Re Tipene
[2017] NZHC 2990
•4 December 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2011-485-806 [2017] NZHC 2990
UNDER the Marine and Coastal Area (Takutai
Moana) Act 2011
IN THE MATTER OF
an application by DENIS WIREMU TIPENE for an order recognising customary interests in the common marine and coastal area
On the papers Judgment:
4 December 2017
JUDGMENT OF MALLON J
Table of contents
Introduction ....................................................................................................................................... [1] Further events.................................................................................................................................... [4] Submissions.......................................................................................................................................[11] The legislation .................................................................................................................................. [15] The Regulations ............................................................................................................................... [22] My assessment ................................................................................................................................. [25]
Result ................................................................................................................................................ [35]
Re Tipene [2017] NZHC 2990 [4 December 2017]
Introduction
[1] Mr Tipene, on behalf of all Rakiura Māori with customary interests in the islands of Pohowaitai and Tamaitemioka (the applicant group), applied under the Marine and Coastal Area (Takutai Moana) Act 2011 for an order recognising customary marine title (the customary marine title order) over a small marine and coastal area to the south west of Rakiura (Stewart Island).1 His application was successful.2 Who was to be the holder of the customary marine title order was left for further submissions and determination.
[2] The judgment accepted Mr Tipene’s position that the owners of the houses on the two islands are the kaitiaki of the islands and that, in accordance with the tikanga of the islands, those present on the two islands make decisions on behalf of all those with customary interests in the islands, taking into account their views as appropriate. I also said:3
It would be consistent with the way decisions are made about other matters on these two islands for the beneficial owners who have houses on the two islands to make the decision about who holds the title. The holder should be defined in a way that encapsulates the concept that the person(s) who hold the title may from time to time change, just as the beneficial owners may change with succession. These are matters upon which the parties are invited to make submissions.
[3] This judgment concerns who is to be the holder of the customary marine title order.
Further events
[4] Mr Tipene has provided an affidavit, dated 14 July 2017, about a hui which took place on 1 May 2017. This hui was amongst the owners of Pohowaitai and Tamaitemioka who were on the islands at that time4 together with Jane Davis (the
pūkenga appointed by the Court) and her grandson, Renata Davis, who prepared
1 The area is a 200 m radius surrounding a rock in front of the landing area which provides the only access to Pohowaitai and Tamaitemioka islands.
2 Re Tipene [2016] NZHC 3199, [2017] NZAR 599.
3 At [178].
4 Pohowaitai: Nash Norton, Pat Hutana, Maru Tau, Marty Hawkins, Grenvil Pitama, Eugene Riwaka, Oliver Dawson, Jeanette Norton, Felicity Phillips, Ngawini Riwaka, Makarini Rupene, Richard Ward, Paul Kemp and Kylie Waewae; Tamaitemioka: Denis Tipene.
minutes of the meeting.5 This hui was to discuss the judgment and in particular who should hold the order.
[5] The unanimous decision of the owners was that they wished the order to be held by the supervisors of the two islands (the Supervisors), as appointed pursuant to reg 6 of the Tītī (Muttonbird) Islands Regulations 1978 (the Regulations). The minutes also noted that the present supervisor of Tamaitemioka is Denis Tipene and the present supervisors of Pohowaitai are Nash Norton and Oliver Dawson.
[6] Although it was not recorded in the minutes, Mr Tipene’s affidavit notes that the owners who attended the 1 May 2017 hui also proposed that a kaumātua might be selected by the owners to jointly hold the order with the Supervisors. However
Mr Tipene acknowledges there may be some practical difficulty with this. He also recognises that the Supervisors would take advice from kaumātua, in any event, pursuant to the traditions of the islands.
[7] On 8 August 2017 Dr Ronnie Cooper and Christopher Brankin, Te Rūnanga employees, attended a hui with the Rakiura Tītī Committee (the Committee established under the Regulations)6 at the Murihiku Marae in Invercargill. Mr Brankin has provided an affidavit dated 10 August 2017 about this hui. He advises that the Committee agreed that the Supervisors of Pohowaitai and Tamaitemioka, as appointed from time to time, should hold the customary marine title order. The suggestion of a kaumātua was also discussed. The Committee agreed this was a matter best left to tikanga, and it did not need to be provided for in the customary marine title order.
[8] Mr Brankin also explains that the Committee was in favour of the holder of the order being the Supervisors of the two islands from time to time. This was because:
(a) it meant that no one person would have a permanent right to be the holder; and
5 Mr Tipene also took minutes. His minutes and his affidavit confirm the minutes taken by Renata
Davis.
6 Regulation 7(1)(c).
(b)as the role of supervisor was already in place, as was the appointment process for the supervisors, it was the neatest approach.
[9] Mr Brankin also says the Committee considered it sensible that the contact person for the holder of the customary marine title order be the Committee. This was because, from time to time, the supervisors of Pohowaitai and Tamaitemioka may change. The Committee will be able to direct people to the Supervisors. This would save the administrative task of updating the contact details each time the supervisor changes.
[10] I sought further details about how the Supervisors, the Committee and Committee members were appointed. In response to my questions, counsel for Te Rūnanga, on behalf of all parties, provided the following further details:
(a) The names of the Supervisors are not contained in a publicly available database. They are, however, held by the secretary and chair of the Rakiura Tītī Committee, and would be available upon request to the secretary or chair.
(b) The contact details of the Rakiura Tītī Committee are:
RAKIURA TĪTĪ (Beneficial Islands) COMMITTEE
C/- 150 Lorn Street
Invercargill 9810
Email: [email protected]
(c) Counsel is not aware of a publicly available database or document that holds the contact details of the Rakiura Tītī Committee.
(d)The present members of the Rakiura Tītī Committee are: Lowana Clearwater, Marama Cooper, Lesley Rewi, Gail Thompson, Yvonne Green, Jayce Fisher, Paul Cleaver, Theona Heslip and Stewart Bull.
(e) The names of the present members of the Rakiura Tītī Committee are not published in a publicly available database. However, their names
are held by the secretary and the chair and would be available upon
request.
Submissions
[11] In light of these events Mr Tipene submits the order should be held by the Supervisors of Pohowaitai and Tamaitemioka as appointed under the Regulations from time to time.
[12] Te Rūnanga agrees with Mr Tipene’s position. Te Rūnanga considers it is consistent with the Act to describe the holder by reference to a position. An order will have effect and continue to grant rights on the applicant group indefinitely. The Act should therefore be interpreted to ensure that the applicant group’s rights and responsibilities, pursuant to the Act, are maintained over time.
[13] The Attorney-General submits:
(a) the applicant has had only limited engagement with the applicant group;
(b)the holder of the order must be a particular named person or legal entity and not an officer holder as appointed from time;
(c) the holder cannot be an ex officio appointment as this would involve the Court surrendering its role to make subsequent appointments;
(d) the holder must be one person only; and
(e) accurate contact details are needed for the Marine and Coastal Area
Register.
[14] The Attorney-General does not object, however, if one of the current
Supervisors is the named holder of the order.
The legislation
[15] The requirements for an order recognising customary marine title are set out in s 109 of the Act as follows:
109 Form of recognition order
(1) An applicant group in whose favour the Court grants recognition of a protected customary right or customary marine title must submit a draft order for approval by the Registrar of the Court.
(2) Every recognition order must specify—
(a) the particular area of the common marine and coastal area to which the order applies; and
(b) the group to which the order applies; and
(c) the name of the holder of the order; and
(d) contact details for the group and for the holder.
…
(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.
[16] Some of the terms in this section are defined in s 9(1) of the Act. These definitions include:
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
contact details, as applying to an applicant group, protected customary rights group, or customary marine title group, means,—
(a) in relation to an individual, the full street address where the individual usually lives or where that individual can be contacted; and
(b) in relation to a body corporate or unincorporate, the full street address of the body’s place of business or head office; and
(c) in every case, an email address or telephone numbers
[17] Other relevant definitions in s 9(1) include:
customary marine title group—
(a) means an applicant group to which a customary marine title order applies or with which an agreement is made and brought into effect; and
(b) includes a delegate or transferee of the group if the delegation or transfer is made in accordance with tikanga
customary marine title order means an order of the Court—
(a) granted in recognition of a customary marine title of a customary marine title group in respect of a customary marine title area; and
(b) sealed under section 113
[18] Section 110 of the Act provides requirements concerning the notification of a recognition order as follows:
110 Requirements for notification of orders
(1) Not later than 5 working days after a recognition order has been sealed, the Registrar of the Court must provide a copy of it to—
(a) the responsible Minister; and
(b) the chief executive.
(2) The responsible Minister must—
(a) publish a minute of the sealed order, including any wāhi tapu conditions, in the Gazette; and
(b) send a copy of the sealed order to—
(i) the local authorities that have statutory functions in the area of the common marine and coastal area to which the order applies; and
(ii) any local authorities with statutory functions in an area adjacent to the area of the common marine and coastal area to which the order applies; and
(iii) the Minister of Conservation; and
(iv) the Minister of Māori Affairs; and
(v) each person who appeared on the application; and
(vi) any other person that the Court directs.
(3) If a customary marine title order includes recognition of wāhi tapu or wāhi tapu areas, the responsible Minister must—
(a) publicly notify the conditions; and
(b) give written notice of the conditions to—
(i) the customary marine title group; and
(ii) Heritage New Zealand Pouhere Taonga.
[19] Section 111 provides for the variation or cancellation of a recognition order:
111 Recognition order may be varied or cancelled
(1) The Court may—
(a) vary a recognition order, including—
(i) varying any of the matters referred to in section
109(2); and
(ii) varying or cancelling a protected customary right or customary marine title that has been delegated or transferred under section 53 or 60(3); or
(b) cancel a recognition order.
(2) However, the Court may vary a recognition order only if the requirements of section 51 or 58, as the case requires, are met by the variation.7
(3) In the case of a variation, the variation—
(a) must not have the effect of depriving the group to which the order applied before variation of the benefits of the order; but
(b) does not preclude the transfer or delegation of a right in accordance with tikanga.
7 Section 51 concerns the requirements for establishing a protected customary right (one kind of recognition order that may be made under the Act). Section 58 concerns the requirements for establishing a customary marine title (the other kind of recognition order that may be made).
(4) An application for variation or cancellation of a recognition order may be made only by—
(a) the holder of the order; or
(b) a representative of the group to which the order applies, if the holder—
(i) has ceased to exist; or
(ii) being a natural person, has died or no longer has legal capacity.
(5) The Court must not vary or cancel the order unless it is satisfied that— (a) the applicant is authorised to apply for the variation or
cancellation by the group to which the order applies; and
(b) the applicant has given sufficient notice of the application to that group; and
(c) there has been sufficient opportunity for that group to consider the application and make its views known to the applicant; and
(d) that group has no meritorious objections to the application that would require the Court to decline the application.
(6) Sections 101 to 108 apply, with necessary modifications, to an application under this section.8
(7) Sections 110 and 113 apply, with the necessary modifications, to the sealing and notification of a variation to, or cancellation of, a recognition order under this section.
[20] Section 113 provides that a recognition order must be sealed.
[21] Section 114 provides for a marine and coastal area register as follows:
114 Marine and coastal area register
(1) The chief executive must keep a marine and coastal area register (the
register) as a permanent record of—
(a) recognition orders, including those varied or cancelled; and
(b) agreements brought into effect, including those varied or cancelled; and
(c) planning documents registered in accordance with section
86(2); and
8 These provisions concern the requirements for making an application for a recognition order.
(d) notices given under section 57 of any controls imposed by the
Minister of Conservation under section 56.
(2) The chief executive must enter a document on the register without delay after—
(a) receiving it under section 86, 97, or 110; or
(b) an agreement is brought into force under section 96(1).
(3) The chief executive may only enter a document on the register if he or she is satisfied that the document meets all the requirements for registration.
(4) No compensation is payable by the Crown for any loss or damage arising from the operation of this section.
The Regulations
[22] The Regulations lay down rules for the management and control of muttonbirding on the beneficial islands (part of the Tītī islands), including Pohowaitai and Tamaitemioka.9
[23] The Regulations include provisions for electing members of the Rakiura Tītī Committee at an annual meeting of all interested Rakiura Māoris.10 They also prescribe the process for the appointment of the Supervisors of the islands: at the annual meeting of the Rakiura Tītī Committee, Rakiura Māori who frequent an island may nominate one of their number who, after appointment by the Committee, will be a Supervisor of that island.11
[24] Regulation 6 sets out the responsibilities of the Supervisor as follows:
6 Supervisors
(1) … The Supervisor shall be responsible for ensuring a fair and equitable distribution of the privileges, opportunities, and rights under the regulations of all persons authorised to enter the island or part of an island. In addition to any other powers prescribed in these regulations, the Supervisor shall have power to call meetings of all beneficiaries on their island at the time for the purpose of approving sites for buildings and allotting manus and generally supervise the conduct of birding operations on the area under his supervision. He shall be required to report to the Committee any infringement of these
9 Spelt Taimaitemioka in the Regulations.
10 Regulation 7(1)(c).
11 Regulations 6(1) and 7(1).
regulations. Failing the nomination of a Supervisor for any area, the
Committee may make the appointment.
…
My assessment
[25] I do not accept the Attorney-General’s opposition to the Supervisors as holders of the order on the basis that Mr Tipene has had only limited engagement with the group. As set out above the tikanga of Pohowaitai and Tamaitemioka is that those who exercise the fires of occupation on Tamaitemioka and Pohowaitai make the decisions on behalf of all those who whakapapa to the islands consulting with others as appropriate in the circumstances. The hui on 1 May 2007 at which it was agreed that the Supervisors should hold the order is in accordance with this. The hui took place against the background leading to Mr Tipene’s successful application which is discussed in detail in the substantive judgment.
[26] I also do not accept the Attorney-General’s submission that the holder of the order must be a single person. This submission seems to me to be inconsistent with his submission that an unincorporated legal entity, such as the collective of whānau island owners, could have been nominated to hold the order.
[27] The definition of “applicant group” in the Act means “one or more iwi, hapū, or whānau groups” and “includes a legal entity (whether corporate or unincorporated) or natural person appointed … to apply for, and hold, an order …”. This makes it clear that the group can comprise multiple persons. The definition permits an applicant group to appoint a legal entity or natural person to “apply for, and hold, an order” but it does not require it.12 There may be other ways an applicant or holder of an order can be determined. For example, by demonstrating their authority to apply for or to hold the order on behalf of the applicant group. This is consistent with the need for flexibility in approach to ensure that the purposes of the Act are met.13
[28] The holder can therefore be the applicant group if that is appropriate in the circumstances, and that group may be more than one person. Or, if the applicant group
wishes to appoint a holder of a customary marine title order, they may appoint a legal
12 This is consistent with my finding about who may be an applicant for an order: see Re Tipene
above n 2 at [174]-[175].
13 As set out in s 4.
entity or entities, or a natural person or persons. Unless an enactment or its context provides otherwise,14 the Interpretation Act provides that “[w]ords in the singular include the plural”.15 It is consistent with the Act and its context that a holder of a customary marine title order can be more than one legal entity or person especially because this may reflect the tikanga of the area to which the order relates (as is the case here).
[29] Having more than one person hold the order does not necessarily cause difficulty for those needing to engage with the holder of the customary marine title order. For example, the holder of the order may have a central point of contact and processes in place for decision making. As the applicant group must submit a draft order to the Court for approval, the Court retains control in ensuring the holder of the order is appropriate in the circumstances.
[30] Similarly, I do not accept the Attorney-General’s submission that the Act excludes the Supervisors from holding the customary marine title order because they may change from time to time. This does not involve the Court surrendering its ability to make subsequent appointments. The Court’s jurisdiction under s 111 of the Act to vary a recognition order remains.
[31] Should it transpire in years to come that the Supervisors are not appropriate to hold the order, an application to vary the order can be made. The Supervisor(s) can make the application to vary the order. If they do not do so, replacement Supervisors may be appointed pursuant to the annual appointment process under the Regulations. If Supervisors have not been nominated, the Committee is able to make the appointment. That appointment will be made, and the appointee will accept the position, knowing that their responsibilities will include holding the customary marine title order.
[32] The Regulations therefore provide an appropriate mechanism for ensuring that there are Supervisors appointed and that they are suitable and willing to hold the
customary marine title order. There is no need for the Court to be regularly involved
14 Interpretation Act 1999, s 4.
15 Section 33.
in supervising the customary marine title order where there is an existing and appropriate process in place for this.
[33] I agree with the Attorney-General that accurate contact details are needed for the Marine and Coastal (Takutai Moana) Register.16 The proposal that the Rakiura Tītī Committee contact details be entered in the register responds to this need.
[34] For these reasons I am satisfied that the Supervisors as appointed from time to time under the Regulations are the appropriate persons to hold the customary marine title order. That proposal has been put forward by those who exercise the fires of occupation on Tamaitemioka and Pohowaitai. The Supervisors already have responsibilities which are consistent with those of the holders of the customary marine
title order. There is certainty about who they are because the Regulations define this. There is an existing process in place for their appointment. The Rakiura Tītī Committee agrees that the Supervisors as appointed from time to time are the appropriate persons to hold the order. The Attorney-General’s grounds for opposing this are not made out.
Result
[35] The order for sealing shall specify that:
(a) the holder of the customary marine title order is the Supervisors of Tamaitemioka and Pohowaitai as appointed under the Regulations from time to time.
(b) The contact details for the holder of the order are:
RAKIURA TĪTĪ (Beneficial Islands) COMMITTEE
C/- 150 Lorn Street
Invercargill 9810
Email: [email protected]
16 As provided for in s 114 of the Act.
[36] The order for sealing will also need to specify the particular area of the common marine and coastal area to which the order applies. Mr Tipene has provided a map for this purpose. It appears to be suitable but if there is any difficulty with it the parties are to file a memorandum within the next two weeks. The group to which the order applies is, as set out in my judgment, Rakiura Māori with customary interests in Tamaitemioka and Pohowaitai.
Mallon J