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].

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 291
Decision Date: 24 February 2023

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, was presented with an application by Ms Rebecca Harper on behalf of Te Hika o Pāpāuma to amend an application for recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011. The amendment sought to reduce the application area and to change the applicant group from Te Hika o Pāpāuma to the Pirere whānau. This change, if granted, would significantly reduce the area covered by the application and narrow the class of people to a specific whānau within the iwi. The primary legal issue the Court needed to decide was whether the proposed amendments amounted to a material change to the application and thus constituted an abuse of process. The Court had to balance the principle that amendments should not materially alter the nature of the application with the need to allow for adjustments that do not fundamentally change the essence of the application.

The Court, in granting leave for the amendments, distinguished the present case from previous decisions where amendments were found to be an abuse of process. The Court found that unlike in Re Paul, the applicant group was not being expanded but rather refined, and unlike in Re Ngāti Pāhauwera, the amendment did not result in a significant overlap with other application areas or introduce significant new factual issues. Instead, the amendment in this case would reduce the application area, and there was no objection from other interested parties. The Court concluded that the amendments did not amount to a material change and therefore did not constitute an abuse of process.

In granting leave for the amendments, the Court held that the essence of the application had not been fundamentally altered. The Court emphasised the need to avoid an unduly narrow approach to permissible amendments, as seen in Re Tipene. The Court found that the amendment did not prejudice or delay any party and would not involve significant new evidence or inquiries. The Court's decision thus allows for the refinement of the application to better reflect the specific claims of the Pirere whānau within the reduced application area.

The final orders of the Court were to grant leave for the applicant to amend the originating application on behalf of the Pirere whānau and to reduce the application area as proposed. This decision ensures that the application process can be tailored to more accurately reflect the specific customary marine title and protected customary rights of the Pirere whānau within the reduced geographical scope.

Orders