Collier v Ng�ti Rehui- Ng�ti Wai ki Aotea
[2020] NZCA 536
•2 November 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA110/2020 [2020] NZCA 536 |
| BETWEEN | LOUISA TE MATEKINO COLLIER, AWHIRANGI LAWRENCE, ARTHUR MAHANGA, HAYWARD NORMAN AND MITCHELL ARAPETA COLLIER |
| AND | NGĀTI REHUA-NGĀTI WAI KI AOTEA |
| AND | ATTORNEY-GENERAL |
| Court: | Gilbert and Courtney JJ |
Counsel: | J Mason and M J V White for Applicants |
Judgment: | 2 November 2020 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe application for leave to appeal against the interlocutory judgment of the High Court dated 23 August 2019 ([2019] NZHC 2096) is declined.
CThe application for leave to appeal against the costs judgment of the High Court dated 1 October 2019 ([2019] NZHC 2479) is declined.
DThe applicants must pay one set of costs to the first respondent on a standard application on a band A basis and any usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
In 2017, the applicants applied to the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) for an order (a recognition order)[1] recognising that they have a protected customary right and customary marine title to an area covering the entirety of both coasts from the Bombay Hills to the south of Auckland to Te Rerenga Wairua (Cape Reinga) in the far north (the specified area) (the applicants’ substantive claim). The application is made on behalf of Ngāti Kawau and Te Waiariki Kororā, two hapū of Ngāpuhi. The applicants claim a protected customary right on the basis they have exercised that right in the specified area in accordance with tikanga since 1840 and the right has not been extinguished as a matter of law.[2] They claim to hold customary marine title to the specified area in accordance with tikanga and to have exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.[3]
[1]Marine and Coastal Area (Takutai Moana) Act 2011, s 98.
[2]Section 51(1).
[3]Section 58(1).
Any applicant seeking a recognition order was required to file an application in the High Court no later than six years after the commencement of the Act.[4] 202 such applications were made to the High Court prior to the expiry of the time limit for filing applications on 1 April 2017.
[4]Section 100(2).
The applicants’ substantive claim is strongly contested by numerous other groups. 77 other applications have been filed in the High Court seeking recognition orders over areas that overlap with the specified area covered by the applicants’ substantive claim. The first respondent, Ngāti Rehua-Ngāti Wai ki Aotea, has made an application falling into this category.
In July 2018, the applicants filed an interlocutory application in the High Court seeking two procedural orders (the interlocutory application). The first was an order directing that part of the specified area (the test case area) be severed from the rest of the applicants’ substantive claim “to provide a factual and evidential basis, as a Test Case, so that the Courts could determine what criteria are required to prove [customary marine title]”. The proposed test case area extends from Goat Island to Ngunguru on the east coast. The second procedural order sought was for the High Court to exercise its discretion to state a case to the Māori Appellate Court under s 99 of the Act. This provision empowers the High Court to state a case to the Māori Appellate Court if a question of tikanga is raised by an application for a recognition order:
99Court may refer to Māori Appellate Court or pūkenga for opinion or advice on tikanga
(1)If an application for a recognition order raises a question of tikanga, the court may—
(a)refer that question in accordance with section 61 of Te Ture Whenua Maori Act 1993 to the Māori Appellate Court for its opinion; or
(b)obtain the advice of a court expert (a pūkenga) appointed in accordance with the High Court Rules 2016 who has knowledge and experience of tikanga.
(2)The opinion of the Māori Appellate Court is binding on the Court but the advice of pūkenga is not.
The proposed questions were:
(a)do the applicants hold the test case area in accordance with tikanga? and
(b)if so, have the applicants, in accordance with tikanga, used and occupied the test case area from 1840 to the present day without substantial interruption? (the proposed questions).
The proposed questions mirror the statutory criteria for customary marine title under s 58 of the Act:
58 Customary marine title
(1)Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
(a)holds the specified area in accordance with tikanga; and
(b)has, in relation to the specified area,—
(i) exclusively used and occupied it from 1840 to the present day without substantial interruption …
…
The interlocutory application was opposed by a number of interested parties, including the respondents. Churchman J declined to make either procedural order for reasons set out in his judgment delivered on 23 August 2019 (interlocutory judgment).[5] The Judge did not consider that the proposal came within the common understanding of a “test case”, particularly given there was no widespread support for the proposal.[6] Nor was the Judge persuaded there was any justification to accord priority to the applicants’ substantive claim over others.[7] Most significantly, the Judge considered it was the High Court’s responsibility under the Act to determine the proposed questions, not the Māori Appellate Court.[8] The Judge concluded by saying:
[93] … I am satisfied that it is premature to refer … the two proposed questions to the Māori Appellate Court. This Court is both capable of, and has an obligation to make findings of fact in respect of this application and others affected by it. Ultimately, the time may be reached when it is appropriate to refer questions of tikanga to the Māori Appellate Court. However, it is unlikely that such questions would be in the closed form that these questions are.
[5]Re Collier [2019] NZHC 2096 [Interlocutory judgment].
[6]At [44] and [53].
[7]At [68].
[8]At [79].
The Judge subsequently awarded costs against the applicants in favour of various parties who had opposed the interlocutory application (costs judgment).[9] These costs were assessed at 25 per cent of scale.[10] The Judge declined to award costs in favour of the applicants against the Attorney‑General.[11]
[9]Re Collier [2019] NZHC 2479 [Costs judgment].
[10]At [44].
[11]At [52].
The applicants applied to the High Court for leave to appeal to the Court of Appeal against the interlocutory judgment and the costs judgment. The applicants also applied for an order staying all proceedings by other claimants covering the test case area pending appeal. These applications were declined by Churchman J on 31 January 2020.[12]
[12]Re Collier [2020] NZHC 51 [Leave judgment].
The applicants now apply for leave to appeal against the interlocutory judgment and the costs judgment.
The applicants filed their application only one day late. However, due to counsel error, they did not serve the application on the other parties until 26 August 2020, some six months outside the time limit. They therefore also apply for an extension of time to bring the leave application.
The first respondent opposes the application for an extension of time. Both respondents oppose the application for leave to appeal.
Should an extension of time be granted?
Although the first respondent opposes the application for an extension of time, they do not suggest they have been prejudiced by the delay in service. As noted, the application for leave to appeal was filed just outside the prescribed time limit. This delay was inconsequential. We are satisfied the failure to serve the application arose out of a genuine misapprehension by counsel concerning service requirements. Once the position was clarified in a minute issued by Brown J on 30 July 2020, service was effected reasonably promptly.[13] Given the lack of any prejudice to the first respondent, we consider an extension of time ought to be granted in the interests of justice to enable the leave application to be dealt with on its merits.
Should leave be granted to appeal against the interlocutory judgment?
[13]Re Collier CA110/2020, 30 July 2020 (Minute of Brown J).
There is no right of appeal from an interlocutory order made by the High Court. Leave is required.[14] Ultimately, the question of whether leave should be granted in a particular case will depend on an assessment of how the interests of justice are best served.[15] An application for leave must identify an arguable error or law or fact in the interlocutory judgment of sufficient public or private importance to justify the cost and delay of the proposed appeal. Where the decision sought to be appealed involves the exercise of a discretion, the task of showing why leave should be given is more difficult. This is because a decision made in the exercise of a discretion is not vulnerable to challenge unless it can be shown that the judge made an error of principle, failed to take account of some relevant matter, factored in the irrelevant or was plainly wrong.
[14]Senior Courts Act 2016, ss 56(3) and (5).
[15]See Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] and Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
The applicants submit that given the context of the Act, tikanga and international law considerations, the High Court ought to have exercised its discretion to refer the proposed questions to the Māori Appellate Court for a binding determination. They argue that the Māori Appellate Court is “the repository of all Māori Tikanga/custom law in matters associated with both dry land and sea land”. They say the Māori Appellate Court is best placed to hear and determine the proposed questions, that Court having built up this knowledge over centuries. They say the Act contemplates that such “preliminary questions” will be determined by the Māori Appellate Court.
The applicants contend that a significant number of Māori groups are affected by their interlocutory application. The outcome will have a bearing on how other recognition applications are dealt with under the Act. Thus, there is an important public interest justifying leave being granted for the proposed appeal.
The High Court has sole jurisdiction to make a recognition order. It alone is charged with the responsibility of determining whether the relevant statutory requirements under ss 51 or 58 are satisfied:
98Court may recognise protected customary right or customary marine title
(1)The Court may make an order recognising a protected customary right or customary marine title (a recognition order).
(2)The Court may only make an order if it is satisfied that the applicant,—
(a)in the case of an application for recognition of a protected customary right, meets the requirements of section 51(1); or
(b)in the case of an application for recognition of customary marine title, meets the requirements of section 58.
(3)No other court has jurisdiction to make a recognition order.
…
“Court” is defined in the Act to mean the High Court.[16]
[16]Marine and Coastal Area (Takutai Moana) Act 2011, s 9.
The High Court has received over 200 applications for recognition orders. This Court would not lightly interfere with procedural case management decisions of the High Court designed to achieve the timely, efficient and just resolution of these various proceedings, many of which involve competing and highly contentious claims. As the applicants acknowledge, the outcome of their interlocutory application will affect many other applicants and set an important precedent for the mode of disposition of these types of claims.
As the applicants also now accept, the High Court is not required to refer any question to the Māori Appellate Court when determining an application for a recognition order. Moreover, its discretion to make an order stating a case under s 99 of the Act is limited to a question of tikanga raised in an application for a recognition order. The High Court is not entitled to abrogate to the Māori Appellate Court its statutory responsibility to determine applications for recognition orders in accordance with s 98 of the Act.
An obvious difficulty with the applicants’ proposed questions is that they are overbroad. The proposed questions are not limited to questions of tikanga, they extend to factual questions the answers to which will be determinative of the applicants’ substantive recognition claims (and consequently the competing claims of others) in respect of the test case area. We are not persuaded the High Court made any arguable error of principle in declining to refer questions cast in such broad terms for binding determination by the Māori Appellate Court. The High Court expressly noted that a reference on a question of tikanga might be appropriate at some stage, but not questions in the form drafted. We see no arguable error in that approach.
The applicants have not identified any arguable error of principle. They refer in their submissions to matters of weight, but this could not justify leave being granted for an appeal against a discretionary order made on an interlocutory application. The proposed appeal has insufficient prospect of success to justify the cost and delay of an appeal.
Should leave be granted to appeal against the costs judgment?
The applicants are not entitled to legal aid funding.[17] Nor have they been given funding for interlocutory matters from Te Arawhiti (the Office for Māori Crown Relations). The applicants say they pursued their interlocutory application, not for personal benefit, but in the public interest. Accordingly, they contend that costs ought to have been awarded in their favour against the Attorney-General under s 178 of the Senior Courts Act 2016. Further, while they acknowledge that costs normally follow the event, they say costs should not have been awarded against them on the interlocutory application. This is said to be because the application is of public interest and affects a wide range of whānau, iwi and hapū. The applicants also argue that the order for costs was contrary to the objectives of the Act, Te Tiriti o Waitangi and New Zealand’s human rights obligations.
[17]Legal Services Act 2011, s 10.
It would be a rare case for leave to be granted for an appeal against a costs decision on an interlocutory application. The Judge’s decision to award modest costs in favour of those parties who successfully opposed the interlocutory application was plainly within the scope of his discretion. No seriously arguable error of principle is identified. Moreover, the costs of an appeal would be disproportionate to the amount in issue — the costs awards were $2,987.50 to the first respondent, $358.50 to the Ngātiwai Trust Board and $1,508.69 to Te Waiariki, Ngāti Korora and Ngāti Taka Pari. The applicants have fallen well short of reaching the high threshold required for an appeal against a decision of this nature.
Result
The application for an extension of time is granted.
The application for leave to appeal against the interlocutory judgment of the High Court dated 23 August 2019 ([2019] NZHC 2096) is declined.
The application for leave to appeal against the costs judgment of the High Court dated 1 October 2019 ([2019] NZHC 2479) is declined.
The applicants must pay one set of costs to the first respondent on a standard application on a band A basis and any usual disbursements.
Solicitors:
Phoenix Law Limited, Wellington for Applicants
Tamaki Legal, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent
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