Waaka v Trustees of the Maungaharuru-Tangitu Trust [2023] NZCA 408 (31 August 2023)

Last Updated: 7 September 2023

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

CA709/2022 [2023] NZCA 408

	BETWEEN	TORO WAAKA, CHAANS TUMATAROA-CLARKE, GERALD ARANUI, CHARLES LAMBERT, THERESA THORNTON, SIOBHAN STOREY AND TOM KEEFE AS TRUSTEES OF THE NGĀTI PĀHAUWERA DEVELOPMENT TRUST Applicants
	AND	THE TRUSTEES OF THE MAUNGAHARURU-TANGITŪ TRUST FOR AND ON BEHALF OF NGĀTI KURUMŌKIHI, NGĀTI MARANGATŪHETAUA, NGĀTI WHAKAARI, NGĀI TAUIRA, NGĀI TE RURUKU KI TANGOIO AND NGĀI TAHU Respondents

Hearing:	14 August 2023
Court:	Cooper P, Gilbert and Goddard JJ
Counsel:	S A Grant and R N Smail for Applicants K M Anderson and M J Dicken for Respondents G L Melvin and C C Barnett for Attorney-General as Interested Party M K Mahuika for Ngāti Pārau as Interested Party
Judgment:	31 August 2023 at 10.00 am

JUDGMENT OF THE COURT

1. The application by Ngāti Pāhauwera for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is adjourned.
2. We direct that the application:

(a) be heard at the same time as the appeal from the High Court strike out decision ([2020] NZHC 1139); and

(b) be heard at the same time as the substantive appeals from the High Court Stage One and Stage Two decisions ([2021] NZHC 3599 and [2023] NZHC 15).

100. Leave is granted to Ngāti Pāhauwera to file, as evidence in support of their application for an extension of time, the parts of Mr Waaka’s affidavit sworn on 9 February 2023 set out at [34] below.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

• [1] On 22 December 2021 the High Court delivered a substantive judgment in respect of applications by Ngāti Pāhauwera, the Maungaharuru-Tangitū Trust (MTT), Ngāti Pārau and Ngāi Tahu ō Mōhaka Waikare under the Marine and Coastal Area (Takutai Moana) Act 2011 (Stage One decision).^[1]
• [2] On 19 January 2023 the High Court delivered a substantive judgment on a number of outstanding issues that had not been determined by the Stage One decision (Stage Two decision).^[2]
• [3] Four appeals to this Court have been filed from the Stage One decision (the Stage One appeals). Three appeals have been filed from the Stage Two decision (the Stage Two appeals).^[3] The Stage One appeals and Stage Two appeals will be heard together: a 10-day fixture before the Permanent Court is to be allocated.
• [4] This judgment relates to a further proposed appeal by Ngāti Pāhauwera. Ngāti Pāhauwera wish to appeal against a decision of the High Court delivered in May 2020 striking out part of that iwi’s application for recognition orders under s 107 of the Act (the strike out decision).^[4] Ngāti Pāhauwera had a right of appeal against the strike out decision, but did not file an appeal within the prescribed timeframe.^[5] Ngāti Pāhauwera now seek an extension of time to pursue that appeal, under r 29A of the Court of Appeal (Civil) Rules 2005 (Rules). That application is opposed by MTT and Ngāti Pārau. The Attorney-General abides the decision of this Court.
• [5] We have concluded that it would be premature to decide whether an extension of time should be granted. Rather, it is in the interests of justice for that application to be heard at the same time as the proposed appeal from the strike out decision, together with the Stage One and Stage Two appeals. The panel that hears the Stage One and Stage Two appeals will be better placed to determine whether the extension of time should be granted.
• [6] Our reasons for adopting this approach are set out briefly below.

Background

• [7] Ngāti Pāhauwera filed its application to the High Court for recognition orders under the Act on 15 March 2017. That application followed an earlier attempt by Ngāti Pāhauwera to establish customary rights under s 48 of the Foreshore and Seabed Act 2004, filed as long ago as June 2005. Ngāti Pāhauwera has pursued its claim for recognition of customary rights in the foreshore and seabed through many channels over an extended period.
• [8] The High Court decided to hear together, and actively case managed, the applications by Ngāti Pāhauwera, MTT, Ngāti Pārau and Ngāi Tahu ō Mōhaka Waikare in relation to a substantial part of the Hawkes Bay marine and coastal area. In March 2018 the High Court directed that each applicant must file a memorandum attaching a map which showed accurate boundaries of their application areas. On 13 December 2018 counsel for Ngāti Pāhauwera filed a memorandum which included a map labelled “Ngāti Pāhauwera High Court Application Area”.
• [9] MTT and Ngāti Pārau say that the boundaries of the application area on Ngāti Pāhauwera’s map extended further south than the claimed area initially identified in the application filed by Ngāti Pāhauwera, and in maps included in the evidence filed by Ngāti Pāhauwera in support of their application. They say that the new map extended the southern boundary of the application area to Bluff Hill in Napier, some 10 kilometres south of the southern boundary, previously identified as the current mouth of the Esk River.
• [10] Ngāti Pāhauwera do not accept that their initial application was limited in this way: they say (in summary) that the new map did not materially change their application, and that references to the mouth of the Esk River in their original application were references to the location of the mouth of that river in 1840, before the 1931 earthquake. They say that prior to 1931 the Esk River flowed into the sea near to the current mouth of the Ahuriri estuary. All of this is contested by MTT.

MTT strike out application

• [11] MTT applied to the High Court to strike out the “purported amendment” to the Ngāti Pāhauwera application on the basis that the amended boundary substantially increased the area to which the Ngāti Pāhauwera application related, with the result that it completely overlapped the MTT application area and partially overlapped the Ngāti Pārau application area. MTT contended that this was a material extension which was time-barred under s 100(2) of the Act, an abuse of process, and prejudicial to MTT and other parties due to the extent of overlap with their claims.
• [12] Ngāti Pāhauwera sought an oral hearing of the strike out application, but this was declined by Churchman J. The Judge dealt with the strike out application on the papers. As already mentioned, on 27 May 2020 the Judge delivered the strike out decision. He struck out the Ngāti Pāhauwera claim insofar as it related to the extended application area (the strike out area).^[6]
• [13] Ngāti Pāhauwera say they wanted to appeal from the strike out judgment when it was delivered, but they made a deliberate decision not to file an appeal at that time because of concerns that this would jeopardise the Stage One fixture set down for hearing some nine months later.

Stage One and Stage Two hearings

• [14] The Stage One hearings took place over some seven weeks in February to March 2021. Judgment was delivered on 22 December 2021.
• [15] The Stage Two hearing took place on 23–26 May 2022. A judgment was delivered on 19 January 2023.

Ngāti Pāhauwera application for an extension of time to appeal

• [16] Meanwhile, on 20 December 2022, Ngāti Pāhauwera applied under r 29A of the Rules for an extension of time in which to appeal from the strike out decision. This application was made some two years and five months out of time, a year after delivery of the Stage One judgment, and some seven months after the Stage Two hearing.
• [17] The application is opposed by MTT and by Ngāti Pārau.

Discussion

• [18] After hearing brief argument from the parties in relation to the application for an extension of time to appeal, we have decided that it would be premature to determine the application at this time.
• [19] It was common ground before us that the central question in deciding whether to grant an extension of time is what the interests of justice require.^[7] Relevant factors include the length of the delay, the reasons for the delay, the prejudice or hardship to other parties with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal to the parties and more generally. In some cases the merits of the proposed appeal may also be relevant. Unless the merits of an appeal are obviously very strong or very weak, the court should be cautious about considering them in too much detail in the context of an application for extension of time.^[8]
• [20] This is not a case in which it is possible to say with any confidence that the proposed appeal from the strike out decision is certain to succeed, or doomed to fail. We therefore put to one side the merits of the proposed appeal.
• [21] We accept that the subject matter of the proposed appeal, which goes to Ngāti Pāhauwera’s ability to pursue a claim for recognition of customary marine title (CMT) in relation to the strike out area, is of great significance to Ngāti Pāhauwera and to other parties with overlapping claims. The significance of the underlying rights to all parties supports the grant of an extension of time to ensure that substantive justice can be done.
• [22] On the other hand, Ngāti Pāhauwera made a conscious choice not to appeal within the prescribed time. Their delay in applying for an extension of time was lengthy and was not fully explained. In particular, there was no explanation for the seven-month delay after the Stage Two hearing. This counts against an extension of time.
• [23] MTT and Ngāti Pārau say that they will suffer significant prejudice if an extension of time is granted, and if the strike out appeal is allowed. They say that if an extension of time is granted and the strike out appeal succeeds, there would need to be a lengthy rehearing before the High Court of the Ngāti Pāhauwera extended application and of their overlapping applications.
• [24] It became apparent in the course of the hearing that the extent of prejudice to MTT and Ngāti Pārau from permitting the proposed appeal to proceed would turn on the outcome of the Stage One and Stage Two appeals. If those appeals are successful and this Court directs a rehearing before the High Court of claims relating to the area in question, the prejudice to other parties as a result of permitting Ngāti Pāhauwera to pursue its claim to the strike out area would be much reduced.
• [25] The outcome of the Stage One and Two appeals will also shed light on whether the incremental prejudice to other parties caused by Ngāti Pāhauwera’s delay in seeking to appeal could be cured by an appropriate award of costs.
• [26] It also became apparent in the course of the hearing that the extent of prejudice to Ngāti Pāhauwera from being denied an opportunity to appeal from the strike out decision may turn on whether Ngāti Pāhauwera had a real prospect of success in a claim for recognition of CMT in respect of the strike out area. That cannot be ascertained at present, but may become clearer at the hearing of the Stage One and Stage Two appeals.
• [27] In these circumstances it seems to us that the interests of justice are best served by preserving the ability of this Court to do justice to the parties on a more informed basis, in light of the outcome of the Stage One appeals and Stage Two appeals. The panel that hears those appeals will also have the benefit of a more detailed understanding of the claims to CMT made by the parties. Put another way, it is in the interests of justice that this Court adopt the course that minimises the risk of a serious injustice to any party. It is not yet possible to determine whether a serious injustice would be suffered by Ngāti Pāhauwera if they are denied the opportunity to pursue their claim to CMT in respect of the strike out area or, conversely, whether a serious injustice would be done to other parties by requiring them to participate in a further (lengthy) High Court hearing that would otherwise be unnecessary.
• [28] We also consider that the cost implications of granting a r 29A extension of time to appeal are best considered at that later stage, as at that time this Court will be better placed to ascertain what, if any, incremental cost other parties would face as a result of granting an extension of time to Ngāti Pāhauwera.
• [29] We have therefore concluded that the best course of action is for this Court to hear at the same time:

(a) the Ngāti Pāhauwera r 29A application for an extension of time;

(b) the Ngāti Pāhauwera strike out appeal; and

(c) the Stage One and Stage Two appeals.

• [30] We would not expect the incremental time required to hear the Ngāti Pāhauwera extension of time application and strike out appeal to be material, in the context of the 10-day fixture that is to be allocated for the Stage One and Stage Two appeals. The overall fixture length should not need to be extended.

Evidence filed in support of application for extension of time to appeal

• [31] It is however convenient to address now an issue concerning the evidence filed in support of the application for an extension of time to appeal. Ngāti Pāhauwera’s application filed on 20 December 2022 was accompanied by an affidavit of Ms Bonny Hatami in support. MTT filed a memorandum opposing the extension application on 25 January 2023, as contemplated by r 19A of the Rules. MTT did not file any evidence, but attached to its rule 19A memorandum various High Court documents (including an affidavit of Ms Tania Hopmans filed in the High Court in support of MTT’s strike out application).
• [32] When Ngāti Pāhauwera filed their submissions on 9 February 2023, they also filed an affidavit from Mr Toro Waaka sworn on 9 February 2023 that was 18 pages long and attached 26 exhibits totalling 339 pages. MTT objects to the filing of this affidavit on the basis that (in summary) the Rules do not provide for further evidence to be filed by the applicant with its submissions; much of this voluminous material was not referred to in Ngāti Pāhauwera’s submissions so does not appear to be relevant; and MTT had no opportunity to respond to this evidence.
• [33] The Rules do not provide for Ngāti Pāhauwera to file further evidence with their submissions. This evidence should — so far as it is relevant — have been filed with the application on 20 December 2022, so MTT could respond to it in the manner provided for by the Rules. There is also considerable force in MTT’s submission that much of this material does not appear to be relevant to the application for an extension of time to appeal.
• [34] We grant leave to Ngāti Pāhauwera to adduce as evidence in support of their application paragraphs 1–3, 19–26 and 51–68 of Mr Waaka’s affidavit and
  pages 86–104 (Mr Waaka’s brief of evidence in the High Court) and 332–339 (email correspondence) of the accompanying bundle of exhibits. This material is relevant to whether the strike out area did represent a material extension of the claimed area, and to the circumstances in which Ngāti Pāhauwera decided not to appeal from the strike out decision in May/June 2020. (We record that Mr Waaka’s High Court brief is relevant only as evidence of what Ngāti Pāhauwera were claiming at that time, and is received for that limited purpose only: not as evidence on the merits of any party’s claim for recognition of CMT.)
• [35] If Ngāti Pāhauwera wish to rely on any other parts of Mr Waaka’s affidavit in support of their extension of time application, they must formally apply for leave to do so. That application would then be determined by a single judge, who would also consider whether MTT should be given an opportunity to file evidence in response.

Result

• [36] The application by Ngāti Pāhauwera for an extension of time to appeal under r 29A of the Rules is adjourned.
• [37] We direct that the application:

(a) be heard at the same time as the appeal from the High Court strike out decision; and

(b) be heard at the same time as the substantive appeals from the High Court Stage One and Stage Two decisions.

• [38] Leave is granted to Ngāti Pāhauwera to file, as evidence in support of their application for an extension of time, the parts of Mr Waaka’s affidavit sworn on 9 February 2023 set out at [34] above.

Solicitors:
Mac & Co Lawyers, Auckland for Applicants
DLA Piper, Wellington for Respondents
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Attorney-General
Kāhui Legal, Wellington for Ngāti Pārau

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^[1] Re Ngāti Pāhauwera [2021] NZHC 3599.

^[2] Re Ngāti Pāhauwera (Stage 2) [2023] NZHC 15.

^[3] Two of these appeals were brought within time. One was brought out of time, but an extension of time to appeal was granted in a minute dated 12 June 2023.

^[4] Re Ngāti Pāhauwera [2020] NZHC 1139 [Strike out decision].

^[5] An appeal could be filed as of right within 20 working days of the date of the strike out judgment: r 29 of the Court of Appeal (Civil) Rules 2005. The last date for lodging an appeal was 24 June 2020.

^[6] Strike out decision, above n 4.

^[7] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].

^[8] At [39].