Te Whakatohea preliminary hearing application - [2020] NZHC 1549

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 1549

IN THE MATTER OF the Marine and Coastal Area (Takutai Moana) Act 2011

AND

an application by the late CLAUDE AUGUSTIN EDWARDS (deceased), ADRIANA EDWARDS and others on behalf of TE WHAKATŌHEA for a recognition order of protected customary rights and/or customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011

On the papers:

Counsel:

Y Singh, T Sinclair and B Cunningham for Applicant

Judgment:

2 July 2020

JUDGMENT OF CHURCHMAN J

[Te Whakatōhea preliminary hearing application]

[1] By a memorandum dated 30 June 2020, the applicant in this matter applies for various directions. Although r 10.15 of the High Court Rules 2016 (HCR) is not specifically mentioned, it appears that counsel are inviting the Court to consider and determine certain issues in advance of the hearing in this case which has been set down for an eight-week hearing commencing in mid-August this year.

[2] The applicant appears to want a pre-trial ruling as to whether “Te Ūpokorehe iwi” is a separate iwi or a hapū of Te Whakatōhea iwi.

Te Whakatōhea preliminary hearing application [2020] NZHC 1549 [2 July 2020]

[3] The memorandum notes that what it describes as the Te Ūpokorehe hapū elect representatives to the Whakatōhea Māori Trust Board which represents Te Whakatōhea iwi and that several Te Ūpokorehe hapū members have filed evidence in support of the Whakatōhea priority application.

[4] The applicant seeks directions from the Court that Te Ūpokorehe produce certain documents and answer certain questions including the basis upon which Te Ūpokorehe constituted itself an iwi.

[5] The memorandum then refers to the possibility of applying to the Court for a direction under s 61(1)(b) of the Te Ture Whenua Māori Act 1993, or an application to the Court under s 99 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act).

Legal issues

[6]The memorandum raises a number of discrete legal issues:

(a)the application of HCR 10.15 in respect of preliminary determinations;

(b)the issue of who can be an applicant under the Act;

(c)the referral of questions of tikanga to the Māori Appellate Court or a pukenga.

HCR 10.15

[7] HCR 10.15 gives the High Court jurisdiction to decide a question or questions separately from any other question before, at or after, any trial or further trial. That discretion must be exercised in accordance with principle. The principles have been developed in the caselaw.

[8] The starting point is the assumption that all matters in issue are to be determined in one trial because that would normally be the most expeditious and

efficient manner of dealing with the proceedings.1 The burden of displacing the presumption rests on the party contending for a split hearing.2

[9] Among the many factors the Court has recognised as being potentially relevant in exercising the discretion, is the impact on the length of any subsequent hearing in determining a preliminary…

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 Te Whakatohea preliminary hearing application

Details

AGLC: Te Whakatohea preliminary hearing application [2020] NZHC 1549
Case: [2020] NZHC 1549
Decision Date: 2 July 2020

CaseChat Overview and Summary

The case of Te Whakatōhea preliminary hearing application involved an application by the late CLAUDE AUGUSTIN EDWARDS (deceased), ADRIANA EDWARDS and others on behalf of TE WHAKATŌHEA for a recognition order of protected customary rights and/or customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011. The applicant sought various directions, including whether "Te Ūpokorehe iwi" is a separate iwi or a hapū of Te Whakatōhea iwi, and the production of certain documents and answers by Te Ūpokorehe. The legal issues included the application of HCR 10.15 in respect of preliminary determinations, the issue of who can be an applicant under the Act, and the referral of questions of tikanga to the Māori Appellate Court or a pukenga.

The court considered the legal issues raised by the applicant. It was noted that HCR 10.15 gives the High Court jurisdiction to decide a question or questions separately from any other question before, at or after, any trial or further trial. However, the court found that a determination as to whether Te Ūpokorehe are an iwi or a hapū of Whakatōhea will not resolve the issue of whether they are entitled to advance a claim under the Act. Additionally, the court found that it is not for the Court to direct who can or cannot advance an application. While applicants are entitled to apply for directions under either s 99 of the Act or s 61(1)(b) of the Te Ture Whenua Māori Act 1993, the Court has a discretion as to whether it accepts such an application, and whether the issue is dealt with either by a pukenga or the Māori Appellate Court.

The court declined the application for a preliminary hearing and the provision of directions for the reasons set out above. The applicant remains free to raise these issues during the course of the substantive hearing.

No specific orders were made in this case.

Orders