Edwards (Te Whakat�hea no.6) - [2022] NZHC 1160

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2011-485-817 CIV-2011-485-375 CIV-2011-485-264 CIV-2011-485-278 CIV-2011-485-262 CIV-2011-485-377 CIV-2011-485-270 CIV-2011-485-272 CIV-2011-485-238 CIV-2011-485-201 CIV-2011-485-269 CIV-2011-485-355 CIV-2011-485-299 CIV-2011-485-253

CIV-2011-485-292 [2022] NZHC 1160

UNDER the Marine and Coastal Area (Takutai Moana) Act 2011

IN THE MATTER OF

an application for an order recognising Customary Marine Title and Protected Customary Rights

BY

the late Claude Augustin Edwards (deceased), Adriana Edwards and others on behalf of Te Whakatōhea

On the papers:

Counsel:

T C Waikato for Applicant

Judgment:

24 May 2022

JUDGMENT (NO. 6) OF CHURCHMAN J

RE EDWARDS (TE WHAKATŌHEA) NO. 6 [2022] NZHC 1160 [24 May 2022]

Introduction

[1] By notice dated 31 March 2022, Crown Regional Holdings Limited (CRHL) filed a notice of appearance and application for leave to appear as an interested party in these proceedings. The notice was specifically in relation to participation in any appeals from the decisions of the High Court.

[2] Section 104 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) provides that any person interested in an application filed under the Act for a recognition order may appear and be heard. Such notices of appearance are required to be filed by “the due date”. The due date has long since passed which is why CRHL needs leave.

The relevant background

[3] CRHL is a Crown owned asset holding company, the two shareholding ministers of which are the Minister of Finance and Minister for Economic and Regional Development. It is a sch 4A company under the Public Finance Act 1989. It holds the assets of the Regional Development and Investment Unit of the Ministry of Business Innovation and Employment. Up until January 2021 it was known as Provincial Growth Fund Ltd.

[4] The Ōpōtiki District Council (ODC) is an interested party in these proceedings. It has played an active part in both the Stage One and Stage Two phases of the hearing.

[5] At the time of the Stage One hearing, the ODC was the holder of a suite of resource consents for what is known as the Ōpōtiki Harbour Development Project (Harbour Project).

[6] The Harbour Project is a significant regional infrastructure project relating to the redevelopment of Ōpōtiki Harbour into a fully functional port.

[7] The resource consents held by ODC authorised, among other things, activities such as the construction of 400 m–500 m training walls, part of which are located in

the Coastal Marine Area (CMA), dredging and depositing more than 50,000 m3 of sand; reclamation of 1.9 hectares of foreshore and seabed close to the Waioeka River mouth; cutting through an existing sand spit to create a new harbour entrance; earthworks associated with the disposal of up to 450,000 m3 of dredged material, associated discharge of sediment laden water; various activities associated with constructing the new harbour entrance and closing the Waioeka River mouth; dredging 50,000 m3 per year from the entrance channel to the Waioeka River; erecting temporary structures in the CMA;…

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: [2022] NZHC 1160
Decision Date: 24 May 2022

CaseChat Overview and Summary

Crown Regional Holdings Limited (CRHL) sought leave to appear as an interested party in proceedings under the Marine and Coastal Area (Takutai Moana) Act 2011, which involved applications for the recognition of Customary Marine Title and Protected Customary Rights by Te Whakatōhea. The main issue was whether CRHL, a Crown-owned asset holding company, was entitled to be heard as an interested party despite missing the deadline for filing a notice of appearance. Section 104 of the Act permits any person interested in an application to appear and be heard, but requires the notice of appearance to be filed by the due date. CRHL, which only acquired the assets and resource consents relevant to the proceedings after the due date, sought leave to appear late. The court needed to determine whether CRHL was genuinely interested in the proceedings and whether exceptional circumstances justified allowing the late appearance.

The court considered that CRHL had a significant interest in the proceedings as it now held the resource consents and owned the infrastructure assets in the Coastal Marine Area. The court concluded that CRHL was genuinely interested in the proceedings and its late appearance was due to circumstances beyond its control. The court also noted that the other parties, including the Ōpōtiki District Council, had not opposed CRHL’s application. Given these factors, the court granted CRHL leave to appear as an interested party in the proceedings, including in relation to any appeals. The decision did not affect the existing status of the Ōpōtiki District Council as an interested party.

The court's judgment emphasized that CRHL, by virtue of its ownership of the assets and consents relevant to the proceedings, had a legitimate interest in the outcome of the recognition applications. The court balanced the statutory requirement for timely notice of appearance against the need for fairness in allowing parties with significant interests to participate in the proceedings. In this case, the court determined that justice required CRHL to be heard despite the late appearance.

Orders