a hui separately with the two iwi.
Ngāti Kuri expressed "frustration" that their request for release had not yet been granted.
The hui with Rangitāne involved a "broader discussion" of the relationships between Rangitāne, DOC, and Ngāti Kuri. The iwi was not aware DOC was considering giving the jawbones to Ngāti Kuri.
The stranded sperm whale at Marfells Beach in 2018. Photo: STUFF
By August 2021, DOC told Ngāti Kuri they planned to give them the whale jawbones, but a plaque needed to be installed to recognise Rangitāne's association.
Ngāti Kuri responded and were "adamant" they had the "dominant exclusive interest" in the jawbones and were not prepared to display a plaque. DOC then decided to give the jawbones to Ngāti Kuri/Ngāi Tahu without the plaque requirement.
In March 2022, DOC dug up the jawbones and transported them to their Kaikōura office on a trailer, which caused "discomfort" to some of their staff, the High Court decision said.
This move also did not "sit right" with Ngāti Kuri who had earlier said they expected DOC to use appropriate tikanga when moving the bones.
The next day, Ngāti Kuri took the whale bones from DOC.
In late April, Rangitāne's general manager wrote to DOC to say they had heard through the "kūmara vine" the jawbones had been uplifted from where they were buried.
DOC responded the same day, saying they were in the process of writing to tell them.
Rangitāne then challenged the director-general's decision in the High Court.
Justice Cooke concluded the director-general had acted unlawfully. The decision to give the bones to Ngāti Kuri conflicted with the Marine Mammals Protection Act, which said Ngāti Kuri needed a permit to possess whale bones.
DOC had also breached the Treaty of Waitangi and section four of the Conservation Act by not informing Rangitāne, the decision said.
"It breached the Crown's obligation of good faith to Rangitāne given that its conduct was inconsistent with the agreement earlier reached, and no tikanga consistent processes had been followed for resolving the claims to entitlement as required by treaty principles."
The decision said "at the heart" of DOC's obligation of "good faith" was transparency.
But Justice Cook also accepted there was "no doubt" Ngāi Tahu had "very close" cultural associations with whales, though he was not in a position to evaluate the extent of this.
"But I do not know whether this is a reflection of greater cultural interests, or greater advocacy abilities."
The decision said any allocation of the whale bones needed to be resolved by an "iwi-to-iwi" process.
Justice Cooke concluded the jawbones were to stay with Ngāti Kuri/Ngāi Tahu, and should not be moved, in order to preserve their mana, pending further submissions from both iwi to find a resolution.
Rangitāne o Wairau general manager Corey Hebberd said they welcomed the decision of Justice Cooke in relation to this "significant kaupapa".
"Legal and tikanga processes are continuing, and we will continue to engage in these processes in good faith," Hebberd said.
A statement from Te Rūnanga o Kaikōura and Te Rūnanga o Ngāi Tahu said they were reviewing the High Court decision and were not in a position to make any comment at this time.
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