Tipene [2015] NZHC 170 (13 February 2015)

Last Updated: 11 March 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-806 [2015] NZHC 170

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

On the papers
Counsel:	C D Batt for Mr Tipene C Linkhorn and A Williams for the Attorney-General J H Stevens for Te Rūnanga o Ngāi Tahu
Judgment:	13 February 2015

_{JUDGMENT OF MALLON J}

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 was to be heard in the High Court at Invercargill at the end of last year. That hearing was adjourned following, amongst other developments, a foreshadowed amended application. The present issue for determination is whether that should proceed as an amended application or whether a new application should be required. Mr Tipene, supported by Te Rūnanga o Ngāi Tahu (Te Rūnanga), says

_{the former is appropriate, whereas the Attorney-General contends for the latter.}

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

IN RE TIPENE [2015] NZHC 170 [13 February 2015]

Background

[2] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) came into force on 1 April 2011. There is considerable background to its enactment.² Against that background, as set out in s 4 of the Act, its purpose 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

(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).

[3] Under the Act, applications filed in the Māori Land Court were transferred to this Court. Mr Tipene had filed such an application. Following the transfer, this Court held a case management conference in respect of all the applications. Although not required to do so, Mr Tipene travelled to Wellington to attend that conference to inform the Court and the Crown that he intended to pursue his application in the High Court.

[4] At that time Mr Tipene was without legal representation. With some assistance from the Wellington Community Law Centre, Mr Tipene made his application under the Act on 14 November 2011. That application advised that:

(a) Mr Tipene was applying for an order recognising customary marine title;

_{(b) the application was made on behalf of his family;}

² As set out in the Preamble to the Act, it replaced the Foreshore and Seabed Act 2004 (the 2004

Act). The 2004 Act was in turn a response to the Court of Appeal’s decision in Attorney- General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) which held that the Māori Land Court had jurisdiction to consider Māori customary title to the foreshore and seabed. That Court of Appeal decision overturned an earlier decision of the same Court in In re the Ninety-Mile Beach [1963] NZLR 461 (CA) which had found to the contrary. The 2004 Act was controversial. The Waitangi Tribunal found that the policy underpinning it breached the Treaty of Waitangi and raised other important concerns. A 2009 Ministerial Review Panel viewed the 2004 Act as severely discriminatory against whānau, hapū and iwi and proposed its repeal.

(c) the area to which the application related was the foreshore and seabed surrounding the Tamaitemioka and Pohowaitai Islands, south-west of Stewart Island; and

(d) the grounds for the application were as set out in his affidavit (which, amongst other things, said that customary title over the Rakiura Tītī Islands and the surrounding oceans goes back beyond 1840 and is still active to this day).

[5] Public notice of the application was given on 10 December 2011. Mr Tipene also provided copies of the application to Environment Southland, Southland District Council and Te Rūnanga. A notice of appearance was filed on behalf of the Attorney-General within the statutory timeframe for doing so. Dr Hugh Barr, a person from Wellington who has taken an interest in claims under the Act, filed a notice of appearance outside the statutory timeframe. There were objections to his participation. He was provided with an opportunity to make submissions as to why he should be able to participate as an interested party. He did not take up that opportunity and his potential involvement in the application came to an end.

[6] In around June 2012 the Crown made a decision concerning funding for applications under the Act. It decided that funding would be available for Mr Tipene’s application. Mr Tipene instructed counsel promptly after that decision was made.

[7] Following case management conferences, an amended application dated 28

October 2013 was filed. This application was similar to the first application. The amendments were as follows:

(a) Jasmine Tipene was nominated as the holder of the order.

(b) The application specified that it related to the foreshore and seabed from the line of mean high water springs on the entire coast of the islands to the outer limits of the territorial sea.

(c) It specified that Mr Tipene sought to protect customary rights to gather seafood, land vessels and make sea passage to the islands.

[8] Mr Tipene also filed a substantial research report and a brief of evidence in support of the application. Further case management conferences took place and a hearing date was scheduled. On 16 May 2014 Te Rūnanga notified the Court of its wish to be heard on the application. Following a hearing on that issue in July 2014 I delivered my judgment holding that Te Rūnanga could appear and be heard on Mr

Tipene’s application.³

[9] Timetable directions were made by consent on 11 September 2014. Ms Jane Davis was also appointed as pūkenga on that date on the recommendation of Mr Tipene and Te Rūnanga. Counsel noted that she is a Rakiura Māori and, as such, has an interest in the proceeding. It was also noted that she was previously a member of the Ngāi Tahu Māori Trust Board and a director of Ngāi Tahu Holdings

Corporation. The Crown abided the Court’s decision on her appointment.⁴

[10] In late November 2014 Mr Tipene, supported by Te Rūnanga, sought an adjournment of the hearing. This was because, following Te Rūnanga’s involvement which in turn generated further interest in the application, Mr Tipene wished to amend his application. The intended amendments were viewed as sufficiently material that Mr Tipene’s counsel considered further public notice should be given of the application. Counsel for the Attorney-General opposed the adjournment. I granted the adjournment on 21 November 2014.

[11] Counsel for the Attorney-General also contended that the proposed amended application should be filed as a fresh application and the present application withdrawn. The parties made oral submissions on this issue at a telephone conference on 5 December 2014 and had the opportunity to provide written submissions before and after that conference. The parties were content for the matter

_{then to be determined by me on the papers once the amended application was filed.}

³ _{Re Tipene [2014] NZHC 2046.}

⁴ The Attorney-General now opposes Ms Davis’ appointment as pūkenga. It has learned that she is an owner of Pohowaitai Island and as such it considers she is not able to provide independent advice to the Court. Te Rūnanga and Mr Tipene disagree with the Attorney-General’s position. This issue will be dealt with separately.

[12] The foreshadowed amended application was filed on 23 January 2015. The amendments are as follows:

(a) Mr Tipene’s application is now made for the benefit of Rakiura Māori with customary interests around Pohowaitai and Tamaitemioka Islands (rather than on behalf of the Tipene family who are Rakiura Māori and as such claim customary interests around those islands).

(b) The nominated holder of the order is now to be the supervisor(s) of Pohowaitai and Tamaitemioka Islands appointed pursuant to reg 6 of the Tītī (Muttonbird) Islands Regulations 1978.

(c) The specified area has been refined to ensure that it does not include land masses, generally to the east of Pohowaitai and Tamaitemioka. Broadly speaking, the area is 12 nautical miles generally to the west and 0.5 nautical miles generally to the east.

(d) The matters referred to in [7](c) above have been deleted.

Submissions

[13] The Attorney-General’s position is that the amended application has materially changed such that it is now an altogether different application (comparable to a new cause of action). It is said that, although the outcome sought is still an order recognising customary marine title, it is for a different group over a significantly reduced area and would be held by a different recipient. The Crown’s preference, for reasons of efficiency and certainty for the operation of s 62 of the Act, is for applicants to file a complete application from the outset. It is also said that the Act has specific provisions as to who may appear and be heard on an application and it is not clear how these provisions operate when a material change is made to an application.

[14] Mr Tipene submits that he should be permitted to amend his application, rather than withdraw it and file a new application, for the following reasons:

(a) He has significant personal investment in the application.

(b) The amendments are not comparable to a new cause of action, but are changes that are a logical evolution as the application has progressed and it is preferable that the history of the application be preserved on one file.

(c) The evidence that Mr Tipene has filed remains relevant.

(d) Crown funding that is available to Mr Tipene may be affected if he withdraws the present application and re-files a fresh application.

(e) The amended application can be publically notified as this will allow interested parties, who have only recently become aware of the application, an opportunity to become involved if they wish to do so.

[15] Te Rūnanga agrees with Mr Tipene. It notes that the relevant history, tikanga, issues and affected or interested parties are more or less the same, albeit that more comprehensive material is likely to be put forward. The nature of the application is that it involves a range of parties, some of whom should be expected to hold differing views. If an applicant responds to those views by amending the application, as Mr Tipene has done, this should be seen as part of a natural evolution and should not necessitate a fresh application. Te Rūnanga also emphasises that the Act was a response to the contentious predecessor legislation. The Act requires that any application be filed not later than six years after the commencement of the Act

(that is, by 3 April 2017).⁵ If the Court adopts an overly strict view of what

amendments require a fresh application, then some applications filed close to that deadline may not be amended for fear that they would not then be able to proceed at all.

My assessment

[16] In my view the essence of the application has not changed. As the above background shows, from the outset and consistently since then, Mr Tipene, as a

⁵ Marine and Coastal Area (Takutai Moana) Act 2011, s 100(2).

Rakiura Māori, has been seeking to have an order made recognising customary marine title in the foreshore and seabed surrounding Tamaitemioka and Pohowaitai Islands, to the south-west of Stewart Island. The subsequent amendments represent refinements to that application as it has progressed. That the evidence filed in support of the application remains relevant confirms that the essence of the application has not changed.

[17] There is greater precision as to the specified area to which the application relates. In that sense, the application has narrowed rather than broadened or substantively changed. The amendments do broaden the class of persons whom the application is intended to benefit: rather than being made for Mr Tipene’s family as Rakiura Māori, it is now on behalf of all Rakiura Māori with customary interests in the two islands. Consistent with and following on from that change, the application amends who will be the holder of the order if the application is granted.

[18] By analogy with other civil proceedings to which the High Court Rules apply,⁶ the details of the cause of action have changed but the nature of it has not. Because those details broaden the scope of who may benefit from the application (if it were to be granted) it is appropriate that further public notice be given to ensure that those who may have an interest in the application are aware of it and have the opportunity to file a notice of appearance if they wish to do so. That said, it is not apparent that there will be anyone who would now have an interest in the application, who would not also have had an interest in the original application for which public notice was earlier given.

[19] Although the Act has provided a new mechanism for recognition of customary interests, it provides little by way of procedural guidance and no procedural rules have been promulgated. Mr Tipene’s application is the most progressed of the applications under the Act that are before this Court. As momentum gathers on an application of this kind as it approaches a hearing, it is to be expected that the application will evolve and be refined.

[20] The Crown’s preference for a complete application from the outset is understandable. However, to insist on this is unrealistic given the nature of the application and the newness of the mechanism provided by the Act. The Crown rightly has not opposed any amendments at all being made to this or other applications under the Act. Such an approach would be unduly inflexible in respect of a scheme which has the purposes set out above and which has been enacted against the history acknowledged in the Act’s preamble.

[21] It would be wrong for the Court to take an unduly narrow approach to permissible amendments in these circumstances. As the submissions for Te Rūnanga point out, that may have undesirable consequences as the 3 April 2017 date approaches. As the submissions for Mr Tipene point out, there may also be funding implications. From the Court’s point of view it is also helpful to have the complete history of an application, as it evolves, on one file.

[22] An unduly narrow approach would also be inconsistent with the flexibility expressly given to the Court under s 107(1) and (2). Specifically the Court is able to treat an application for recognition of a protected customary right as one for recognition of customary marine title and vice versa.

[23] Not all amendments will be sufficiently material to require provision of a further opportunity for interested parties to seek to appear and be heard. But, depending on the nature or extent of the amendments, it may be appropriate to provide that opportunity. There is no reason why the provisions in ss 101 to 104 of the Act cannot then apply to the amended application. This approach ensures that no prejudice is caused to those parties interested in the application as it has evolved.

[24] Overall I am satisfied that allowing the amendments to proceed by way of an amended application is consistent with the purposes of the Act as well as being consistent with the just, speedy and inexpensive determination of the proceeding.⁷

Result

[25] I decline counsel for the Attorney-General’s invitation to require Mr Tipene to withdraw his application (or to strike it out), and for a new application to be filed. The second amended application filed on 23 January 2015 is accepted in the form it has been filed. I direct that it will need to be publically notified under s 103 and the parties should consider whether there is any party who should be served with it under s 102. A telephone conference is to take place at 10 am on Monday 16

February 2015.

Mallon J