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.

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 1182
Decision Date: 17 May 2023

CaseChat Overview and Summary

The Kawakawa 1D2 Ahu Whenua Trust (Trust) has applied to the High Court for leave to become an interested party in the proceedings brought by Ngāti Hinewaka, represented by Ngāti Hinewaka me ona Karangaranga Trust, under the Marine and Coastal Area (Takutai Moana) Act 2011. The Trust is seeking recognition orders relating to an area of the common marine and coastal area between Lake Ōnoke and Flat Point, bounded on the landward parts by the line of mean high-water springs and on the seaward side by the territorial sea. The Trust acknowledges that it has missed the deadline to file a notice of appearance but argues that the circumstances warrant it being heard. The court must determine whether the Trust can be heard despite the late filing, considering the purposes of the Act and the potential for prejudice or delay.

The primary issue before the court was whether the Trust could be granted leave to participate in the proceedings despite missing the statutory deadline to file a notice of appearance. The court considered whether the Trust's participation would result in the Court being more fully informed, its presence is necessary to justly determine the other applicants' applications, granting the application aligns with the purposes of the Act, granting the application should not cause prejudice or delay to any party, and the Trust would suffer significant prejudice if the application was not granted. The court examined the evidence presented by the Trust and the responses of other parties to the application.

The court granted the Trust leave to participate in the proceedings, finding that the Trust's participation would result in the Court being more fully informed and that the Trust would suffer significant prejudice if the application was not granted. The court considered that there was no evidence of prejudice or delay to any party and that the Trust sought to file its evidence in line with the other interested parties. The court concluded that granting the application aligns with the purposes of the Act and that the Trust's participation would not cause prejudice or delay to any party.

The court granted leave for the Kawakawa 1D2 Ahu Whenua Trust to become an interested party to the application of Ngāti Hinewaka. The Trust is to file its evidence in accordance with the timetable set out in the judgment.

Orders