Edwards (Te Whakatōhea No. 4) - [2021] NZHC 3180

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-817

[2021] NZHC 3180

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), Adrian Edwards and others on behalf of Te Whakatōhea, and Others

On the papers and by teleconference:
23 November 2021

Counsel:

T Sinclair and B Cunningham for CIV-2011-485-817; CIV-2017-485-375 and CIV-2017-485-264

M Sharp and M Sinclair for CIV-2017-485-269 and MAC01-07-03 (Interested Party)

K Feint QC, S Fletcher and A Sykes for CIV-2011-485-817 and CIV-2011-485-292

T Bennion and G Davidson for CIV-2017-485-253

A Sykes and K Delamere-Ririnui for CIV-2017-485-299 C Linstead-Panoho for CIV-2017-485-262 and

CIV-2017-485-377)

E Rongo for CIV-2017-485-270 K Ketu for CIV-2017-485-355

Interested Parties:

B A Scott and T D Smith for Seafood Industries Representatives R Boyte for Bay of Plenty Regional Council

A M B Green and M S Jones for Whakatāne District Council M H Hill and T C Reweti for Ōpōtiki District Council

R Roff and S Gwynn for Attorney-General

Judgment:

25 November 2021

Re Edwards (Te Whakatōhea No. 4) [2021] NZHC 3180 [25 November 2021]

JUDGMENT (NO. 4) OF CHURCHMAN J

(Stay application)

Introduction

[1] On 7 May 2021, I issued a decision allowing a range of applications for protected customary rights (PCR) and customary marine title (CMT) in the Eastern Bay of Plenty under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Edwards decision).1 Whakatōhea Kotahitanga Waka (WKW), a group which consists of four applicants and an interested party in the proceeding, has now filed an application to stay the judgment, pending appeal in the Court of Appeal, under r 20.10 of the High Court Rules 2016, and r 12 of the Court of Appeal (Civil) Rules 2005.

[2] WKW’s position is that the judgment should be stayed on the basis that it is currently under appeal, and that if one or more of the appeals succeeds, then it is likely that any of the final recognition orders previously made by this Court would have to be set aside. It was therefore in the public interest to stay the judgment until all appeals had been determined.

[3] The application is opposed by Te Kāhui Takutai Moana o Ngā Whānui Me Ngā Hapū (Te Kāhui), another group which represents a number of the applicants in this case. Their opposition is on the basis that the application is flawed and the WKW group delayed over five months before making the application for no apparent reason.

[4] During that period of delay they have invested considerable time and resources in engaging with the other applicants by way of preparation for the second hearing in this matter scheduled for February 2022. That hearing will focus on the structure of the recognition orders.

[5] All of the other applicants who participated in the hearing also oppose the application for a stay. All…

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: [2021] NZHC 3180
Decision Date: 25 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Churchman J considered an application by Whakatōhea Kotahitanga Waka (WKW) to stay the judgment of the Court in relation to a number of applications for protected customary rights and customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011. WKW sought the stay pending appeal to the Court of Appeal. WKW submitted that the judgment should be stayed because it was executory and that it was in the public interest to avoid the costs, time and administrative issues of going through the process of finalising the orders again. WKW argued that the Court of Appeal had the opportunity to consider and clarify questions of law arising from the case, particularly in relation to the statutory tests for CMT and PCR. WKW submitted that the interests of the successful applicant groups would not weigh to any great extent in favour of not granting a stay.

Te Kāhui Takutai Moana o Ngā Whānui Me Ngā Hapū (Te Kāhui), another group which represents a number of the applicants in this case, opposed the stay application on the basis that the application was flawed and the WKW group delayed over five months before making the application for no apparent reason. Te Kāhui argued that if the stay application was granted, it would prejudice the successful applicants who were putting significant effort into preparing for the second stage of the hearing in this case, and if a stay was granted, those efforts might be wasted. Te Kāhui also submitted that the application stood or fell on usual principles and that many judgments are executory and the Court has routinely declined stay applications for these types of judgments. Te Kāhui further submitted that the public interest in granting a stay was not as strong as the case of Jackson v Te Rangi, as the process of finalising orders would involve a two-week hearing, obviously entailing significant costs to the parties and to the public.

Churchman J declined the application for a stay pending appeal. The Court held that the appeal will not be rendered nugatory if the stay is not granted, but the successful parties are likely to be injuriously affected if the stay is granted. The Court further held that the balance fell in favour of the parties who were successful in the High Court, all of whom opposed the stay. The appeal will not be rendered nugatory if the stay is not granted, but the successful parties are likely to be injuriously affected if the stay is granted. The Court further held that in terms of the merits of the appeal, it was apparent on the evidence in the original proceedings that the WKW groups had not satisfied the requisite tests for CMT and PCR under the Act. The Court held that the WKW applicants therefore face some formidable hurdles with their appeal and it could not be said that they have great prospects of success.

The Court directed the parties involved in Stage 2 of this hearing set to commence on 14 February 2022 to liaise with each other with the objective of agreeing a timetable for the filing of draft orders from the parties who have been awarded CMT or PCR, such additional evidence as necessary and legal submissions. If a joint memorandum or separate memoranda are not received by 10 December 2021, the Court will issue directions.

Orders