Tuk�k� and Ng�ti Moe - [2023] NZHC 473

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-267 CIV-2017-485-232 CIV-2017-485-259 CIV-2017-485-224 CIV-2017-485-260 CIV-2017-485-221 [2023] NZHC 473

Group M 1(a)

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

IN THE MATTER OF

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

On the papers:

Counsel:

D Naden, M Yogakumar and M Sreen for Tukōkō and Ngāti Moe (CIV-2017-485-267)

D Naden, M Yogakumar and M Screen for Ngāi Tumāpuhia-a- Rangi Hapū (CIV-2017-485-232)

T Bennion for Ngāti Hinewaka (CIV-2017-485-259)
R Siliciano for Rangitāne Tū Mai Rā Trust (CIV-2017-485-224)

M Houra for Te Ātiawa ki Te Upoko o Te Ika a Maui Potiki Trust (CIV-2017-485-260)

J P Ferguson for Trustees of Ngāti Kahungunu ki Wairarapa

Tāmaki-nui-a-Rua Settlement Trust (CIV-2017-485-221)

Interested parties:

B Lyall for Ngāi Tumapuhia-A-Rangi Ki Motuwairaka Inc and Ngāi Tumapuhia-A-Rangi Ki Okautete Inc

B Scott for Seafood Industry Representatives G Melvin for Attorney-General

Judgment:

10 March 2023

TUKŌKŌ AND NGATĪ MOE [2023] NZHC 473 [10 March 2023]

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 3 April 2017, the applicant, Tukōkō and Ngāti Moe, applied to the Court for recognition orders pursuant to s 98 of the Marine and Coastal Area (Takutai Moana) Act 2011. On 17 February 2023, the applicant filed an amended originating application including four categories of proposed amendments from the original application.

Discussion

Contact details

[2] The first amendment seeks to update the email and phone contact details for the applicant. There is no issue with this.

Correction to description of specified area

[3] The amended application also seeks to correct the description of the northern and southern boundaries. The original application incorrectly described Lake Ferry as being in the northeast and Mataikona (Cape Palliser) as being in the southwest. The amended application seeks to amend the descriptions so that Lake Ferry is described as being in the northwest and Mataikona (Cape Palliser) in the southeast, as is in fact the case.

[4] It is appropriate that the descriptions be amended so they are correct. The amendment correcting the descriptions of the northern and southern boundaries is allowed.

Reduction to specified area

[5] Thirdly, the amended application seeks to amend the direction of the seaward boundary line for the specified area to which the application relates. The original application stated the seaward boundary “extends to a point that is approximately half- way between the North and South Islands and then to the edge of the territorial sea at

12 nautical miles”. The amended application provides that the seaward boundary “extends perpendicularly from Lake Ferry and Mataikona to the outer limits of the territorial sea”. A map of the specified area is provided.

[6] In the Ngāti Pāhauwera (strike-out application) decision, I struck out the amended application on the basis the change applied for was a “considerable” extension which would result in a significantly greater overlap with other application areas and “likely entail the addition of new evidence and inquiries from the parties”.1 It…

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

Case: [2023] NZHC 473
Decision Date: 10 March 2023

CaseChat Overview and Summary

In this case, Tukōkō and Ngāti Moe applied for amendments to their application for recognition orders for customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011. The court was required to decide whether the amendments were permissible, considering factors such as the substance of the changes, potential prejudice to other parties, and the relevance of the new information to the original application. The court examined the nature of the amendments, including updating contact details, correcting the description of the specified area, refining the seaward boundary line, and providing greater detail on the protected customary rights sought.

The court found that the amendments did not introduce new causes of action, nor did they significantly change the nature of the original application. The court noted that the applicant group remained the same, and the specified area was reduced rather than enlarged. Additionally, there appeared to be no objection to the proposed amendment, nor any prejudice to any other party. The court concluded that the amendment to the details of the protected customary rights orders sought was permissible, as the new orders were sufficiently linked to the purposes for which recognition orders were originally sought.

The court allowed the amendments to the application, finding that they did not amount to a fresh cause of action and did not constitute an abuse of the Court's process. The amended application was therefore allowed, and the applicants could proceed with their application for recognition orders for customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011.

The court's decision ensures that the applicants can make necessary amendments to their application without having to start the process anew, provided that the changes are not materially different from the original application and do not prejudice other parties. This approach allows for flexibility in the application process while maintaining the integrity of the Court's jurisdiction.

Orders