Ng�ti Kere (Application to amend CMT application area) - [2024] NZHC 1472

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-404-481 CIV-2017-485-193 CIV-2017-485-220 CIV-2017-485-221 CIV-2017-485-224 CIV-2017-485-226 CIV-2017-485-232

GROUP M, STAGE 1(b) [2024] NZHC 1472

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

Counsel:

L Watson for Ngāti Kere MACA Working Party

C Hirschfeld for Te Hika o Pāpāuma Mandated Iwi Authority
J Prebble, F Hussain and D Kleinsman for the Attorney-General

Judgment:

5 June 2024

JUDGMENT OF GWYN J

(Ngāti Kere — application to amend CMT area; application to introduce further evidence)

Amended application for recognition orders

[1] Ngāti Kere MACA Working Party (Ngāti Kere) is an applicant in this proceeding. The substantive hearing of the case concluded on 3 May 2024.

[2] In its application of 29 March 2017 for orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act) Ngāti Kere sought recognition
RE NGĀTI KERE (APPLICATION TO AMEND CMT APPLICATION AREA) [2024] NZHC 1472 [5 June 2024]

of customary marine title (CMT) in the common marine and coastal area between the southern bank of Te Wainui Stream (Herbertville) and the northern bank of the Ouepoto Stream, from the line of mean high-water springs and out to the territorial sea limit.1 The CMT application area is attached to this judgment as Appendix A.

[3] Ngāti Kere’s application for protected customary rights (PCRs) was for the area from the southern bank of the Ākitio River in the south to the northern bank of the Ouepoto stream in the north.

[4] Ngāti Kere has now filed an amended application, dated 29 April 2024, in which it seeks to amend its CMT application area, so that it encompasses the area from the northern bank of the Ouepoto Stream in the north, to the southern bank of the Ākitio River in the south, and matches the area for which it seeks PCRs. The amended CMT application area is attached to this judgment as Appendix B.

Response to the application to amend

[5] The proposed amendment would increase the overlap between Ngāti Kere’s application and those of three other applicants, the Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Settlement Trust (Kahungunu), Rangitāne Tū Mai Rā Trust (Rangitāne) and Te Hika o Pāpāuma Mandated Iwi Authority (Te Hika o Pāpāuma).

Te Hika o Pāpāuma

[6] Te Hika o Pāpāuma has responded to the application for amendment by way of memorandum of 3 May 2024 and submissions of 23 May 2024.

[7] Te Hika o Pāpāuma’s submission is that an application to amend cannot enlarge the CMT area claimed. Te Hika o Pāpāuma relies on s 100(2) of the Takutai Moana Act which limits the filing of applications after the limitation date prescribed in the Act.

1 Application by Ngāti Kere MACA Working Party on behalf of the hapū of Ngāti Kere for recognition orders pursuant to the Marine and Coastal Area (Takutai…

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: [2024] NZHC 1472
Decision Date: 5 June 2024

CaseChat Overview and Summary

The case involves Ngāti Kere, a group applying for recognition of customary marine title (CMT) and protected customary rights (PCRs) under the Marine and Coastal Area (Takutai Moana) Act 2011. Ngāti Kere initially applied for CMT over a specific area but later sought to amend this area to align with the area for which they applied for PCRs. The application to amend was contested by Te Hika o Pāpāuma, which argued that the amendment could not enlarge the CMT area claimed. The Attorney-General suggested that Ngāti Kere might be able to expand its CMT application area through reliance on Ngāti Kahungunu's korowai application.

The central legal issue was whether Ngāti Kere could amend its CMT application to cover an additional area, despite the amendment being filed after the statutory deadline and potentially increasing overlap with other applicants' areas. The court had to determine whether the amendment changed the "essential nature" of the application and whether it prejudiced other parties, particularly in light of the statutory bar on late amendments.

The court found that Ngāti Kere's intention to potentially amend the CMT area had been flagged in its original application, and the proposed amendment did not introduce new legal questions or significantly change the application's essence. The court also noted that other parties were aware of the potential for amendment and had the opportunity to respond. The court rejected the argument that the amendment prejudiced other parties, as Ngāti Kere's original application already asserted a claim to the entire area. The court concluded that the amendment did not alter the "essential nature" of the original application and allowed the amendment.

Additionally, the court considered Ngāti Kere's application to introduce further evidence in the form of minutes from a site visit kōrero. The court allowed the evidence to be included but noted that it would be given limited weight due to the absence of other parties and the lack of cross-examination. The court balanced the relevance of the evidence with the procedural fairness to other parties.

Orders