Whakat�hea Kotahitanga Waka (Edwards) v Te K�hui Takutai Moana O Ng� Wh�nau Me Ng� Hap� O Te Whakat�hea
[2024] NZSC 77
•23 July 2024
| 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) |
| AND | TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNAU ME NGĀ HAPŪ O TE WHAKATŌHEA |
| AND | ATTORNEY-GENERAL |
| Court: | Glazebrook, Ellen France, Williams, Kós and French JJ |
Counsel: | R J B Fowler KC and B M Cunningham for Whakatōhea Kotahitanga Waka (Edwards) |
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.
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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
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