Tamihere v Attorney-General - [2023] NZSC 135

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 111/2022
[2023] NZSC 135

BETWEEN	JOHN HENRY TAMIHERE, LAURIE PORIMA AND RAYMOND PHILLIP HALL ON BEHALF OF CLETUS MAANU PAUL Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	O’Regan, Williams and Kós JJ
Counsel:	J Mason and N Thrupp for Applicant G L Melvin and Y Moinfar-Yong for Respondent K M Anderson and M J Dicken for Maungaharuru-Tangitū Trust C M Hockly for Rongomaiwahine Iwi Trust
Judgment:	19 October 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The late Mr Paul, a long-standing member of the New Zealand Māori Council and former Chair of the Mataatua District Māori Council, applied to the High Court under s 98 of the Marine and Coastal Area (Takutai Moana) Act 2011[1] for orders recognising customary marine title over all New Zealand’s marine and coastal area, “on behalf of all Māori”.
[1]Herein, “the Act”.
The purpose of the application was said to be protective: to enable Māori groups who had not yet applied to do so after the six-year statutory deadline prescribed in s 100 of the Act:
100     Who may apply
(1)       An applicant may apply to the Court–
(a)       for a recognition order; or
(b)      to vary or cancel a recognition order.
(2)However, the application must be filed not later than 6 years after the commencement of this Act, and the Court must not accept for filing or otherwise consider any application that purports to be filed after that date.
Mr Paul subsequently amended the application. The most recent of these is the second amended application. It incorporates eight named applicants who, collectively, claim approximately 75 per cent of New Zealand’s coastal and marine area. It is no longer expressed as made on behalf of all Māori.
The High Court and Court of Appeal struck out Mr Paul’s application in both the original (nationwide) and (second) amended forms.[2] The nationwide application failed to comply with the requirements of s 101 of the Act that an application “describe the applicant group”, “identify the particular area of the common marine and coastal area to which the application relates”, and “name a person to be the holder of the order as the representative of the applicant group”.[3] It was held to constitute an abuse of process.[4] As to the second amended application, adding new applicants was held to be a material change to the original application, meaning the amended application was itself time-barred.[5] The legislative provisions were unambiguous: the Treaty of Waitangi could not be used to support an alternative interpretation.[6]
[2]Re Paul [2020] NZHC 2039 (Churchman J) [HC judgment]; and Paul v Attorney-General [2022] NZCA 443 (Brown, Clifford and Goddard JJ) [CA judgment].
[3]HC judgment, above n 2, at [13] and [51]; and CA judgment, above n 2, at [49], [57], [59] and [61].
[4]HC judgment, above n 2, at [65]; and CA judgment, above n 2, [75].
[5]HC judgment, above n 2, at [64];…

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 Tamihere v Attorney-General

Details

AGLC: Tamihere v Attorney-General [2023] NZSC 135
Case: [2023] NZSC 135
Decision Date: 19 October 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicants, John Henry Tamihere, Laurie Porima and Raymond Phillip Hall, sought leave to appeal the Court of Appeal's dismissal of an application for customary marine title recognition over all of New Zealand's marine and coastal area. The application, initially brought by the late Mr Paul, was intended to enable Māori groups to apply after the statutory deadline under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicants argued that the Court of Appeal erred in striking out the application on the grounds that it failed to comply with mandatory requirements, constituted an abuse of process, and introduced new causes of action. They further contended that the statutory deadline may breach the Treaty of Waitangi and tikanga Māori, and that the Act may permanently extinguish indigenous rights.

The court held that the applicants had insufficient prospects of success to warrant leave to appeal. The court found that the nationwide application did not comply with the requirements of s 101 of the Act, and that the second amended application was a material change that breached the statutory deadline. The court also found that the applicants had not shown that Mr Paul represented all iwi, hapū or whānau groups, and that the substitution of new applicants constituted new applications in breach of s 100(2). The court noted that the respondent had confirmed that the Act does not affect the High Court's inherent jurisdiction to permit later notices of appearance, and that there are protections in place to mitigate the risk of Crown engagement pathway applicants not seeing a public notice of an overlapping High Court pathway application.

The court concluded that while the arguments raised by the applicants were of general importance, it was not necessary in the interests of justice for the court to hear and determine the appeal. The court noted that if there were disadvantages to some potential claimants who failed to meet the statutory deadline, it was a consequence of the statutory language and any solution to that issue must lie with Parliament. The application for leave to appeal was therefore dismissed.

Orders