Ngāti Kere (application for leave to appeal decision re CMT application area)

[2024] NZHC 2298

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 2298

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:	J Prebble, F Hussain and D Kleinsman for the Attorney-General L H Watson for Ngāti Kere
Judgment:	15 August 2024

JUDGMENT OF GWYN J

(Application for leave to appeal decision re Ngāti Kere CMT application area)

Introduction

[1]    This is an application by the Attorney-General for leave to appeal an interlocutory decision relating to Ngāti Kere MACA Working Party (Ngāti Kere). The application is opposed.

RE NGĀTI KERE (APPLICATION FOR LEAVE TO APPEAL DECISION RE CMT APPLICATION AREA) [2024] NZHC 2298 [15 August 2024]

Background

[2]    This case concerns applications by a number of parties, including Ngāti Kere, for orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act), recognising customary marine title (CMT) and protected customary rights (PCRs).

[3]    The substantive hearing of Ngāti Kere’s application and the applications of the other applicants commenced on Monday 19 February 2024 and concluded on Friday 3 May 2024. No judgment has yet been delivered.

Ngāti Kere’s application to amend CMT application area

[4]    Ngāti Kere’s originating application sought CMT in the common marine and coastal area (CMCA) 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. Ngāti Kere’s application for 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.

[5]    On 29 April 2024 Ngāti Kere filed an amended application seeking 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 Akitio River in the south, and matches the area for which it seeks PCRs.

[6]    The amendment sought by Ngāti Kere increased the overlap between its application and those of three other applicants, being Ngāti Kahungunu ki Wairarapa Tāmaki-nui-ā-Rua Settlement Trust (Ngāti Kahungunu), Rangitāne Tū Mai Rā Trust (Rangitāne) and Te Hika o Pāpāuma Mandated Iwi Authority (Te Hika o Pāpāuma).

[7]    Ngāti Kere’s application was opposed by Te Hika o Pāpāuma on the basis that an application to amend the application area, made after the limitation date prescribed in the Takutai Moana Act,1 cannot enlarge the CMT area claimed. Te Hika o Pāpāuma relied on s 100(2) of the Takutai Moana Act.

1      Marine and Coastal Area (Takutai Moana) Act 2011 [Takutai Moana Act], s 100(2).

[8]    Section 101 of the Takutai Moana Act requires that an application for recognition orders states whether it is an application of a PCR, or of CMT, or both, and identifies the particular area of the CMCA to which it relates.2 Section 100 of the Takutai Moana Act required all applications for recognition orders to be filed not later than six years after its commencement.3 The Court of Appeal in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board (Whakatōhea) has confirmed that the Takutai Moana Act bars the Court from accepting new applications after that date.4

[9]    No other applicants took a formal position on Ngāti Kere’s application to amend. The Attorney-General suggested it might be possible for Ngāti Kere to expand its application area through reliance on a korowai application made by Ngāti Kahungunu in support of hapū and whānau groups within Ngāti Kahungunu, as Ngāti Kere affiliates to Ngāti Kahungunu and the korowai application applies to Ngāti Kere in respect of CMT in the area from Wainui to Akitio.

[10]   By consent, I considered the application to amend Ngāti Kere’s CMT area on the papers and issued a judgment on 5 June 2024.5

[11]In the judgment I allowed Ngāti Kere’s amendment to its application for CMT.

Attorney-General’s application for leave to appeal the judgment

[12]   The Attorney-General has applied for leave of the High Court to appeal to the Court of Appeal against the judgment. The application is made in reliance on s 56(3) of the Senior Courts Act 2016, r 20.22 of the High Court Rules 2016 and Li v Chief Executive, Ministry of Business, Innovation and Employment (No 2).6

2      Takutai Moana Act, s 101(a) and (d).

3      The date of assent of the Takutai Moana Act was 31 March 2011 and the corresponding statutory deadline was therefore 3 April 2017.

4      Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 50 [Whakatōhea] at [215].

5      Re Ngāti Kere [2024] NZHC 1472 [judgment].

6      Li v Chief Executive, Ministry of Business, Innovation and Employment (No 2) [2018] NZHC 1171, [2018] NZAR 1134 [Li].

[13]   The grounds for the Attorney-General’s application are that the High Court erred in finding that the amendment to Ngāti Kere’s application does not represent a change to the essence of its originating application, in particular by:

(a)failing to consider the significant size of the additional area for CMT recognition;

(b)finding that Ngāti Kere put other parties on notice of its intention to seek amendment and of the precise nature of that amendment, by virtue of the wording of its originating application; and

(c)finding that the prejudicial effect of the amendment on other parties was diminished by the opportunity to cross-examine Ngāti Kere witnesses on the amended application area during the hearing of evidence in the substantive proceeding.

[14]   The Attorney-General relies on the Court of Appeal’s decision in Whakatōhea, where Miller J accepted the Court should not take an “unduly strict or narrow approach to amendment” of existing applications, but said the strict statutory bar in s 100 must be kept in mind.7

[15]   The Attorney-General submits that the size of the additional area added to Ngāti Kere’s original CMT application, which, counsel calculates, represents approximately 18 kilometres of coastline and 390 km2 of the CMCA, representing approximately 36 per cent of the original application area, is significant in scale and extent. The Attorney-General submits the amendment represents an entirely new specified area that changes the essential nature of the originating application. The Attorney-General relies on Re Muaūpoko Tribal Authority8 where Grice J declined an application for amendment to the application area.

[16]   The Attorney-General also submits that the wording of Ngāti Kere’s originating application did not put the parties on notice of Ngāti Kere’s intention to

7      Whakatōhea, above n 4, at [219].

8      Re Muaūpoko Tribal Authority [2024] NZHC 536 at [40].

seek amendment and other parties were not therefore on sufficient notice of Ngāti Kere’s intention to seek amendment or the precise nature of that amendment. The finding in the judgment that Ngāti Kere’s proposed amendment did not change the essence of its originating application,9 on the basis that the originating application provided notice of Ngāti Kere’s intention to seek CMT recognition over the additional area, was therefore in error.

[17]   In those circumstances, the Attorney-General says, there was not a reasonable opportunity for other parties to call evidence in reply or to cross-examine Ngāti Kere witnesses on issues specific to that area.

Ngāti Kere’s opposition

[18]Ngāti Kere opposes leave to appeal being granted.

[19]   It says, first, that no applicant party has sought leave to appeal the decision granting the amendment (although noting that Te Hika o Pāpāuma objected to Ngāti Kere’s application to extend). The Court has already heard evidence relating to the various parties who claim interests in the “extension area”.

[20]   There is no significant prejudice arising to the Crown from a postponement of an appeal of the judgment, as the Attorney-General maintains her right to appeal any substantive finding by the Court on the merits of the various CMT applications.

[21]   Conversely, there will be an adverse impact and delay on Ngāti Kere and other applicant parties. The applicants have already suffered significant delays since their originating applications were filed in 2017; and the Crown’s funding decisions and delays in payment by Te Arawhiti are causing considerable prejudice to the applicant parties, which will be exacerbated by an appeal. There is no guarantee of funding which might be available to Ngāti Kere to participate in an appeal.

[22]   An appeal on the judgment would not be dispositive of the case because Ngāti Kere still have extant substantive CMT claims which are before the Court for

9      Judgment, above n 5, at [29].

consideration (from Ouepoto Stream to Wainui Stream), have extant PCR applications requiring deliberation; there are existing korowai applications before the Court which incorporate Ngāti Kere as a hapū and Ngāti Kere have not concluded discussions with Te Hika a Pāpāuma and Rangitāne as to a tikanga-based agreement regarding overlapping interests.

[23]   There is no significant issue of law arising because the judgment related to a very specific factual matrix, being:

(a)the text of Ngāti Kere’s 2017 originating application;

(b)the further occasions on which notice was provided to the parties about the extension area; and

(c)the opportunity for the parties to cross-examine and test Ngāti Kere’s evidence in relation to the extension area.

[24]   Counsel for Ngāti Kere accepts that the arguments raised by the Attorney- General are bona fide but says that there is no serious argument that the High Court decision is wrong. The High Court in fact took into account the relevant considerations which the Crown alleged were not considered and made a discretionary decision accordingly.

[25]   Finally, Ngāti Kere submits it is appropriate for the Court to apply a tikanga lens, not only to the application to extend the CMT area, but to the application for leave to appeal the judgment. Counsel submits that is the proper approach, having regard to the Preamble to the Takutai Moana Act, s 4 and the definition of “mana tuku iho”, s 7 and the interpretative role of te Tiriti o Waitangi, the burden of proof under s 106, and the role of tikanga as its own source of law.

The legal test for leave to appeal interlocutory a High Court decision

[26]   Section 56(3) of the Senior Courts Act provides that no appeal lies from any interlocutory decisions of the High Court unless the High Court grants leave to appeal

to the Court of Appeal. The Court of Appeal can also grant leave if the High Court refuses it.10

[27]   The legal test for leave to appeal is not set out in the Senior Courts Act. However, the test was considered in some detail in Li v Chief Executive, Ministry of Business, Innovation and Employment.11 Justice Palmer summarised the relevant factors to be considered as follows:

(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal of the substantive decision; or

(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or

(c)the appeal may be dispositive of the case in law or as a practical matter; and

(d)the arguments in the appeal are capable of bona fide and serious argument; and

(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh the cost and delay of the appeal.

[28]Justice Palmer went on to say:12

More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.

Application of the relevant factors

Appeal bona fide; capable of serious argument

[29]As Ngāti Kere accepts, the arguments in the appeal are made bona fide.

[30]   I accept that the appeal may be capable of serious argument on the general question  whether  an  extension  affects  the  essential  nature  of  the  originating

10     Senior Courts Act 2016, s 56(5).

11     Li, above n 6, at [21].

12 At [22].

application. But, as I detail below, the judgment in this case was very fact-specific, limiting its general application.

Appeal likely to be overtaken by substantive hearing?

[31]   The Attorney-General is correct that, at least as a matter of law, her proposed appeal would not be overtaken by the substantive hearing and cannot otherwise be considered as effectively in the context of an appeal of the substantive decision.

[32]   Ngāti Kere’s application for amendment was finally determined by the judgment. The final substantive decision of the Court on CMT will be based on the judgment and the finding that Ngāti Kere’s application for the extension area is valid. However, as I recorded in the judgment, the decision to allow an extension of Ngāti Kere’s application area was not a decision on the merits of its application for CMT in the extension area (or the original CMT application area). That is a matter for the substantive judgment.

[33]   Having said that, it is also important to note that in the meantime it remains open to the applicants to reach further tikanga-based agreements in relation to overlapping interests, including possibly in relation to the extension area. A number of applicants adverted to that possibility in their evidence and closing submissions. As I have recorded above, no applicant has sought leave to appeal the judgment. It is appropriate for the Court to allow space for further tikanga-based discussions to occur. The Takutai Moana Act is infused with tikanga principles. Justice Harvey concluded in Te Rūnanga o Ngāti Whātua v Kingi,13 that tikanga was relevant to an application by one applicant under the Takutai Moana Act to strike out the application of another. While that application was made under the Takutai Moana Act itself,14 the reasoning is equally apt here, where what is sought would effectively terminate claimed rights under the Act (and where Ngāti Kere’s originating application explicitly set out its tikanga approach to the way it had formulated its CMT application, based on its respect for its whanaunga Te Hika o Pāpāuma and Rangitāne). A further agreement between applicants might potentially render the judgment redundant.

13     Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1384, [2023] 3 NZLR 501 at [25].

14     Takutai Moana Act, s 101.

Matters of sufficient importance to outweigh prejudice and delay

[34]   I am not persuaded that the judgment may have significance to the more general question of the ability to extend a CMT application area outside of the statutory filing deadline. The decision to grant Ngāti Kere’s application to extend its CMT area arose from a very specific and unusual set of intertwined circumstances, which are detailed in the judgment:15

(a)The extension of the CMT boundary was flagged in Ngāti Kere’s 2017 originating application.

(b)While recording its claim to the whole of the area from Te Poroporo to Ākitio, in accordance with tikanga and respect for their whanaunga, Ngāti Kere refrained in its application from formally applying for CMT in the extension area.

(c)At that time Ngāti Kere had advice (noted in the 2017 application) that overlapping CMT orders were unlikely to be granted.

(d)Ngāti Kere’s intention to amend its CMT application to include the extension area, was signalled in counsel’s opening submissions and Ngāti Kere’s evidence filed prior to the hearing.

(e)Ngāti Kere’s evidence at the hearing included evidence in relation to the extension area and its witnesses were available for cross- examination.

[35]   The circumstances of the case are very different from Re Muaūpoko,16 the authority relied on by the Attorney-General. That case concerned an application to extend Muaūpoko’s CMT area to an area that had not been specified in their original application, where the other applicant parties opposed the amendment, citing prejudice based on lack of notice, and where the Crown abided the decision of the Court.

15     Judgment, above n 5, at [21]–[28].

16     Re Muaūpoko Tribal Authority, above n 8.

[36]   For the reasons set out at [34] and [35] above, the judgment is unlikely to have application to other CMT applications and is therefore of limited importance.

[37]Against that, I must weigh any likely delay and prejudice.

[38]   The Attorney-General has not sought a stay of the judgment and the High Court can and will proceed to make decisions on the substantive CMT and PCR applications, including Ngāti Kere’s application.

[39]   I expect to issue the substantive judgment in November 2024. Further steps in the proceeding (filing and hearing of wāhi tapu evidence, if CMT orders are made), are scheduled for hearing in February 2025 on the basis of a substantive judgment having been issued in sufficient time for the applicants to prepare any necessary evidence and submissions.

[40]   The substantive judgment will consider Ngāti Kere’s application for CMT orders in two parts: a finding on the original application area from the Ouepoto Stream to the Wainui Stream and then, separately, a finding on CMT in relation to the extension area.

[41]   If the judgment were to make CMT orders in favour of Ngāti Kere in the extension area, that part of the decision could be appealed without affecting the finding in relation to Ngāti Kere’s original CMT application area, if a decision on this proposed appeal was successful.

[42] Ngāti Kere’s concern as to delay and prejudice can in part be met by the way in which I propose to structure the substantive judgment, as set out at [40] above.

[43]   However, I accept that if leave is granted, prosecution of the appeal will likely cause financial prejudice to Ngāti Kere (and possibly other applicants who may seek to be heard). The funding constraints on applicants under the Takutai Moana Act are well-documented.17  Counsel for Ngāti Kere advises the Court that the funding matrix

17     Re  Elkington  HC Wellington CIV-2017-485-218, 15 May 2024 (Minute of  Churchman  J); and

Re Elkington HC Wellington CIV-2017-485-218, 16 May 2024 (Minute of Churchman J).

provided by Te Arawhiti, which allocates funding for Takutai Moana Act claims, does not provide for participation in an appeal. I accept that these constraints are already having an impact on Ngāti Kere and other applicants, and will most likely limit Ngāti Kere’s ability to participate in an appeal of the judgment.

Result

[44]   Having regard to the factors discussed above, I decline the Attorney-General’s application for leave to appeal.

Gwyn J