Whakat�hea Kotahitanga Waka (Edwards) v Te K�hui and Whakat�hea M�ori Trust Board
[2023] NZCA 644
•14 December 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA303/2021 CA314/2021 CA326/2021 CA327/2021 CA330/2021 CA332/2021 CA339/2021 [2023] NZCA 644 |
| BETWEEN | WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) |
| AND | TE KĀHUI AND WHAKATŌHEA MĀORI TRUST BOARD |
| AND | ATTORNEY-GENERAL |
| Court: | Cooper P, Miller and Goddard JJ |
Counsel: | J S Cooper KC, B R Lyall and HLB Swedlund for Applicants |
Judgment: | 14 December 2023 at 11.00 am |
JUDGMENT OF THE COURT
(On recall application by Te Ūpokorehe Treaty Claims Trust)
The application for recall is declined.
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REASONS OF THE COURT
(Given by Miller J)
Te Ūpokorehe have moved for recall of this Court’s judgment of 18 October 2023.[1] They contend that:
(a)The Court allowed Te Ūpokorehe’s appeal on the grounds that:
(i)In the High Court decision, “[t]he Judge did not separately address Te Ūpokorehe’s application…In effect, Te Ūpokorehe were treated as part of the Board/Te Kāhui applications and included in Orders 1 and 2”;[2]
(ii)“…Te Ūpokorehe could insist on the Court deciding their application to hold a substantial part of the specified area to the exclusion of the other hapū…”;[3] and
(iii)“The record does not permit the place-by-place and area‑by‑area analysis that, as the pūkenga recognised, would be required to distinguish Te Ūpokorehe from the other hapū and identify any areas where the iwi acted as a collective and so might be granted a jointly held recognition order.”[4]
(b)The Court accordingly ordered that Order 1 must be set aside and Te Ūpokorehe’s application reconsidered but then held later in its judgment that Order 2 (Ōhiwa Harbour) was upheld.[5]
(c)The grounds for upholding Te Ūpokorehe’s appeal and remitting Order 1 to the High Court apply equally to Order 2. No distinction between them is made in the part of the judgment addressing Te Ūpokorehe’s appeal. Therefore, it appears there was an error or oversight by the Court in failing to make an order to set aside Order 2 and remit it to the High Court alongside Order 1.
[1]Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504.
[2]At [284], see also [268].
[3]At [285].
[4]At [286].
[5]At [295]–[296], [323]–[324] and [353].
The recall application is opposed by Te Rūnanga o Ngāti Awa and Te Kāhui. Ngāti Awa contend that:
(a)the matters raised by Te Ūpokorehe are properly matters of appeal and they include findings of fact (notably, those in [324] of the judgment) which can only be challenged by appeal;
(b)leave to appeal has been sought on grounds that encompass Order 2;
(c)before this Court Te Ūpokorehe did not challenge the inclusion of Ngāti Awa in CMT over Ōhiwa Harbour; on the contrary, they accepted (subject to a discrete complaint about Ngāti Ngahere) that CMT could be shared, albeit on an overlapping rather than joint basis; and
(d)this Court correctly recorded that Order 2 was no longer in dispute among the applicant groups, the only remaining challenge to that order being by the Landowners Coalition.
Te Kāhui contend that:
(a)the Court correctly distinguished between the evidence relating to Order 1, and Order 2, including in relation to Te Ūpokorehe’s appeal:
(i)the Court did not accept that the Applicant could hold a separate, overlapping CMT;[6]
(ii)Te Ūpokorehe abandoned their challenge to the inclusion of Ngāti Awa in Order 2;
(iii)the Court rejected Te Ūpokorehe’s challenge to the inclusion of Ngāti Ngahere in the CMT orders;[7]
(iv)the Court otherwise rejected arguments that the evidence did not support a finding of CMT in relation to Order 2;[8]
(v)Te Ūpokorehe accepted they have interests in the area covered by Order 2, whereas they specifically disclaimed inclusion in a CMT east of the Waiōweka River (in Order 1), and the Court ordered a rehearing on this basis;[9]
(c)Te Ūpokorehe have sought leave to appeal on the issues which are the subject of the Application.
[6]At [209].
[7]At [288].
[8]At [324] and [330].
[9]At [285].
We accept that recall might be warranted if this Court misunderstood Te Ūpokorehe’s case, proceeding on a mistaken assumption about consensus among applicant groups. But the decision to uphold Order 2 was not an oversight.
The position in argument before us was that Te Ūpokorehe accepted that applicant groups, including Ngāti Awa, had shared interests in the Ōhiwa Harbour. They made an exception for only one hapū, Ngāti Ngahere, who as Te Ūpokorehe saw it had failed to adduce evidence of their interest. Te Ūpokorehe’s argument was that the legislation accommodates shared interests because more than one applicant group may be granted CMT over the same areas. We agree with counsel for Ngāti Awa and Te Kāhui that this is an issue which can only be addressed through an appeal.
Further, we reviewed the evidence and found at [324] and [330] that it sustained the High Court’s decision, the trial Judge’s undue reliance on the pūkenga report notwithstanding. A challenge to those findings is ultimately a question of evidential sufficiency which should be decided on appeal.
Finally, Te Ūpokorehe’s application for leave to appeal to the Supreme Court asserts errors of fact and logic in this Court’s decision. If made out, those errors would appear to justify the relief sought from the Supreme Court; namely, an order remitting Order 2 for rehearing along with the other CMT Orders.
For these reasons the recall application is declined.
Solicitors:
Te Aro Law, Wellington for Applicant
Bennion Law, Wellington for Te Kāhui
Whāia Legal, Wellington for Te Rūnanga o Ngāti Awa
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