Whakat�hea Kotahitanga Waka (Edwards) v Te K�hui Takutai Moana O Ng� Wh�nau Me Ng� Hap� O Te Whakat�hea

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 121/2023
SC 123/2023
SC 124/2023
SC 125/2023
SC 126/2023
SC 127/2023
SC 128/2023
SC 129/2023
[2024] NZSC 77

BETWEEN	WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) NGĀTI MURIWAI HAPŪ KUTARERE MARAE TE ŪPOKOREHE TREATY CLAIMS TRUST ON BEHALF OF TE ŪPOKOREHE IWI ATTORNEY-GENERAL CROWN REGIONAL HOLDINGS LIMITED TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA NGĀTI RUATAKENGA Appellants
AND	TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA WHAKATŌHEA MĀORI TRUST BOARD NGĀI TAI AND RIRIWHENUA HAPŪ TE ŪPOKOREHE TREATY CLAIMS TRUST ON BEHALF OF TE ŪPOKOREHE IWI TE RŪNANGA O NGĀTI AWA WHAKATŌHEA KOTAHITANGA WAKA (EDWARDS) NGĀTI RUATAKENGA LANDOWNERS COALITION INCORPORATED NGĀTI MURIWAI HAPŪ KUTARERE MARAE TE RŪNANGA O TE WHĀNAU ON BEHALF OF TE WHĀNAU-Ā-APANUI BAY OF PLENTY REGIONAL COUNCIL CROWN REGIONAL HOLDINGS LIMITED ŌPŌTIKI DISTRICT COUNCIL SEAFOOD INDUSTRY REPRESENTATIVES WHAKATĀNE DISTRICT COUNCIL Respondents
AND	ATTORNEY-GENERAL TE RŪNANGA O TE WHĀNAU ON BEHALF OF TE WHĀNAU-Ā-APANUI SEAFOOD INDUSTRY REPRESENTATIVES CROWN REGIONAL HOLDINGS LIMITED ŌPŌTIKI DISTRICT COUNCIL BAY OF PLENTY REGIONAL COUNCIL WHAKATĀNE DISTRICT COUNCIL LANDOWNERS COALITION INCORPORATED TE RŪNANGA O NGĀTI AWA Interested Parties

Court:	Glazebrook, Ellen France, Williams, Kós and French JJ
Counsel:	R J B Fowler KC and B M Cunningham for Whakatōhea Kotahitanga Waka (Edwards) M J Sharp for Ngāti Muriwai Hapū and Kutarere Marae J S Cooper KC, B R Lyall and H L B Swedlund for Te Ūpokorehe Treaty Claims Trust on behalf of Te Ūpokorehe Iwi G L Melvin, R L Roff and Y Moinfar-Yong for Attorney-General M H Hill for Crown Regional Holdings Ltd and Ōpōtiki District Council K S Feint KC, A T I Sykes, T H Bennion, M S Smith and C M T Linstead-Panoho for Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea K S Feint KC and N A T Udy for Ngāti Ruatakenga J M Pou for Whakatōhea Māori Trust Board B R Arapere, A E Gordon and E K Rongo for Ngāi Tai and Ririwhenua Hapū J E Hodder KC and B E Morten for Landowners Coalition Inc D M Salmon KC, H K Irwin-Easthope and R K Douglas for Te Rūnanga o Ngāti Awa M K Mahuika and N R Coates for Te Rūnanga o Te Whānau on behalf of Te Whānau-ā-Apanui R M Boyte for Bay of Plenty Regional Council B A Scott, T D Smith and R J J Wales for Seafood Industry Representatives A M B Green and E S Greensmith-West for Whakatāne District Council M K Mahuika for Ngā Hapū o Ngāti Porou
Judgment:	23 July 2024

JUDGMENT OF THE COURT

AThe application by Ngā Hapū o Ngāti Porou for leave to intervene is granted.

BCosts are reserved on this application and on the substantive hearing.

____________________________________________________________________

REASONS

Ngā Hapū o Ngāti Porou Management Arrangement Trusts comprise six trusts established for the purposes of the Act: Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 (the Ngāti Porou Act). They were settled as part of the Ngāti Porou settlement with the Crown to represent the various hapū groupings located along the Ngāti Porou coastline for the purposes of (among other things) advancing marine and coastal area negotiations with the Crown. We are advised that, to date, 18 separate coastal marine titles have been created by Order in Council pursuant to this arrangement. Negotiations are ongoing.
The applicants, Ngā Hapū o Ngāti Porou, apply to intervene in the current proceeding. They argue that, as the continuing negotiations under the Ngāti Porou Act will be impacted by the tests ultimately found by this Court to apply pursuant to Marine and Coastal Area (Takutai Moana) Act 2011 applications, Ngā Hapū o Ngāti Porou will be directly affected by the outcome in these appeals.[1] In addition, the applicants submit that they bring a unique perspective to the case as they have been engaged with the Crown since late 2003 and have coastal marine titles in place. They will therefore be able to assist the Court in terms of their experience of the practical implications of the regime.
[1]Ngā Hapū o Ngāti Porou note that they are also applicants under the Marine and Coastal Area (Takutai Moana) Act 2011 (though they see these applications as a back-stop if negotiations fail).
No party opposes the application and the Attorney-General has advised she will abide the Court’s decision.
For a number of reasons we are satisfied that the application should be granted.[2]
[2]See Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11]; McClintock v Attorney-General of New Zealand [2015] NZHC 1280 at [44]; Alpha Dairy NZ Ltd v Auckland Council [2019] NZHC 2263 at [5]; and Mohamed v Guardians of New Zealand Superannuation [2020] NZHC 1324, [2021] 2 NZLR 603 at [7]–[10] and [14]–[19].
First, the issues raised in the present appeals are novel and potentially far‑reaching. Further, we accept that Ngā Hapū o Ngāti Porou will bring a distinctive and potentially useful perspective to the issues that must be addressed, a perspective unlikely to be replicated by other appellant or cross-appellant parties. We are likely to be assisted by hearing that perspective.
Second, the rights sought to be protected by the applicants are likely to be directly affected by the outcome in the current appeals.
Third, in light of the applicants’ engagement with the Crown in a parallel bespoke process, it cannot be assumed that the applicants will be able to rely on one or another of the parties to the appeals to protect their affected rights.
Fourth, there appears to be no risk of prejudice or unfairness to other parties, as reflected in the absence of any objection. That said, there is the potential for the proceeding to be unhelpfully lengthened by allowing the intervention, but whether that can be justified by the additional value of the intervention is a matter that may be addressed once Ngā Hapū o Ngāti Porou’s written submissions are filed.
Finally, all matters considered, we do not take the view that granting the application would unnecessarily expand the issues in the appeals, nor does it need to unnecessarily lengthen the hearing or increase costs.
The application is granted. The applicants may file written submissions in accordance with timetabling directions to be provided in due course. Costs are reserved on this application and on the substantive hearing.

Solicitors:

Ngātahi Law, Auckland for Whakatōhea Kotahitanga Waka (Edwards)
Te Aro Law, Wellington for Te Ūpokorehe Treaty Claims Trust on behalf of Te Ūpokorehe Iwi
Whāia Legal, Wellington for Te Rūnanga o Ngāti Awa
Te Haa Legal, Ōtaki for Ngāti Muriwai Hapū and Kutarere Marae
Annette Sykes & Co, Rotorua for Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea and Ngāti Ruatakenga
Tu Pono Legal Ltd, Rotorua for the Whakatōhea Māori Trust Board
Oranganui Legal, Paraparaumu for Ngāi Tai and Ririwhenua Hapū
Franks Ogilvie, Wellington for Landowners Coalition Inc
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Attorney-General
Kāhui Legal, Wellington for Te Rūnanga o Te Whānau on behalf of Te Whānau-ā-Apanui, and Ngā Hapū o Ngāti Porou
Chapman Tripp, Wellington for Seafood Industry Representatives
Cooney Lees Morgan, Tauranga for Crown Regional Holdings Ltd, Ōpōtiki District Council and Bay of Plenty Regional Council

Brookfields Lawyers, Auckland for Whakatāne District Council

The case before the Supreme Court of New Zealand involves a complex dispute over the ownership and management of marine and coastal areas. The primary appellants are Whakatōhea Kotahitanga Waka (Edwards), Ngāti Muriwai Hapū, Kutarere Marae, and Te Ūpokorehe Treaty Claims Trust on behalf of Te Ūpokorehe Iwi, contesting the decisions made by Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea and other respondents. The case revolves around the interpretation and application of the Marine and Coastal Area (Takutai Moana) Act 2011, which governs the establishment and management of marine and coastal areas in New Zealand. The legal issues at the core of this dispute include the scope of the Act, the criteria for determining ownership and management of marine and coastal areas, and the procedural fairness in the decision-making process. The court was tasked with determining whether the decisions of the respondents were in accordance with the law and whether the appellants' rights under the Act were adequately protected.

The Supreme Court, in its judgment, addressed the application by Ngā Hapū o Ngāti Porou for leave to intervene in the proceedings. The court granted the application, noting the potential impact of the case's outcome on the ongoing negotiations under the Ngāti Porou Act. The court found that the intervention would not unnecessarily expand the issues in the appeals or increase costs significantly. The decision to grant leave to intervene was based on the unique perspective that Ngā Hapū o Ngāti Porou could offer, given their extensive engagement with the Crown and their existing coastal marine titles. The court also considered the absence of any objections from the other parties and the potential benefits of having an additional viewpoint in the proceedings. The court reserved costs on this application and on the substantive hearing.

In summary, the Supreme Court granted the application by Ngā Hapū o Ngāti Porou to intervene in the ongoing appeals. The decision was made on the grounds that the intervention would provide a valuable perspective and that there was no significant risk of prejudice to other parties. The court's judgment highlights the importance of considering the broader implications of legal decisions on related processes and the potential benefits of allowing additional parties to contribute to the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established