Paul v Attorney-General
[2022] NZCA 443
•27 September 2022 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA744/2020 [2022] NZCA 443 |
| BETWEEN | CLETUS MAANU PAUL |
| AND | ATTORNEY-GENERAL |
| Hearing: | 2 March 2022 |
Court: | Brown, Clifford and Goddard JJ |
Counsel: | J Mason for Appellant |
Judgment: | 27 September 2022 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay costs to Maungaharuru-Tangitū Trust for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) repealed the Foreshore and Seabed Act 2004 and restored customary interests which the 2004 Act had extinguished. The Act introduced a regime whereby on application the High Court could grant orders recognising a protected customary right or customary marine title in relation to particular identified marine and coastal areas. The statutory deadline for the filing of applications under the Act was 3 April 2017.[1]
[1]Being six years after the commencement of the Act, as provided in s 100(2).
On that day the appellant (Mr Paul) filed an application in the High Court for an order recognising the customary marine title and protected customary rights of the Manu Paora whānau in a specified area in Ōhope and the adjacent coastline.
On the same day Mr Paul also filed an application “on behalf of all Māori” seeking an order recognising customary marine title in respect of the entire marine and coastal area of New Zealand (the nationwide application).[2] The apparent object was to provide Māori groups, who had not filed an application within the statutory deadline, the ability to do so in the future. First and second amended applications were filed on 4 March and 21 May 2020.
[2]It was described at various case management conferences in the High Court as an “umbrella application” and a “protective application”.
The Attorney-General sought an order striking out the nationwide application and the subsequent amended versions. Two interested parties, Maungaharuru-Tangitū Trust (MTT) and Rongomaiwahine Iwi Trust (Rongomaiwahine), supported the strike out application. On 12 August 2020 the High Court struck out the nationwide application, both in its original and amended forms.[3] Mr Paul appeals against that judgment.[4]
The statutory context
[3]Re Paul [2020] NZHC 2039.
[4]An application under s 69 of the Senior Courts Act 2016 for leave to appeal directly to the Supreme Court was dismissed: Paul v Attorney‑General [2020] NZSC 132.
The purpose of the Act is detailed in s 4:
(1) The purpose of this Act is to—
(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
(c) provide for the exercise of customary interests in the common marine and coastal area; and
(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).
(2) To that end, this Act—
(a) repeals the Foreshore and Seabed Act 2004 and restores customary interests extinguished by that Act; and
(b) contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c) gives legal expression to customary interests; and
(d) recognises and protects the exercise of existing lawful rights and uses in the marine and coastal area; and
(e) recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area—
(i) for its intrinsic worth; and
(ii) for the benefit, use, and enjoyment of the public of New Zealand.
The Act further provides in s 6 for the restoration of customary interests:
(1) Any customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 are restored and given legal expression in accordance with this Act.
(2) Any application under this Act for the recognition of customary interests must be considered and determined as if the Foreshore and Seabed Act 2004 had not been enacted
The Act makes express reference in s 7 to the Treaty of Waitangi:
In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing,—
(a) in subpart 1 of Part 3, for the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area; and
(b) in subpart 2 of Part 3, for customary rights to be recognised and protected; and
(c) in subpart 3 of Part 3, for customary marine title to be recognised and exercised.
The recognition of customary interests is addressed in pt 4 of the Act. Both a protected customary right and customary marine title may be recognised either by a recognition agreement between an applicant group and the responsible Minister on behalf of the Crown,[5] or by an order of the High Court made on an application under s 100.[6]
[5]Marine and Coastal Area (Takutai Moana) Act 2011, ss 95 and 96.
[6]Section 94.
The power of the Court to recognise a protected customary right or customary marine title is provided in s 98, which relevantly states:
(1) The Court may make an order recognising a protected customary right or customary marine title (a recognition order).
(2) The Court may only make an order if it is satisfied that the applicant,—
(a) in the case of an application for recognition of a protected customary right, meets the requirements of section 51(1); or
(b) in the case of an application for recognition of customary marine title, meets the requirements of section 58.
(3) No other court has jurisdiction to make a recognition order.
(4) On and after the commencement of this Act, the jurisdiction of the Court to hear and determine any aboriginal rights claim is replaced fully by the jurisdiction of the Court under this Act.
…
An application for a recognition order under s 100 was required to be made before the statutory deadline in s 100(2):
(2)However, the application must be filed not later than 6 years after the commencement of this Act, and the Court must not accept for filing or otherwise consider any application that purports to be filed after that date.
Section 101 stipulates the contents of applications:
An application for a recognition order must—
(a) state whether it is an application for recognition of a protected customary right, or of customary marine title, or both; and
(b) if it is an application for recognition of a protected customary right, describe that customary right; and
(c) describe the applicant group; and
(d) identify the particular area of the common marine and coastal area to which the application relates; and
(e) state the grounds on which the application is made; and
(f) name a person to be the holder of the order as the representative of the applicant group; and
(g) specify contact details for the group and for the person named to hold the order; and
(h) be supported by an affidavit or affidavits that set out in full the basis on which the applicant group claims to be entitled to the recognition order; and
(i) contain any other information required by regulations made under section 118(1)(i).
The expression “applicant group” is defined in the interpretation section as follows:[7]
applicant group—
(a) means 1 or more iwi, hapū, or whānau groups that seek recognition under Part 4 of their protected customary rights or customary marine title by—
(i) a recognition order; or
(ii) an agreement; and
(b) includes a legal entity (whether corporate or unincorporate) or natural person appointed by 1 or more iwi, hapū, or whānau groups to be the representative of that applicant group and to apply for, and hold, an order or enter into an agreement on behalf of the applicant group
[7]Section 9(1).
The nature of the connection between an applicant group and the particular area to which its application relates is spelled out in the context of the burden of proof specified in s 106:
(1) In the case of an application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right—
(a) has been exercised in the specified area; and
(b) continues to be exercised by that group in the same area in accordance with tikanga.
(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—
(a) is held in accordance with tikanga; and
(b) has been used and occupied by the applicant group, either—
(i) from 1840 to the present day; or
(ii) from the time of a customary transfer to the present day.
…
Applications for recognition orders are to be served in accordance with s 102, and public notification must be given in accordance with s 103 not later than 20 working days after the filing of the application.
Section 107 confers flexibility on the Court in dealing with recognition applications. It includes the Court’s power to strike out applications, which is the focus of argument on this appeal:
(3) The Court may strike out all or part of an application for a recognition order or a notice of appearance filed under section 104 if it—
(a) discloses no reasonably arguable case; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the Court.
That section does not affect the Court’s inherent jurisdiction.[8]
Relevant background
[8]Section 107(6).
More than 200 applications for recognition orders were filed in the High Court prior to the expiration of the statutory deadline. The Attorney-General is an interested party in all of the applications.[9] The Court progressed those applications by holding a series of case management conferences at various locations throughout the country. Some applications have now been determined by the High Court and are the subject of appeals to this Court.[10]
The nationwide application
[9]The Attorney-General’s right to participate in applications under the Act as an interested party was confirmed by the High Court in Re Rihari [2019] NZHC 2658.
[10]Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025 (appealed from in CA303/2021, CA314/2021, CA326/2021, CA327/2021, CA330/2021, CA332/2021 and CA339/2021); and Re Ngāti Pāhauwera [2021] NZHC 3599 (appealed from in CA68/2022).
The nationwide application filed on 3 April 2017 relevantly stated:
1. I, CLETUS MAANU PAUL, apply to the High Court for orders pursuant to s 98 of the Act to recognise the customary marine title (“Title”) on behalf of all Māori (“the Applicants”) in the Marine and Coastal Area (“the MCA”) as defined in the Act, over the entire MCA of Aotearoa New Zealand (“the Application Area”), and as set out in paragraph 3 below.
The Applicant Group:
2. The Applicants claim ownership over the Application Area based on their firm belief that they hold and exercise tino rangatiratanga, over the entire MCA of Aotearoa New Zealand and have done so since time immemorial up until 1840 and since 1840, substantially uninterrupted.
Area to which the application relates:
3. The area to which this Application relates is the entire area of the MCA of Aotearoa New Zealand, as defined in the Act, and includes; all islands to the outer limits of the territorial sea; and, the MCA surrounding all islands and reefs lying off shore from the coastline to a distance of 12 nautical miles; and, the entire foreshore and territorial waters of Aotearoa New Zealand.
Grounds on which the customary marine title and protected customary rights are sought:
4. The grounds on which these orders are sought are that:
a.the Applicants have held and exercised tino rangatiratanga over the Application Area in accordance with tikanga since before 1840; and
b.the Applicants have exclusively used and occupied the Application Area from 1840 to the present day without substantial interruption.
The application concluded with the following paragraph:
10.The Applicants respectfully seek leave to reserve the right to amend this Application, including: amending its nature and scope; and, by adding additional parties.
Subsequently Mr Paul filed an affidavit dated 4 April 2017, described as being in support of the application, in which he explained:
1.I am the Chairperson of the Mataatua District Māori Council (“the Mataatua DMC”) and was elected to this position in April 2012. I am also the Co-chairperson of the New Zealand Māori Council (“NZMC”).
…
3.I depose this Affidavit in support of the Application for Customary Marine Title (“Title”) under the Act over the entire territorial waters of Aotearoa New Zealand (“the Application Area”), including, specifically, the Mataatua District.
4.In my capacity as the Co-chairperson of the NZMC and the Chairperson of the Mataatua DMC, it is our position that this application for Title be filed for the Application Area because we, and our constituents, are of the firm belief that Māori hold and exercise tino rangatiratanga, which includes customary title over all of the marine and coastal area (“MCA”), as defined in the Act, including title to all of the dry land of Aotearoa New Zealand at 1840, until legitimately purchased from us.
A: Functions and role of the NZMC
5.The NZMC is established under the Māori Community Development Act 1962 (“MCD Act”). The NZMC’s functions are set out in section 18 of the MCD Act and are extensive and provide us with an over-arching advocacy role in relation to the physical, economic, industrial, educational, social, moral and spiritual wellbeing of all Māori in Aotearoa New Zealand, and in particular, to also collaborate with, amongst others, the Crown and its departments on such matters.
6.The NZMC has, consistent with our statutory functions, played an active advocacy role in protecting many of our resources on behalf of our Māori people, including dry lands, waters, and other taonga.
7.We therefore consider that we are the appropriate entity, and are best placed, to apply for Title on behalf of all Māori in Aotearoa New Zealand over the Application Area.
On 18 August 2017 counsel for the New Zealand Māori Council (the Māori Council) filed a memorandum for the purpose of clarifying that not only was the Māori Council not involved in any application under the Act, but it had made directions that meant that no District Māori Council could lawfully be involved in any such application. For the reasons elaborated in the memorandum, counsel stated that the purported basis upon which Mr Paul’s application (and also another nationwide application filed by Rihari Dargaville) had been brought was invalid, neither application having received or even sought the approval of the Māori Council’s committee responsible for approving litigation brought in the name of a District Māori Council. Specifically with reference to Mr Paul, the memorandum stated:
Mr Paul was the co-chair of the NZMC from 2012 until 16 April 2016. He refused to accept the decision of the NZMC not to further appoint him as its co‑chair until 5 July 2017. The High Court has now formally declared that he is no longer a co-chair.[11] He holds no other post. He has not been given any authority to take any action on behalf of the NZMC.
[11]Durie v Paul [2017] NZHC 1845.
In a memorandum responding to the Māori Council’s memorandum, Mr Paul referred to litigation which he had brought challenging the validity of resolutions made by the Māori Council, including the relevant resolution that it was necessary for litigation in the name of a District Māori Council to have the Māori Council’s approval. Mr Paul emphasised that he had made the nationwide application in his own name, not on behalf of the Māori Council, and that given his duties as a kaumātua with national standing he was able to act in a representative capacity on behalf of all Māori. Mr Paul stated that the application was filed on behalf of all Māori in accordance with his firm belief that all Māori hold and exercise tino rangatiratanga over Aotearoa New Zealand and its marine and coastal area.
The Attorney-General served a notice for further particulars requesting that Mr Paul specify the whānau, hapū or iwi who sought recognition under the application and state whether Mr Paul was a member of each of those groups. In response, counsel for Mr Paul filed a memorandum dated 16 March 2018 which stated:
3.The application is brought on behalf of all Māori and, therefore, on behalf of all whānau, hapū and iwi.
4. The Applicant is Māori.
(Footnote omitted.)
On 10 April 2018 the Attorney-General filed a notice of appearance in respect of the nationwide application, which stated that the application did not comply with s 101 of the Act as it did not:
(a)state (clearly) whether it was an application for recognition of a protected customary right, or of customary marine title, or both;
(b)clearly identify the particular area of the common marine and coastal area to which the application related;
(c)describe the applicant group;
(d)name a person to be the holder of the order as the representative of the applicant group; and
(e)specify contact details for the group and for the person named to hold the order.
Neither the nationwide application itself nor Mr Paul’s affidavit had explicitly stated that the object of the application was to overcome difficulties presented by the statutory deadline. However that this was its purpose was spelled out in a memorandum of counsel for Mr Paul dated 10 June 2019, which materially stated:
12.The Application was not filed with the intention of cutting across other applications or undermining them in any way. The Application is not in opposition to other applications.
13.Rather, the Application was filed as a vehicle for those who had missed the Statutory Deadline, due to a lack of resources or knowledge, to protect their interests. Otherwise, Māori who would potentially meet the tests under the MACA Act for [customary marine title], would be prevented from having their rights recognised.
14.The Application specifically states that rights are reserved to add parties or to amend the Application area. There are a number of Māori groups who have approached the Applicant with the intention to join the Application, because they have been precluded from participation in these proceedings as they missed the Statutory Deadline.
15.The Applicant is working through a process with these parties, and envisages that they will be added as Applicants throughout the course of this year.
In a minute dated 25 July 2019, addressing matters arising from various case management conferences, Churchman J made reference to Mr Paul’s 10 June 2019 memorandum. He noted that a number of counsel had raised the concern that the “protective” applications were needlessly complicating their clients’ claims and had indicated that strike out applications were in contemplation. The Judge stated:
[41] There is no doubt that the existence of the two national applications, which do not identify any particular claim or interests, is causing frustration for a number of other claimants.
[42] However, before entertaining a strike-out application, the Court will give the two national claimants the opportunity to file a memorandum specifying precisely what claims they are actually advancing, on whose behalf those claims are made and what geographic areas they relate to. Such memoranda will be filed and served within one month from the date of this minute.
[43] To the extent that there will be geographic areas where no specific claim is being advanced, the Court will expect the national applicants to make that clear and to withdraw from further involvement in relation to hearings in respect of those areas.
[44] Should the national applicants fail to comply with this direction then the Court will entertain applications that the claims should be struck out.
The amended applications
In a first amended application filed on 4 March 2020, several Māori individuals were joined as applicants in relation to areas of land and sea described in the document and depicted on maps annexed to it. Mr Paul remained as the first applicant “on behalf of all Māori not already represented in customary title proceedings under the Act” in respect of an area described as “those parts of the [marine and coastal area] of Aotearoa New Zealand which they whakapapa to”. The first amended application also reserved a right of amendment.
In a minute dated 11 March 2020, Churchman J repeated indications in previous minutes that there were threshold jurisdictional requirements that needed to be met before an application can be valid. He noted that Mr Paul’s claim did not identify the applicant group, nor the boundaries of any claims that might be advanced by such a group, and observed that it was unfair to applicants who had brought claims within the time limit to face uncertainty as to whether future claims may be filed which affected them. A one‑day fixture on 28 May 2020 was allocated for the hearing of a strike out application. In a subsequent minute of 5 May 2020, the Judge noted:
[11] There is significant prejudice to all of the applicants who have commenced applications within the time limits stipulated in the Act and whose applications comply with the requirements of the Act in relation to identifying the claimant and the area in respect of which the claim is made, if there remains a possibility of an amorphous claim in respect of all of New Zealand, of the nature being advanced by [Mr Paul]. It is therefore in the interests of all applicants whose claims comply with the requirements of the Act to have this matter resolved promptly.
On 21 May 2020 a second amended application was filed. Mr Paul remained as an applicant but the reference to “on behalf of all Māori” was not repeated.
The implications for the interested parties of the purported joinder of new applicants in the amended claims were spelled out in their submissions in opposition to the appeal. With reference to the claims by Evelyn Ratima and Hillary Seymour, the MTT submissions explained:
… two of the areas identified by them relate to the area claimed by MTT in its application for recognition orders. The MTT application, along with all other applications that ‘crossed over’ in the Hawke’s Bay area (from Poututu Stream in the north to Awatoto in the south) were heard by the High Court in February/March 2021, with a decision issued on 22 December 2021.
The hearing which was the subject of that decision involved four overlapping applications and occupied seven weeks of hearing time. Consequently it was submitted that the prejudice caused to MTT by the new claims was very real.
Similarly, the Rongomaiwahine submissions drew attention to the fact that the claims of Kereopa and Lewis Rātapu and Hillary Seymour overlapped significantly with the Rongomaiwahine application. Counsel for Rongomaiwahine rejected the suggestion that there was only a risk of slight prejudice to existing applicants and supported the Judge’s conclusion that the proposed amendments gave rise to real issues of prejudice.[12]
The strike out application
[12]Re Paul, above n 3, at [62].
Together with the second amended application Mr Paul filed a memorandum contending that the need for a strike out hearing was obviated by the filing of the further amended application. In response, by way of a memorandum dated 25 May 2020, the Attorney-General observed that the effect of the second amended application was to replace the original application with eight discrete claims to different parts of the common marine and coastal area by 13 named individuals who were not named in the original application. The Attorney‑General submitted that, if amendments of that type were to be allowed, there would be nothing to prevent any other applicant from amending their application to introduce new claims by iwi, hapū or whānau groups. It was submitted that the application was an abuse of process in terms of s 107 of the Act and this foreshadowed the proposition that the nationwide application should be struck out.
Counsel for Mr Paul submitted that a formal strike out application was required. Out of an abundance of caution the Judge directed the Attorney-General to file an interlocutory application specifying the grounds on which the strike out was sought, with Mr Paul having five days to file a formal notice of opposition. However other applicants who wished to support the strike out were not required to file formal interlocutory applications.
On 18 June 2020 the Attorney-General filed an application to strike out the nationwide application and both of the amended applications on the following grounds:
2.1The second amended application seeks to replace Mr Paul’s original application filed on 3 April 2017 with eight discrete claims to different parts of the common marine and coastal area in New Zealand by 13 individuals who were not named in the original application. In doing so, the amended application seeks to introduce new causes of action, which are materially different from the original application, after the statutory deadline for filing applications. For that reason, the application amounts to an abuse of process in terms of s 107 of the Act and ought to be struck out in its entirety.
2.2It cannot be proper for an omnibus application to be introduced after the statutory deadline for filing applications under the Act. If the Court were to permit such an amendment, there would be nothing to prevent any other applicant from amending their application to introduce new claims by iwi, hapū or whānau groups seeking recognition of customary marine title or protected customary rights in respect of other, unrelated parts of the takutai moana.
2.3In addition, the original application filed before the statutory deadline for making applications under the Act was brought as a placeholder on behalf of (at the time, unspecified) Māori applicants who might wish to advance a claim in the future but had not otherwise done so. That purpose is improper and amounts to an abuse of process in terms of s 107 of the Act, because it sought to circumvent the statutory deadline for filing applications under the Act.
2.4Further, the original application disclosed no reasonably arguable case because it failed to specify the iwi, hapū or whānau for which the recognition order was sought. By seeking recognition orders on behalf of all Māori rather than one or more iwi, hapū or whānau groups, the application was fundamentally inconsistent with the requirements of the Act and so untenable it could not succeed.
The High Court judgment
On 23 July 2020 Churchman J heard argument on the strike out application. At the same time, the Court heard argument on the validity of a similarly broad application under the Act, filed by Rihari Dargaville, which was the subject of proceeding CIV‑2017‑404‑538. On 11 August 2020 Churchman J delivered a judgment in Re Dargaville[13] and on 12 August 2020 he delivered the judgment the subject of this appeal. The Judge ruled that the nationwide application failed to comply with the mandatory requirements of being made on behalf of an iwi, hapū or whānau, providing a description of a particular area of the marine and coastal area to which the application relates, and specifying the name of the person proposed as the holder of the order.[14]
[13]Re Dargaville [2020] NZHC 2028.
[14]Re Paul, above n 3, at [13].
With reference to a submission from Mr Paul, invoking the Treaty of Waitangi, that s 107 should be given a broad interpretation so as to render the nationwide application valid, the Judge accepted that the effect of ss 4(1) and 7 of the Act meant that the Treaty would undoubtedly play a role in the interpretation exercise undertaken to resolve any ambiguities in the statutory wording that might arise. However, he concluded that s 107 did not give rise to any ambiguity. Given that subss (3) to (6) of s 107 were almost an exact copy of r 15.1 of the High Court Rules 2016 (the Rules), the Judge considered it was difficult for the Treaty or its principles to be read into them so as to modify their plain and well-established meaning.[15]
[15]At [60].
The Attorney-General submitted that the nationwide application had been filed for an improper purpose, namely that it had effectively been filed as a “placeholder” on behalf of Māori applicants who wished to advance a claim but had not done so before the statutory deadline. In response, it was submitted for Mr Paul that the Act permitted such an application if the predominant and sole purpose was to bring a claim on behalf of all Māori for the benefit of that group.
The Judge concluded that the filing of an application for the specific purpose of circumventing the mandatory time limit in the Act was an improper purpose and an abuse of the process of the Court.[16] The Judge’s reasoning is elaborated in the Dargaville judgment:[17]
[45] If “protective” applications of this nature were held to be permissible then effectively, a claim could be advanced by any claimant group in the future that they were entitled to advance a claim under the umbrella of such an application. Section 4 of the Act includes as its purpose the establishment of “a durable scheme to ensure the protection of the legitimate interest of all New Zealanders in the marine and coastal area of New Zealand …”
[46] As this Court said in Re Ngāti Pāhauwera:
The durability of this legislation, and this purpose, is weakened if impermissible material changes are allowed to be made to applications under the Act after the limitation period has long since passed, because it may undermine the applications of other whānau, hapū, and iwi. Again, as observed by Mallon J, the Court must not take an unduly narrow approach to permissible amendments, but they must in fact, be permissible.
The Judge further ruled that the attempt to add, long after the deadline had expired, new applicants who were not referred to at all in the original application amounted to a material change to Mr Paul’s application and was also an abuse of process.[18]
[16]At [65].
[17]Re Dargaville, above n 13 (footnotes omitted).
[18]Re Paul, above n 3, at [64].
The Judge accepted the submissions for MTT and Rongomaiwahine that permitting the second amended application to proceed would cause prejudice and delay.[19] In response to the submission for Mr Paul that the support of the Attorney‑General’s strike out application by the two trusts was “plainly a vexatious objection”, the Judge stated:
[68] … This submission ignores the fact that while the Act certainly does allow applications by whānau, hapū and iwi, it also mandates that those applications had to be filed no later than six years after the commencement of the Act. That date has long since expired.
[69] Applicants who had filed applications providing all the detail required by the Act prior to the expiry date for such applications, were entitled to know the identity of any other cross-applicants and the particular details of their claims. That is the purpose of the public notice requirements in s 103. It is unfair to all applicants (such as [Rongomaiwahine] and MTT) who filed applications in time, to face the prospect of further applications by unknown parties being filed at any indefinite time in the future as Mr Paul specifically “reserves” the right to do.
[70] There is nothing vexatious about applicants who have fully and properly complied with the requirements of the Act objecting to cross‑applications affecting the area of their claim filed well out of time and not in compliance with the prescriptive provisions of the Act.
[19]At [67].
As the Judge was satisfied that all four criteria in r 15.1(1) of the Rules and s 107(3) of the Act were met, the nationwide application was struck out in its entirety.[20]
Scope of the appeal
[20]At [71].
The notice of appeal specified the following grounds:
a. the High Court was wrong in law, including in Tikanga, in its approach to the requirements under which an applicant group will be recognised to fall within the definition set out in s 9 of the Marine and Coastal Area (Takutai Moana) Act 2011 (“the MACA Act”);
b. the High Court misconstrued and mischaracterised the roles and responsibilities of Mr Cletus Maanu Paul, under Tikanga, and as a member of the New Zealand Māori Council (“NZMC”);
c. the High Court was wrong in law, including in Tikanga, in its approach to the conditions under which an amended application amounts to a material change;
d. the High Court misconstrued the factual circumstances regarding the addition of applicants to Mr Paul’s application and misapplied the law in several ways, including its decision that amendments to the application needed to be notified under s 103 of the MACA Act; and
e. consequently, the High Court was wrong in finding that the Appellants’ application met the criteria set out in s 107(3) of the MACA Act, and determining the Appellants’ application be struck out in its entirety.
The parties were unable to reach agreement on a list of issues pursuant to r 42A of the Court of Appeal (Civil) Rules 2005. The substantive area of difference arose from the appellant’s wish to include the following in the list of issues:
g.is the Statutory Limitation a breach of te Tiriti o Waitangi/the Treaty of Waitangi?
h.if so, can the Court declare that, in the circumstances before it, the breach of te Tiriti/the Treaty is so egregious that the Courts cannot, as a matter of law, and/or, justice, enforce such a provision?
These issues not having been raised in the High Court, unsurprisingly the judgment does not consider them. However in a memorandum directed to the identification of relevant issues on the appeal, counsel for Mr Paul contended that those two issues should be included because the justiciability of the appellant’s Treaty rights is considered to be fundamental to the determination of the appeal. Counsel rejected the view of the Attorney-General that this Court has no jurisdiction to determine those issues. In their written submissions on behalf of Mr Paul, counsel contended that the effect of the statutory deadline in extinguishing customary title rights was such an egregious breach of the Treaty that it cannot be allowed to stand and as such warranted this Court’s determination that the statutory deadline in s 100(2)[21] is ultra vires the power of Parliament.
[21]See [10] above.
In our view the Attorney-General’s stance (which was supported by both Rongomaiwahine and MTT) is plainly correct. As counsel for Rongomaiwahine submitted,[22] to entertain such an argument would be fundamentally out of keeping with this Court’s place within the country’s constitutional arrangements. The statutory deadline cannot simply be ignored by this Court or disregarded on the grounds of alleged inconsistency with the Treaty.
[22]Citing Kereopa v Te Roroa Whatu Ora Custodian Ltd [2013] NZCA 327; and Paki v Attorney‑General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.
With the benefit of hearing oral argument we consider that the issues properly raised by the appeal are as follows:
(a)Did the Judge err in determining that the nationwide application failed to comply with mandatory requirements in s 101 of the Act?
(b)Did the Judge err in determining that the nationwide application, having been filed for the improper purpose of circumventing the statutory deadline for making applications under the Act, was an abuse of process?
(c)Did the Judge err in determining that the second amended application introduced fresh causes of action and new applicant groups after the statutory deadline for filing applications under the Act and was therefore an abuse of process?
Error in finding failure to comply with s 101 mandatory requirements?
Description of applicant group
Section 101(c) directs that an application for a recognition order is to describe the applicant group. Mr Paul made the nationwide application in his own name. He did not name an iwi or hapū or whānau on whose behalf the application was made.
Drawing attention to the phrase “includes a legal entity” in limb (b) of the definition of “applicant group” in s 9, Ms Mason submitted on behalf of Mr Paul that the Act anticipates applications do not necessarily have to be made by iwi, hapū or whānau groups. Applications can be filed by representative persons or entities, for instance a company, an iwi trust or a marae committee, although any such representative person or entity must be appointed by the iwi, hapū or whānau.
Ms Mason contended that the use of the word “includes” indicates that the class of representative entities is non-exhaustive and can include “other configurations in a similar vein” to that described in limb (b). Thus she submitted that a tikanga‑consistent interpretation would allow Mr Paul to represent iwi, hapū or whānau because of Mr Paul’s mana and status, he having long been a kaumātua with a significant national profile and a member of the Māori Council for 57 years. It was submitted that the judgment was erroneous in stating that the submissions for Mr Paul had not addressed the issues raised about the Māori Council.
In addition to the inclusive formulation of limb (b), Ms Mason emphasised the references in the Act to the Treaty, in particular in ss 4(1)(d) and 7, submitting that, given this context, provisions of the Act should be interpreted in a way that would be consistent with the Treaty. She contended that a purposive construction of those provisions would, together with s 6, lead to an interpretation that the nationwide application was consistent with the purpose of the Act. In particular it was submitted that the phrase “iwi, hapū, or whānau” can mean “all Māori”, and that under tikanga Mr Paul, as a well‑respected kaumātua, falls within the ambit of an “applicant group”. Attention was drawn to the observation of Cooke P in New Zealand Māori Council v Attorney-General that a broad, unquibbling and practical interpretation is demanded, and his Honour’s acceptance that the correct approach when interpreting ambiguous legislation is for the court not to ascribe to Parliament an intention to permit conduct inconsistent with the principles of the Treaty.[23]
[23]New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655–656.
However, as this Court recognised in Ngaronoa v Attorney-General, the Treaty cannot be invoked to support an alternative interpretation where the clarity of the statutory language is such that the court is not required to undertake an interpretative exercise.[24] We accept the Attorney‑General’s submission that there is no ambiguity in either the definition of “applicant group” in s 9 or the requirement in s 101(c) that applications identify the iwi, hapū or whānau groups on whose behalf the applications are made. We agree with the tenor of the submissions of MTT and Rongomaiwahine that those provisions cannot be interpreted so as to permit an application for recognition to be made simply on behalf of “all Māori”.
[24]Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 at [51]–[52].
Ms Mason further contended that the High Court misconstrued and mischaracterised the submissions about the status of Mr Paul under tikanga. We accept, as the Attorney‑General acknowledged, that the Judge erroneously recorded that there was no challenge by Mr Paul to the statement in the Māori Council’s memorandum and we have drawn attention to the memorandum of counsel for Mr Paul in response dated 21 September 2017.[25]
[25]At [21] above.
The Attorney-General emphasised that it was not contended that tikanga can never play a role in a particular interpretative exercise. However he submitted that the content of such tikanga cannot simply be asserted by Mr Paul and cannot be presumed by the Court. The point was made that the concept of a person having mana or authority under tikanga to represent all iwi, hapū and whānau in New Zealand is not a concept that commentary or case law suggests is notorious. Consequently, the content of the relevant tikanga was required to be established through evidence.
Both Rongomaiwahine and MTT also engaged with this issue. While stating that there was no wish to undermine Mr Paul’s status as a kaumātua and rangatira for his hapū and iwi, his place in the Mataatua District Māori Council or his contribution to the Māori Council, Rongomaiwahine submitted that it was not apparent how his status could be relevant to the rohe whenua or rohe moana of Rongomaiwahine, which centres around Mahia.
Similarly MTT submitted that it is not a tikanga-consistent interpretation to allow an individual to represent “all Māori” without any mandate to do so. It submitted:
As described by the Supreme Court in the Trans-Tasman case,[26] tikanga is a ‘body of Māori customs and practices, part of which is properly described as custom law.’ It cannot be said that status as a Co-Chair of the NZMC and kaumātua of an individual’s own iwi and hapū gives Mr Paul the right to claim to represent the rest of the Māori population, a large number of whom are already represented. It is submitted this would not be in accordance with tikanga. It is also inconsistent with tikanga that a group claims over top of other mandated groups who claim mana whenua/mana moana in the area (eg, MTT) without any prior knowledge or discussion – ‘kanohi kitea’ (‘seeing your face’ = being seen).
(Footnote added.)
[26]Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [169].
These contentions, which we find persuasive, inform our conclusion that the relevant provisions of the Act are not susceptible to a purportedly tikanga-consistent interpretation that an application may be lodged on behalf of “all Māori”.
Identification of a particular area
The nationwide application described the application area as the entire area of the marine and coastal area of Aotearoa New Zealand including, among other things, the entire foreshore and territorial waters of Aotearoa New Zealand. The submission for Mr Paul explained that the “express purpose of the omnibus claim” was to claim a wide area and then refine it over time as hui took place, allowing those with customary title who did not meet the statutory deadline to join the application. It was submitted that the High Court’s reasoning concerning the s 101(d) requirement was wrong in fact and in law because:
(a)it concluded that the nationwide application did not provide a description of the area to which it related when it actually did; and
(b)it assumed that an application claiming all of Aotearoa New Zealand’s coastal marine area would not be consistent with the Act.
The claim to the entirety of the New Zealand coastline was a reflection of Mr Paul’s belief, stated in his affidavit, that Māori hold and exercise tino rangatiratanga over the entire marine and coastal area.[27] A geographical claim of that breadth was congruent with the nationwide claim being made “on behalf of all Māori”.
[27]See [19] above.
However this description is plainly not in accordance with the requirement in s 101(d) that a “particular area” be identified. As MTT submitted, this requirement envisages the identification of a specific location. This information must be provided so that the recognition order can specify the particular area of the common marine and coastal area to which the order applies.[28] Section 109(4) states:
(4) Every customary marine title order must include—
(a)a survey plan that sets out the extent of the customary marine title area, to a standard of survey determined for the purpose by the Surveyor-General; and
(b)a description of the customary marine title area; and
(c) any prohibition or restriction that is to apply to a wāhi tapu or wāhi tapu area within the customary marine title area.
[28]Marine and Coastal Area (Takutai Moana) Act, s 109(2)(a).
In addition MTT makes the valid point that the requirement for particularity is also imposed for a practical reason. Section 62(3) of the Act applies where a person applies for a resource consent, permit or an approval in relation to a part of the common marine and coastal area in respect of which no customary marine title order or agreement applies, but an applicant group has applied to the Court under s 100 for recognition of customary marine title and notice has been given in accordance with s 103.[29] It provides that before a person may lodge an application that relates to a right conferred by a customary marine title order or agreement, that person must notify the applicant group about the application and seek its views. MTT submitted that it was untenable that, as the whole of New Zealand was purportedly subject to the nationwide application, every applicant for these categories of resource consent, permit or approval throughout the entire country had been required to consult with Mr Paul since April 2017. We agree. This requirement underscores the need for applications under the Act to be specific about the area to which they apply, and the (local) applicant group on whose behalf they are made.
[29]Section 62(2).
For these reasons we agree with the argument of the Attorney-General, Rongomaiwahine and MTT that the Judge was correct to hold that the nationwide application failed to comply with the requirement to identify a particular area.
Name of proposed order holder
Section 101(f) requires that an application name a person to be the holder of the recognition order as the representative of the applicant group. The submission for Mr Paul was that the nationwide application satisfied this requirement because Mr Paul was named as the applicant on behalf of all Māori, and it was implicit that he would be the one to hold the orders.
Given the generic nature of the nationwide application filed in his name it is probably fair to say that Mr Paul was the only person who could have been nominated as the holder of the order. However he was not so nominated, presumably for the reason that when the protective application had eventually served its purpose he would not have that role. The fact remains that no holder was specified and the Judge’s conclusion that there was a failure to comply with s 101(f) was plainly correct.
Conclusion
There was no error in the Judge’s conclusion that the nationwide application did not comply with the requirements in s 101(c), (d) and (f).[30] This was not the result of deficient drafting but rather reflected a deliberate decision to avoid specifying an applicant group or groups and related geographical locations. While we doubt that it is useful to adopt the “nullity” terminology urged upon us by MTT, we consider that the nationwide application was plainly inconsistent with the scheme of the Act and should for this reason be struck out.
Error in determination that the nationwide application was an abuse of process?
[30]We note that the Judge also concluded that the nationwide application did not comply with the Act’s mandatory requirements because it was not filed before the statutory deadline. This conclusion was incorrect, but it is unnecessary to address this matter given our finding that the Judge correctly determined that s 101(c), (d) and (f) had not been complied with.
The essence of the Attorney-General’s argument in the High Court was that Mr Paul’s claim had effectively been filed as a placeholder on behalf of potentially eligible others who had not filed an application before the statutory deadline but might in the future wish to do so.
In advancing the appeal in this Court Ms Mason reprised her response in the High Court, namely that Mr Paul does not deny that the nationwide application was filed as “an omnibus application” with the object of providing a benefit to those Māori groups who did not have the wherewithal and/or the resources to file their own applications before the deadline. However she submitted that in the context of the Act it is not an abuse of process to file an application on behalf of a larger group as a “protective” measure to ensure that the rights of the constituent members of that larger group are preserved.
The concept of a “protective claim” is recognised in civil litigation, albeit with mixed enthusiasm.[31] As explained in Limitation Periods:[32]
A claimant may issue proceedings in order to prevent the limitation period from expiring, even though he has no present intention of pursuing the litigation. However, it is likely to be an abuse of process to issue proceedings where the claimant has no present awareness of proper grounds for bringing the action, but is aware that such grounds may come to existence at a later date.
[31]See the observations of May LJ in Steamship Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd (1986) 33 BLR 77 (CA) at 88–89.
[32]Andrew McGee Limitation Periods (9th ed, Thomson Reuters, London, 2022) at [2.049] (footnote omitted).
Addressing the concept in Barton v Merrett,[33] Saville J said:
In the present case there is no doubt that the writs were issued when they were in order to avoid a possible defence of limitation. To my mind this alone would not prevent the writs from being struck out, given there was no present intention of pursuing the matter nor any known basis for the claim. Parliament has stipulated the periods within which proceedings must be begun so that unless the proceedings are begun within the relevant period (or the plaintiff can bring himself within one of the exceptions) then it is nothing to the point that he may have wished to protect the position in case something turned up at a later stage. To allow him to do so would in effect be to extend the period beyond that thought appropriate by Parliament.
[33]Barton v Merrett [1993] 1 Ll Rep 540 at 541–542, followed in West Bromwich Building Society v Mander Hadley & Co [1998] CLC 814 (CA).
The cases which have considered “protective” claims have involved claimants commencing proceedings in an endeavour to preserve their own interests when the expiration of the limitation period for lodging their claim looms.[34] The present case is different. As Ms Mason emphasised, Mr Paul did not file the nationwide application out of any sense of personal or self-interest. Indeed, as earlier noted,[35] he had already filed an application for a recognition order with reference to his own interests and those of the Manu Paora whānau in respect of a specified area in Ōhope and the adjacent coastline.
[34]Decisions relied upon by Ms Mason, such as Re Tipene [2015] NZHC 169 and Re Ngāti Pāhauwera, above n 10, are of that nature.
[35]At [2] above.
Whether a “protective” claim of this kind can be brought under the Act turns on whether such claims are expressly provided for in the Act, or otherwise contemplated by it. To the contrary, the High Court considered that a protective nationwide claim, designed to postpone the deadline for filing specific claims, was inconsistent with the scheme of the Act and an abuse of process.[36]
[36]Re Paul, above n 3, at [65].
However Ms Mason contended that the Act should be construed so as to permit an omnibus application of the nature filed by Mr Paul. The basis for that contention appeared to be that otherwise the customary title of those who had not filed an application within the statutory period would be extinguished, a consequence which, it was said, would be repugnant to the Crown’s obligations under the Treaty. The Attorney-General responded that the omission to seek a recognition order does not result in customary title being extinguished. Such interests continue to exist and iwi, hapū and whānau continue to have the right to participate in conservation processes afforded by s 47 of the Act whether or not an application is made for a recognition order.
But in any event, in our view an argument to the effect that the limitation period can be extended in this manner, potentially indefinitely, is not sustainable in the face of s 100(2). That provision not only prescribes a filing deadline applicable to all claims to the Court for a recognition order in the terms “not later than”, but also explicitly emphasises the implications of that statutory deadline by the direction in the balance of the subsection, which states:
… and the Court must not accept for filing or otherwise consider any application that purports to be filed after that date.
The imposition of a universal deadline for the filing of applications is consistent with an intention on the part of Parliament that the resolution of all applications for recognition orders should be expedited and not delayed. There are a number of pointers in the legislative history which support that view.
One example is found in the report of the 2009 Ministerial Review Panel which informed the policy of the Act. In explaining why it did not favour the proposal for a “judicial model”, the Panel stated:[37]
This option has the advantage of comparative simplicity. But there would be disadvantages. It would mean that rights in the foreshore and seabed would have to be litigated on a case by case basis over a long period of time. Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation.
[37]Pāki ki uta, Pākia ki tai: Report of the Ministerial Review Panel (Ministry of Justice, 30 June 2009) vol 1 at 149–150.
The concern about cost and delay is apparent in the speech of the Attorney‑General, Mr Finlayson QC, in the course of the In‑Committee debate:[38]
The next point that needs to be addressed is an application for a recognition order. The matter of principle that people may wish to discuss concerns which court one should apply to. I have tried in the bill to provide the best of both worlds. An application will be made to the High Court, but the court may refer any question of tikanga to the Māori Appellate Court.
Members may wonder why I chose the High Court and not the Māori Land Court. I suppose I was very influenced by the history of the Ngāti Apa litigation that began in the Māori Land Court. It went to the Māori Appellate Court, thence to the High Court, and then the Court of Appeal, and by leave it could have gone to the Privy Council.
I am also very conscious that proceedings in both the Māori Land Court and the Māori Appellate Court are capable of being the subject of applications for judicial review. So if anyone really wanted to delay a matter or oppose a matter down to the wire, the easy thing to do, if something had begun in the Māori Land Court, was to seek judicial review of anything.
I was very concerned about cost and delay, which is why I have put in the bill that the proceeding commence in the High Court, but, as I say, it is best of both worlds because there can be reference to the Māori Appellate Court for any question of tikanga. The opinion of the Māori Appellate Court will be binding on the court. The court may also refer any question of tikanga to an expert.
[38](17 March 2011) 670 NZPD 17393.
Permitting new applications to be filed well after the deadline has the potential to undermine recognition orders already made by the High Court in respect of claims filed within the specified period. It invites the prospect of a reopening of such claims. Such a consequence is inconsistent with the statutory objective of a durable scheme and is contrary to the finality of the High Court’s processes.
The nationwide application may have been filed with the best of intentions. However, viewed objectively, it is a device designed to circumvent the limitation period which Parliament has determined is appropriate for claims for recognition orders under the Act. The courts’ processes cannot be engineered in such a fashion so as to defeat the Parliamentary intent. We agree with the Judge that the nationwide claim was an abuse of process and should be struck out.
Error in determination as to the status of the second amended application?
Much of the argument on this issue focused on the question whether the amendments to the original application, including adding several new applicants, comprised material changes. Ms Mason submitted that the “cause of action” in the nationwide application and in the amended applications was the same, citing this Court’s discussion of new causes of action in ISP Consulting Engineers Ltd v Body Corporate 89408.[39] She suggested that the original claim had simply been “refined”.
[39]ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160, (2017) 24 PRNZ 81 at [38].
Mr Hockley for Rongomaiwahine observed that this was a rather dramatic refinement. He argued that the amended applications were more akin to eight new applications in respect of eight discrete new areas on behalf of eight different applicant groups.
Our view on this issue can be shortly stated. To the extent that the amended claims introduced new applicants making applications in their own right, their claims were new claims which were first filed subsequent to 3 April 2017. Hence they were time‑barred. Consequently the amended claims were correctly struck out.
So far as Mr Paul’s nationwide claim is concerned, the attempted joinder of new applicants cannot serve to legitimise his purported protective claim. That claim as filed was not a valid claim. It cannot be redeemed by the subsequent implementation of the very device designed to circumvent the limitation provision.
Result
The appeal is dismissed.
The Attorney-General does not seek costs. Nor does Rongomaiwahine. However MTT does so. It made a significant contribution to the argument and we do not consider that there are sound reasons why costs should not follow the event. Accordingly the appellant must pay MTT costs for a standard appeal on a band A basis with usual disbursements but only in respect of one counsel.
Solicitors:
Phoenix Law Ltd, Wellington for Appellant
Crown Law Office, Wellington for Respondent
DLA Piper, Wellington for Maungaharuru‑Tangitū Trust
Hockly Legal, Auckland for Rongomaiwahine Iwi Trust
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