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Re Ngāti Pāhauwera

Re Ngāti Pāhauwera

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Case Copied 27 May 2020 39 min read

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-821 [2020] NZHC 1139
IN THE MATTER OF the Marine and Coastal Area
(Takutai Moana) Act 2011

ANDan application by the Trustees of the Ngāti Pāhauwera Development Trust TORO WAAKA, TUREITI MOXON, CHAANS TUMATAROA-CLARKE, REX ADSETT, GERALD ARANUI, AMIRIA TOMOANA and TOM KEEFE
on behalf of NGĀTI PĀHAUWERA for Customary Marine Title, Wahi Tapu Protection and Protected Customary Rights

On the papers:

Counsel: K Anderson and M Dicken for Maungaharuru-Tangitū Trust

R N Smail and E A James for Ngāti Pāhauwera Development Trust M Mahuika, L Underhill-Sem and M Tukapuna for Ngāti Parau
S J Roughton for Ngai Tahu o Mōhaka Waikare

Judgment: 27 May 2020

JUDGMENT OF CHURCHMAN J

[Ngāti Pāhauwera strike-out application]

Introduction

The Maungaharuru-Tangitū Trust (the applicants) have applied to this Court to strike- out part of the application for recognition orders made by the Ngāti Pāhauwera Development Trust (the respondents) under s 107 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), filed on 15 March 2017. The strike-out application relates to a map included within a memorandum filed by counsel for the respondents on 13 December 2018, labelled “Ngāti Pāhauwera High Court Application Area”.

The applicants allege that the application area detailed in this map is much larger than the boundaries detailed by the respondents in their original 2017 application. They contend that the enlarged boundaries constitute a new application that is barred under the Act.1 As a result, the applicants submit that the part of the respondents’ application that details the enlarged boundaries should be struck out on the basis that it is statute-barred, an abuse of process, and prejudicial to the applicants and other parties (as the enlarged boundaries now have a greater overlap with the applicants’ own claims and the claims of others).

The respondents submit that the 2018 map does not materially change their application under the Act, but rather more accurately reflects the description of the application area described in their 15 March 2017 application, and that it is consistent with the evidence filed in support of that application. They oppose the application to strike-out.

I have reached the conclusion that the part of the respondents’ application that comprises the extended application area should be struck out. This amendment effectively constitutes a fresh cause of action that is sufficiently and clearly statute-barred to the point that it can be struck out as an abuse of process under s 107(3)(d) of the Act and r 15.1(1)(d) of the High Court Rules 2016 (HCR). The amendment may also be struck out on the basis that it is likely to cause undue prejudice and delay under s 107(3)(b) and r 15.1(1)(b).

I now set out the reasons why I have reached this conclusion.

Background

Foreshore and Seabed and Marine and Coastal Area applications

In June 2005, the respondents applied to the Māori Land Court for customary rights orders under s 48 of…

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: [2020] NZHC 1139
Decision Date: 27 May 2020

CaseChat Overview and Summary

The Maungaharuru-Tangitū Trust (the applicants) applied to strike out part of an application for recognition orders made by the Ngāti Pāhauwera Development Trust (the respondents) under s 107 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act). The applicants alleged that the part of the respondents’ application that detailed the enlarged boundaries was statute-barred, an abuse of process, and prejudicial to the applicants and other parties. The respondents submitted that the map did not materially change their application under the Act, but rather more accurately reflected the description of the application area in their 2017 application, and that it was consistent with the evidence filed in support of that application. The applicants submitted that the amendment effectively constituted a fresh cause of action that was statute-barred and an abuse of process under s 107(3)(d) and r 15.1(1)(d) of the High Court Rules 2016 (HCR). The amendment may also be struck out on the basis that it was likely to cause undue prejudice and delay under s 107(3)(b) and r 15.1(1)(b). The Court held that the part of the respondents’ application that comprised the extended application area should be struck out. This amendment effectively constituted a fresh cause of action that was sufficiently and clearly statute-barred to the point that it can be struck out as an abuse of process under s 107(3)(d) of the Act and r 15.1(1)(d) of the HCR. The amendment may also be struck out on the basis that it was likely to cause undue prejudice and delay under s 107(3)(b) and r 15.1(1)(b).

Orders