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Re Tipene

Re Tipene

Case [2015] NZHC 169 13 February 2015

Jurisdiction

Customary Marine Title

Treaty of Waitangi

Adjudicative Flexibility

Constitutional Law

Indigenous Peoples & Native Title Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-806 [2015] NZHC 169

UNDER
the Marine and Coastal Area (Takutai

Moana) Act 2011

IN THE MATTER OF

an application by Denis Wiremu Tipene

On the papers

Counsel:

C D Batt for Mr Tipene
C Linkhorn and A Williams for the Attorney-General
J H Stevens for Te Rūnanga o Ngāi Tahu

Judgment:

13 February 2015

JUDGMENT OF MALLON J

Introduction

[1] Mr Tipene, on behalf of his family, has applied for an order recognising customary marine title in a specified area of the common marine and coastal area.1
The application was to be heard in the High Court at Invercargill at the end of last year. That hearing was adjourned following, amongst other developments, a foreshadowed amended application. The present issue for determination is whether that should proceed as an amended application or whether a new application should be required. Mr Tipene, supported by Te Rūnanga o Ngāi Tahu (Te Rūnanga), says
the former is appropriate, whereas the Attorney-General contends for the latter.

1 Marine and Coastal Area (Takutai Moana) Act 2011, ss 58 and 98.

In re Tipene [2015] NZHC 169 [13 February 2015]

Background

[2] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) came into force on 1 April 2011. There is considerable background to its enactment.2 Against that background, as set out in s 4 of the Act, its purpose 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 by iwi, hapū, and whānau as tangata whenua; and

(c) provide for the exercise of customary interests in the common marine and coastal area; and

(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).

[3] Under the Act, applications filed in the Māori Land Court were transferred to this Court. Mr Tipene had filed such an application. Following the transfer, this Court held a case management conference in respect of all the applications. Although not required to do so, Mr Tipene travelled to Wellington to attend that conference to inform the Court and the Crown that he intended to pursue his application in the High Court.

[4] At that time Mr Tipene was without legal representation. With some assistance from the Wellington Community Law Centre, Mr Tipene made his application under the Act on 14 November 2011. That application advised that:

(a) Mr Tipene was applying for an order recognising customary marine title;

(b) the application was made on behalf of his family;

2 As set out in the Preamble to the Act, it replaced the Foreshore and Seabed Act 2004 (the 2004
Act). The 2004 Act was in turn a response to the Court of Appeal’s decision in Attorney- General v Ngāti Apa [2003] 3 NZLR 643 (CA) which held that the Māori Land Court had jurisdiction to consider Māori customary…

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 Tipene

Details

AGLC: Re Tipene [2015] NZHC 169
Case: [2015] NZHC 169
Decision Date: 13 February 2015

CaseChat Overview and Summary

The case of Re Tipene involved a legal dispute regarding the recognition of customary marine title over specified marine and coastal areas in New Zealand. Denis Wiremu Tipene, on behalf of his family, sought an order recognising customary marine title over the foreshore and seabed surrounding Tamaitemioka and Pohowaitai Islands. The legal issue before the court was whether the application should proceed as an amended application or if a new application should be required. The Attorney-General argued for the latter, while Mr Tipene and Te Rūnanga o Ngāi Tahu supported the former. The court considered the nature of the amendments and whether they constituted a new cause of action or merely refined the existing application.

The court found that the essence of the application had not changed, and the amendments represented refinements to the application as it progressed. The court noted that the application had consistently sought recognition of customary marine title in the specified area. The amendments broadened the class of beneficiaries but did not substantively change the nature of the application. The court concluded that allowing the amendments to proceed as an amended application was consistent with the purposes of the Marine and Coastal Area (Takutai Moana) Act 2011 and ensured the just, speedy, and inexpensive determination of the proceeding. The court declined the Attorney-General's invitation to require a new application and accepted the second amended application as filed. The court directed that the amended application needed to be publicly notified, and a telephone conference was scheduled for further proceedings.

The final order of the court was to accept the second amended application filed on 23 January 2015 in the form it had been filed. The court directed that the amended application would need to be publicly notified, and the parties were to consider whether any additional parties should be served with the amended application. A telephone conference was scheduled for 10 am on Monday, 16 February 2015, to proceed with further matters in the case.

Orders