Whakatôhea Kotahitanga Waka v Te Kâhui Takutai Moana o Ngâ Whânui Me Nga Hapû [2022] NZCA 7 (1 February 2022)

Last Updated: 10 February 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA326/2021 CA327/2021 CA330/2021 CA332/2021 CA339/2021 [2022] NZCA 7

	BETWEEN	WHAKATŌHEA KOTAHITANGA WAKA Applicants
	AND	TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ TE ŪPOKOREHE TREATY CLAIMS TRUST Respondents
	AND	THE ATTORNEY-GENERAL Intervener

Counsel:	R J B Fowler QC, A J Sinclair, M L Sharp, M Sinclair for Whakatōhea Kotahitanga Waka K S Feint QC and S W H Fletcher for Te Kāhui J S Cooper QC and B Lyall for Te Ūpokorehe Treaty Claims Trust R L Roff, R E Budd and S L Gwynn for the Attorney-General
Judgment: (On the papers)	1 February 2022 at 12 pm

JUDGMENT OF CLIFFORD J

The application for stay is declined.
____________________________________________________________________

REASONS

• [1] These proceedings comprise appeals against a decision of the High Court in Re Edwards (Te Whakatōhea No. 2) that various applicants had not “met the tests” set out in s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) for the grant of customary marine titles (CMTs) in the waters of the eastern Bay of Plenty.^[1]
• [2] Whakatōhea Kotahitanga Waka (WKW) is a grouping of the third to the seventh of those appellants.^[2]

Background

• [3] This is an application by WKW for what they describe as a stay of the judgment of the High Court in Re Edwards pending the outcome of their appeals.^[3]
• [4] Following its decision in Re Edwards the High Court will, in a two-week hearing scheduled to begin on 14 February 2022 (the Stage 2 hearing), determine the terms of the orders granting CMTs to the successful applicants.
• [5] As relevant, s 98 of the Act provides for the making of recognition orders in the following terms:

98 Court may recognise protected customary right or customary marine title

(1) The Court may make an order recognising a protected customary right or customary marine title (a recognition order).
(2) The Court may only make an order if it is satisfied that the applicant,—

(a) in the case of an application for recognition of a protected customary right, meets the requirements of section 51(1); or
(b) in the case of an application for recognition of customary marine title, meets the requirements of section 58.

(3) No other court has jurisdiction to make a recognition order.

...

• [6] Section 109 establishes the process for the determination of the form of recognition orders. It provides:

109 Form of recognition order

(1) An applicant group in whose favour the Court grants recognition of a protected customary right or customary marine title must submit a draft order for approval by the Registrar of the Court.

(2) Every recognition order must specify—

(a) the particular area of the common marine and coastal area to which the order applies; and
(b) the group to which the order applies; and
(c) the name of the holder of the order; and
(d) contact details for the group and for the holder.

(3) A protected customary rights order must also include—

(a) a description of the right, including any limitations on the scale, extent, or frequency of the exercise of the right; and
(b) a diagram or map that is sufficient to identify the area.

(4) Every customary marine title order must include—

(a) a survey plan that sets out the extent of the customary marine title area, to a standard of survey determined for the purpose by the Surveyor-General; and
(b) a description of the customary marine title area; and
(c) any prohibition or restriction that is to apply to a wāhi tapu or wāhi tapu area within the customary marine title area.

• [7] Once approved and sealed the Registrar of the Court must provide a copy of the order to the responsible Minister and the Chief Executive of Land Information New Zealand for publication in the Gazette and notification in accordance with the terms of s 110, and entry in the marine and coastal register pursuant to s 114.
• [8] The question of the sealing of a recognition order is addressed separately by s 113:

113 Orders sealed by Court

A recognition order must be sealed—

(a) on the application of the applicant group; but

(b) not before the expiry of the appeal period or the disposal of any appeal.

• [9] It has become the High Court’s practice to deal with applications for recognition orders in two stages:

  (a) Stage 1 hearings determine who the successful applicant groups in a certain area are; and
  (b) Stage 2 hearings determine the nature and content of recognition orders.

• [10] WKW were, broadly speaking, unsuccessful in Re Edwards. They then appealed and applied to the High Court to stay that decision pending this Court’s determination of their appeals. Their position was that, if one or more of their appeals succeed, then it is likely that any final recognition orders previously made by the High Court following the Stage 2 hearing would have to be set aside.
• [11] WKW’s application was opposed by Te Kāhui Takutai Moana o Ngā Whānui Me Nga Hapū (Te Kāhui), a group comprising five applicants who had been successful in Re Edwards regarding CMTs.
• [12] On 25 November 2021, Churchman J declined WKW’s stay application.^[4]
• [13] Applying the relevant tests, the Judge considered the appeal would not be rendered nugatory if a stay was not granted.^[5] There had been an unexplained five‑month delay between the Re Edwards decision and the stay application, during which time the successful applicant groups had done a significant amount of work to prepare for the Stage 2 hearing.^[6] There was a risk the successful parties would be injuriously affected by a stay pending resolution of all appeals.^[7] A stay also risked wasting public resources expended on preparations for the Stage 2 hearing.^[8] Although the issues raised by the appeals were novel and important, not issuing a stay would not prevent those issues being considered. Moreover, the largely factual issues raised by WKW’s appeals would not be reversed by this Court’s answers to the legal issues raised.^[9] The balance of convenience therefore fell against WKW.^[10] In the Judge’s view, WKW’s appeals, faced “formidable hurdles”.^[11]
• [14] Having been unsuccessful in the High Court, WKW applies to this Court for a stay of the High Court’s Re Edwards decision pending the determination of the appeals. In effect, and reflecting the terms of ss 98 and 109 and the High Court’s practice, WKW seek a stay of the Stage 2 hearing. In doing so it says s 113 of the Act, which provides that recognition orders cannot be sealed before any appeals have been disposed of, had not been raised with Churchman J before the decision to proceed to finalise the orders, nor as part of WKW’s application for stay. WKW’s application is again opposed by Te Kāhui. Te Ūpokorehe Treaty Claims Trust, the other successful applicant for a CMT, and the Attorney-General as intervener, indicated they abide this Court’s decision.
• [15] Following a teleconference with the parties on 22 December 2021, I directed the application in this Court be put on hold and for the parties to return to the High Court to bring s 113 to Churchman J’s attention.
• [16] In a minute of 5 January 2022, Churchman J declined to alter his November stay decision. In doing so he observed:

[12] The Court is, and was, aware of s 113. Its terms are self-evident and it provides a recognition order must not be sealed before the expiry of the appeal period or the disposal of any appeal.

[13] Section 113 was not mentioned in either the submissions of counsel in support of the stay application in the High Court, or the decision of 25 November 2021 dismissing that application. The reason for that is, what the WKW appellants were seeking was not to stop the sealing of an order, but to stop the Stage 2 hearing proceeding.

[14] The Court’s decision of 25 November 2021 must speak for itself. It is not appropriate for the Court to engage with the contents of any of the affidavits or memoranda that would appear to have been filed in the Court of Appeal.

[15] Whatever the outcome of Stage 2, it is clear that no order can be sealed until all appeals are disposed of.

• [17] Following that decision, WKW returns to this Court for a decision to be made on its stay application.

This application

• [18] WKW submits that s 113 evinces Parliament’s intent that all appeals be disposed of before recognition orders are finalised, sealed and take legal effect. The public interest favours avoiding the costs, time and administrative issues in having to repeat the process of finalising recognition orders following any successful appeal. WKW says its appeals raise more than just factual matters. Rather, they also raise legal issues, particularly around shared exclusivity, the Pūkenga report, and the granting of orders to Ngāti Awa when it had not applied for them. They may also be affected by the legal issues raised by the other appellants.
• [19] Ms Adriana Edwards has filed an affidavit in support of WKW’s application. She explains that WKW’s delay in applying for a stay was caused by its attempts to obtain agreement amongst all the Whakatо̄hea applicant groups as to a tikanga‑based approach to finalise recognition orders in way that was inclusive of all the groups. WKW initially thought it had been partially successful as they had applied for a customary marine title for all the Whakatо̄hea groups, including the six successful hapū, and the CMT order was made over its application area. However, on 3 September 2021, the High Court confirmed the Edwards applicants could not be involved in finalising the orders as it was not a successful applicant. Having been excluded from that process, WKW decided to file the stay application.
• [20] In opposing WKW’s application, Te Kāhui supports Churchman J’s decision and his reasons for declining it. Section 113 of the Act does not give an explicit indication the finalisation of orders be stayed pending appeals. It is more efficient to proceed to Stage 2; indeed, there would still be utility in doing so irrespective of the appeals’ outcomes. That is, the factual findings WKW dispute on appeal largely concern who is named on the orders rather than the area covered by the orders. Accordingly if WKW succeed on appeal, the mapping work will not have been wasted and the recognition orders could simply be amended as necessary.
• [21] WKW’s reasons for its delay are rejected by Te Kāhui. It says it was not consulted by WKW and says WKW should not be “leading the work”. Ms Edwards’s affidavit amounts to her proceeding on the basis the unsuccessful WKW applicant groups ought to be included in the CMT orders, even though they did not meet the requisite statutory tests.

Analysis

• [22] This application is governed by r 12(3)(a) of the Court of Appeal (Civil) Rules 2005. The principles to be applied in a stay application were set out by this Court in Wootton v Wootton:^[12]

[9] In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.^[13] Factors to be taken into account in this balancing exercise include:^[14]

(a) whether the appeal may be rendered nugatory by the lack of a stay;
(b) the bona fides of the applicant as to the prosecution of the appeal;
(c) whether the successful party will be injuriously affected by the stay;
(d) the effect on third parties;
(e) the novelty and importance of questions involved;
(f) the public interest in the proceeding; and
(g) the overall balance of convenience.

• [23] In my view it is clear WKW’s appeals will not be rendered nugatory if a stay is not granted. That is implicit in WKW’s argument that recognition orders might have to be set aside if any of the appeals are successful.
• [24] WKW’s explanation for the delay does not justify it. It appears to have been mistaken that it was successful as regards CMT orders. As Churchman J directed on 3 September 2021:

In the substantive decision in this matter counsel for those parties who had been successful in obtaining orders for either CMT or PCR were directed to liaise with the other affected parties and to file suggested draft orders by 31 August 2021. An application out of time was ... received on behalf of the [WKW] group. It seeks an extension of time of two further months, until the end of October, to comply with the Court’s directions. I am not prepared to grant the extension until the end of October sought by counsel. Some of the contents of the memorandum seem to ignore what was actually decided in the Edwards/Whakatōhea decision. The parties who were awarded CMT were the six nominated hapu not the various groups represented by the Counsel who signed the memorandum. Some of those groups were awarded PCR. Although discussion and cooperation between the various groups who were awarded PCR is preferable, if that cannot be obtained, then these parties should file draft PCR orders as specified. I am prepared to extent the time for this to happen until 31 October 2021.

The stage two hearing is scheduled to take place early in the new year. Granting a further two months would compromise that fixture date.

(Emphasis added.)

• [25] I do not think the terms of the CMT conclusions made by Churchman J could have been read in any other way but that WKW was not a successful applicant for a CMT.^[15] Accordingly, WKW’s attempts to resolve the issues by way of tikanga resolution would not appear to justify the delay because it simply had no interest in the customary marine title orders.
• [26] If the Recognition Order hearing is, at this late stage, postponed, there will undoubtedly be prejudice to Te Kāhui and the other successful applicant groups. That hearing will involve a large number of parties, lawyers, and members of the public; and the High Court has already set aside two weeks for that hearing. It is because of that potential prejudice that I agree with Churchman J that Jackson v Te Rangi, referred to by WKW, is distinguishable from the present case.^[16] In that case, Duffy J stayed a process for a fresh appointment to a statutory board until an appeal against a judicial review decision, which had found the original appointment was unlawful, was determined. She did so because to proceed with the appointment when there was potential for it to be reversed on appeal would be a waste of public resources.^[17] Here, the preparations made to date, some of which has been publicly funded, may be wasted were a stay to be granted. Moreover, I agree with Te Kāhui that the outcome of the Stage 2 hearing will not be rendered useless if any of the appeals currently before this Court succeed. Those outcomes may be amended if, and to the extent, necessary.
• [27] Moreover, s 113 is clear that recognition orders may not be sealed and come into effect until all appeals are determined. Rather than supporting the conclusion appeals must be determined before a hearing on recognition orders can be made, in my view s 113 supports the opposite conclusion. That is, s 113’s unusual prohibition on sealing pending the outcome of appeals protects appellants from the usual range of prejudice said to arise where a challenged decision proceeds to execution. Nor, in my view, can the applicants point to any other material prejudice. Having been found by Churchman J not to have met the test for recognition orders in the areas in question, it is difficult to see, in the absence of those orders not being sealed until their appeals have been disposed of, what prejudice at all they face. In fact, the costs and inconvenience of a “wasted” recognition order hearing in the event of any of those appeals succeeding would appear to fall on the respondents to that appeal.
• [28] WKW’s application for a stay is therefore declined. If questions of costs arise, they should be addressed separately. If that is the case, those affected are to file a joint memorandum recording their agreement as to how those issues are to be disposed of.

Result

• [29] The application for stay is declined.

Solicitors:
Ngātahi Law, Auckland for Applicants
Annette Sykes & Co, Rotorua for Te Kāhui
Lyall & Thornton, Auckland for Te Ūpokorehe Treaty Claims Trust
Crown Law Office, Wellington for the Attorney-General

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^[1] Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025.

^[2] Claude Edwards (deceased), Adriana Edwards and Ngā Rangatira o Whakatо̄hea me Ngā Hapū Katoa (third appellant); Christina Davis on behalf of Ngāti Muriwai hapū (fourth appellant); Barry Kiwara on behalf of Kutarere Marae (fifth appellant); Larry Delamere on behalf of Pākо̄whai Hapū of Whakatо̄hea (sixth appellant); and Dean Flavell on behalf of Hiwarau C, Taurangapikitoi, Waiо̄tahe and О̄hiwa of Whakatо̄hea (seventh appellant).

^[3] Court of Appeal (Civil) Rules 2005, r 12(3)(a).

^[4] Re Edwards (Te Whakatōhea No. 4) [2021] NZHC 3180.

^[5] At [17](a).

^[6] At [17](b) and (c).

^[7] At [17](c).

^[8] At [17](f).

^[9] At [17](e).

^[10] At [17](g).

^[11] At [17](h).

^[12] Wootton v Wootton [2020] NZCA 478.

^[13] Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.

^[14] Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

^[15] See Re Edwards, above n 1, at [660].

^[16] Jackson v Te Rangi [2015] NZHC 1149.

^[17] At [28].