Re Dargaville - [2020] NZHC 2028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-404-538

[2020] NZHC 2028

IN THE MATTER OF the Marine and Coastal Area (Takutai Moana) Act 2011

IN THE MATTER OF

an application by RIHARI DARGAVILLE for an order recognising Customary Marine Title and Protected Customary Rights of New Zealand Māori Council Members

Hearing: 23 July 2020

Counsel:

G Sharrock for Applicant

Y Moinfar-Yong and R Budd for Attorney-General

Judgment:

11 August 2020

JUDGMENT OF CHURCHMAN J

Background

[1] On 30 March 2017, Rihari Dargaville (Mr Dargaville) filed an application under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) for an order recognising customary marine title (CMT) and protected customary rights (PCR). The application was said to be on behalf of “New Zealand Māori Council Members” and it was said to be in respect of the entire coastline of New Zealand.

[2] By way of justification for claiming CMT and PCR “on behalf of New Zealand Māori Council Members”, the application said that “New Zealand Māori Council Members whakapapa to signatories of He Whakaputanga and Te Tiriti”.

RIHARI DARGAVILLE STRIKE-OUT APPLICATION [2020] NZHC 2028 [11 August 2020]

[3] The application was one of two so-called “national” applications.1 The two applicants appear not to have talked to each other before filing their applications. Neither, it would seem, was either authorised by the New Zealand Māori Council (NZMC) itself to file such applications.2

[4] Mr Dargaville’s application did not comply with a number of the requirements of the Act. Section 101 of the Act requires an application to include a description of the “applicant group”.3

[5] Section 9(1) of the Act defines applicant group as “1 or more iwi, hapū or whānau groups that seek recognition under Part 4 of their protected customary rights or customary marine title”. Neither the NZMC or a DMC fall within the definition of “applicant group”. There was no indication that Mr Dargaville had been authorised to bring the application on behalf of any specific “applicant group” as is required.4

[6] The Act also requires a degree of specificity in any application in relation to the description of the applicant group and the identification of “the particular area of the common marine and coastal area to which the application relates” [emphasis added].5

[7] All applications under the Act are required to be publicly notified and the Act also prescribes the degree of detail to be provided in such notification.

[8]Section 103 stipulates that:

(1)The applicant group applying for a recognition order must give public notice of the application not later than 20 working days after filing the application.

(2)The public notice must include, as a minimum–

(a)the name of the applicant group and its description as an iwi, hapū, or whānau, whichever applies; and

1 The other was CIV-2017-485-512 brought by Cletus Maanu Paul.
2 By memoranda dated 30 May 2017 and 18 August 2017, counsel for the NZMC confirmed that the NZMC was not involved…

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 Re Dargaville

Details

AGLC: Re Dargaville [2020] NZHC 2028
Case: [2020] NZHC 2028
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Re Dargaville involved an application by Rihari Dargaville for an order recognising Customary Marine Title and Protected Customary Rights of New Zealand Māori Council Members over the entire coastline of New Zealand. The application was contested by the Attorney-General who argued that the application did not comply with the statutory requirements of the Marine and Coastal Area (Takutai Moana) Act 2011. The key legal issues were whether the application was frivolous, vexatious or an abuse of process, and whether it was filed for an improper purpose.

The Court held that the application was struck-out in its entirety. The application did not comply with the mandatory requirements of the Act as it failed to specify the applicant group and the particular area of the common marine and coastal area. The final amended version of the application was filed beyond the time limits specified in the Act and referred to applicants who had not been identified in the original application. The Court held that the amendments introduced new causes of action which amounted to a fresh pleading. The Court held that the application was filed for an improper purpose, namely to defeat the mandatory time limits imposed by the Act for the filing of applications. The Court also held that the application was an abuse of the Court's process as it involved investigation of areas of fact of a new and different nature, and on a new and materially different basis, from the original application.

The Court held that the application by Mr Dargaville was struck out in its entirety under HCR 15.1 and s 107 of the Act.

Orders