Ng�tiawa
[2024] NZHC 1282
•22 May 2024
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 filed by Apihaka Mack and Marama Tamati-Martin, on behalf of Ngātiawa Tōpūtonga Tai Kāpiti, for leave to intervene as an interested party in these proceedings. The intervention application is based on a claim by the applicants that they have had exclusive use and occupation of the area between Ōtaki River in the North and Wairaka Rock in the South. This application is opposed.
1 Re Ngātiawa [2024] NZHC 1233 [the results judgment].
2 Re Te Whānau Tima and Te Hapū o Te Mateawa HC Wellington CIV-2017-485-273, 10 November 2022 (Minute of Churchman J).
3 Re Ngāti Tamarangi Hapū HC Wellington CIV-2017-485-160, 24 April 2024 (Minute of Grice J); and Re Elkington HC Wellington CIV-2017-485-218, 15 May 2024 (Minute of Churchman J).
Legal position
[4] 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.” The “due date” is a reference to the date by which any application for a recognition order under the Act had to be filed pursuant to s 100, namely “not later than 6 years after the commencement of th[e] Act”. That date was 3 April 2017.
[5] Nevertheless, a number of applications by interested persons have been granted at various stages of proceedings under the Act.4 For instance, in Re Rota the applicant’s barrister failed to submit the application before the due date (5.00 pm on 3 April 2017) and the application was not received until 6 April 2017.5 In that case it was clearly contemplated that someone whose application could not be accepted because it was filed after the due date could join as an interested party to other applications that had been lawfully made.6
[6] In a minute dated 15 May 2017, Mallon J expressed her preliminary view that because the application was not filed in the Court on 3 April 2017, it was not filed within the statutory timeframe. However, she suggested that the claimants “could potentially file a notice of appearance in respect of the Māori Council application”.7 The applicant’s barrister accepted her Honour’s preliminary view that the Court did not have discretion to accept the late application he filed, and advised that the applicant intended to join as an interested party to other applications that had been made.8 Her Honour, dealing with another issue, namely a submission from another affected party, also stated that the party “may wish to become an interested party to [an already existing] application if and when it is progressed.”9
4 See Re Tipene [2014] NZHC 2046 at [22]–[23], where Mallon J held 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.
5 Re Rota [2017] NZHC 1445.
6 At [2(c)].
7 At [1], citing Re Rota HC Wellington CIV-2017-485-510, 15 May 2017 (Minute of Mallon J) at [29].
8 At [2(c)].
9 At [4].
[7] In Re Edwards (No 6), the party seeking joiner did not hold the resource consents and did not own the asset affected as at the due date.10 They therefore could not have filed a notice within the specified time, and Churchman J considered it was appropriate to grant them leave to appear as an interested party.11
[8] In New Zealand Māori Council v Te Kāhui Takutai Moana o Ngā Whānui Me Nga Hapū, the Court of Appeal granted the New Zealand Māori Council leave to intervene in appeals brought against the High Court’s decision in Re Edwards (Te Whakatōhea No 2).12 As Clifford J pointed out, exactly why the Council did not appear in the High Court as an interested party was “not explained”.13 The Court of Appeal considered the Council’s participation could be of assistance to the Court and it was unclear what prejudice, if any, the applicant faced by the delayed application.14 The Court did recognise the potential for prejudice to the parties by expanding the scope of the appeals, and accordingly limited the Council’s involvement only to the legal issues raised by the parties.15
[9] In Re Ngāi Takoto Iwi, Churchman J considered the circumstances where an interested party might be joined.16 He pointed to the following factors to be taken into account when considering an interested party’s participation where they are seeking to be joined out of time:17
(a)that it would serve to inform the Court more fully on the relevant issues;
(b)that it would be necessary to justly determine the other applications;
(c)that it would be in line with the purposes of the Act;
(d)that it would not cause prejudice or delay to other parties; and
10 Re Edwards (No 6) [2022] NZHC 1160 at [11].
11 At [11]–[12] and [14].
12 New Zealand Māori Council v Te Kāhui Takutai Moana o Ngā Whānui Me Nga Hapū [2022] NZCA 224.
13 At [4].
14 At [17]–[18].
15 At [19].
16 Re Ngāi Takoto Iwi [2023] NZHC 301 at [25]–[27].
17 At [25]–[27].
(e)that it would be necessary to prevent significant prejudice, particularly where that person’s mana and overall wellbeing, or their rights and obligations with respect to the areas subject to the application, would be affected by their non-participation in the proceeding.
[10] The applicants point to Paki v Attorney-General.18 In that decision, Harvey J adopted the principles listed above.19 The proceedings involved applications made under the Act concerning the Whangārei Harbour. Two owners of works and holders of substantial consents on and adjoining the harbour applied to join as interested parties six weeks into the hearing. One was Fletcher Concrete and Infrastructure Limited (Golden Bay) and the other was the Port Nikau harbour authority (Port Nikau), which held consents for wharves and marinas. They both owned infrastructure and undertook consented activities in the marine and coastal area, including wharves and marinas. They were concerned about the veto rights associated with the recognition of customary marine title (CMT) in the harbour which might make their operations unviable. In addition, Golden Bay had the onus of raising substantial interruption in relevant areas and wished to do so to preserve its position.20 The issues associated with the operations of those two applicants had already been raised during the hearing and the Judge noted the engagement of the evidence to date on that.
[11] His Honour noted that while it was an advanced stage of the proceedings, Port Nikau would be seriously prejudiced if the waiver to enable it to appear were not granted. Furthermore, no new evidence would be introduced for it.21
[12] The applications were granted that on the basis that minimal disruption would occur to the hearing. In relation to this, the Judge further commented:
[18] Golden Bay and Port Nikau have undertaken to minimise prejudice to the parties by limiting their activities in the proceeding. It is inarguable that they both hold interests which may be adversely affected, and which are already engaged by the evidence given to date. I consider therefore that the prejudice suffered by Golden Bay and Port Nikau if they are not heard on these
18 Re Paki [2024] NZHC 805.
19 At [13].
20 At [6].
21 At [10].
matters does outweigh that to the applicants. The Court will furthermore be assisted by their participation in reaching a just and final determination. Moreover, as counsel are now aware, the arrangements for the hearing of those cases are now in place.
This application
[13] This application is made by the applicants on behalf of Ngātiawa Tōpūtonga Tai Kāpiti. The grounds set out in the application are as follows:
[14]This application is based on the following grounds:
a.the Applicants say that they had exclusive use and occupation from 1840 until the present day without substantial interruption of the area between Ōtaki River in the North and Wairaka Rock in the South, as depicted in the map attached as Annex A;
b.the Applicants’ interests in the coastal marine area (“CMA”) are not represented by any other applicant or interested party in the Stage 1A Hearing;
c.the Applicants’ interests in the CMA will not be adequately protected unless they are involved in the Stage 1A Hearing;
d.the Applicants were not aware that the Stage 1A Hearing was taking place, until Thursday 9 May 2024;
e.the nature of the case and the nature of the interest claimed by the Applicants is such that it is appropriate that leave for late filing be granted;
f.the quality of the information the Applicants are seeking to provide will assist the Court;
g.should the Applicants not be granted leave to participate in the Stage 1A Hearing, they will suffer significant and irreversible prejudice; and
h.on the further grounds set out in the Affidavit of Apihaka Mack, dated 13 May 2024.
[15] The applicant offered no explanation for the failure to take any steps in this proceeding since the enactment of the legislation some 15 years ago, or at least earlier than the commencement of the hearing, other than that the applicants were not aware of the applications (despite public notice).
[16] Mr Kuddus submitted that the applicants have had exclusive use and occupation from 1840 until the present day, without substantial interruption, of the
area between Ōtaki River in the North and Wairaka Rock in the South. The applicants say they have mana whenua rights which would satisfy the CMT and/or protected customary rights (PCRs) tests in the Kapiti coastal marine area, which is the subject of the Stage 1(a) hearing. Mr Kuddus acknowledged that there were other applicants who might have overlapping rights to CMT and PCRs in that area. Mr Kuddus also acknowledged that this was not a joinder application.
[17] Mr Kuddus submitted that the application should be granted based on the applicant’s use and occupation the area, which was recognised in Te Ātiawa/Ngāti Awa ki Kāpiti – Inland Waterways: Ownership and Control. This was a report commissioned by the Waitangi Tribunal for the Wai 2200 Inquiry. The Tribunal also recognised that the applicant is a collective of hapū.
[18]Mr Kuddus points to the preamble of the Act, which states:
This Act takes into account the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principles of manaakitanga.
[19] Furthermore, the purpose of the Act is to “recognise the mana tuku iho exercised in the marine and costal area by iwi, hapū, and whānau as tangata whenua” and provide for the exercise of customary interests in the marine and coastal area whilst acknowledging Te Tiriti o Waitangi.22 Mr Kuddus further submitted that title is said to exist in a specified area of the Kapiti coastal marine area if the applicant group holds the specified area in accordance with tikanga and has had exclusive use and occupation of the said area from 1840 to the present day without any substantial interruption.
[20] Mr Kuddus says that nowhere in the Act is the Court prevented from issuing a recognition order for CMT or PCRs to the applicants. The provisions relating to the statutory time limits for applications do not apply to interested parties. He says s 104 allows interested parties to be heard. Mr Kuddus suggested that the Court was able to grant CMT to a collective and there was no reason why the applicant could not be part of that collective. He pointed out that s 98 did not state that title over a specified area
22 Marine and Coastal Area (Takutai Moana) Act 2011, s 4.
could not take into account the applicant’s right in the area and “thus must result in some form of shared Title and/or PCRs Order”.
[21] In addition, Mr Kuddus submitted that no prejudice would accrue to the other participants because his clients would file four briefs of evidence in June 2024, which could be taken as read, and the deponents could be available for questioning by other parties at a later date. In his written submissions, Mr Kuddus suggested that it was an early stage of the hearing and the evidence proper was only due to start the following day. He noted that there is a break in this hearing from 27 June 2024 to 28 October 2024. He submitted that Ngātiawa’s evidence could be filed at the commencement of that hearing break on 27 June 2024, allowing other applicant groups to file their evidence in response by the end of July 2024.
[22] Mr Kuddus indicated that briefs of evidence would be required for only four witnesses. He said that the questioning of their witnesses would only take one day. He therefore requested that one day to be set aside in August 2024 or September 2024 to hear their evidence. Mr Kuddus offered the alternative that the evidence be filed by 10 June 2024, with response evidence filed by 21 June 2024, and the applicants could be heard in the last week of June 2024.
[23] Mr Kuddus submitted that any additional hearing time required would be relatively short, and ought to be balanced against the serious prejudice to the applicants if they are unable to participate.
[24] Mr Kuddus indicated that the prejudice to other applicant groups here would be significantly less than the prejudice faced by the applicant groups in Re Paki.23 He submitted that in any event, any prejudice could be alleviated as follows:
(a)This hearing has just commenced and applicant groups have barely begun to give evidence, whereas in Re Paki, six weeks of evidence had already been given by applicant groups.
23 Re Paki, above n 18.
(b)The applicant groups in this hearing have a reasonable idea of Ngātiawa’s case based on the evidence already before the Court through the affidavit filed by Apihaka Mack.
(c)Ngātiawa does not seek to object to any other applicant group from the proceedings or say that their title is extinguished, but seek that any order for CMT and/or PCRs takes Ngātiawa’s interests and exclusive use and occupation into account.
(d)If any additional hearing time would be required it would be minimal, given that Ngātiawa has proposed that their witnesses have their evidence taken as read.
[25] Mr Kuddus further submitted that it would be a breach of natural justice not to allow the applicants leave to intervene.
The respondents
[26] Five participants filed memoranda indicating that they would abide the decision of the Court. 24
[27] Opposing the application were Te Ātiawa ki Whakarongotai Charitable Trust (the Trust), Ngāti Raukawa ki te Tonga, and Te Rūnanga o Ngāti Toa Rangatira Incorporated. The Attorney-General also opposed.
[28] The Attorney-General submitted that the applicants were effectively seeking recognition orders under the Act contrary to the statutory deadline for filing applications. It was noted that the absence of recognition orders under the Act does not mean that mana whenua is extinguished. Furthermore, the applicants’ proposed evidence would not inform the Court more fully on relevant matters, and would undermine the considerable efforts already undertaken to meet the demands of existing time constraints.
24 Muaūpoko Tribal Authority Incorporated; Ngāti Tamarangi; Rangitāne o Manawatū Settlement Trust; Te Whānau Tima (Seymour) and Te Ahi Kā o Te Mateawa; and Manawatū-Whanganui Regional Council, Greater Wellington Regional Council and Kapiti Coast District Council.
[29] Mr Cameron for Te Ātiawa ki Whakarongotai, Ngāti Raukawa ki te Tonga, and Te Rūnanga o Ngāti Toa Rangatira submitted that the application did not seek leave to join as an interested party, but effectively sought CMT significantly out of time. In any event, Mr Cameron submitted that the application should be declined on the basis that the applicants’ participation was not necessary to inform the Court further on relevant issues, and the significant prejudice that would result to all parties outweighed any residual prejudice that might be suffered by the applicants.
Analysis
[30] The circumstances of the application to intervene and the extent of proposed participation is an important factor. In this case, the primary thrust of the application is to seek CMT rights, whilst acknowledging that they could be joint with overlapping claimants or may be part of a collective, presumably sitting under a holder of those rights. The Crown noted that the submissions of 14 May 2024 in support of the application stated:
4.1“[Ngātiawa has] mana whenua rights which would satisfy the [CMT], and/or, PCRs tests in the Kapiti Coastal Marine Area… which is the subject of the Stage 1A Hearing.”
4.2“[The Act] does not explicitly exclude or prevent the Court from issuing a recognition order for [CMT], and/or, PCRs to an Interested Party.”
4.3“[A]ny Order made by the Court, must take Ngātiawa’s rights in the area into account, and thus must result in some form of shared Title and/or PCRs Order.”
4.4“[G]iven the silence of [the Act] in not precluding Interested Parties from being able to obtain an award of [CMT], and/or, PCRs, Ngātiawa as an Interested Party to this proceeding, is entitled to seek a shared [CMT] and PCRs order in relation to the Stage 1A Hearing area.”
[31] The primary thrust of the application is through participation in the hearings to seek CMT orders or recognition under some arrangement. Both the Crown and Mr Cameron emphasised that s 100 required any application for recognition orders to be filed six years after the Act came into force. That six years expired in April 2017. The Court of Appeal in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and
Whakatōhea Māori Trust Board confirmed that the Act bars the court from accepting new applications after that date.25
[32] Mr Cameron noted that in asserting that they met the test for CMT, the applicants ran directly into the jurisdictional bar by attempting to circumvent the statutory deadline for the filing of applications. He emphasised the fact that the Act contained provisions for public advertising of applications. These would be undermined if the applicants were entitled to pursue recognition orders in the circumstances. Mr Cameron noted that to grant the application would be irreconcilable with the statutory bar, despite the applicants’ submission that the provisions of the Act should be “interpreted widely and liberally”.
[33] Mr Kuddus argued that there was no bar to seeking recognition orders given that s 94, which deals with the pathways for recognition orders, is permissive not prescriptive. The ways in which PCRs and CMT may be obtained are set out in s 94, which reads:26
94 Recognition of protected customary rights and customary marine title
(1)A protected customary right or customary marine title relating to a specified part of the common marine and coastal area may be recognised by—
(a)an agreement made in accordance with section 95 and brought into effect under section 96; or
(b)an order of the Court made on an application under section 100.
(2)A protected customary right or customary marine title may not be recognised in any other way.
[34] The agreement referred to at subs (1)(a) is by negotiation with the Crown. That pathway is not relevant to this application.
25 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252 [Whakatōhea].
26 Emphasis added.
[35] Mr Kuddus argues that that the word “may” in s 94 gives the Court some discretion to grant recognition orders, and that an interested party could pursue recognition orders even if the application was not made before the April 2017 deadline.
[36] I do not agree. The section is mandatory in that it prescribes two pathways to recognition orders. This is in line with the views of the Court of Appeal that the section is “not a limitation period, to be pleaded or not as a defendant chooses. It is a statutory bar to the exercise of the High Court’s procedural and substantive jurisdiction to consider a new application under MACA.”27 Whether the applicants are seeking shared or exclusive CMT, the statutory bar applies.
[37] Mr Kuddus said that refusing the application and the applicants’ participation would in effect lead to the extinguishing of their title to the relevant part of the coast. As Mr Kleinsman for the Attorney-General pointed out, this is not the case. Extinguishment is a question of law, which occurs “when a customary title cannot survive the creation of a legal property interest, such as indefeasible title under the Land Transfer Act, or a vesting by statute”.28
[38] Customary rights and interests are not extinguished where they are not recognised by orders under the Act, and they can continue to be exercised outside that framework. Mr Kleinsman pointed out that Gwyn J accepted the submissions of the Attorney-General that the exclusion of fishing rights from recognition as PCRs does not amount to extinguishment of such rights, but only means that they cannot be given expression through orders under the Act.29
[39] Tikanga continues to operate regardless of these court proceedings. As both the Crown and Mr Cameron noted, the notion of extinguishment of title is a colonial concept outside the framework of the Act.
[40] The application is also unclear. Mr Kleinsman pointed out that the application is purportedly made on behalf of Ngātiawa as a collective of eight hapū. Those hapū
27 Whakatōhea, above n 25, at [215].
28 Ngā Hapū o Tokomaru Ākau v Te Whānau a Ruataupare Ki Tokomaru [2024] NZHC 682 at [353] and [355].
29 Re Ngāi Tūmapūhia-a-rangi Hapū Incorporated [2024] NZHC 309 at [760].
are not identified in Ms Mack’s affidavit of 13 May 2024 supporting the application (or in the application for leave to appear as an interested party of the same date, or supporting submissions of 13 May 2024 and 14 May 2024). The Crown also noted that the application refers to customary interests extending 200 nautical miles from shore, which is outside the ambit of the Act. Mr Kleinsman contends that the offshore distance of the applicants’ claimed interests further suggests that the nature of their submissions, evidence, and cross-examination may be irrelevant to the determination of recognition orders under the Act (which can extend only as far as 12 nautical miles from shore).
[41] Mr Cameron referred to concerns about mandate, and identified a shared whakapapa between the applicants and the beneficiaries of the Te Ātiawa ki Whakarongotai Charitable Trust, submitting that the applicants would therefore be represented by the Trust. He said that the Trust would cover the applicants’ interests as descendants of a primary tūpuna of the relevant iwi, who remained at Waikanae post-1848. Mr Kuddus denied this, although did not deal with the matters in the supporting affidavit which might suggest those relationships.
[42] Mr Cameron also noted that there was already a significant body of evidence before the Court, and a perusal of the material in the affidavit indicated that little would be added to that by the participation of the applicants.
[43] I have concluded that the application should be dismissed. There are considerable differences between the applications in Re Paki and the present case. The proposed participation of Golden Bay was clearly defined. They were protecting established assets and consent rights which had already been referred to in the hearing. The evidence relating to the impact of recognition orders on those assets and rights would be extremely limited and could be fitted into the timetable. The Judge pointed out that an alternative schedule had already been prepared. Port Nikau would not present evidence.
[44] That contrasts with the present case, where the applicants seek full participation and wide-ranging involvement. In addition, their submissions have been firm that their objective is to seek recognition orders. Extensive further evidence
would be likely given the material referred to by Ms Mack in her affidavit. That would require time for consideration and possibly further evidence in reply by the other parties. The timetable presently in place for May/June 2024 has been truncated due to the loss of a week as a result of the applicants’ funding challenges. The applicants’ evidence and appropriate opportunity for the other participants to cross-examine and reply could not be fitted into the present timetable, which has already been compressed. The alternative proposal is to file their four briefs of evidence after the end of these hearings. This would be at the end of June 2024. They then suggest further time would be found for cross-examination after that. There is no hearing time this year after the end of June, other than that already allocated in October/November 2024 for the evidence of the pūkenga, the court appointed experts, who are due to file their evidence in June 2024 after hearing all the evidence. That time must also accommodate the closing submissions. Further time is then necessary to complete the wāhi tapu and finalise this part of the hearings, but the earliest time available for that is July 2025. The adherence to the scheduled times has become all the more important given the funding issues and indication by Te Arawhiti that very limited funding is available for the balance of 2024 and beyond.30
[45] I acknowledge the need for flexibility and liberality in applying the provisions of the Act, particularly where a person’s mana and overall wellbeing or their rights and obligations with respect to the areas subject to the application are at stake, and so may be affected by their non-participation in the proceeding. However, the applicants are effectively seeking recognition orders despite the statutory time bar, and seek to participate in a wide ranging and largely undefined way. They have made no attempt to suggest a more confined involvement. The timetable cannot accommodate the participation they seek at this late stage. To attempt to do so is likely to significantly prejudice the present applicants, who have been working toward this hearing for over seven years and put considerable effort and resources into getting this far.
[46] The natural justice rights of the applicants are not at play here. Those rights in the present situation relate to being heard in this application. This has occurred.
30 Re Elkington (Minute of Churchman J), above n 3.
[47] In conclusion, the wide ranging participation sought by the applicants, and the nature of the interest that they wish to pursue, would cause substantial prejudice to the participants and delay the proceedings. The application and the nature of the proposed involvement is contrary to the statutory bar on filing applications. Therefore the application is not in line with the processes and purpose of the Act. No particular material is pointed to other than the general involvement of the applicants that would serve to inform the Court more fully on the relevant issues, nor does the participation of the applicants appear necessary to justly determine the other applications.
[48] The applicants’ mana whenua would not be extinguished by non-participation in the proceedings, but rather would continue to operate outside the framework prescribed by the Act. I accept 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 tikanga operates outside of the statutory scheme and there is no bar to the applicants pursuing those issues with the participants on a tikanga basis.
[49] The application is dismissed. The issue of costs was not raised at the hearing. If any party seeks costs any application should be made by memorandum of submissions on or before five days from the date of this judgment. Any response should be made within a further five days and any response within a further three days.
[50] All participants acknowledge tikanga is very much at play regardless of this hearing. Therefore, there may be opportunities for Ngātiawa Tōpūtonga Tai Kāpiti to pursue engagement with the applicants outside of these hearings.
Grice J
Solicitors
A R Irwin for Ngāti Tamarangi hapū of Muaūpoko iwi
N R Coates and P Walker for Ngāti Raukawa ki te Tonga (Kāhui Legal, Wellington)
B R Lyall, M R G van Alphen-Fyfe and H L B Swedlund for Te Whānau Tima (Seymour) and Te Ahi Kā o Te Mateawa
C Shenton (self-represented) for Te Rūnanga o Ngā Wairiki Ngāti Apa
T H Bennion and E A Whiley for Muaūpoko Tribal Authority Incorporated (Bennion Law, Wellington)
A M Cameron and A J Samuels for Te Ātiawa Ki Whakarongotai (Whāia Legal, Wellington) E K Rongo for Tiratu Williams and Patricia Grace for the owners of Hongoeka Blocks; and Ngāti Toa Rangatira (Oranganui Legal Limited, Paraparaumu)
D A Ward, D O Kleinsman and A H Ou for Attorney General (Crown Law, Wellington)
F R Wedde and C E Bulow for Manawatū-Whanganui Regional Council, Greater Wellington Regional Council and Kapiti Coast District Council (Bundle Findlay, Wellington)
L L Black for Te Patutokotoko (Black Law, Nelson)
C F Finlayson KC for Rangitāne o Manawatū Settlement Trust
C M Hockly for Horowhenua 11 Part Reservation Trust (Hockly Legal, Auckland)
U A Kuddus for Apihaka Mack and Marama Tamati-Martin on behalf Ngātiawa Tōpūtonga Tai Kāpiti (for applicant to intervene, Phoenix Law, Wellington)
Solicitors:
0
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