Te Hika o P�p�uma

[2023] NZHC 291

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-226

[2023] NZHC 291

UNDER	the Marine and Coastal Area (Takutai Moana) Act 2011
IN THE MATTER	of an application by Rebecca Harper on behalf of Te Hika o Pāpāuma for orders recognising Customary Marine Title and Protected Customary Rights

On the papers:
Appearances:	D Naden for Applicant
Judgment:	24 February 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 3 April 2017, the applicant, Ms Rebecca Harper, applied to the Court on behalf of Te Hika o Pāpāuma for recognition orders pursuant to s 98 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).

[2]    This application was one of three separate applications had been filed on behalf of Te Hika o Pāpāuma pursuant to the MACA Act, including that of the applicant.

[3]    The applicant now seeks leave to amend the originating application so it is on behalf of the Pirere whānau rather than Te Hika o Pāpāuma. The area covered by the application is also sought to be amended.

[4]    The effect of the amendment would be to significantly reduce the application area. The amended application area begins at Ōkau Stream. The boundary runs south

TE HIKA O PĀPĀUMA [2023] NZHC 291 [24 February 2023]

to Castlepoint Stream and then 12 nautical miles seaward from the boundary markers and all points in between them. Leave is accordingly sought to amend the application area and the associated map.

Discussion

[5]I am satisfied leave should be granted to allow the amended application.

[6]    In the Re Paul strike out decision, I found the amended application in that case was an:1

attempt to add … new applicants who were not referred to at all in the original application and whose claims could not possibly have been identified from the wording of the original application.

I found this amounted to a material change to the applicant’s application and was therefore an abuse of process.2

[7]    I am satisfied the decision in Re Paul can be distinguished from the present application. In this case, unlike the situation in Re Paul, the nominated applicant, Ms Palmer, remains the same. The applicant group has not been expanded in any way. Rather, the class of people has been refined from the iwi down to a named whānau of that iwi.

[8]    I note that in Re Tipene, a case in which the applicant sought to amend his application under the MACA Act to broaden the applicant group and to refine and reduce the application area, Mallon J nevertheless allowed the amendment, holding that the essence of the application had not changed.3 Her Honour stated the Court should not take an unduly narrow approach to permissible amendments.4

[9]    The situation in that case may be contrasted with the Ngāti Pāhauwera (strike-out application) decision, in which I struck out the amended application on the

1      Re Paul [2020] NZHC 2039 at [64].

2 At [64].

3      Re Tipene [2015] NZHC 169 at [16].

4 At [21].

basis the change applied for was significant and in fact amounted to a fresh cause of action.5

[10]   Again I am satisfied the present application is distinct from the amendment sought in that case. In the Ngāti Pāhauwera decision, the extension to the application area through the amendment was “considerable” and would result in a significantly greater overlap with other application areas.6 It would “likely entail the addition of new evidence and inquiries from the parties”.7 It was not a “relatively insignificant” geographical change.8

[11]   Here the effect of the amendment will be to reduce, not enlarge, the application area. The proposed boundary amendment does not have the effect of drawing in any new overlapping applications and I have been advised there is no objection to the proposed amendments from other interested parties. Neither does this application appear to give rise to “significant new factual issues”, as was the case in the Ngāti Pāhauwera strike out decision.9 Nor is there any suggestion the amendment in this case will involve any prejudice or delay.10

Conclusion

[12]   I therefore do not consider the amendments sought in this case amount to a material change to the application and are accordingly an abuse of process. I am satisfied leave should be granted to amend the application as sought.

Churchman J

Solicitors:
Tamaki Legal, Auckland for Applicant

5      Re Ngāti Pāhauwera Development Trust (strike-out application) [2020] NZHC 1139 at [62].

6 At [65].

7 At [65].

8 At [65].

9 At [67].

10     Compare at [68]–[69]; and Re Paul, above n 1, at [67].