Ng� Tini Hap� o Maniapoto - [2023] NZHC 1453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-526

[2023] NZHC 1453

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

IN THE MATTER OF

an application by Ngā Tini Hapū o Maniapoto for orders recognising Customary Marine Title and Protected Customary Rights

On the papers:

Counsel:

C Hirschfeld, B Tupara and T A Thompson for Applicant

Judgment:

12 June 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] The applicant has filed an amended application, dated 23 May 2023, for orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), with an amended map pursuant to my directions of 1 July 2022 and 4 October 2022. The amendments to the application area result from kōrero between this applicant and a number of cross-applicants. The result of the proposed amendments is a reduction of the area claimed in the northern part of the application and a refinement of the nature of the claim in the southern part of the application.

Proposed amendments

[2] The amended map has altered the CMT boundary at both the northern and southern end points.

NGĀ TINI HAPŪ O MANIAPOTO [2023] NZHC 1453 [12 June 2023]

[3] At the northern end, the proposed amendment is from Toka Moana Anaputa, at 38°12’54.8”S 174°42’50.1”E, to Waihekura Stream, at 38°13’19.6”S 174°42’50.5”E. At the southern end, the amended boundary that is proposed is from Hui Komako, at 38°30’27.4”S 174°37’53.9”E, to Waioroko, at 38°33’21.2”S 174°37’56.2”E.

[4] The change at the northern end represents a reduction in the size of the area over which CMT is claimed. The change to the southern boundary appears to encompass what had been described in the applicant’s earlier application as “Area 3”, which was an area where the applicant sought CMT and PCR. Effectively the change at the southern end is to encompass within the applicant’s delineated CMT and PCR application area the area over which it had already been claiming CMT and PCR, but this is now claimed on the basis of shared exclusivity between Ngāti Rārua and those represented by the Mokau Ki Runga group. In other words, this is not claiming any greater area for CMT (or, for that matter, PCR) than the previous application.

[5] Being, overall, a reduction to the application area over which CMT is claimed, this amendment fits within the category of amended applications that will be allowed as set out in the Ngāti Pāhauwera (strike-out application) decision.1

[6] The amended application also provides a reduced ledger of hapū and a refined list of tūpuna and tikanga. Again, there is no expansion of the applicant group or application by these amendments and consequently it is permissible.

[7] To the extent that the amended application seeks CMT in part of the application area on a “shared exclusivity” basis, it will be necessary for the applicant group or groups with whom this applicant claims it has shared exclusivity, to also amend their applications to reflect the claim of shared…

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 1453
Decision Date: 12 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the applicant, Ngā Tini Hapū o Maniapoto, sought recognition of Customary Marine Title and Protected Customary Rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The application was amended to reduce the claimed area in the northern part and to refine the southern claim, based on discussions with cross-applicants. The court was tasked with determining whether the amendments were permissible under the Act and if the court had jurisdiction over the areas claimed.

The court examined whether the amendments reduced the claimed area and did not expand the applicant group or the application. It found that the proposed amendments fit within the criteria for allowable amendments as set out in a previous case. The court also considered that the amendments did not seek to claim any greater area for Customary Marine Title or Protected Customary Rights. However, for the aspect of the application claiming shared exclusivity with other groups, the court required those groups to also amend their applications to reflect the shared exclusivity claim.

The court concluded that it did not have jurisdiction to grant recognition orders for areas beyond 12 nautical miles from the coast, despite the applicant's wish to register ancient fishing spots 20 miles out at sea. The court granted leave for the applicant to file an amended application, provided the supporting documentation was served on all cross-applicants and interested parties within seven working days of the decision.

The court's final order was that leave was granted to the applicant to file an amended application, subject to the conditions set out in the judgment.

Orders