Edwards (Whakat�hea Stage 2) - [2023] NZHC 1618

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-2017-485-185 CIV-2017-485-299 CIV-2017-485-262 CIV-2017-485-377 CIV-2017-485-253 CIV-2017-485-292 CIV-2017-485-355 CIV-2017-485-201 CIV-2017-485-196 CIV-2017-485-270 CIV-2017-485-272 CIV-2017-485-269

CIV-2017-485-238 [2023] NZHC 1618

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

IN THE MATTER

applications for recognition orders for Customary Marine Title and Protected Customary Rights

Hearing: 24 April 2023

Counsel:

B Cunningham for Te Whakatōhea (CIV-2011-485-817) T Castle for Ngāi Taiwhakaea (CIV-2017-485-185)

A Sykes for Ngāti Ira o Waiōweka (CIV-2017-485-299)
C Panoho-Navaja and J Alexander for Ngāi Tamahaua

(CIV-2017-485-262) and Te Hapū Titoko o Ngāi Tamahaua (CIV-2017-485-377)

T Bennion and O Ford-Brierley for Ngāti Patumoana (CIV-2017-485-253)

K Feint KC and S Fletcher for Ngāti Ruatakenga (CIV-2017-485-292)

K Ketu for Te Uri o Whakatōhea Rangatira Mokomoko (CIV-2017-485-355)

B Lyall and H Swedlund for Te Ūpokorehe Treaty Claims Trust (CIV-2017-485-201)

H K Irwin-Easthope for Te Rūnanga o Ngāti Awa (CIV-2017-485-196)

RE EDWARDS (WHAKATŌHEA STAGE 2) NO.8 [2023] NZHC 1618 [27 June 2023]

E Rongo for Ngāi Tai (CIV-2017-485-270) and Ririwhenua Hapū

(CIV-2017-485-272)

A J Sinclair and B Cunningham for Whakatōhea Kotahitanga Waka (CIV-2011-485-817)

M Sharp for Ngāti Muriwai Hapū (CIV-2017-485-269)
C Leauga for Te Whānau a Harawaka (CIV-2017-485-238)

Interested parties:

R Roff and C Barnett for Attorney-General R Boyte for Bay of Plenty Regional Council

T Waikato for Ōpōtiki District Council and Crown Regional Holdings Ltd

T Greensmith-West for Whakātane District Council Seafood Industry Representatives (no appearance)

Judgment:

27 June 2023

JUDGMENT (NO.8) OF CHURCHMAN J

[Re Edwards (Whakatōhea Stage 2]

TABLE OF CONTENTS

Introduction [1]

Issues arising [5]

Joint memorandum of counsel [6]

The Attorney-General [9]

What each party filed for the 24 April 2023 CMC [11]

Te Ūpokorehe [11]

Ngāti Ruatakenga [12]

Ngāi Tamahaua and Te Hapū Tītoko o Ngāi Tama [14]

Ngāti Ira o Waiōweka [17]

Ngāi Tai [21]

Ngāti Awa [22]

Crown Regional Holdings Limited and Ōpōtiki District Council [30]

Te Uri o Whakatōhea Rangatira Mokomoko [31]

Bay of Plenty Regional Council [32]

Whakatāne District Council [34]

Te Whānau a Apanui [35]

Ngāti Muriwai [36]

Analysis [37]

General matters [37]

PCR Mapping issues [39]

Ngāti Rua [52]

Ngāti Ira o Waiōweka [64]

Ngāi Tamahaua and Te Hapū Tītoko o Ngāi Tama [71]

Ngai Tai [84]

Te Uri o Whakatōhea Rangatira Mokomoko [92]

Ngāti Muriwai [93]

Te Ūpokorehe [98]

Wāhi tapu [99]

Te Unga Waka [106]

Whitiwhiti [116]

Paparoa Pā and Paparoa Urupa [117]

Taupari Urupa [121]

Motuorei Point [124]

Nga Kuri a Taiwhakea [125]

Te Araioio o Panekaha, Te Karamea Pā and Paripari Pā [127]

Te Motu [134]

Te Tawai [137]

Te Kopua o Te Pu [139]

Tokitoki [141]

Te Mika [143]

Te Ana Pokia [146]

Otakanui and Te Ana o Muru-te-kaka [148]

Te Karaka [150]

PCRs [152]

Conclusion [158]

Introduction

[1] In the Re Edwards Stage 2 judgment, the successful applicants were directed to address a number of matters, with some to file further material, to be dealt with at

a case management conference (CMC) in April 2023.1 The Court, over optimistically…

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: [2023] NZHC 1618
Decision Date: 27 June 2023

CaseChat Overview and Summary

In the case of Re Edwards (Whakatōhea Stage 2), the High Court of New Zealand considered applications for recognition orders for customary marine title (CMT) and protected customary rights (PCR) in relation to the Whakatōhea iwi. The court addressed issues regarding the lack of progress in preparing survey plans for CMT areas, the need for updated draft PCR orders, and the identification of wāhi tapu sites and their protections. The court noted that the absence of formalised survey guidelines from the Surveyor-General had hindered the preparation of compliant survey plans, delaying the finalisation of recognition orders. While some progress had been made in clarifying PCRs and wāhi tapu, the court found that insufficient progress had been made to finalise the recognition orders. The court provisionally scheduled a further case management conference for February 2024, subject to the availability of formalised survey guidelines and the parties having an opportunity to produce maps in accordance with them. The court directed the applicants to file and serve compliant maps and amended documents containing the necessary changes two weeks before the scheduled CMC date. The court also granted leave to counsel to file further memoranda seeking directions if necessary.

Orders