Te Hika o P�p�uma - [2023] NZHC 1109

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-481

[2023] NZHC 1109

UNDER the Marine and Coastal Area (Takutai Moana) Act 2011

In the matter of

an application by George Matthews on behalf of Te Hika o Pāpāuma for orders recognising Customary Marine Title and Protected Customary Rights

On the Papers

Counsel:

C Hirschfeld , B Tūpara and T A Thompson for the Applicant

Judgment:

10 May 2023

JUDGMENT OF GWYN J

(Te Hika o Pāpāuma further amended application)

Introduction

[1] Te Hika o Pāpāuma seek recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) in the area of the lower East Coast of the North Island. That application and a number of overlapping and adjacent applications have been timetabled toward hearing. The Te Hika o Pāpāuma application is due to be heard as part of Stage 1(a), in respect of the Whareama River mouth, and Stage 1 (b) in respect of the balance of the application.

[2] Mr George Matthews has filed a further amended application on behalf of Te Hika o Pāpāuma. The question is whether, to the extent the further amended application varies the original application, the PCRs now sought are sufficiently proximate to the purposes under the original application and should be allowed.

TE HIKA O PĀPĀUMA (FURTHER AMENDED APPLICATION) [2023] NZHC 1109 [10 May 2023]

Background

[3] In his minute of 28 February 2023, Churchman J directed that any further amended application for recognition orders be filed by Mr Hirschfeld, on behalf of George Ngatiamu Matthews, within 21 days of the date of that minute.1

[4] The stated purpose of the further amended application was to “refine” the list of the PCRs sought.

[5] A further amended application, dated 21 March 2023, was filed, together with an affidavit from Mr Matthews.

[6] In his minute of 25 August 2022, Churchman J granted leave for the substitution of Mr George Matthews for Ms Broughton in this application.2 Counsel’s memorandum in support of the further amended application confirms that Mr Matthews now takes the place of the former applicant, Ms Anita Broughton, who resigned her position as applicant in 2019. I confirm that Mr Matthews is the substituted applicant.

[7] In the Court’s minute of 25 August 2022, Churchman J had directed that an application amending the claims explain “how the application has been amended, file details of exactly what order is sought by way of PCR, and file a map detailing the scope of the CMT claim.”3

Further amended application

[8] Counsel’s memorandum in support of the further amended application notes that:

(a)The original map appended to the application filed in March 2017 remains unchanged.

1 Minute of Churchman J dated 28 February 2023 at [5].
2 Minute of Churchman J dated 25 August 2022 at [5].
3 At [14].

(b)Appendix A to the further amended application includes refinement of the list of PCRs sought. The refinements are “an amplification of…

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.

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Details

Case: [2023] NZHC 1109
Decision Date: 10 May 2023

CaseChat Overview and Summary

Te Hika o Pāpāuma sought recognition of customary marine title and protected customary rights over part of the lower East Coast of New Zealand's North Island. The application was subject to a timetable for hearing, with the further amended application filed by George Matthews on behalf of Te Hika o Pāpāuma being the focus of this case. Matthews' further amended application sought to refine the list of protected customary rights and add three new rights. The court was required to determine whether the amendments were permissible under the Marine and Coastal Area (Takutai Moana) Act 2011.

The court examined whether the further amended application varied the original application in a material way or if the new rights were sufficiently linked to the original application. The court considered the timing of the amendments, the impact on other parties, and the nature of the new rights sought. The court noted that the new rights sought were of a general nature and did not expand the boundaries of the application area. The court also considered that all parties, including the Attorney-General, consented to or did not oppose the further amended application.

The court concluded that the essence of the application had not changed, and the new rights sought were sufficiently proximate to the purposes under the original application. The court allowed the further amended application, finding that the new rights were akin to amendments sought in other cases and did not unduly expand the scope of the original application. The court took a flexible approach to permissible amendments, considering the overarching purpose of the application and the impact of the amendments on other parties.

The court ordered that the further amended application be allowed, and the three new rights sought by Te Hika o Pāpāuma be recognised as protected customary rights. The court's decision ensured that the rights over which recognition orders are sought were not unduly expanded beyond the original application while allowing for refinements and clarifications to the list of protected customary rights.

Orders