Ng�i Takoto Iwi - [2023] NZHC 301

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-485-320 CIV-2017-485-208

CIV-2017-485-240 [2023] NZHC 301

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

IN THE MATTER OF

an application by Ngāi Takoto Iwi for orders recognising Customary Marine Title and Protected Customary Rights

On the papers:

Appearances:

H C Andrews for Ngāi Takoto Iwi S Wroe for Ngā Uri o Ngāti Kuri

S M Downs and J Lang for Trustees of Te Rūnanga Nui o Te Aupōuri

G Melvin for Attorney-General

Judgment:

24 February 2023

JUDGMENT OF CHURCHMAN J

[1] The applicant, Ngāi Takoto, seeks leave to become an interested party to the applications for recognition orders of Ngāti Kuri Trust Board and Te Rūnanga Nui o Te Aupōuri Trust under the Marine and Coastal Area (Takutai Moana) Act 2011 (the MACA Act).1

[2] The applicant accepts and acknowledges this application is being made well after the due date to file a notice of appearance in respect of applications under the MACA Act in accordance with s 104. However, the applicant says the circumstances here are appropriate for the applicant to join as an interested party at a later date.

1 CIV-2017-485-208 and CIV-2017-485-240 respectively.

NGĀI TAKOTO IWI [2023] NZHC 301 [24 February 2023]

Background

[3] In a minute dated 9 November 2022, noting the inconsistencies between the map attached to Ngāi Takoto’s original application, a map filed on 23 August 2021 (the 2021 map), and a revised map filed on 24 May 2022 (the 2022 map), I expressed my view that a strike out hearing should be scheduled for the next available date after 22 November 2022 unless Ngāi Takoto was willing to withdraw the 2022 map, and instead rely on the map filed on 23 August 2021.2

[4] On 22 November 2022, the applicant advised that it may be prepared to withdraw the 2022 map and retain their claim area as shown in the 2021 map. The applicant advised that if that were to occur, it would seek leave to become an interested party to other claims under the MACA Act.

[5] As advised, the applicant has now withdrawn their 2022 map and has retained their claim area as shown in the 2021 map. The applicant says the withdrawal of the 2022 map is offered as a pragmatic resolution to matters raised by the Attorney- General.

[6] The applicant now seeks leave to become an interested party to the applications of Ngāti Kuri and Te Aupōuri. In respect of these applicants, I understand that Ngāti Kuri has advised it will abide the decision of the Court in respect of the applicant’s application, and that while Te Aupōuri has not advised a position in respect of the applicant’s application, it has indicated it is prepared to discuss matters regarding the iwi’s respective MACA claim areas kanohi ki te kanohi at a governance level.

2 Re Ngā Takoto Iwi HC Whangārei CIV-2017-485-320, 9 November 2022 (Minute of Churchman J) at…

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 301
Decision Date: 24 February 2023

CaseChat Overview and Summary

In this case, the applicant, Ngāi Takoto, sought to become an interested party in the applications for recognition orders by Ngāti Kuri and Te Rūnanga Nui o Te Aupōuri under the Marine and Coastal Area (Takutai Moana) Act 2011. Ngāi Takoto had missed the statutory deadline for filing a notice of appearance but sought leave to join the proceedings as an interested party. The primary issue before the court was whether Ngāi Takoto could be allowed to join the proceedings despite filing its application late.

The court considered the provisions of the Marine and Coastal Area (Takutai Moana) Act 2011 and relevant case law. It noted that section 104 of the Act allows any interested person to appear and be heard on an application for a recognition order if they filed a notice of appearance by the due date. However, the court found that the Act does not specify a process for parties to join applications at a later date. The court also referred to previous cases, such as Re Tipene and Re Rota, which indicated that the court may permit interested parties to appear and be heard even if they have missed the due date for filing a notice of appearance, provided that there is no prejudice or delay, and the application is not frivolous or vexatious.

After considering the circumstances of the case and the arguments presented, the court decided to grant Ngāi Takoto leave to become an interested party in the applications of Ngāti Kuri and Te Rūnanga Nui o Te Aupōuri. The court found that Ngāi Takoto's participation as an interested party would result in the court being more fully informed and would not prejudice or delay any party, as no steps had yet been taken towards bringing the applications to hearing. The court also found that granting the application would align with the purpose of the Act and would not cause significant prejudice to Ngāi Takoto if denied.

Leave for the applicant to become an interested party to the applications of Ngāti Kuri and Te Rūnanga Nui o Te Aupōuri is granted.

Orders