Kaikoura and Hurunui Landowners Association Incorporated v Minister of Fisheries
[2022] NZHC 702
•7 April 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000604
[2022] NZHC 702
BETWEEN KAIKOURA AND HURUNUI
LANDOWNERS ASSOCIATION INCORPORATED
ApplicantAND
THE MINISTER OF FISHERIES
Respondent
Hearing: 28 March – 1 April 2022 Appearances:
P A Cowey and DL L Bell for the Applicant D Watson for the Respondent
R J B Fowler QC and J Innis for the Applicants for Joinder
Judgment:
7 April 2022
JUDGMENT OF GRICE J
Re Application for joinder to proceedings by Te Rūnanga o Ngāi Tahu and Te Rūnanga o Kaikōura Incorporated
[1] This is an application by Te Rūnanga o Ngāi Tahu and Te Rūnanga o Kaikōura Inc for joinder to these proceedings. Ngāi Tahu was the applicant for the extension to the Oaro Mātaitai reserve and for the establishment of the other two reserves. The incorporated association is essentially the vehicle for the Ngāi Tahu interests. For the purposes of the joinder application, I refer to both applicants as “the Ngāi Tahu parties”. In view of the need for the parties to consider a timetable to hearing I delivered a summary of the result and reasons orally on 1 April 2021. This is the reasons judgment which I indicated would be delivered in due course.
KAIKOURA AND HURUNUI LANDOWNERS ASSOCIATION INC v MINISTER OF FISHERIES [2022] NZHC 702 [7 April 2022]
[2] The application for joinder came as a result of the Ngāi Tahu parties being served pursuant to the directions of the Court.1 The proceedings seek judicial review of ministerial decisions to extend one Mātaitai reserve (Oaro Mātaitai) and to establish the Tūtaeputaputa Mātaitai and Kahutara Mātaitai reserves.
[3] The Landowners Association is an incorporated body set up to deal with the issues surrounding these Mātaitai reserves. The members are landowners who live in the area of the reserves. The area covered by the reserves is 3,074 hectares in relation to the Oaro Mātaitai reserve, 35,867 hectares in relation to the Tūtaeputaputa Mātaitai reserve and 5,414 hectares of land within the Kahutara Mātaitai reserve.
Background
[4] Mātaitai reserves are established under the Fisheries Act 1996.2 This empowers the Governor-General to make regulations for the purposes of recognising and providing for customary food gathering and for the making of Mātaitai reserves. In general terms, Mātaitai reserves recognise and provide for traditional fishing through local management by tangata whenua. They usually allow customary and recreational fishing but not commercial fishing. The reserves are developed and managed by tangata whenua to recognise and provide for the special relationship between tangata whenua and their traditional fishing grounds and non-commercial customary fishing. The Mātaitai reserves may have bylaws.
[5] On or about 11 September 2015, Te Rūnanga o Kaikōura Inc applied to the Minister of Primary Industries (the Minister) to extend the already-established Oaro Mātaitai reserve and to establish the Kahutara and Tūtaeputaputa Mātaitai reserves.3 The Minister determined that each of the applications met all the criteria set out in the relevant regulations and extended and established the Mātaitai reserves by signing the relevant notices. These were published on 12 September 2018 and took effect from 10 October 2018.4 The descriptions of the reserve areas are set out by reference to
1 Minute of Gwyn J, dated 1 February 2022.
2 Section 186. The Fisheries (South Island Customary Fishing) Regulations 1999 were promulgated on 11 October 1999. These provided for the process for application and establishment for Mātaitai reserves.
3 Statement of claim, dated 3 November 2021, at [7].
4 At [18]–[21].
description and maps. The central concern of the applicant is that the descriptions are based on geographic regions and much of the area is land including rugged and high-country areas. The applicant says the extent of the Mātaitai reserves is incapable of being ascertained because of the way they have been described in the relevant notices.5
[6] The applicant’s second ground of review is that there was a lack of probative evidence, so the evidence before the Minister could not reasonably have been capable of satisfying him that the area of the Mātaitai reserves were identified as traditional fishing grounds.6 The third ground is a breach of natural justice, which alleges the Minister failed to follow the prescribed notification process and failed to properly notify the local community in terms of the requirements of the regulations.7
[7] The Crown supports the application of the Ngāi Tahu parties, as they were the applicants for the reserves.
[8] The Landowners Association opposes their joinder. It says the Minister’s decisions on 14 March 2018 to determine the applications and the subsequent decisions of 8 August 2018 to extend and establish the relevant reserves were made on the basis of the information the Minister had before him on 14 March 2018. As they are a matter of record, there should be no need for the Ngāi Tahu parties to be involved, despite the fact they were the applicants for the reserves. Similarly, the Association says the wording of the notices fall to be reviewed on their face and that is purely a matter of law.
[9] The applicant says the review is entirely based on a question of legality. The Association is not arguing, for instance, that the Minister acted “unreasonably” or “irrationally”. If that were the argument, it accepts the Ngāi Tahu parties’ perspective might possibly have had some value for the Court.
[10] The applicant says the review is focused on what the Minister did on what he had before him. The Landowners Association does not wish to sue Ngāi Tahu nor
5 At [29].
6 At [38].
7 At [42].
does it contest the applications made by Ngāi Tahu. The applicant is not opposed to Mātaitai reserves as such, but only to the uncertainty and process which surrounded the establishment of these reserves.
[11] The Landowners Association says that as the Minister is not permitted to provide backfill evidence, Ngāi Tahu cannot do that either. Therefore, there is no evidence or justification for their joinder.
[12] In addition, the Landowners Association says the matter has been set down for a one-day hearing on 28 June 2022 and timetabling orders have been made. Evidence has been filed in accordance with that timetable. The joinder of the Ngāi Tahu parties would inevitably lead to the loss of that hearing date.
[13] The Minister supports the joinder of the Ngāi Tahu parties and says they should have been joined from the outset. The Minister also says the applicant has been on notice from an early stage that a delay in serving the Ngāi Tahu parties may have to extend the timetable. That will lead to the vacating of the present fixture on 28 June 2022. However, counsel are confident that if the joinder occurred, they would be able to agree on a combined timetable to a new hearing date.
[14] The Minister also indicated that the Ngāi Tahu parties and the Minister would work together to ensure that their evidence and submissions were coordinated and would not cover the same ground and therefore would not add anything, as I understand it, to the hearing time. Indeed, the Crown and the Ngāi Tahu parties have already agreed on a timetable, which is attached. The applicant has not been involved as it wishes to await the outcome of this decision.
Principles of joinder
[15] The relevant joinder provisions are set out in the Judicial Review Procedure Act 2016. Section 9(1) provides:
9 Respondents
(1)The following persons must be named as a respondent to an application:
(a)the person whose act or omission is the subject matter of the application; and
(b)if the application relates to any decision made in proceedings, every party to those proceedings.
…
[16] As the Minister’s decision was not made in a proceeding, the applicant was required only to name the Minister as respondent. Nevertheless, under s 14(1) of the Act, a Judge may direct a person to be named as a respondent at any time before the hearing of the judicial review application. There are no specified criteria for the exercise of this power.
[17] There is also jurisdiction to join a party under the High Court Rules 2016. The High Court Rules apply to all civil proceedings, subject to, amongst other things, any statute that prescribes the practice and procedure of the Court in a proceeding under that statute.8 Rule 4.1 states that the parties joined to a proceeding must “be limited, as far as practicable, to … persons whose presence before the Court is necessary to justly determine the issues arising”.
[18] The Judge may order at any stage of the proceeding that a party be named as a defendant if the person’s presence before the Court may be necessary to adjudicate on and settle all questions.9 The order may be made on terms the Court considers just.10
[19] The Full Court of the High Court in Wilson v Attorney-General [Judicial Conduct] (No 2) summarised the legal position as follows: 11
[20] Emerging from the cases is that joinder is appropriate where the party’s interests are, or may be, directly or indirectly affected by the judicial review application. In such situations, it would be unjust to decide the issues in the absence of the party so affected, or potentially affected. As Hammond J pointed out in Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 (HC) at [14], “[j]oinder is not an all or nothing thing”. Fairness to the applicant, who is having another party interposed in his proceeding, demands that the Court consider whether the joinder should
8 High Court Rules 2016, r 1.4.
9 Rule 4.56(1)(b)(ii).
10 Rule 4.56(2).
11 Wilson v Attorney-General [Judicial Conduct] (No 2) [2010] NZAR 509.
be for all or only limited purposes. The level of participation should be only what is necessary to protect the interests of the party being added.
[20] In Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, Mallon J pointed out that the decision-making Minister might decide not to appeal the High Court decision following the judicial review but the joined parties might wish to do so.12 She commented, in that case, that the joinder applicants’ interests were sufficiently affected that they should be able to bring an appeal.13
[21] The Ngāi Tahu parties say their interests are directly affected by the application and therefore should be joined as respondent.14
[22] I accept the interests of the Ngāi Tahu parties are directly affected by the judicial review application. They were the applicants for the Mātaitai Reserves. The point of the regulatory framework is to recognise and provide for rights and obligations, including customary food gathering, by the establishment of the Mātaitai reserves. If the decisions creating the reserves are declared invalid and the notices establishing them and their boundaries are quashed and set aside, it is obvious that the Ngāi Tahu parties will be directly affected. They are the tangata whenua of the Mātaitai reserves and, on any view, their interests would be substantially affected. The bylaws recognise Ngāi Tahu as kaitiaki (guardians) whose role is to manage non-commercial fishing. The tangata kaitiaki appointed to a Mātaitai reserve can issue customary fishing authorisations to allow customary food gathering (not just for hui and tangi), can recommend changes to the recreational and customary fishing rules in the reserve and recommend reinstatement of limited commercial fishing. There is no doubt that is a significant role for Ngāi Tahu.
[23] In addition, the second ground of the judicial review application is based on “a lack of probative evidence” which relates to the lack of satisfaction that the proposed area is “an identified traditional fishing ground” and “of a size appropriate to effective
12 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2020] NZHC 741 at [39].
13 At [39].
14 Citing Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA) at 34; and Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission CA178/97, 14 October 1997 at 15.
management of tangata whenua”.15 Ngāi Tahu provided some, if not all, of the information and the evidence in support of that claim at the time of the application. No doubt the review will include mixed issues of law and fact. It will require consideration of issues of tikanga and effective tangata whenua management. These are matters upon which Ngāi Tahu should be entitled to submit. The extent of the evidence before the court will be a matter for the hearing Judge but the relevant tikanga and the role of tangata whenua will be directly in focus.
[24] Similarly, in relation to relief if the claim is made out, the issue of discretion will arise and that also must be relevant to the Ngāi Tahu parties. Counsel pointed out that enquiries as to the steps taken in reliance of the validity of notice and the futility of the outcome, for instance, will all become relevant. They are matters that must engage the Ngāi Tahu interests. The court will be assisted by their presence. It is in the interests of justice that they be heard.
[25] In this case the Ngāi Tahu parties were the applicants for the reserves, they provided the evidence (or, at least, much of it) upon which the Minister relied upon for his decision. They are the tangata whenua and exercise kaitiakitanga over the reserves. Issues of tikanga will necessarily become relevant to the arguments in the judicial review. In my view, there is no doubt that the Ngāi Tahu parties should be joined to this application. They have an interest that is directly affected and have a right to be heard on the issues and to have the standing to appeal.
[26] In the circumstances, given the cooperation between the Minister and the Ngāi Tahu parties in their approach to the evidence and submissions, I do not consider it necessary to make orders limiting Ngāi Tahu’s involvement. It would be difficult to do so at this stage. In any event, there is evident cooperation between the Minister and the Ngāi Tahu parties. This will ensure focus to the proceedings and avoid duplication. Therefore, I do not limit the scope of their participation at this point.
Result
[27]The applications by the Ngāi Tahu parties to join as respondents are granted.
15 Fisheries (South Island Customary Fishing) Regulations, reg 20(1)(c).
[28] The timetable may need amendment beyond the proposal attached. I invite counsel to confer on this matter and any amended timetable, if by consent, may be dealt with by the duty Judge. The scheduled date for hearing is vacated. A new date for one day is to be set for a time after 3 August, on the basis that the timetable will not be extended beyond that in the attached document.
[29] If counsel are unable to agree on costs, submissions should be filed by the applicant for costs within five days from the date of this judgment and by the respondent party within a further five days for determination on the papers.
Grice J
Solicitors:
Parry Field Lawyers, Christchurch Crown Law, Wellington
R J B Fowler Queens Counsel, Wellington Attachment:
SCHEDULE 1: PROPOSED AMENDED TIMETABLE
(by Respondent and Ngāi Tahu parties to be joined)
Ngāi Tahu parties to file and
serve statement of defence
10 working
days from grant of application to join
14 April The applicant to file and serve
any further evidence and nominations for the common bundle of documents
+ 15 working
days
10 May The respondent to file and serve
its evidence and its nominations for the common bundle of documents
+ 10 working
days
24 May Ngāi Tahu parties to file and
serve evidence and nominations for the common bundle of documents
+ 2 working
days
26 May The applicant to file and serve
any evidence in reply and any further additions to the common bundle of documents
+ 10 working
days
10 June The applicant to file and serve
the common bundle of documents
+ 5 working
days
17 June The applicant to file and serve its
submissions
+ 5 working
days
27 June The respondent to file and serve
its submissions
+15 working
days
18 July Ngāi Tahu parties to file and
serve submissions
The respondent to file and serve a joint bundle of authorities
+ 2 working
days
20 July The matter be set down for a one
day hearing on the first available date 10 working days after final filing
03 Aug
1
1
0