Ng�tiawa - [2024] NZHC 1282

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-160; CIV-2017-485-214 CIV-2017-485-229; CIV-2017-485-273 CIV-2017-485-511; CIV-2017-485-261 CIV-2017-485-248; CIV-2017-485-258 CIV-2017-485-260; CIV-2017-485-211

GROUP N, STAGE 1(a) and STAGE 1(b)

[2024] NZHC 1282

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

AND

applications for orders recognising Customary Marine Title and Protected Customary rights

Continued..

Hearing: 16 May 2024

Counsel:

(Listed below)

Judgment:

22 May 2024

REASONS JUDGMENT OF GRICE J
(Application for leave to intervene by Apihaka Mack and Marama Tamati-Martin on behalf of Ngātiawa Tōpūtonga Tai Kāpiti)

BY William James Taueki on behalf of Ngāti Tamarangi hapū of Muaūpoko iwi (CIV- 2017-485-160)

BY

Margaret Morgan-Allen for David

Morgan Whānau (CIV-2017-485-214)

BY

Rachael Ann Selby on behalf of Ngāti

Raukawa ki te Tonga

(CIV-2017-485 229)

RE NGĀTIAWA (REASONS JUDGMENT) [2024] NZHC 1282 [22 May 2024]

BY Patrick Seymour on behalf of Te Whānau Tima (Seymour) and Te Ahi Kā o Te Mateawa (CIV-2017-485-273)

BY

Chris Shenton on behalf of Te Rūnanga o Ngā Wairiki Ngāti Apa

(CIV-2017-485-511)

BY

Muaūpoko represented by Muaūpoko

Tribal Authority Incorporated
(CIV-2017-485-261)

BY

Trustees of Te Ātiawa ki Whakarongotai Charitable Trust on behalf of Te Ātiawa ki Whakarongotai (CIV-2017-485-248)

BY

Tiratu Williams and Patricia Grace for the owners of Hongoeka Blocks

(CIV-2017-485-258)

BY

Te Ātiawa ki te Ūpoko o te Ika ā Māui

Pōtiki Trust (CIV-2017-485-260)

BY

Trustees of Tupoki Takarangi Trust (1996) on behalf of owners of Parangarahu 2B1 and 2C and their descendants (CIV- 2017-485-211)

INTERESTED PARTIES Te Rūnanga o Ngāti Toa Rangatira Incorporated on behalf of the iwi of Ngāti Toa Rangatira (Crown engagement) MAC-01-12-021

Attorney General

Manawatū-Whanganui Regional Council, Greater Wellington Regional Council and Kapiti Coast District Council

Porirua City Council

Edward Tautahi Penetito, and Donald Koroheke Tait of Ngāti Kauwhata (Crown engagement) MAC-01-11-008

Christopher Henare Tahana, Edward

(Fred) Clark, Hayden Tūroa, and Novena

McGuckin on behalf of Te Patutokotoko (CIV-2017-485-254) (Intervener)

Rangitāne o Manawatū Settlement Trust

(applied)

Seafood Industry

Horowhenua 11 Part Reservation Trust

New Zealand Transport Agency Waka Kotahi

[1] I delivered a results judgment in this matter on 16 May 2024.1 This is the reasons decision for the dismissal of the application for leave to intervene as an interested party.

[2] The hearings for Stage 1(a) (the northern part of the Group N hearings) commenced last week. The claims made under the Marine and Coastal Area (Takutai Moana Act) 2011 (the Act) relate to the coastal and moana area running from the Rangitīkei River in the north to Whareroa in the south. The applications were made on or before April 2017 and have been set down for hearing since 10 November 2022.2 The commencement of the hearings was delayed by a week (from the original date of 6 May 2024) largely due to applications for adjournment which were brought by a number of parties. Those adjournment applications followed difficulties regarding the funding from Te Arawhiti, upon which a number of parties were dependent.3

[3] After the hearing commenced, an interlocutory application was…

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

AGLC: Ng�tiawa [2024] NZHC 1282
Case: [2024] NZHC 1282
Decision Date: 22 May 2024

CaseChat Overview and Summary

This case involves an application for leave to intervene as an interested party made by Apihaka Mack and Marama Tamati-Martin on behalf of Ngātiawa Tōpūtonga Tai Kāpiti, seeking to participate in the hearings concerning the recognition of customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicants claim exclusive use and occupation of the area between Ōtaki River and Wairaka Rock from 1840 to the present, and argue that their interests are not represented by any other applicant or interested party in the proceedings. The legal issues centre on whether the applicants are entitled to intervene as interested parties despite the statutory deadline for filing applications having passed, and whether their participation would cause substantial prejudice or delay to the proceedings.

The court considered the principles for joining parties out of time as outlined in previous cases, such as the need to inform the Court on relevant issues, prevent significant prejudice, and align with the purposes of the Act. However, the court concluded that the application should be dismissed. The applicants' primary objective was to seek recognition orders, which is contrary to the statutory bar on filing new applications. The court noted that customary rights and interests are not extinguished by non-recognition under the Act and can continue to be exercised outside that framework. The court found that the applicants' wide-ranging participation and the nature of the interest they wish to pursue would cause substantial prejudice to the present applicants and delay the proceedings. The application was not in line with the processes and purpose of the Act, and the timetable could not accommodate the participation sought at this late stage.

The court dismissed the application for leave to intervene as an interested party, noting that the applicants' mana whenua would not be extinguished by non-participation in the proceedings but would continue to operate outside the framework prescribed by the Act. The court acknowledged that the applicants may consider that they will suffer prejudice in relation to their rights and obligations with respect to the areas subject to the application, but there is no bar to the applicants pursuing those issues with the participants on a tikanga basis. The issue of costs was not raised at the hearing.

Orders