Re Paul

Case [2020] NZHC 2039 12 August 2020

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-512

[2020] NZHC 2039

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

AND

IN THE MATTER OF

an application by CLETUS MAANU PAUL for an order recognising Customary Marine Title and Protected Customary Rights

Hearing: 23 July 2020

Counsel:

K Anderson and M Dicken for Maungaharuru-Tangitū Trust C Hockly for Rongomaiwahine Trust

Y Moinfar-Yong and R Budd for Attorney-General J Mason for C M Paul

Judgment:

12 August 2020

JUDGMENT OF CHURCHMAN J

Background

[1] The application by Cletus Maanu Paul (Mr Paul) for orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) is one of two so-called national applications.1

[2] The application to strike-out the claim by Mr Paul was the second of the two strike-out applications heard in the High Court at Auckland on 23 July 2020. The issues raised in both strike-out applications were similar, although not identical.

1 The other is the application by Rihari Dargaville, CIV-2017-404-538.

CLETUS MAANU PAUL STRIKE-OUT APPLICATION [2020] NZHC 2039 [12 August 2020]

[3]This case should be read in conjunction with the decision in Re Dargaville.2

[4] Where the issues in this case are identical to those considered by the Court in Re Dargaville, I will attempt to summarise the relevant findings from Re Dargaville, although inevitably there will be some duplication and overlap in this judgment.

The application

[5] Mr Paul’s application was dated 3 April 2017. Although the application refers throughout to the “applicants”, the only applicant listed by name was Mr Paul himself.

[6]The application is said to be made by Mr Paul:

… 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”).

[7]Under the heading “The Applicant Group”, the application said:

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 and memorial up until 1840 and since 1840, substantially uninterrupted.

[8]The area covered by the application was said to be:

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 seas; and, the CMA surrounding all islands and reefs lying offshore from the coastline to a distant of 12 nautical miles; and, the entire foreshore and territorial orders of Aotearoa New Zealand.

[9]The application concluded with a paragraph which reads:

The Applicants respectfully seek leave to reserve the right to amend this Application, including: amending its nature and scope; and, by adding additional parties.

[10] Mr Paul filed an affidavit…

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 Paul

Details

AGLC: Re Paul [2020] NZHC 2039
Case: [2020] NZHC 2039
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of Re Paul involved an application by Cletus Maanu Paul for an order recognising Customary Marine Title and Protected Customary Rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The application, which was one of two national applications, was filed by Mr Paul on behalf of all Māori in New Zealand and sought to claim customary marine title over the entire marine and coastal area of Aotearoa New Zealand. The application was made despite the fact that it did not comply with the mandatory requirements of the Act, including the identification of a particular area of the common marine and coastal area, the naming of a person proposed as the holder of the order, and the filing of the application within six years after the commencement of the Act. The application was also filed after the deadline for such applications had expired.

The legal issues before the court included whether the application was valid, whether it complied with the requirements of the Act, and whether it was an abuse of process. The court found that the application was invalid, did not comply with the requirements of the Act, and was an abuse of process. The court noted that the application was filed for the improper purpose of circumventing the mandatory limit in the Act and that the attempt to add new applicants long after the deadline for filing applications had expired amounted to a material change to the application. The court also found that the application would cause prejudice and delay to other applicants who had filed their applications in compliance with the Act.

The court ultimately struck out the application in its entirety, finding that all four criteria set out in r 15.1(i) and s 107(3) of the Act were met. The court noted that the Treaty of Waitangi could not assist in the interpretation of s 107 of the Act, as it did not give rise to any ambiguity and the Act specifically contemplated acknowledgment of the Treaty of Waitangi through the express processes set out within it. The court held that it was necessary to consider the interests of the claimants who had complied with the requirements of the Act and commenced proceedings within the statutory time limit, and that striking out the application would not infringe the principles of the Treaty of Waitangi.

In conclusion, the court found that the application by Mr Paul was invalid, did not comply with the requirements of the Act, and was an abuse of process. The application was struck out in its entirety, and the court held that the Treaty of Waitangi did not provide a basis for granting an order acknowledging the rights and interests claimed in the application.

Orders