Kawakawa 1D2 Ahu Whenua Trust

[2023] NZHC 1182

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-259

[2023] NZHC 1182

UNDER	The Marine and Coastal Area (Takutai Moana) Act 2011
CONCERNING	an application by Ngāti Hinewaka represented by Ngāti Hinewaka me ona Karangaranga Trust

On the Papers
Judgment:	17 May 2023

JUDGMENT OF GWYN J

(Application to appear as an interested party)

[1]    The Kawakawa 1D2 Ahu Whenua Trust (Trust) seeks leave to become an interested party to the application for recognition orders by Ngāti Hinewaka, represented by Ngāti Hinewaka me ona Karangaranga Trust, under the Marine and Coastal Area (Takutai Moana) Act 2011 (Act). Ngāti Hinewaka’s application is being heard as part of the Group M Stage 1(a) hearing.

[2]    The Trust acknowledges that the application is made after the due date to file a notice of appearance in respect of applications  under the Act,  in  accordance with s 104, but says the circumstances are appropriate for it to nevertheless join as an interested party.

Background

[3]    Ngāti Hinewaka’s application, filed on 31 March 2017, is for recognition orders under the Act relating to a particular area of the common marine and coastal

KAWAKAWA 1D2 AHU WHENUA TRUST (INTERESTED PARTY APPLICATION) [2023] NZHC 1182 [17 May 2023]

area between Lake Ōnoke and Flat Point (Te Unu Unu) bounded on the landward parts by the line of mean high-water springs and on the seaward side by the territorial sea (“Ngāti Hinewaka rohe moana”). The orders sought are protected customary rights and customary marine title in the Ngāti Hinewaka rohe moana.

[4]Ngāti Hinewaka gave public notice of the application on 25 April 2017.

Jurisdiction under the Act

[5]    Section 104 of the Act provides that “[a]ny interested person may appear and be heard on an application for a recognition order if that person has, by the due date, filed a notice of appearance.”1

[6]    The “due date” is not defined in the Act, but is the date specified in s 103(2) and (3), which require notices of appearance to be filed by a date not less than 20 working days after the first public notification of an application made under the Act.

[7]    Therefore, any notice of appearance in respect of Ngāti Hinewaka’s application was to be filed within 20 working days of 25 April 2017.

Application

[8]    The Trust has filed an affidavit of Tā Robert Workman in support of the application. Tā Robert is a trustee of the Trust.

[9]    Tā Robert’s evidence is that the Trustees first learned of the Ngāti Hinewaka application through another overlapping application, on 15 February 2023. Since then the trustees of the Trust have reviewed Ngāti Hinewaka’s application and associated evidence.

[10]   The Trust owns customary land abutting the foreshore and seabed in the area where recognition is sought by Ngāti Hinewaka. The applicant says that gives it a heightened interest in this application, beyond that of the general public.

1      There is no definition of “interested person” in the Act.

[11]   Tā Robert’s evidence is that, on 9 June 1988, the Māori Land Court, pursuant to ss 438(1) and (2) of the (then) Māori Affairs Act 1953 vested the Māori freehold land at Cape Palliser in the trustees of the Kawakawa 1D2 Ahu Whenua Trust on trust for the iwi beneficiaries. This land is known as Ngawi Station.

[12]   Tā Robert says the area has a history of unlawful acquisition of whenua Māori, in breach of Te Tiriti o Waitangi, and local body and government decisions that have disadvantaged Māori. Kawakawa 1D2 is one of the few remaining pieces of Māori freehold land in the Wairarapa and its beneficiaries are the descendants of the original owner.

[13]   Five of the seven trustees of the Trust are descendants of Hemi Te Miha and a sixth trustee is a long-term resident, former South Wairarapa District Councillor and owner of Te Humenga Station. Tā Robert is not a descendant of Hemi Te Miha, but whakapapas to Hinewaka.

[14]The whenua that the trustees manage is:

(a)Kawakawa 1D2 A – 721 hectares;

(b)Kawakawa 1D2 B – 11 hectares; and

(c)Kawakawa 1D2 C – 53.6491 hectares.

[15]The three blocks have the same 141 owners and the same trustees.

[16]   The Trust’s intention, if leave is granted, is to provide specific and limited evidence from Haami Te Whaiti and Bruce Stirling about the owners’ connection to the area and the takutai moana, the history of their rohe and the way in which customary rights and obligations are held and expressed over their whenua. The Court would thereby be more fully informed than it would be without the Trust’s participation. Tā Robert’s view is that without the participation of the Trust, the Court will not have the full factual picture of the hapū and whānau in the rohe before it.

[17]   Counsel for the Trust says that allowing it to participate as an interested party will not cause significant delay to the hearing or to other parties. The Trust anticipates that the evidence can be accommodated within the hearing time already set down for interested party evidence.

[18]   The Trust seeks leave to file the evidence referred to above, to file submissions and cross-examine witnesses where appropriate.

Discussion

[19]   There is previous authority for the Court to allow interested parties to appear and be heard even where they have missed the due date for filing a notice of appearance. As counsel notes, the fact that the hearing has been set down does not prevent leave being granted.2

[20]As Mallon J said in Re Tipene:3

It seems likely that the Act intended there to be some flexibility to hear from persons likely to be directly affected by an application, even if they fail to file a notice of appearance by the due date. It also seems likely that the Act intended that the Court retain some control over whether a party claiming an interest in an application is properly a party who should be before the Court, whether they have filed a notice of appearance before or after the due date.

As s 107(6) states, the Court retains its inherent jurisdiction. The Court has previously relied on its inherent jurisdiction to allow an interested person to be heard on a proceeding to which they are not a party. Factors relevant to the exercise of that jurisdiction include the nature of the case, the nature of the interest claimed, the quality of the information before the Court (and whether the person seeking to be heard will add anything to the argument before the Court), and practical considerations…

[21]   In that case, Te Rūnanga o Ngāi Tahu’s application for leave was granted. That position was affirmed in Rongomaiwahine Iwi v Attorney-General.4

2      Application for leave to participate as an interested party by Barry Kiwara in the Re Edwards Whakatōhea proceedings – see  Minute  (No.  25)  of  Churchman  J  [Kutarere  Marae]  dated  21 August 2020.

3      Re Tipene [2014] NZHC 2046 at [17]-[23].

4      Rongomaiwahine Iwi v Attorney-General [2015] 2 NZLR 66, [2014] NZHC 2049 at [24]-[30].

[22]   More recently, in Ngāi Takoto Iwi,5 Churchman J found that applications for interested parties to join may be granted out of time in appropriate circumstances.

[23]“Appropriate circumstances” in which leave may be granted include that:6

(a)The applicant’s participation as an interested party would result in the Court being more fully informed than it would be without its participation;

(b)Its presence is necessary to justly determine the other applicants’ applications;

(c)Granting the application aligns with the purposes of the Act;

(d)Granting the application should not cause prejudice or delay to any party;

(e)There would be significant prejudice to the applicant, their mana and their overall wellbeing if the application was not granted, and they would suffer difficulties in pursuing their rights and obligations regarding their areas.

[24]   In this case, I am satisfied from Tā Robert Woodman’s evidence that the Court is likely to benefit from the Trust’s participation in the application and that, conversely, the Trust would be significantly prejudiced if the application were not granted. Refusing the application would undermine the Court’s ability to justly make a durable and informed determination of rights, in terms of the purpose of the Act at s 4.

[25]   There is no evidence of prejudice or delay. The Registrar has consulted related parties as to their position on the Trust’s application. All of those who have responded, including Ngāti Hinewaka and the Attorney-General, have indicated an intention to

5      Ngāi Takoto Iwi [2023] NZHC 301 (24 February 2023) at [8]-[9].

6      Ngāi Takoto above n 5, at [24]-[27].

abide the Court’s decision on the application. The Trust seeks to file evidence on or before 19 May 2023, in line with the other interested parties.

[26]   The Group M Stage 1(a) hearing will commence on 4 September 2023, at the Copthorne Solway Park in Masterton. The remaining timetable for the filing of evidence is:

(a)Interested Party evidence: 19 May 2023

(b)Attorney-General evidence: 16 June 2023

(c)Reply evidence: 7 July 2023

(d)Close of pleadings: 4 August 2023

(e)Common Bundle: 11 August 2023

(f)Chronology/agreed facts and issues: 18 August 2023

(g)Notices of cross-examination: 25 August 2023

(h)Opening submissions and draft hearing timetable: 30 August 2023

(i)Hearing: 4 September 2023

[27]The hearing itself will be conducted as follows:7

(a)Hearing weeks 1-4 (Masterton) – opening submissions, tangata whenua evidence and historical evidence.

(b)Hearing week 5 (Wellington High Court) – evidence from interested parties.

7      The Marine and Coastal (Takutai Moana) Act 2011, Minute of Gwyn J, Group M Stage 1(a) Hearing Venue and Schedule, 21 March 2023.

(c)Hearing week 6 – the Court will not sit but a site visit may be organised. In addition, the one week interval will allow for the provision of notes of evidence to counsel up to that point and preparation of the Pūkenga report.

(d)Hearing week 7 (Wellington High Court) – questioning of the Pūkenga in relation to his report, attendance by AVL available.

(e)Hearing week 8 (Wellington High Court) – presentation of closing submissions.

Outcome

[28]   I grant leave for the applicant to become an interested party to the application of Ngāti Hinewaka.

[29] The applicant is to file its evidence in accordance with the timetable at [26] above.

Gwyn J