Ng�i T�map�hia-A-Rangi Hap� - [2023] NZHC 470

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-232 CIV-2017-485-259 CIV-2017-485-267 CIV-2017-485-224 CIV-2017-485-260 CIV-2017-485-221 [2023] NZHC 470

Group M 1(a)

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

IN THE MATTER OF

an application for orders recognising Customary Marine Title and Protected Customary Rights

On the papers:

Appearances:

D Naden, M Yogakumar and M Screen for Ngāi Tumāpuhia-a- Rangi Hapū (CIV-2017-485-232)

T Bennion for Ngāti Hinewaka (CIV-2017-485-259)

D Naden, M Yogakumar and M Sreen for Tukōkō and Ngāti Moe (CIV-2017-485-267)

R Siliciano for Rangitāne Tū Mai Rā Trust (CIV-2017-485-224)

M Houra for Te Ātiawa ki Te Upoko o Te Ika a Maui Potiki Trust (CIV-2017-485-260)

J P Ferguson for Trustees of Ngāti Kahungunu ki Wairarapa

Tāmaki-nui-a-Rua Settlement Trust (CIV-2017-485-221)

Interested parties:

B Lyall for Ngāi Tumapuhia-A-Rangi Ki Motuwairaka Inc and Ngāi Tumapuhia-A-Rangi Ki Okautete Inc

B Scott for Seafood Industry Representatives G Melvin for Attorney-General

Judgment:

10 March 2023

JUDGMENT OF CHURCHMAN J

NGĀI TŪMĀPUHIA-Ā-RANGI HAPŪ [2023] NHZC470 [10 March 2023]

Introduction

[1] The applicant, Ngāi Tūmapūhia-A-Rangi Hapu, applied for recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) on 3 April 2017. On 17 February 2023, the applicant filed an amended application proposing amendments to the original application under two heads, namely a change of applicant and the description of protected customary rights for which it seeks recognition orders.

[2] The questions for determination here are whether the amended application is consistent with the statutory requirements under s 101 of the Act for an application for recognition orders, and whether the amendments sought amount to a material change to the application such that the amended pleading represents a fresh application under the Act and thereby constitutes an abuse of the Court.1

Discussion

Change of applicant

[3] The first set of amendments relates to the named applicant. The amended application changes the name of the applicant from “Ngai Tumapuhia-A-Rangi Maori Marae Committee Incorporated” to “Ngāi Tūmapūhia-a-rangi Hapū Committee”. It also changes the representative of the applicant group from “Ryshell Griggs and Tūmapūhia-A-Rangi Māori Marae Committee Incorporated” to “Ngāi Tūmapūhia-a- rangi Hapū Committee”. The amended application also updates the email and phone contact details for the applicant.

[4] No reason is adduced in the amended application for the proposed change to the applicant. However, the “applicant group” is unchanged, namely “Ngā Uri o Ngai Tūmapūhia A Rangi Hapū”. It appears it is only the “applicant”, who is the representative of the applicant group, that is to be amended.

1 Re Dargaville [2020] NZHC 2028 at [44]; Re Paul [2020] NZHC 2039 at [36] and [64], upheld on appeal in Paul v Attorney-General [2022] NZCA 443 at [75]; and Re Ngāti Pāhauwera Development Trust (strike-out application) [2020] NZHC 1139 at [4].

[5] There appears to be no change to the applicant group on whose behalf the recognition orders are sought. There would therefore be no material change to the application such that the amended application…

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 470
Decision Date: 10 March 2023

CaseChat Overview and Summary

The case of Ngāi Tūmapūhia-A-Rangi Hapū involved an application for recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicant, Ngāi Tūmapūhia-A-Rangi Hapū, sought to amend its original application by changing the applicant and providing a more detailed description of the protected customary rights for which it sought recognition orders. The primary legal issues were whether the amended application was consistent with the statutory requirements of the Act and whether the amendments amounted to a material change that constituted an abuse of the Court process.

The court considered the statutory requirements for an application under the Act, particularly focusing on the definition of the "applicant" and the necessity of naming a person to be the holder of the order as the representative of the applicant group. The court found that the amended application failed to meet these statutory requirements because it did not name a natural person or legal entity as the representative of the applicant group, which is mandated by the Act. Consequently, the court declined the application to amend the applicant.

Regarding the proposed amendments to the description of the protected customary rights, the court determined that the expanded description was not so different from the original application as to constitute a fresh cause of action. The court held that the expanded list of natural and physical resources, while more detailed, was closely related to the original purpose of practising kaitiakitanga over the specified area. The court also allowed the inclusion of the gathering of resources for rongoā purposes, finding it sufficiently proximate to the original application to be permissible.

The court concluded that while the description of the protected customary rights could be amended, the applicant must name a natural person or legal entity as the representative of the applicant group to comply with the statutory requirements.

Orders