Cletus Maanu Paul v Attorney-General - [2020] NZSC 132

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 75/2020
[2020] NZSC 132

BETWEEN	CLETUS MAANU PAUL Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	J Mason, M J V White and H J S Berger for Applicant G L Melvin and Y Moinfar-Yong for Respondent K M Anderson and M J Dicken for Maungaharuru-Tangitū Trust as Interested Party
Judgment:	24 November 2020

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

CThere is no order as to costs.

____________________________________________________________________

REASONS

Introduction

This is an application under s 69 of the Senior Courts Act 2016 for leave to appeal directly to this Court from a decision of the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act). The High Court struck out the application by Mr Paul seeking orders recognising customary marine title and protected customary rights.[1]

Background

[1]Re Paul [2020] NZHC 2039 (Churchman J) [HC judgment].

Mr Paul’s original application was made “on behalf of all Māori” in relation to the entire marine and coastal area of New Zealand. Because of its scope, this application has been described as a “national application”.[2] The Act provides that applications must be filed by the prescribed date.[3] Mr Paul said the application was protective in that it provided a way in which potential applicants who had missed the statutory filing deadline could continue to advance their applications.
[2]At [1]. The High Court also struck out the one other national application: Re Dargaville [2020] NZHC 2028.
[3]Marine and Coastal Area (Takutai Moana) Act 2011, s 100(2).
After various procedural skirmishes Mr Paul filed a further amended application on 21 May 2020, after the expiry of the statutory deadline. In this application, he identified the applicants as himself “in conjunction” with 13 other individuals.[4]
[4]Mr Paul asks that the intituling reflect that the application is that of Mr Paul and others. We have maintained the intituling as it was in the High Court simply to assist in the accessibility of the decision.
The Attorney‑General filed an application to strike out the amended application. The Attorney‑General’s application was supported by two other applicants for orders under the Act, namely, the Rongomaiwahine Trust[5] and the Maungaharuru-Tangitū Trust. Both Trusts appeared in the High Court at the strike‑out hearing.
[5]The Rongomaiwahine Trust did not file submissions in response to the leave application to this Court.
In striking out the application, the High Court said that in attempting to add, “long after the deadline for the filing of applications had expired, new applicants … whose claims could not possibly have been identified” from the original application was a material change from the original application.[6] This constituted an abuse of process. There was also an abuse of process because the amended application was filed to circumvent the mandatory time limits in the Act. The High Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZSC 132
Decision Date: 24 November 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to determine whether Cletus Maanu Paul could appeal directly to the Court from a High Court decision that struck out his application seeking recognition of customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The High Court had ruled that Mr Paul's amended application, which was filed after the statutory deadline, was an abuse of process and did not comply with the mandatory requirements of the Act. Mr Paul argued that the appeal raised significant issues of general and public importance and that the High Court's decision would have the effect of permanently extinguishing customary rights. He also claimed that a substantial miscarriage of justice would occur if the appeal was not heard. The Attorney-General opposed the grant of leave, arguing that there was no jurisdiction for this Court to hear a direct appeal and that the application did not meet the criteria for leave.

The Supreme Court examined whether the High Court's decision was an interlocutory decision and whether the appeal met the criteria for leave to appeal. The Court found that the application for leave to appeal was out of time, but the delay was short and there was no objection to the extension of time. However, the Court did not consider the present application to meet the threshold for exceptional circumstances that would justify a direct appeal to the Supreme Court. The Court also noted that there was a right of appeal against decisions of fact and law to the Court of Appeal under s 112(1) of the Act, and the applicant was seeking to bypass that appellate pathway.

The Court concluded that the application for leave to appeal was dismissed, and there was no order as to costs. The Court granted the application for an extension of time to apply for leave to appeal.

Orders