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…

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, re

Details

AGLC: Tipene, re [2015] NZHC 2923
Case: [2015] NZHC 2923
Decision Date: 23 November 2015

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether the applicant, Denis Wiremu Tipene, could have his customary marine title recognised. The applicant sought recognition of title over an area around the islands of Pohowaitai and Tamaitemioka for the benefit of Rakiura Māori with customary interests in the area. The court was required to decide two main issues: whether a pūkenga should be appointed under the Marine and Coastal Area (Takutai Moana) Act 2011, and if so, who should be appointed. The court also needed to determine whether Ms Jane Davis' interest in Pohowaitai Island would render her appointment as pūkenga inappropriate.

The court first considered whether a pūkenga should be appointed at all. The Crown argued that a pūkenga was not necessary and that the evidence of the parties could adequately address issues of tikanga. However, the court held that a pūkenga should be appointed as the subject of tikanga is fundamental to the recognition of customary marine title. The court also noted that appointing a pūkenga enables the court to better oversee the process and mitigates cost implications for the applicant. The court then examined whether Ms Davis' interest in Pohowaitai Island made her appointment inappropriate. The Crown argued that Ms Davis' interest rendered her appointment inappropriate as she was not independent. The court disagreed, holding that while independence is a desirable quality for a pūkenga, it is not a requirement under the Act. The court found that Ms Davis' expertise and experience in tikanga outweighed the need for strict independence, and her appointment was reconfirmed. The court also noted that Ms Davis' interest is relevant to the weight her advice should carry, and it is open to the parties to make submissions about that and propose further advice to be sought from Ms Davis.

Orders