Te Whakatohea - [2020] NZHC 1905

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2011-485-817

[2020] NZHC 1905

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

IN THE MATTER OF

BY

BY

an application for an order recognising Customary Marine Title and Protected Customary Rights

the late Claude Augustin Edwards (deceased), Adrian Edwards and others on behalf of Te Whakatōhea

Te Whakatōhea Māori Trust Board on behalf of the iwi and hapū of Whakatōhea applicant and Ngāti Ruatakenga, hapū of Whakatōhea

interested party

On the papers:

Counsel:

K Feint QC for Ngāti Ruatakenga T Sinclair for Te Whakatōhea

Judgment:

31 July 2020

JUDGMENT OF CHURCHMAN J

Background

[1] An issue has arisen as to the basis upon which the Whakatōhea Māori Trust Board (WMTB) and Ngāti Ruatakenga (Ngāti Rua) can participate in the hearing of the Whakatōhea priority application set down to commence in Rotorua on 17 August 2020.

Te Whakatohea [2020] NZHC 1905 [31 July 2020]

[2] By a document described as “Application opposing the application of Mandy Hata and the Whakatōhea Māori Trust Board” dated 27 July 2020, counsel for Whakatōhea took issue with the status of Ngāti Rua and the ability of WMTB to advance an application on behalf of Ngāti Rua. The four grounds of opposition were said to be:

(a)the Ngāti Ruatakena (sic) application missed the statutory High Court deadline April 3 2017;

(b)further grounds for declining Ngāti Ruatekena (sic) application was not filed in accordance with tikanga;

(c)Ngāti Ruatakena (sic) hapū representatives have been part of and been mandated hapū representatives to the Whakatōhea Edwards application since and after it was filed (sic) to the Māori Land Court for Whakatōhea hapū by Whakatōhea hapū in 2005;

(d)that the WMTB application cannot advance Ngāti Ruatakenga as the Whakatōhea Māori Trust application was not mandated in accordance with tikanga.

Facts

[3] It is undisputed that Ngāti Rua are a hapū of the iwi Whakatōhea. By application dated 3 April 2017, WMTB filed an application for customary marine title (CMT) and protected customary rights (PCR) to identified areas of the coast of the eastern Bay of Plenty. The application was accompanied by an affidavit in support providing details of the claim and a map of the relevant area.

[4] The application was said to be made by WMTB “for and on behalf of the Whakatōhea whānau, hapū and iwi”.

[5] By application dated 3 April 2017, Mandy Merearia Hata (Ms Hata) applied for the recognition of CMT and PCR on behalf of Ngāti Rua hapū and other hapū of Whakatōhea. The application is no longer being pursued on behalf of the other five Whakatōhea hapū listed in the original application.

[6] By letter of 18 April 2018, the then Minister of Treaty Settlements acknowledged receipt of the application of 3 April 2017.

[7] The application by Ms Hata was a pre-printed form which she had filled out and posted to the Minister for Treaty of Waitangi Negotiations. It constituted an application…

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

AGLC: Te Whakatohea [2020] NZHC 1905
Case: [2020] NZHC 1905
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Churchman J addressed a dispute concerning the participation of the Whakatōhea Māori Trust Board (WMTB) and Ngāti Ruatakenga (Ngāti Rua) in the hearing of a priority application for customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicants, Te Whakatōhea, opposed the involvement of Ngāti Rua and WMTB on several grounds, including the timing of their applications and adherence to tikanga (customary practice). The central issue before the court was whether Ngāti Rua and WMTB could participate in the hearing as applicants or interested parties.

The court considered whether the applications filed by WMTB and Mandy Hata on behalf of Ngāti Rua were statute-barred and whether the proper procedures under tikanga had been followed. While acknowledging that Ms Hata had validly commenced a claim under section 95 of the Act for direct engagement with the Crown, the court noted that she had not commenced High Court proceedings for customary marine title or protected customary rights. The court also observed that there was no reason why WMTB could not advance a claim on behalf of Ngāti Rua, although doing so would bind Ngāti Rua to the outcome of the court's decision. The court declined to make any determination on the complicated issues of mandate and authorisation at this interlocutory stage, deferring these matters to the substantive proceedings.

Churchman J concluded that the applications to reject the claims by WMTB on behalf of Ngāti Rua and Ngāti Rua's application to participate as an interested party were declined. The court granted permission to file evidence out of time, directing that the evidence be filed and served forthwith. The court's decision highlighted the importance of cooperation among parties with overlapping claims and deferred complex questions of mandate and authorisation to a full hearing.

Orders