TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ v LANDOWNERS COALITION INCORPORATED [2022] NZCA 27

TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ v LANDOWNERS COALITIONINCORPORATED [2022] NZCA 27 [28 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA303/2021CA314/2021CA330/2021CA332/2021[2022] NZCA 27BETWEEN TE KĀHUI TAKUTAI MOANA O NGĀWHĀNUI ME NGA HAPŪFirst ApplicantTE ŪPOKOREHE TREATY CLAIMSTRUSTSecond ApplicantThe late CLAUDE AUGUSTIN EDWARDS(deceased), ADRIANA EDWARDS andothers on behalf of Te WhakatōheaThird ApplicantCHRISTINA DAVIS on behalf of NgātiMuriwai HapūFourth ApplicantSEAFOOD INDUSTRYREPRESENTATIVESFifth ApplicantAND LANDOWNERS COALITIONINCORPORATEDFirst RespondentTE RŪNANGA O NGĀTI AWASecond RespondentBARRY KIWARA on behalf of KutarereMaraeThird RespondentNGĀTI RUATAKENGA, Hapū ofWhakatōheaFourth RespondentWHAKATŌHEA MAORI TRUST BOARDFifth RespondentATTORNEY-GENERALIntervenerHearing: 29 November 2021Court: Cooper, Clifford, and Gilbert JJCounsel: K S Feint QC and S W H Fletcher for First Applicant andFourth RespondentJ S Cooper QC and B Lyall for Second ApplicantT Sinclair for Third ApplicantM J Sharp for Fourth Applicant and Third RespondentB A Scott and T D Smith for Fifth ApplicantJ E Hodder QC and A C Dartnall for the First RespondentD M Salmon QC, H K Irwin-Easthope and K J Tarawhiti forSecond RespondentJ M Pou for Fifth RespondentR L Roff for IntervenerJudgment: 28 February 2022 at 10.30 amJUDGMENT OF THE COURTA The applications for strike out of CA303/2021 are declined.B The application for strike out of CA314/2021 and CA332/2021 is declined.C The application for strike out of CA330/2021 is declined.D The applications for leave to intervene by the Seafood IndustryRepresentatives and the Landowners Coalition are declined.E There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) establishesa regime whereby whānau, hapū and iwi (applicant groups or applicants) may applyto the High Court for customary marine titles (CMTs) and protected customary rights(PCRs) in the common marine and coastal area.[2] The High Court recently heard applications for CMTs and PCRs in the watersof the eastern Bay of Plenty between Whakatāne in the west and Te Rangi in the east,including harbours and estuaries and the waters around Whakaari (White Island) andTe Paepae o Aotea (Volkner Rocks), out to the 12 nautical mile limit. Seven out ofthe twelve applicant groups were successful in establishing they met the tests underthe Act for three CMTs to be issued in those waters.1 Seven appeals to this Courtchallenging those decisions have been commenced by parties who participatedin those applications as applicant groups or, having filed a notice of appearance, asinterested persons. In particular, the Landowners Coalition Inc has appealedthe High Court decision to the extent the High Court determined applicant groups hadmet the tests for CMTs to issue.[3] Before the Court are the following interlocutory applications:(a) An application brought by the joint members of the grouping Te KāhuiTakutai Moana o Ngā Whānui Me Ngā Hapu (Te Kāhui) to strike outCA303/2021, the appeal by the Landowners Coalition.2(b) Te Ūpokorehe Treaty Claims Trust (Te Ūpokorehe) separately advancesan application to strike out the Landowners Coalition's appeal.In addition, it seeks to strike out appeals brought by Te Rūnanga o Ngāti1 Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025 [Re Edwards].2 Te Kāhui comprises Te Rua Rakuraku on behalf of Ngāti Ira o Waiо̄weka; Te Ringahuia Hata onbehalf of Ngāti Patumoana; Mandy Mereaira Hata and Te Riaki Amoamo on behalf of NgātiRuatakenga; Tracy Francis Hillier on behalf of Ngāi Tamahaua Hapū and Te Hapū Tītoko o NgāiTama; Karen Stefanie Mokomoko and Pita Tori Biddle for and on behalf of Te Uri o Whakatо̄heaRangatira Mokomoko; and Muriwai Maggie Jones on behalf of Ngāi Tai and Ririwhenua Hapū.Awa (CA314/20213) and Barry Kiwara on behalf of Kutarere Marae(CA332/20214).(c) The late Claude Augustin Edwards (deceased), Adriana Edwards andothers on behalf of Te Whakatōhea (the Edwards Priority Applicants)apply to strike out the cross-appeal of Ngāti Ruatakenga, Hapū ofWhakatōhea (CA330/2021).5 That application is supported ChristinaDavis on behalf of Ngāti Muriwai Hapū (Ngāti Muriwai).(d) The Seafood Industry Representatives seek leave to intervene inthe appeals.(e) The Landowners Coalition also sought leave to intervene, arguedbefore us as a "contingent application", in the event that Te Kāhui andTe Ūpokorehe were successful in striking out its appeal.[4] The issue common to each of those applications is whether those who appearedin the High Court proceedings as "interested persons" under s 104 of the Act were"[a] party to [the] proceeding" and hence have a right of appeal to this Courtunder s 112. The respondents to the strike out applications, and the Seafood IndustryRepresentatives, appeared in the High Court as interested persons, rather thanas applicant groups. On that basis the applicants for strike out assert the respondentshave no status to appeal.[5] For the reasons that follow, we have reached the view interested persons wereparties to the proceeding in the High Court. Each of the applications for strike out aredeclined accordingly. By the same token neither the Seafood Industry Representativesnor the Landowners Coalition require leave to intervene.3 Ngāti Awa's appeal challenges certain factual findings made by the High Court. First, that theWhakatо̄hea hapū had met the test for CMTs in Maraetо̄tara to the mouth of the О̄hiwa Harbouron a "shared exclusivity" basis, and that Ngāti Awa did not; and secondly, that Te Uri oWhakatо̄hea Rangatira Mokomoko and Ngāi Tamahaua Hapū and Te Hapū Tītoko o Ngāi Tamahad met the tests for a range of PCRs.4 Kutarere Marae's appeal challenges the High Court's finding it was not a "whānau, hapū or iwi"and so could not meet the test for a CMT.5 Ngāti Ruatakenga's cross-appeal challenges the High Court's finding it did not meet the test for aPCR to fish for whitebait in the Waiaua and Waiōtahe estuary; and the decision grant those rights,in addition to PCRs in respect of collecting firewood, stones and shells, to Ngāti Muriwai.Background[6] The proceeding in the High Court was substantively and procedurallycomplex. The Court was required to consider many aspects of the Act for the firsttime. The property rights comprising CMTs and PCRs are new. Large numbersof customary groups enjoyed rights under tikanga to the waters of the easternBay of Plenty in 1840. As a result, the applications made to the Court overlapped.There were groups who chose, as the Act provides, to engage directly with the Crownbut who participated as interested persons. The interests of applicants and interestedpersons also overlapped. That background is well understood by all of the partiesto the High Court proceedings, to the appeals to this Court and to these strike outapplications. We only summarise that background to the extent necessary forthe purposes of the present applications.[7] The Act creates a scheme to ensure the protection of the legitimate interests ofall New Zealanders in the marine and coastal area of New Zealand and to recognisethe mana tuku iho exercised in that area by iwi, hapū, and whānau as tangata whenua.6More particularly, that scheme provides for the exercise of customary interests inthe common and marine coastal areas.7[8] Section 98 of the Act gives effect to the second of those purposes. It empowersthe Court to make recognition orders, which are orders recognising PCRs or CMTs.What constitutes a PCR and a CMT is provided for by ss 51(1) and 58(1) respectivelyin the following terms:51 Meaning of protected customary rights(1) A protected customary right is a right that—(a) has been exercised since 1840; and(b) continues to be exercised in a particular part of the commonmarine and coastal area in accordance with tikanga by theapplicant group, whether it continues to be exercised inexactly the same or a similar way, or evolves over time; and(c) is not extinguished as a matter of law.6 Marine and Coastal Area Act 2011, s 4(1).7 Section 4(1)(c).58 Customary marine title(1) Customary marine title exists in a specified area of the commonmarine and coastal area if the applicant group—(a) holds the specified area in accordance with tikanga; and(b) has, in relation to the specified area,—(i) exclusively used and occupied it from 1840 tothe present day without substantial interruption; or(ii) received it, at any time after 1840, through acustomary transfer in accordance with subsection (3).[9] Section 60(1) of the Act sets out the essential elements of a CMT. It provides:(1) Customary marine title —(a) provides an interest in land, but does include a right to alienateor otherwise dispose of any part of a customary marine titlearea; and(b) provides only for the exercise of the rights listed in section 62and described in sections 66 to 93; and(c) has effect on and from the effective date.[10] Churchman J in Re Edwards (Te Whakatōhea No. 2) summarised the conceptof a CMT in the following terms:8[49] A CMT provides for an interest in land but does not include a right toalienate or otherwise dispose of any part of a customary marine title area.A CMT effectively provides for a bundle of rights that include [ResourceManagement Act 1991] rights for controlled activities, a conservationpermission right, right to protect wāhi tapu, rights in relation to marinemammal watching permits and consultation about changes to coastal policystatements, prima facie ownership of newly found taonga tūturu, ownershipof certain minerals, and the right to create a planning document.(Footnotes omitted.)8 Re Edwards, above n 1.[11] Section 106 of the Act enumerates the matters to be established by applicantsfor CMTs. It provides:106 Burden of proof(1) In the case of an application for recognition of protected customaryrights in a specified area of the common marine and coastal area,the applicant group must prove that the protected customary right—(a) has been exercised in the specified area; and(b) continues to be exercised by that group in the same area inaccordance with tikanga.(2) In the case of an application for the recognition of customary marinetitle 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 presentday.(3) In the case of every application for a recognition order, it is presumed,in the absence of proof to the contrary, that a customary interest hasnot been extinguished.[12] Sections 100 to 108 of the Act establish procedures for applications forrecognition orders. Applicant groups, and their representatives, having filed anapplication for a recognition order, must serve that application on relevant localauthorities, the Solicitor-General on behalf of the Attorney-General and on any otherperson the court considers is likely to be directly affected by the application.9They must also give public notice of their application nominating a date, not less than20 working days after the first public notice of the application is published, by whichtime notices of appearance are to be filed.10[13] Section 104, which deals with notices of appearance, provides:9 Marine and Coastal Area Act, s 102.10 Section 103.104 Who may appear on application for recognition orderAny interested person may appear and be heard on an application fora recognition order if that person has, by the due date, filed a noticeof appearance.[14] That broad entitlement, and its possible implications for what might be termedvexatious, repetitive, or simply polemical appeals on Parliament's legislated responseto an admittedly controversial issue, was mitigated by s 107 in the following terms:(3) The Court may strike out all or part of an application for a recognitionorder 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(c) is frivolous or vexatious; or(d) is otherwise an abuse of the Court.(4) If the Court strikes out an application under subsection (3), it may bythe same or a subsequent order dismiss the application.(5) Instead of striking out all or part of an application under subsection(3), the Court may stay all or part of the application on such conditionsas are considered just.(6) This section does not affect the Court's inherent jurisdiction.[15] Appeals are dealt with by s 112, which provides:112 Right of appeal against decision of Court(1) A party to a proceeding under this subpart who is dissatisfied witha decision of the Court may appeal to the Court of Appeal on a matterof fact or law.(2) In relation to a proceeding under this subpart, the Crown—(a) may lodge an appeal on a matter of fact or law (whether ornot it was a party to the proceedings in the Court) and mustbe treated as a party to the appeal; or(b) may apply to be an intervener in the proceedings.(3) An appeal made under this section must be commenced by notice ofappeal, given in accordance with the Court of Appeal (Civil)Rules 2005.[16] The strike out applications at issue here focus on the words of s 112(1):"A party to a proceeding who is dissatisfied with a decision of the Court mayappeal "; and the word "party" in particular. That word is not defined in the Act.Neither is the term "applicant" as used in s 100(1). The term "applicant group" is,however, defined in s 9(1) as follows:applicant group—(a) means 1 or more iwi, hapū, or whānau groups that seek recognitionunder Part 4 of their protected customary rights or customary marinetitle by—(i) a recognition order; or(ii) an agreement; and(b) includes a legal entity (whether corporate or unincorporate) or naturalperson appointed by 1 or more iwi, hapū, or whānau groups to bethe representative of that applicant group and to apply for, and hold,an order or enter into an agreement on behalf of the applicant group.[17] Recognition orders are made in favour of applicant groups.[18] As we have already indicated, the issue here is whether the status of "a partyto a proceeding" which confers a right of appeal under s 112(1) applies to an interestedperson who filed a timely notice of appearance and appeared and was heard, orwhether that status is limited to applicant groups and other participants served in termsof s 102. Section 112(2), it is to be noted, creates a further right of appeal or,alternatively, a pathway to apply to intervene available to the Crown alone.For completeness, we record that while the Attorney-General appeared inthe High Court as an interested person, on 15 November 2021 this Court — withoutopposition — granted the Attorney-General's application for leave to intervene inthe appeals. As this judgment establishes, that application was not necessary.SubmissionsTe Kāhui[19] Te Kāhui applies to strike out the Landowners Coalition on the basis that aninterested person, who appeared and was heard on an application having given a noticeof appearance, is not entitled to participate in the appeal. Te Kāhui bases that argumenton two propositions.[20] First, it says that approach reflects the proper interpretation of the term "party"in s 112(1), both as regards the specific wording of the Act and in the context ofthe meaning of that and like terms in the High Court Rules 2016. Secondly, and moregenerally, given the substantive and very limited content of CMTs it is principallyapplicant groups (that is, Māori) who are substantially affected by decisions ofthe High Court on recognition applications. Interested persons, notwithstanding theviews they may hold and be entitled to express, are not. The contest on appealtherefore should properly be limited to those who — as between themselves asthe parties with relevant customary rights — contest the grant of a CMT.[21] As to the first of those propositions, Te Kāhui argues the provisions of s 112support that interpretation. Subsection (1) refers to "a party". An interested person isnot a party: parties are, in this context, limited to applicant groups and entitiesand persons served pursuant to s 102 who, subsequently, file a notice of appearanceand appear. That interpretation is reinforced by the provisions of s 112(2). The Crownmay appeal, even if it was not a party to the proceedings in the High Court.Alternatively, the Crown may apply to be an intervenor in the proceedings.Those provisions reflect the role of the Attorney-General as representative of thepublic interest.[22] Moreover, applications for recognition orders are required to be commencedin the High Court by originating application. The High Court Rules which applyto originating applications also support that conclusion. The High Court Rules definea "party" as "any person who is a plaintiff or a defendant or a person added toa proceeding".11 The relevant aspect of that definition is the reference to "a personadded to a proceeding".[23] Te Kāhui referred to this Court's decision in Fairfax New Zealand Ltd v C asauthority for what it termed a "default rule" that interested persons cannot appeal.1211 High Court Rules 2016, r 1.3.12 Fairfax New Zealand Ltd v C [2008] NZCA 39, [2008] 2 NZLR 368.There, in criminal proceedings, C successfully sought name suppression in the face ofpolice opposition. Fairfax had been heard in the High Court, and also opposed thegranting of name suppression. The police chose not to appeal, and Fairfax purportedto do so. This Court found that Fairfax was not a party. It was best understood as anintervenor playing the important role of a media watchdog, but that did not give itappeal rights.13 In reaching that conclusion this Court referred to its earlier decisionin Contradictors v Attorney-General (No 2) where it held counsel assisting could notseek leave to appeal, even where they had been specifically appointed bythe High Court to represent the private interests of particular individuals.14[24] As to the second of those propositions, Te Kāhui emphasises the careful andlimited way the Act translates the "intrinsic, inherited rights of iwi, hapū and whānau,derived in accordance with tikanga" into "legal rights and interests able to beexercised so as to sustain all the people of New Zealand and the coastal marineenvironment for future generations".15 Thus, while the Act gives legal expressionto customary interests and "restores" those customary interests as extinguished bythe Foreshore and Seabed Act 2004,16 it does so through the limited way provided byCMTs. That is, ss 60 and 62 create a very limited group of rights that are conferredby a CMT. The common marine and coastal area, by the Act, has the special statusof being incapable of ownership.17 Sections 26 and 27 guarantee every individualright of access and navigation in respect of common marine and coastal areas.Section 28 preserves fishing rights. Accordingly, Te Kāhui argues that the legislation,having taken a broad approach to participation in the High Court of those "interested",by the terms of s 112(1) strikes a different approach on rights of appeal. Those rightsare limited and do not apply to interested persons.Te Ūpokorehe[25] Te Ūpokorehe based its application to strike out the Landowners Coalitionappeal on similar grounds to those advanced by Te Kāhui, but in doing so placed13 At [29] and [32].14 Contradictors v Attorney-General (No 2) [1999] 2 NZLR 519.15 Marine and Coastal Area Act, Preamble.16 Section 6(1).17 Section 11.greater emphasis on the High Court Rules and applicable authority. In particular, itreferred to this Court's decision in Beneficial Owners of Whangaruru WhakaturiaNo 4 v Warin which determined that an amicus curiae had no appeal right because itdid not represent a party to the proceedings.18 That is, notwithstanding such a personhas taken an active role in a proceeding they do not have a right of appeal.[26] Te Ūpokorehe has also applied to strike out the appeals brought by Ngāti Awaand Kutarere Marae. In doing so, it acknowledged the position of those parties differedfrom the Landowners Coalition, since they stood to be directly affectedby Re Edwards. But, since they appeared as interested persons, on Te Ūpokorehe'sinterpretation of s 112, they could not appeal to this Court.Edwards Priority Applicants and Ngāti Muriwai[27] The Edwards Priority Applicants sought to strike out a cross-appeal brought byNgāti Ruatakenga for the same reasons. They also submit that Ngāti Ruatakenga,having been represented in the High Court proceedings by the Whakatōhea MaoriTrust Board (the Trust Board), does not have standing in its own right to appeal.Ngāti Muriwai supported those submissions.Landowners Coalition[28] In this Court, the Landowners Coalition focuses its appeal on the High Court'sfinding that certain applicant groups had met the tests for the grant of CMTs found ins 58(1) of the Act: that is, essentially, of holding the specified area in accordance withtikanga and having exclusively used and occupied that area since 1840 withoutsubstantial interruption. The Landowners Coalition does so with certain aspects ofa CMT particularly in mind. That is, the rights conferred by a CMT known as"an RMA permission right" and the right to create a "planning document".19[29] The Landowners Coalition opposed the strike out applications against it onthree interconnected grounds: (i) the implication of the scheme and purpose of the Act;(ii) the significance for interested parties and the public more generally of the making18 Beneficial Owners of Whangaruru Whakaturia No 4 v Warin [2009] NZCA 60, [2009] NZAR 523.19 Marine and Coastal Area Act, ss 66–70 and ss 85–93.of recognition orders; and (iii) the irrelevance of the various High Court Rules andauthorities Te Kāhui and Te Ūpokorehe relied on.[30] The right of participation provided by s 104 reflected the Act's s 4(1)purposes of protecting the interests of all New Zealanders in the marine and coastalarea while at the same time providing for the grant of recognition orders. The Act wasdesigned to operate in a way which balanced the interests of all involved.The Landowners Coalition had, by the due date, filed its notice of appearance, and hadappeared and been heard in the High Court. Moreover, there had been no objection toit doing so by any applicant group or other interested persons. Section 107(3) gavethe High Court a discretion to strike out a notice of appearance if it disclosedno reasonably arguable case, was likely to cause prejudice or delay or was frivolousor vexatious. To limit appeal rights as proposed would be inconsistent with thatopen approach to participation and would defeat the purpose of recognising interestedpersons as provided by s 104.[31] It was not correct to say that, because of the structure of the Act andthe limitation on the rights attached to CMTs, the contest on appeal was to be seen asbeing properly between iwi, hapū, and whānau. The rights attached to CMTs in thiscase, were real, of benefit to successful applicant groups and could directly affect otherpersons. The RMA permission right and the right to prepare a planning document inaccordance with a CMT holder's tikanga were clear examples of that.[32] The reliance Te Kāhui and Te Ūpokorehe placed on the High Court Rulesgenerally, and existing case authority, to argue for a general rule that an interestedperson, such as an intervenor, did not have a right of appeal and therefore neither didthe Landowners Coalition, was misplaced. Indeed, there was no such "general rule".The decision of this Court in Fairfax went no further than interpreting the particularstatute in order to discern the scope of the appeal right.[33] Moreover, cases on the limits on appeal rights for persons granted interestedperson or intervenor status pursuant to the courts' inherent jurisdiction weredistinguishable. The Landowners Coalition was not required to seek the High Court'sleave to appear as an interested person or intervenor pursuant to thatinherent jurisdiction. Rather it exercised a statutory entitlement to participate pursuantto s 104, subject to the courts' discretion pursuant to s 107(3), and thereby became aparty to the proceedings. Given that statutory basis for its participation, its positionwas not that of, nor was it analogous to, an intervenor or amicus.[34] The approach taken by Te Kāhui, which accepted that iwi, hapū, and whānau(such as Ngāti Ruatakenga) who participated as interested persons were properlyparties to the appeal, was inconsistent with its approach to the position ofthe Landowners Coalition. Those interested persons included applicant groups whohad chosen to negotiate directly with the Crown and others who had madecourt applications in adjoining areas and participated to protect their interests in theareas of overlap.[35] Properly construed, the parties to an application were the applicant groups,those served pursuant to s 102 and who filed a notice of appearance and participated,and persons who responded to the public notice, who filed a notice of appearanceand who appeared and were heard. That was, moreover, the approach that had in factbeen taken by persons, other than applicant groups, who had participated inthe High Court hearing.[36] Section 107 provided the Court with a more than adequate basis for controllingwhat might otherwise be an undesirable multiplicity of parties and of polemicalargument, as feared by Te Kāhui, by those opposed to the now legislatively enshrinedpolicy of the Act.Ngāti Awa and Kutarere Marae[37] For their part, Ngāti Awa and Kutarere Marae emphasised they were bothaffected by the High Court's decision. Ngāti Awa had actively participated inthe High Court hearing and noted they would already be appearing in this Court'sproceedings as a respondent to Te Ūpokorehe's cross-appeal. Kutarere Marae stressedthat the High Court's conclusion that it was not a "whānau, hapū or iwi" for thepurposes of the Act was adverse to its interests because it prevented it from meetingthe test for a CMT; a finding which may bind them.20 In those circumstances bothparties said Te Ūpokorehe's strike out applications should be declined.Ngāti Ruatakenga and the Trust Board[38] Ngāti Ruatakenga said it was a successful applicant group for a CMT andshould be able to defend that aspect of the High Court judgment in its own right.It explained that it had filed an application to seek agreement with the Crown unders 95 of the Act but did not realise it could, at the same time, apply to the Courtfor recognition orders. Once it had realised, it agreed with the Trust Board that it couldrely on the "protective application" filed by the Trust Board, but that it would speak foritself in the High Court proceedings. The Trust Board supported those submissions.Seafood Industry Representatives[39] Finally, the Seafood Industry Representatives sought leave to intervene inthe appeals, acknowledging that such an application may be unnecessary were thisCourt to find that interested persons were parties for the purposes of an appeal.It explained that, in all the circumstances, it would prefer not to appeal. It did,however, seek to be heard on the interpretation of "exclusive use and occupation" and"substantial interruption" in s 58(1)(b)(i) to protect the interests of those it represents.[40] The intervention application was opposed by Te Kāhui, who saidthe Seafood Industry Representatives' intervention would expand the issues beforethe Court and unnecessarily complicate the appeals. The Attorney-General, who isalready participating in the appeals as intervener, would represent the public interestgenerally. The Seafood Industry Representatives' intervention was unnecessary.Analysis[41] We have concluded that each of the applications to strike out should bedeclined because interested persons under s 104 of the Act who appeared and wereheard in the High Court are parties for the purposes of an appeal. We do so, for —in general terms — essentially the reasons advanced by the Landowners Coalition.20 Re Edwards, above n 1, at [424].[42] The Act as a whole has a national significance that goes beyond recognitionand granting of CMTs and PCRs to iwi, hapū, and whānau. The Preamble to the Actrecords its genesis as being the passing of the Foreshore and Seabed Act 2004 inresponse to this Court's decision in Attorney-General v Ngāti Apa.21 There this Courtheld the Māori Land Court had jurisdiction to determine claims of customaryownership to areas of the foreshore and seabed.22 Both the Waitangi Tribunal anda Ministerial Review Panel considered the 2004 Act to be severely discriminatoryagainst iwi, hapū, and whānau.23 The Review Panel had recommended the repeal ofthe 2004 Act following engagement with Māori and the public about their interests inthe foreshore and seabed and its replacement with new legislation reflectingthe Treaty of Waitangi. On that basis, and as the Preamble states:(4) This Act takes account of the intrinsic, inherited rights of iwi, hapū,and whānau, derived in accordance with tikanga and based on theirconnection with the foreshore and seabed and on the principle ofmanaakitanga. It translates those inherited rights into legal rightsand interests that are inalienable, enduring, and able to be exercisedso as to sustain all the people of New Zealand and the coastal marineenvironment for future generations:[43] It is clear to us that applications for recognition of CMTs and PCRs are mattersof interest to all the people of New Zealand even if they are of particular interest tothe iwi, hapū, and whānau involved.[44] The aspects of the rights conferred by CMTs which the Landowners Coalitionfocused on in particular, namely RMA permission and planning document rights,provide particular support for that conclusion:(a) A group holding a CMT "may give or decline permission, on anygrounds, for an activity to which an RMA permission right applies".2421 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).22 At [91], [124] and [182].23 Waitangi Tribunal Report on the Crown's Foreshore and Seabed Policy (Wai 1071, 2004);and Pākia ki uta, Pākia ki tai: Report of the Ministerial Review Panel (Ministry of Justice,30 June 2009).24 Marine and Coastal Area Act, s 66(2).RMA permission rights apply to activities that are to be carried outunder a resource consent, including a resource consent for a controlledactivity, to the extent that the resource consent is for an activity to becarried out within a customary marine title area.25 Thus, and in generalterms, notwithstanding the status of proposed activities under relevantplanning laws, the holders of a CMT could determine whether or not anotherwise consented activity occurred.(b) A CMT group may also prepare a planning document in accordancewith its tikanga. On and after the date a planning document isregistered, the local authority must take that document into accountwhen making any decision under the Local Government Act 2002in relation to the customary marine title areas.26 Similar provisionsapply when planning documents prepared by CMT groups who areregistered with Heritage New Zealand Pouhere Taonga,the Director-General of Conservation and the Minister of Fisheries.27[45] Whilst the full significance of those provisions will only become apparent overtime, in our view they show the significance for persons other than iwi, hapū, andwhānau of the grant of CMTs, and hence of appeals against decisions ofthe High Court in the process of doing so.[46] In our view, the wide rights of participation provided by s 104 have beenenacted by Parliament to reflect those considerations. At the same time, s 107(3)ensures those broad rights of participation are not abused.[47] On that basis, we think it would be wrong to adopt the somewhat strainedapproach to the interpretation of ss 104 and 112 urged on us by the applicants forstrike out.[48] We think the concerns that prompted the strike out applications againstthe Landowners Coalition, particularly given the vexed history of these matters,25 Section 66(1).26 Section 88(2).27 Sections 89–91.were properly to be raised in the High Court and could more than adequately havebeen dealt with, if necessary, under s 107. That Te Kāhui and Te Ūpokorehe did notsee the need to do so suggests the participation of interested persons, including theLandowners Coalition, in these applications was unobjectionable on s 107(3) grounds.[49] Our conclusion means that Ngāti Awa, Kutarere Marae and Ngāti Ruatakenga,having appeared and participated as interested persons in the High Court, are partiesto the proceedings and may therefore appeal as of right in this Court. We recognisethe positions of those parties differ from the Landowners Coalition's, since they aredirectly affected by the High Court judgment. We consider our interpretation providesfor the inclusion of whānau, hapū and iwi who may be interested in the outcomes ofhearings and appeals, but who nevertheless have opted to pursue, for example,the direct engagement pathway with the Crown.[50] We further recognise the applicants for strike out noted that the appeals broughtby Ngāti Awa, Kutarere Marae and Ngāti Ruatakenga raise other issues. In particular,whether certain applicants for CMTs and PCRs should have been successful, andwhether the Judge's finding Kutarere Marae was not a "whānau, hapū or iwi" isbinding on it in seeking agreement with the Crown. In our view those issues areappropriately to be addressed in the substantive appeals.[51] Finally, because of the view we have reached on interested persons, it isunnecessary to grant the applications to intervene by the Seafood IndustryRepresentatives and the Landowners Coalition.Result[52] The applications for strike out of CA303/2021 are declined.[53] The application for strike out of CA314/2021 and CA332/2021 is declined.[54] The application for strike out of CA330/2021 is declined.[55] The applications for leave to intervene by the Seafood Industry Representativesand the Landowners Coalition are declined.[56] There is no order as to costs.[57] The parties' attention will no doubt now focus on the appeals themselves.Solicitors:Annette Sykes & Co, Rotorua for First Applicant and Fourth RespondentLyall & Thornton, Auckland for Second ApplicantNgātahi Law, Auckland for Third ApplicantTe Haa Legal, Ōtaki for Fourth Applicant and Third RespondentChapman Tripp, Auckland for Fifth ApplicantFranks Ogilvie, Wellington for First RespondentWhāia Legal, Wellington for Second RespondentTu Pono Legal Ltd, Rotorua for Fifth RespondentCrown Law Office, Wellington for Intervener