Tipene - [2015] NZHC 170

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-806 [2015] NZHC 170

UNDER
the Marine and Coastal Area (Takutai

Moana) Act 2011

IN THE MATTER OF

an application by Denis Wiremu Tipene

On the papers

Counsel:

C D Batt for Mr Tipene
C Linkhorn and A Williams for the Attorney-General
J H Stevens for Te Rūnanga o Ngāi Tahu

Judgment:

13 February 2015

JUDGMENT OF MALLON J

Introduction

[1] Mr Tipene, on behalf of his family, has applied for an order recognising customary marine title in a specified area of the common marine and coastal area.1
The application was to be heard in the High Court at Invercargill at the end of last year. That hearing was adjourned following, amongst other developments, a foreshadowed amended application. The present issue for determination is whether that should proceed as an amended application or whether a new application should be required. Mr Tipene, supported by Te Rūnanga o Ngāi Tahu (Te Rūnanga), says
the former is appropriate, whereas the Attorney-General contends for the latter.

1 Marine and Coastal Area (Takutai Moana) Act 2011, ss 58 and 98.

IN RE TIPENE [2015] NZHC 170 [13 February 2015]

Background

[2] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) came into force on 1 April 2011. There is considerable background to its enactment.2 Against that background, as set out in s 4 of the Act, its purpose is to:

(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and

(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and

(c) provide for the exercise of customary interests in the common marine and coastal area; and

(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).

[3] Under the Act, applications filed in the Māori Land Court were transferred to this Court. Mr Tipene had filed such an application. Following the transfer, this Court held a case management conference in respect of all the applications. Although not required to do so, Mr Tipene travelled to Wellington to attend that conference to inform the Court and the Crown that he intended to pursue his application in the High Court.

[4] At that time Mr Tipene was without legal representation. With some assistance from the Wellington Community Law Centre, Mr Tipene made his application under the Act on 14 November 2011. That application advised that:

(a) Mr Tipene was applying for an order recognising customary marine title;

(b) the application was made on behalf of his family;

2 As set out in the Preamble to the Act, it replaced the Foreshore and Seabed Act 2004 (the 2004
Act). The 2004 Act was in turn a response to the Court of Appeal’s decision in Attorney- General v Ngāti Apa [2003] 3 NZLR 643 (CA) which held that the Māori Land Court had jurisdiction to consider Māori customary…

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 Tipene

Details

AGLC: Tipene [2015] NZHC 170
Case: [2015] NZHC 170
Decision Date: 13 February 2015

CaseChat Overview and Summary

The case, Tipene, involves a legal application under the Marine and Coastal Area (Takutai Moana) Act 2011, brought by Denis Wiremu Tipene on behalf of his family, seeking recognition of customary marine title over a specified area of the foreshore and seabed surrounding Tamaitemioka and Pohowaitai Islands. The case was before the High Court of New Zealand, Wellington Registry. The legal issue before the Court was whether the application should proceed as an amended application or whether a new application should be required. The Attorney-General argued for a new application, while Mr Tipene, supported by Te Rūnanga o Ngāi Tahu, argued for an amended application.

The Court held that the essence of the application had not changed, and that the amendments represented refinements to the application as it progressed. The Court found that the amendments broadened the scope of who may benefit from the application but did not substantively change its nature. The Court concluded that an unduly narrow approach to permissible amendments would be inconsistent with the flexibility expressly given to the Court under the Act and would be inconsistent with the purposes of the Act as well as being consistent with the just, speedy, and inexpensive determination of the proceeding.

The Court declined counsel for the Attorney-General’s invitation to require Mr Tipene to withdraw his application and for a new application to be filed. The Court accepted the second amended application filed on 23 January 2015 in the form it had been filed. The Court directed that it would need to be publicly notified under section 103 and that the parties should consider whether there was any party who should be served with it under section 102. A telephone conference was to take place at 10 am on Monday 16 February 2015.

Orders