GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2017] NZHC 3002

GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2017] NZHC 3002

As a matter of law s 31(3)(a) of the Takutai Moana Act preserves lesser interests in existing reclaimed land and that concept is capable of encompassing customary use rights; however reclaimed land is vested in the Crown such that claims to full exclusive ownership based on tikanga cannot succeed. The plaintiffs' pleadings fail to particularise customary rights and reclamation history and therefore require amendment. Mr Leach and Mr Hook were improperly joined and pleadings against them are struck out. The proceedings are adjourned and plaintiffs granted leave to amend to articulate an orthodox customary rights claim.

Citation
[2017] NZHC 3002
Parties
First Plaintiff: Colt Gregory; Second Plaintiff: Peter-James Martin; First Defendant: Thames Coromandel District Council; Second Defendant: Glen Leach; Third Defendant: John Hook; Fourth Defendant: Minister for Land Information; Fifth Defendant: Schmitt Group
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 December 2017
Procedural Posture
Recovery of Land (part 13 High Court Rules) / Summary Judgment and Strike Out Applications; Interlocutory Judgment (adjourned to Permit Amendment)
Outcome
Partial summary judgment for defendants; strike out of claims against Mr Leach and Mr Hook; proceedings adjourned with leave to amend pleadings to assert customary rights (subject to defendants' right to reapply to strike out)
Legal Topics
Extinguishment of Customary Rights, Vesting of Reclaimed Land in the Crown, Interpretation of the Marine and Coastal Area (takutai Moana) Act 2011, Foreshore and Seabed Act 2004, Summary Judgment and Strike Out Procedure, Adequacy of Pleadings for Customary Rights Claims
Property Law Public and Administrative Law Māori/customary Rights Statutory Interpretation Marine and Coastal Law Extinguishment of Customary Rights Vesting of Reclaimed Land in the Crown Interpretation of the Marine and Coastal Area (takutai Moana) Act 2011 +3 more

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Parties

Colt Gregory

First Plaintiff

Peter-James Martin

Second Plaintiff

Thames Coromandel District Council

First Defendant

Glen Leach

Second Defendant

John Hook

Third Defendant

Minister for Land Information

Fourth Defendant

Schmitt Group

Fifth Defendant

Procedural Posture

Recovery of Land (part 13 High Court Rules) / Summary Judgment and Strike Out Applications; Interlocutory Judgment (adjourned to Permit Amendment)

Legal Issues

  1. 1 Whether s 31(3)(a) of the Marine and Coastal Area (Takutai Moana) Act 2011 preserves customary interests in existing reclaimed land
  2. 2 Whether s 18 of the Foreshore and Seabed Act 2004 extinguished customary rights in reclaimed land
  3. 3 Whether the definition of "lesser interest" includes customary use rights

Ratio Decidendi

As a matter of law s 31(3)(a) of the Takutai Moana Act preserves lesser interests in existing reclaimed land and that concept is capable of encompassing customary use rights; however reclaimed land is vested in the Crown such that claims to full exclusive ownership based on tikanga cannot succeed. The plaintiffs' pleadings fail to particularise customary rights and reclamation history and therefore require amendment. Mr Leach and Mr Hook were improperly joined and pleadings against them are struck out. The proceedings are adjourned and plaintiffs granted leave to amend to articulate an orthodox customary rights claim.

Court Disposition

Partial summary judgment for defendants; strike out of claims against Mr Leach and Mr Hook; proceedings adjourned with leave to amend pleadings to assert customary rights (subject to defendants' right to reapply to strike out)

Orders

  • Pleadings as they relate to the second defendant Glen Leach are struck out
  • Pleadings as they relate to the third defendant John Hook are struck out