Tipene, re

[2015] NZHC 2923

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-806 [2015] NZHC 2923

UNDER  the Marine and Coastal Area (Takutai

Moana) Act 2011

IN THE MATTER OF       an application by Denis Wiremu Tipene

Hearing:                   Various dates (teleconferences and on the papers)

Judgment:                16 October 2015

Reasons:                  23 November 2015

JUDGMENT OF MALLON J

Introduction

[1]      Mr Tipene has applied under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) for an order recognising customary marine title.  That application is to be heard in the High Court at Invercargill in the week beginning 23 November

2015.   This judgment concerns the appointment of a pūkenga under the Act in

respect of that hearing.

[2]      On 16 October 2015 I gave the following decision:

Appointment of Pūkenga:

Thank you for the helpful and thorough submissions recently filed on the above matter.  I have had the opportunity to review them and to review the earlier memoranda on this matter.   I have given the matter careful consideration and have reached my decision. As the hearing date is looming I am issuing my decision now, with my reasons to follow later.

My decision is that Ms Jane Davis's earlier appointment as Pūkenga in this proceeding is reconfirmed.

I would like Ms Davis to be able to get underway with her report as soon as possible.  If the registry does not have her contact details the applicant is to

Re Tipene [2015] NZHC 2923 [16 October 2015]

provide them to the Court.  I have in mind that her report will be provided to the Court and the parties by 6 November (that is, in three weeks).   That would provide the parties with two weeks to consider whether her report should cover any additional matters, or whether cross examination is necessary or whether they wish to have other expert evidence on the matters of tikanga addressed in the report.

In any case I consider it likely to be necessary for Ms Davis to attend the hearing - I expect that I will find it helpful to have the opportunity to have some of the matters that may be covered in the report clarified through question/answers at the hearing to assist my understanding.

I note the parties have put forward different proposals as to what matters of tikanga the report should cover.   My view is that it should cover all the topics the parties have put forward: that is those set out at para 10.1 and 10.2 of the 22 September 2015 memorandum of the applicant and Te Rūnanga o Ngāi Tahu, as well as those set out at para 39.1 to 39.5 of the Attorney- General's memorandum dated 2 October 2015.   It may be that once the report is received or is considered further at the hearing it will become apparent that there are other matters that need to be covered.

[3]      I now set out my reasons for that decision.

The background

[4]      Mr Tipene’s application relates to an area around the islands of Pohowaitai and Tamaitemioka.  His application is made for the benefit of Rakiura Māori with customary interests around those islands.

[5]      An order for recognition of customary marine title can only be made if the applicant group holds the area “in accordance with tikanga”.1   The Act provides that the advice of a pūkenga may be obtained if an application for a recognition order raises a question of tikanga.2

[6]      At an earlier stage of the proceeding the Crown raised the issue of whether a

pūkenga might be appointed.  The parties gave consideration to this.  On 5 August

2014 the applicant advised that he agreed to the appointment of a pūkenga.  On 13

August 2014 the Crown advised that it supported the appointment of a pūkenga.  The

Crown  submitted  that  in  determining  who  should  be  appointed,  the  criteria considered should include the desirability of appointing a person who:

1      Marine and Coastal Area (Takutai Moana) Act 2011, s 58(1)(a). This is one of two requirements.

The other is set out in s 58(1)(b).

2      Section 99(1)(b).

(a)      is widely acknowledged as holding expertise in tikanga Māori;

(b)has an awareness of any applicable significant regional variations in tikanga; and

(c)      does not have a direct interest in the application through affiliation and adherence to the applicant group or other participants in the litigation who contest the application.

[7]      The person initially proposed by the applicant was Dr Terry Ryan.  However, Dr Ryan advised that he did not consider himself appropriate for the role and that he would decline appointment.

[8]      On 27 August 2014 I granted the application of Te Rūnanga o Ngāi Tahu (Te

Rūnanga) to appear and be heard on Mr Tipene’s application for a recognition order.3

In  a  joint  memorandum  dated  10  September  2014  Mr Tipene  and  Te  Rūnanga advised that they proposed Ms Jane Davis as pūkenga for this application.   The memorandum advised:

Ms Davis has confirmed her availability.  Ms Davis is a Rakiura Māori, and as such she has an interest.  She was previously a member of the Ngāi Tahu Māori Trust Board and a director on Ngāi Tahu Holdings Corporation.  Ms Davis has been awarded a QSM for services to Māori.

[9]      The Crown advised that it abided the Court’s decision with respect to her appointment.  On 11 September 2014 I appointed Ms Davis as pūkenga for this application.

[10]     Subsequently the Crown advised that it had learned that Ms Davis is an owner of Pohowaitai Island.  It accepted that Ms Davis has the relevant expertise but wished  to  consider  further  whether  she  should  remain  pūkenga  in  light  of  that interest.  Having considered the matter, on 30 January 2015 the Crown advised that it considered her appointment should be brought to an end.  It considered that, as an owner of Pohowaitai Island, Ms Davis has a direct interest in the application.  As such she could not be considered an independent expert.   The Crown said that it

would have objected to her appointment had it known of her interest as an owner of

Pohowaitai Island.

[11]     By  agreement  of  the  parties  the  issue  was  left  in  abeyance  while  they progressed other matters, including filing an amended application and completing the preparation of their evidence for the hearing.

[12]     In September 2015 the Crown’s position was that, if the Court considered it would be assisted by a report from a pūkenga, the Crown would nominate Professor Roger Maaka.  Mr Tipene and Te Rūnanga remained of the view that Ms Davis was the appropriate person.  The parties were given the opportunity to consider this further.   Failing agreement they were given the opportunity to file further submissions on the topic.  The Crown then learned that Professor Maaka was also an owner of Pohowaitai Island and as such was also not independent.  But for this interest, the Crown considered Professor Maaka would be ideal for the role given his knowledge and experience in tikanga.

[13]     The parties filed further submissions.  Having considered them I issued the decision set out above.4

Should a pūkenga be appointed?

[14]     The first issue is whether a pūkenga should be appointed at all.  The Crown submitted that a pūkenga was not needed.  It considered that issues of tikanga could be addressed adequately through the evidence of the parties.  The Crown noted that its position on the need for independence was not intended to cause prejudice to the applicant.  It proposed that if further evidence about applicable tikanga was required, leave could be given to file late evidence.

[15]     My view is that it is appropriate to appoint a pūkenga.  That had been the view of the parties up until difficulties arose over who should be appointed.   An order for recognition of customary marine title can only be made if the applicant group holds the area in accordance with tikanga.  The tikanga relevant to the area is

therefore a fundamental issue.   That subject is one on which the Court requires expert assistance.  The appointment of a pūkenga is one of the mechanisms that the Act provides for the Court to obtain that assistance.5   While it is open for the parties to adduce their own expert evidence on tikanga, a court-appointed pūkenga enables the Court to better oversee the process.  There are also cost implications for the applicant if he is required to adduce the expert evidence.

Does  Ms  Davis’  interest  in  Pohowaitai  Island  render  her  appointment  as

pūkenga inappropriate?

[16]     The power to appoint a pūkenga is expressed in these terms:

99       Court  may  refer  to  Māori  Appellate  Court  or  pūkenga  for

opinion or advice on tikanga

(1)       If an application for a recognition order raises a question of tikanga, the court may—

…

(b)       obtain the advice of a court expert (a pūkenga) appointed in accordance with the High Court Rules who has knowledge and experience of tikanga.

[17]     Rule 9.36 of the High Court Rules provides:

9.36     Appointment of court expert

(1)      In a proceeding that is to be tried by Judge alone and in which a question for an expert witness arises, the court may at any time, on its own initiative or on the application of a party, appoint an independent expert, or, if more than 1 such question arises, 2 or much such experts, to inquire into and report upon any question of fact or opinion not involving questions of law or of construction.

(2)       An expert appointed under subclause (1) is referred to in this rule and in rules 9.37 to 9.42 as a court expert.

(3)       A court expert in a proceeding must, if possible, be a person agreed upon by the parties and, failing agreement, the court must appoint the court expert from persons named by the parties.

(4)       A person appointed as an independent expert in a proceeding under rule 9.44(3) may not be appointed as a court expert unless the parties agree.

5      Another mechanism is by referring the matter to the Māori Appellate Court for its opinion.  The opinion of the Māori Appellate Court is binding on the Court but the advice of a pūkenga is not. See Marine and Coastal Area (Takutai Moana) Act 2011, s 99(1)(a) and (2).

[18]     The Crown submits that a pūkenga must be an “independent expert” because s 99(1)(b) provides that a pūkenga is to be “appointed in accordance with the High Court Rules,” and r 9.36(1) refers to the appointment of “an independent expert.”  It submits that “independent” in this context means independent of the participants in the case.  To meet that requirement it submits that the person must not have past or present  relationships,  associations  or  interests  with  the  participants  that  would

materially influence their decisions.6

[19]     It makes the following points in support of this submission:

(a)      By selecting the system of independent court experts under the High Court Rules, Parliament has expressly required independence for pūkenga appointees.

(b)Court-appointed experts differ from expert witnesses called by parties, where the degree of an expert’s relationship with the party calling their evidence is now seen as a matter of weight rather than admissibility.7

(c)      It  has  been  said  that  Court-appointed  experts  are  to  have  “the appearance of absolute independence”8  or are to be “essentially non- partisan”.9

[20]     The question raised is one of statutory interpretation.  The words are to be interpreted from their text and in the light of their purpose.10

[21]     In my view it is not clear from the words of s 99(1)(b) of the Act that

Parliament intended that a pūkenga must be an “independent” court expert in the

sense of having no relationship, association or interest connected with the parties or

6      Applying the interpretation of “independent” in a statutory provision requiring an “independent chairperson” in New Zealand Greyhound Racing Association (Incorporated) v Minister for Racing [2013] NZHC 245, [2013] NZAR 374.

7      Smith v Attorney-General [2010] NZCA 258 at [67].

8      Reaney v Rachmaninov (2008) 20 PRNZ 199 (HC) at [29].

9      Taylor v Chief Executive of the Department of Corrections HC Auckland CIV-2009-404-7339,

13 April 2010 at [33]

10     Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767.

with the subject matter of the application.  The section refers to obtaining the advice of “a court expert (a pūkenga)”.  It does not refer to “an independent court expert (a pūkenga).”  The section provides that a pūkenga is to be “appointed in accordance with the High Court Rules.” Arguably, Parliament only intended that the High Court Rules procedure for appointing a court expert was to apply in appointing a pūkenga, not the approach in r 9.36(1) as to who may qualify as “a court expert”

[22]     I note that r 9.36(1) provides the power to appoint an independent court expert “to inquire into and report upon any question of fact or opinion not involving questions of law or of construction.”  Rule 9.36(5) elaborates on this by explaining that the expert must have knowledge or experience that makes their opinion admissible.    Rule  9.36(2)  provides  that  an  expert  appointed  under  r  9.36(1)  is referred to in the relevant rules as “a court expert”.  Rule 9.36(3) and (4) then provides the procedure for deciding upon the expert.  Subsequent rules concern how the  question  for  the  expert  is  to  be  settled,  receipt  of  the  expert’s  report,  the possibility of further reports and cross examination, and other matters.

[23]     It is possible to read “the court may obtain the advice of a court expert (a pūkenga) … who has knowledge and experience of tikanga” in s 99(1)(b) as corresponding with, and replacing for the purposes of the Act, r 9.36(1), (2) and (5). The remaining rules, which concern how the court expert is to be appointed, are however to apply to the pūkenga to be appointed.

[24]     In any event, I consider that the primary requirement for appointment is that the pūkenga has relevant “knowledge and experience of tikanga”.  It is not in dispute that the relevant tikanga is that which relates to the area that is the subject of the application. The subject area may well have its own tikanga that differs from tikanga in other areas.  The Act requires both “knowledge and experience” of tikanga.  As the submissions of Te Rūnanga put it, the requirement for “experience” indicates a need for “a practical, lived experience of the tikanga of the application area”.  As Te Rūnanga further submitted:

The persons with knowledge and experience of tikanga around Pohowaitai and Tamaitemioka are, virtually by definition, likely to be those who also are owners of those islands, or those related by whakapapa to the owners of the islands. They will certainly be Rakiura Māori.

[25]     It is also relevant that there is likely to be a relatively small pool of persons who have the necessary knowledge and expertise.  The limited pool of suitable candidates,  and the practical reality that relevant knowledge and  experience  are likely to derive from an association with the area, is somewhat reinforced by the position of Professor Maaka who, as it turned out, also has a direct interest as an owner of Pohowaitai Island.

[26]     In this important legislation, obtaining the advice of a person with relevant knowledge and experience must outweigh the need for strict independence in the sense of someone with no relationship, association or interest connected with the parties or the subject matter of the application.  Moreover, in the context of an expert appointed by the Court under r 9.36(1), it is recognised that there will be “occasions when an expert who has previously had some involvement in the affairs of the

parties may be an appropriate choice.”11

[27]     Prior  to  learning  of  Ms  Davis’ interest  in  Pohowaitai  Island,  all  parties accepted that she was an appropriate candidate.   I consider that her interest is not such that her advice to the Court on tikanga cannot be of assistance.  As she was put forward and appointed prior to the Crown’s proposal that Professor Maaka be appointed,  there  is  no  appropriate  reason  to  replace  her  with  Professor  Maaka. Ms Davis’ interest may be relevant to the weight the Court should place on her advice.  It is open to the parties to make submissions about that.  It is also open to the

parties to propose further advice that should be sought from Ms Davis12 and to cross

examine her on her report.13   Her appointment also does not prevent the parties from obtaining and relying on expert evidence from others.14

Mallon J

11     Reaney v Rachmaninov, above n 8, at [29].

12     High Court Rules, r 9.38.

13     Rule 9.40.

14     Rule 9.42.