Application by Tipene [2014] NZHC 2046 (27 August 2014)

Last Updated: 27 August 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-806 [2014] NZHC 2046

UNDER	the Marine and Coastal Area (Takutai Moana) Act 2011
IN THE MATTER OF	an application by Denis Wiremu Tipene

Hearing:	3 July 2014
Appearances:	C D Batt for Mr Tipene C Linkhorn and A Williams for the Attorney-General E M Greig for Te Rūnanga o Ngāi Tahu
Judgment:	27 August 2014

_{JUDGMENT OF MALLON J}

Table of Contents

Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [4] The procedural steps taken in this case ......................................................................................... [12] Is Te Rūnanga too late?................................................................................................................... [17] Nature of the case ............................................................................................................................ [24] Nature of the interest ...................................................................................................................... [25] Information which Te Rūnanga may provide ............................................................................... [30] Practical considerations .................................................................................................................. [33] Result ................................................................................................................................................ [37]

_{Timetable matters ........................................................................................................................... [38]}

An application by Tipene [2014] NZHC 2046 [27 August 2014]

Introduction

[1] Mr Tipene, on behalf of his family, has applied for an order recognising customary marine title in a specified area of the common marine and coastal area.¹

The application relates to the foreshore and seabed surrounding two islands, Tamaitemioka and Pohowaitai, which are to the south-west of Rakiura (Stewart Island). The application is made on the grounds that the Tipene family hold the area in accordance with tikanga and that they have exclusively used and occupied it from

1840 to the present time without substantial interruption.² The application is

scheduled to be heard in the High Court at Invercargill on 1 December 2014.

[2] Before me at present is Te Rūnanga o Ngāi Tahu (Te Rūnanga)’s application to appear and be heard on Mr Tipene’s application. Te Rūnanga says that a significant number of Ngāi Tahu Whānui, whom it represents, are likely to be affected by the application. Te Rūnanga neither supports nor opposes Mr Tipene’s application but wishes to ensure that the Court is properly informed of all relevant matters in considering it.

[3] Te Rūnanga’s application to appear and be heard is opposed by Mr Tipene. He submits that Te Rūnanga has no relevant interest. He further submits that the application is out of time. The Crown abides the Court’s decision on Te Rūnanga’s application.

The legislation

[4] The stated purpose of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) is as follows:³

4 Purpose

(1) The purpose of this Act is to—

(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and

¹ _{Marine and Coastal Area (Takutai Moana) Act 2011, ss 58 and 98.}

² _{Section 58(1).}

³ Section 4(1).

(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and

(c) provide for the exercise of customary interests in the common marine and coastal area; and

_{(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).}

...

[5] The Act sets out two mechanisms by which legal recognition may be given to protected customary rights and customary marine title. One of those mechanisms is by application to the High Court for a recognition order.⁴ The burden of proof upon applicants is as follows:⁵

106 Burden of proof

...

(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—

(a) is held in accordance with tikanga; and

(b) has been used and occupied by the applicant group, either—

(i) from 1840 to the present day; or

(ii) from the time of a customary transfer to the present day.

...

[6] The Act includes procedural provisions relating to such applications.⁶ These include requirements as to service, public notice, and who may appear and be heard on an application.

[7] Section 102 provides:

102 Service of application

The applicant group applying for a recognition order must serve the application on—

⁴ _{Section 100.}

⁵ _{Section 106(2).}

⁶ Part 4, sub-part 2.

(a) the local authorities that have statutory functions in the area of the common marine and coastal area to which the application relates; and

(b) any local authority that has statutory functions in the area adjacent to the area of the common marine and coastal area to which the application relates; and

(c) the Solicitor-General on behalf of the Attorney-General; and

(d) any other person who the Court considers is likely to be directly affected by the application.

[8] Section 103 provides that public notice of the application must be given. That notice must be given “not later than 20 working days after filing the application.”⁷ The public notice must include a date “for filing a notice of appearance in support of or in opposition to the application”.⁸ That date “must be not less than 20 working days after the first public notice of the application is published.”⁹

[9] Section 104 provides:

104 Who may appear on application for recognition order

Any interested person may appear and be heard on an application for a recognition order if that person has, by the due date, filed a notice of appearance.

[10] There is no definition of “interested person” in the Act. The Court has some further specific powers in relation to applications under the Act. Section 107 provides:

107 Court's flexibility in dealing with application

...

(3) The Court may strike out all or part of an application for a recognition order or a notice of appearance filed under section 104 if it—

(a) discloses no reasonably arguable case; or

_{(b) is likely to cause prejudice or delay; or}

⁷ _{Section 103(1).}

⁸ _{Section 103(2)(f).}

⁹ Section 103(3).

(c) is frivolous or vexatious; or

_{(d) is otherwise an abuse of the Court.}

...

(6) This section does not affect the Court's inherent jurisdiction.

[11] Section 108 provides for procedural rules, not inconsistent with the Act, to be made under the Judicature Act 1908. No such rules have been enacted.

The procedural steps taken in this case

[12] Mr Tipene filed his application in November 2011. At that time he was not represented by a lawyer. As a matter of courtesy he decided to inform Sir Mark Solomon, the Chair of Te Rūnanga, of the application. He did so by sending him a letter dated 5 December 2011. Mr Tipene’s application was supported by an affidavit. That affidavit included a letter from Dr Terry Ryan, the Director of Whakapapa support for Te Rūnanga, in support of Mr Tipene’s beneficial rights in the islands. Mr Tipene also provided a copy of the application to Environment Southland and the Southland District Council. As a result of these steps the Crown considered that the service requirements of s 102 were met.

[13] Mr Tipene arranged for the application to be published in the Southland Times on 10 December 2011. That notice advised that any notice of appearance in support of or in opposition to the application was to be filed by 10 February 2012. The Crown considered Mr Tipene to have met the requirements of s 103.

[14] The Crown filed a notice of appearance opposing the application on 3

February 2012. A notice of appearance was also filed by Dr Hugh Barr. That notice was filed out of time. Dr Barr’s notice was objected to as being out of time. Dr Barr was given the opportunity to respond to this objection. He did not take up this opportunity, which terminated his involvement in the application. No other party filed a notice of appearance.

[15] Mr Tipene decided to hold hui in Christchurch on 28 September 2013 and in

Invercargill on 5 October 2013 to discuss his application. The Christchurch hui was

advertised in the Christchurch Press and Timaru Herald. The Invercargill hui was advertised in the Otago Daily Times. So far as Mr Tipene is aware, no representatives of Te Rūnanga came to those meetings.

[16] Mr Tipene filed an amended application on 1 November 2013. He also filed evidence in support of that application. At a case management conference on 9 April

2014, the Crown foreshadowed that Te Rūnanga had recently indicated a potential interest in the application. On 16 May 2014 Te Rūnanga notified the Court of its wish to appear and be heard on the application.

Is Te Rūnanga too late?

[17] Pursuant to the public notice of Mr Tipene’s application, Te Rūnanga had until 10 February 2012 to file a notice of appearance. It did not do so. Te Rūnanga submits that further public notice should have been given when the amended application was filed in November 2013. I do not agree. The Act does not require public notice to be given each time an application is amended. That might be necessary where the application has materially changed. However in the present case, although some details noted in the application were amended, the substance of the application remained unchanged. Therefore, because Te Rūnanga did not file a notice of appearance by 10 February 2012, it is not able to appear and be heard pursuant to s 104 of the Act. The question is whether it is able to do so on any other basis.

[18] Te Rūnanga says that it should have been served under s 102 of the Act as a person “who the Court considers is likely to be directly affected by the application.” It says that this did not occur. An affidavit from Christopher Ford, who is Group General Counsel for the Ngāi Tahu Group, including Te Rūnanga, says that Te Rūnanga does not have any record of receiving the letter that Mr Tipene sent to Sir Mark Solomon.

[19] The Court was not asked to consider whether Te Rūnanga should be served under s 102. As set out above, Mr Tipene sent the letter to Tā Mark Solomon as a matter of courtesy. The Crown understood from Mr Tipene that he had served Te Rūnanga. The Court was advised of this. No direction was required from the Court.

The Court has therefore not considered whether Te Rūnanga ought to have been served as a person “likely to be directly affected by the application.”

[20] That said, if a person is likely to be directly affected by an application, they ought to have the opportunity to appear and be heard. The only provision in the Act that sets out how an interested person is to advise the Court of their intention to take that opportunity is s 104. A person likely to be directly affected by an application would qualify as an “interested person” under that section. It seems that the Act contemplates that:

(a) Some persons (those likely to have an interest) are to be informed of the application directly by being served with it.

(b) Other persons (who are not relevant local authorities and who have not been identified by the Court under s 102(d), but who may nevertheless have an interest) are to be informed of the application via public notice.

(c) In either case, if an interested person wishes to appear and be heard they are to file a notice of appearance by the due date, which in this case was 10 February 2012.

[21] The Act is silent on what is to happen if:

(a) a person likely to be directly affected is not identified by the Court as a person who is to be served prior to the due date for filing a notice of appearance; or

(b) the Court directs that a person be served but service is not carried out prior to the due date for filing a notice of appearance; or

(c) a person files a notice of appearance by the due date but the applicant considers that they are not an “interested person” (an issue which has arisen in another application under the Act¹⁰); or

(d) a person who is not likely to be directly affected, but who claims an interest in the application, files a notice of appearance outside the due date (an issue that was not pursued in this case despite the opportunity to do so¹¹).

[22] It seems likely that the Act intended there to be some flexibility to hear from persons likely to be directly affected by an application, even if they fail to file a notice of appearance by the due date. It also seems likely that the Act intended that the Court retain some control over whether a party claiming an interest in an application is properly a party who should be before the Court, whether they have filed a notice of appearance before or after the due date.

[23] As s 107(6) states, the Court retains its inherent jurisdiction. The Court has previously relied on its inherent jurisdiction to allow an interested person to be heard on a proceeding to which they are not a party.¹² Factors relevant to the exercise of that jurisdiction include the nature of the case, the nature of the interest claimed, the quality of the information before the Court (and whether the person seeking to be heard will add anything to the argument before the Court), and practical considerations.¹³ I consider that Te Rūnanga’s application to appear and be heard

_{can be considered pursuant to this jurisdiction and in light of these factors.}

10. That application will be determined in a separate judgment (CIV-2011-485-794), issued closely in time to this one.

¹¹ _{See [14] above.}

¹² X v X HC Auckland CIV-2006-404-903, 4 July 2006; Zaoui v Attorney-General HC Auckland

CIV-2003-404-5872, 28 November 2003; Hosking v Runting HC Auckland CP527/02, 11

February 2003; Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-

_{2006-404-4724, 18 October 2006.}

¹³ X v X, above n 12; Zaoui v Attorney-General, above n 12; Hosking v Runting, above n 12;

Wilson v Attorney-General [Judicial Conduct] (No 2) [2010] NZHC 1241; [2010] NZAR 509 (HC); Diagnostic Medlab Ltd v Auckland District Health Board, above n 12; Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-1795, 9 August 2011; Sustainability Council of New Zealand Trust v Environmental Protection Authority [2013] NZHC 2608; D v C CA76/01, 20 August 2001; Parihoa Farms Limited v Rodney District Council HC Auckland CIV-2009-404-0537, 18 August 2010.

Nature of the case

[24] Mr Tipene’s application for a recognition order under the Act is likely to be the first to proceed to a hearing in the High Court. As such it will be the first occasion where the Court will consider the test set out in the Act for determining whether customary marine title in a specified area of the common marine and coastal area exists.¹⁴ The preamble to the Act sets out some of the significant background that led to its enactment. The importance of these matters is acknowledged in the Act’s purposes.¹⁵ The nature of the case is such that the Court should err on the side of ensuring all parties with a relevant interest are before the Court, and that the Court has all relevant information before it.

Nature of the interest

[25] Pohowaitai and Tamaitemioka are two of the islands that make up the Tītī Islands (the seasonal home of mutton birds). They are in close proximity to the other islands constituting the Tītī Islands. Evidence before the Court includes a research report which sets out the ownership of the islands. This evidence explains that the islands are divided into two groups: 18 beneficial islands and 18 former Crown islands. Pohowaitai and Tamaitemioka are beneficial islands and they are managed by their beneficial owners.

[26] Mr Ford refers to Māori Land Online records to say that there are 2,277 members of Ngāi Tahu Whānui with interests in Pohowaitai, and 721 members with interests in Tamaitemioka. He says that there are even greater numbers of Ngāi Tahu Whānui with interests in other Tītī Islands and that there is likely to be some overlap between interests in the various islands. He says that Te Rūnanga is the

representative of Ngāi Tahu Whānui for all purposes.¹⁶

[27] Te Rūnanga submits that the interests of Ngāi Tahu Whānui in the Tītī Islands are reflected in its long involvement in matters relating to them. For example, Te Rūnanga (and its predecessor) nominates or appoints members to two

_{statutory/regulatory committees which supervise the Tītī Islands: the Rakiura Tītī}

¹⁴ _{Marine and Coastal Area (Takutai Moana) Act 2011, ss 58 and 59.}

¹⁵ _{Section 3(2).}

¹⁶ Te Rūnanga o Ngāi Tahu Act 1996, s 15(1).

Committee (empowered under the Tītī (Muttonbird) Islands Regulations 1978) and the Rakiura Tītī Islands Administering Body (established pursuant to the Ngāi Tahu Settlement Claims Act 1998 and Reserves Act 1977).

[28] Mr Tipene considers that the only people with any real authority to speak about the tikanga of Pohowaitai and Tamaitemioka are the beneficial owners who have retained a connection with those islands. Mr Tipene says that although owners of the islands are members of Ngāi Tahu, the islands are not managed by Ngāi Tahu. He notes that he has consulted with those members about his application and they have not sought to become directly involved. He says that it is contrary to the intention of the Tītī (Muttonbird) Islands Regulations 1978 and the tikanga of the islands for “the corporate body that is Te Rūnanga” to assume a role, interest or involvement in issues relating to them.

[29] For the purposes of this application I consider that Te Rūnanga has provided a sufficient basis for its claim that it has an interest in the application. That interest is different from an interest that is in common with the public generally.¹⁷ That members of Ngāi Tahu Whānui with interests in the islands have not sought to become involved does not exclude Te Rūnanga from representing their interests. Although Mr Tipene objects to the involvement of a corporate body, it is the body which by legislation is “recognised for all purposes as the representative of Ngāi Tahu Whānui”.¹⁸

Information which Te Rūnanga may provide

[30] Te Rūnanga submits that it can provide evidence on the following matters:

(a) A history of the Tītī Islands and the customary rights/regulatory/legislative framework from a Rakiura Māori

_perspective.

¹⁷ That was a requirement under the predecessor of the Act (the Foreshore and Seabed Act 2004, s 72) and a relevant consideration in considering who qualifies as an interested party in a judicial review application (see for example Wilson v Attorney-General [Judicial Conduct] (No 2), above n 13).

¹⁸ Te Rūnanga o Ngāi Tahu Act 1996, s 15(1).

(b) Details about the relationship of Tamaitemioka and Pohowaitai to the rest of the islands.

(c) Evidence regarding whānau who have gone to Tamaitemioka and

Pohowaitai in recent years.

(d) Evidence regarding some of the customs and traditions of Rakiura

Māori in relation to the Tītī Islands.

(e) Evidence regarding the geography and seas around Tamaitemioka and

Pohowaitai and the wider area.

[31] Mr Tipene says that this proposed evidence will not assist the Court. He says that some of it is irrelevant to the Court’s determination of the application. He says that assistance on issues of tikanga is more appropriately addressed by a pukenga. Mr Tipene agrees to the appointment of a pukenga.

[32] It may be that Te Rūnanga’s evidence will not add to the evidence that is before the Court or the assistance that a pukenga can provide. The interests of members of Ngāi Tahu Whānui in the Tītī Islands indicates, however, a likely prospect that they will have relevant evidence to put before the Court. Certainly, at this stage, I cannot exclude the prospect that evidence put forward by Te Rūnanga will be irrelevant or of no assistance.

Practical considerations

[33] Mr Tipene is concerned that, contrary to its assertion that it intends to assist, Te Rūnanga will in fact obstruct the application. He considers that an application he made in 2002 for a mataitai reserve in respect of the islands came to nothing because of opposition and obstruction by Te Rūnanga. I also note that the email from Mr Bull (who is the Te Rūnanga representative on the Rakiura Tītī committee) to Mr Ford dated 12 March 2014 refers to Mr Tipene’s application and says “[t]here is multiple ownership to the place described and I intend opposing application on that [basis], but also uneasy that he is making this application through the foreshore and seabed act.”

[34] While Te Rūnanga may oppose the application if it has a proper basis to do so, obstruction will not be permitted. There is power to strike out all or part of a notice of appearance if it causes prejudice or delay, or is frivolous or vexatious, or there is otherwise an abuse of the Court.¹⁹ The Court will determine the application for a recognition order on the basis of the relevant material before it and in accordance with the test in the Act.

[35] Te Rūnanga has delayed notifying the Court of its wish to appear and be heard. Regardless of whether service was properly effected, representatives of Te Rūnanga knew or should have known of the application in light of the steps taken by Mr Tipene.²⁰ Moreover, Mr Bull’s email to Mr Ford dated 12 March 2014 states “I will have to say that although I was aware of this application it has sat to the side for various reasons.”

[36] However in my view the delay is not sufficient to exclude Te Rūnanga from appearing and being heard, given the other factors I have discussed (that is, the nature of the case, the nature of Te Rūnanga’s interest and the evidence it may provide). Counsel for Te Rūnanga has advised the Court that Te Rūnanga is aware that the substantive hearing is scheduled for 1 December 2014, that it has no wish to delay the hearing and that it can meet a timetable which enables that hearing to proceed. Timetable orders will need to be put in place to that end.

Result

[37] I consider that Te Rūnanga has made out sufficient grounds to appear and be heard on Mr Tipene’s application for a recognition order. I therefore grant Te Rūnanga’s application.

Timetable matters

[38] I refer to memoranda that have recently been filed concerning the appointment of a pukenga and other timetable matters. Having reviewed the

_{memoranda, and in light of the need for timetable directions in relation to Te}

¹⁹ _{Marine and Coastal Area (Takutai Moana) Act 2011, s 107(3).}

²⁰ See [12]-[16] above.

Rūnanga’s application, I direct that, by Wednesday 10 September 2014, a joint

memorandum is to be filed which:

(a) informs the Court of the name of any pukenga the parties agree should be appointed to assist the Court or, if agreement cannot be reached, provides a list of potential pukenga identified by the parties so that the Court can make a selection;

(b) a proposed timetable for Te Rūnanga’s evidence and any reply to that

evidence; and

(c) a proposed amended timetable for the filing of documents relied on by the applicant, the Crown or Te Rūnanga (for the purposes of a common bundle), the preparation of a chronology and the filing of the applicant’s opening submissions.

[39] A telephone conference is to be scheduled for a date soon after 10 September

2014 so that the Court can consider what orders or directions need to be made in the event that the matters in (a) to (c) have not been agreed.

Mallon J