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Paul v Attorney-General

Paul v Attorney-General

Case [2022] NZCA 443 27 September 2022

Constitutional Validity

Legitimate Expectation

Abuse of Process

Statutory Interpretation

Fiduciary Duty

Constitutional Law

Environmental Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA744/2020
[2022] NZCA 443

BETWEEN	CLETUS MAANU PAUL Appellant
AND	ATTORNEY-GENERAL Respondent MAUNGAHARURU-TANGITŪ TRUST Interested Party RONGOMAIWAHINE IWI TRUST Interested Party

Hearing:	2 March 2022
Court:	Brown, Clifford and Goddard JJ
Counsel:	J Mason for Appellant Y Moinfar-Yong for Respondent K M Anderson and M J Dicken for Maungaharuru-Tangitū Trust C M Hockly and B R Lyall for Rongomaiwahine Iwi Trust
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The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) repealed the Foreshore and Seabed Act 2004 and restored customary interests which the 2004 Act had extinguished.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…

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.

Continue reading Paul v Attorney-General

Details

AGLC: Paul v Attorney-General [2022] NZCA 443
Case: [2022] NZCA 443
Decision Date: 27 September 2022 at 10.00 am

CaseChat Overview and Summary

The appeal concerns a claim by Cletus Maanu Paul, an individual, that the High Court erred in striking out an application he filed on 3 April 2017 in respect of a nationwide customary marine title in New Zealand’s marine and coastal area. The application was struck out by the High Court on 12 August 2020, and the appeal against that judgment was dismissed by the Court of Appeal on 27 September 2022. The appeal was heard by Brown, Clifford and Goddard JJ. The appellant was represented by J Mason and the Attorney-General by Y Moinfar-Yong. Maungaharuru-Tangitū Trust and Rongomaiwahine Iwi Trust, two interested parties, were each represented by counsel.

The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) provides a scheme for the recognition of customary marine title and protected customary rights in relation to particular marine and coastal areas. An application for a recognition order must be filed within six years of the commencement of the Act. The appellant filed a nationwide application on 3 April 2017, on behalf of all Māori, seeking recognition of customary marine title in respect of the entire marine and coastal area of New Zealand. The nationwide application did not comply with the Act as it did not identify an iwi, hapū or whānau group on whose behalf it was made, did not identify a particular area of the marine and coastal area, and did not name a person to be the holder of the recognition order. The nationwide application was struck out by the High Court. The appellant subsequently filed two amended applications, but these too were struck out. The appellant appeals against the High Court’s decision.

The appeal raised three issues for the Court of Appeal. The first was whether the nationwide application failed to comply with the mandatory requirements in s 101 of the Act. The second was whether the nationwide application was an abuse of process. The third was whether the second amended application introduced new claims after the statutory deadline for filing applications under the Act and was therefore an abuse of process. The Court of Appeal found that the nationwide application did not comply with s 101. It held that the nationwide application was an abuse of process as it was filed to circumvent the statutory deadline for filing applications. It also held that the second amended application introduced new claims after the statutory deadline and was therefore an abuse of process. The appeal was dismissed.

The appellant must pay costs to Maungaharuru-Tangitū Trust for a standard appeal on a band A basis and usual disbursements.

Orders