Re Tipene - [2014] NZHC 2046

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-806 [2014] NZHC 2046

UNDER
the Marine and Coastal Area (Takutai

Moana) Act 2011

IN THE MATTER OF

an application by Denis Wiremu Tipene

Hearing: 3 July 2014

Appearances:

C D Batt for Mr Tipene
C Linkhorn and A Williams for the Attorney-General
E M Greig for Te Rūnanga o Ngāi Tahu

Judgment:

27 August 2014

JUDGMENT OF MALLON J

Table of Contents

Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [4] The procedural steps taken in this case ......................................................................................... [12] Is Te Rūnanga too late?................................................................................................................... [17] Nature of the case ............................................................................................................................ [24] Nature of the interest ...................................................................................................................... [25] Information which Te Rūnanga may provide ............................................................................... [30] Practical considerations .................................................................................................................. [33] Result ................................................................................................................................................ [37]
Timetable matters ........................................................................................................................... [38]

An application by Tipene [2014] NZHC 2046 [27 August 2014]

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 relates to the foreshore and seabed surrounding two islands, Tamaitemioka and Pohowaitai, which are to the south-west of Rakiura (Stewart Island). The application is made on the grounds that the Tipene family hold the area in accordance with tikanga and that they have exclusively used and occupied it from
1840 to the present time without substantial interruption.2 The application is

scheduled to be heard in the High Court at Invercargill on 1 December 2014.

[2] Before me at present is Te Rūnanga o Ngāi Tahu (Te Rūnanga)’s application to appear and be heard on Mr Tipene’s application. Te Rūnanga says that a significant number of Ngāi Tahu Whānui, whom it represents, are likely to be affected by the application. Te Rūnanga neither supports nor opposes Mr Tipene’s application but wishes to ensure that the Court is properly informed of all relevant matters in considering it.

[3] Te Rūnanga’s application to appear and be heard is opposed by Mr Tipene. He submits that Te Rūnanga has no relevant interest. He further submits that the application is out of time. The Crown abides the Court’s decision on Te Rūnanga’s application.

The legislation

[4] The stated purpose of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) is as follows:3

4 Purpose

(1) The purpose of this Act 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

1      Marine and Coastal Area (Takutai Moana) Act 2011, ss 58 and 98.
2      Section 58(1).
3      Section 4(1).

(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).

…

[5] The Act sets out two mechanisms by which legal recognition may be given to protected customary rights and…

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 [2014] NZHC 2046
Case: [2014] NZHC 2046
Decision Date: 27 August 2014

CaseChat Overview and Summary

In the case of Tipene, the court was required to decide whether Te Rūnanga o Ngāi Tahu could participate in Mr Tipene's application for the recognition of customary marine title. The application related to the foreshore and seabed surrounding two islands, Tamaitemioka and Pohowaitai, south-west of Rakiura (Stewart Island). Te Rūnanga sought to appear and be heard on the application, despite not having filed a notice of appearance by the due date. The court considered the nature of the case, the nature of Te Rūnanga's interest, the information it might provide, and practical considerations. The court found that Te Rūnanga had made out sufficient grounds to appear and be heard on the application and therefore granted the application.

The court found that the nature of the case was such that the court should ensure all parties with a relevant interest were before the court and that the court had all relevant information before it. The nature of Te Rūnanga's interest was that it was the representative of Ngāi Tahu Whānui for all purposes, and the evidence before the court indicated a likely prospect that Te Rūnanga would have relevant evidence to put before the court. The court also found that practical considerations, such as Te Rūnanga's delay in notifying the court of its wish to appear and be heard, did not exclude Te Rūnanga from appearing and being heard. The court granted Te Rūnanga's application to appear and be heard on the application.

Orders