TAINUI HAPŪ O TAINUI WAKA [2023] NZHC 2207

TAINUI HAPŪ O TAINUI WAKA [2023] NZHC 2207 [16 August 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2017-419-083[2023] NZHC 2207UNDER the Marine and Coastal Area(Takutai Moana) Act 2011IN THE MATTER OF an application by Angeline Greensill for andon behalf of the Whāingaroa MoanaCollective for orders recognising customarymarine title and protected customary rightsunder the ActOn the papers:Counsel: A Sykes and J Cole for ApplicantJudgment: 16 August 2023JUDGMENT OF CHURCHMAN JIntroduction[1] The applicant has filed a second amended application, dated 11 August 2023,for orders under the Marine and Coastal Area (Takutai Moana) Act 2011, with anamended map pursuant to my directions of 28 July 2023.[2] In a minute I issued on that date, I noted that in the applicant's amendedapplication dated 16 June 2023, the applicant filed a revised map which, although itdid not enlarge the claim area, contained an error which showed the seaward boundaryas being 200 nautical miles from the coast rather than 12 nautical miles. Counselagreed to amend that error and file an amended application with a corrected map.[3] Counsel also accepted that some further clarification as to the precise protectedcustomary rights (PCR) orders being sought was required and undertook to file anaffidavit from the applicant, Ms Greensill, to provide greater clarity in this respect.[4] Ms Greensill has filed a third updated affidavit dated 9 August 2023, updatingher credentials, describing the Whāingaroa Moana Collective, on whose behalf thefirst and second amended applications have been filed, and explaining the effect of thesecond amended application in terms of clarifying the composition of the applicantgroup and the customary marine title (CMT) and PCR orders sought.Revised map[5] Counsel have now submitted a revised map which has corrected the earliererror. The seaward boundary of the application area has been reduced from200 nautical miles to 12 nautical miles, or in other words to the outer limits of theterritorial sea.[6] The revised map is otherwise unchanged from that filed in the originalapplication in 2017. It does not enlarge the claim area. Accordingly, the amendmentto the map fits within the category of amended applications that will be allowed as setout in the Ngāti Pāhauwera (strike-out application) decision.1[7] Problematically, the revised map does not display co-ordinates of theapplication area. I draw counsels' attention to paragraph [8] of my minute of 28 July2023, reminding parties to include co-ordinates on a map for an application area, withsuch co-ordinates to be displayed, at a minimum, at the two landward and two seawardboundaries.[8] It is unclear to me why the applicant has filed a map which no longer includesco-ordinates, when previous versions of the map contained such co-ordinates. I refrainfrom directing that the applicant file yet another amended application and map, butonly because the co-ordinates are included on the map in the original application, thetext of the second amended application, and Ms Greensill's accompanying affidavit.1 Re Ngāti Pāhauwera Development Trust (strike-out application) [2020] NZHC 1139 at [62].Amendment to applicant group[9] The original application, dated 3 April 2017, was filed by Ms Greensill for andon behalf of Tainui hapū o Tainui waka. The amended application, dated 16 June 2023,and the second amended application, dated 11 August 2023, state that the applicationis made by Ms Greensill for and on behalf of "members of the Whāingaroa MoanaCollective specifically Tainui hapū o Tainui waka and Ngāti Tamainupō".[10] Amendments pursuant to an amended application cannot amount to a materialchange to the application such that the amended pleading represents a fresh applicationunder the Act and thereby constitutes an abuse of the Court.2 In order for anamendment to an applicant group to be allowed, the amended application must notseek to add "new applicants who were not referred to at all in the original applicationand whose claims could not possibly have been identified from the wording of theoriginal application".3 The question becomes whether the "members of theWhāingaroa Moana Collective specifically Tainui hapū o Tainui waka andNgāti Tamainupō" represents an expansion of applicants to whom orders may be madeif their substantive application for orders succeeds whose claims could not possiblyhave been identified from the wording of the original application.[11] Ms Greensill provides further information about the Whāingaroa MoanaCollective in her affidavit accompanying the second amended application. TheWhāingaroa Moana Collective comprises those hapū who whakapapa to theWhāingaroa Harbour and nearby coastal and marine area and includes:(a) Tainui hapū o Tainui waka, which itself comprises 12 hapū;(b) Ngaati Whakamarurangi, comprising Ngaati Koata, Ngaati Motemoteand Ngaati Tahinga;(c) Ngaati Maahanga me Ngaa Uri o Te Awaitaia; and2 Re Dargaville [2020] NZHC 2028 at [44]; Re Paul [2020] NZHC 2039 at [36] and [64], upheldon appeal in Paul v Attorney-General [2022] NZCA 443 at [75]; and Re Ngāti PāhauweraDevelopment Trust (strike-out application) [2020] NZHC 1139 at [4].3 Re Paul, above n 2, at [64].(d) Ngāti Tamainupō, comprising Ngā Uri o Tamainupō, Toa Kotara meTe Huaki.[12] Ms Greensill states the members of the Whāingaroa Moana Collective haveformally worked together since 2019 and since then have acknowledged each other'sshared customary rights and interests in the takutai moana of the Whāingaroa Harbourand surrounding coastline, which includes the recognition of, and respect shown for,the shared exclusivity by which the members of the Whāingaroa Moana Collectivehold, maintain and practise their mana whenua, mana moana and customary title tothe coastal marine area in the application area. Ms Greensill says that the members ofthe Whāingaroa Moana Collective "have collectively contributed to the continuingexercise of mana tuku iho in the Application Area".[13] As noted, the amended applications have been filed on behalf of members ofthe Whāingaroa Moana Collective, specifically Tainui hapū o Tainui waka andNgāti Tamainupō. Ms Greensill explains that Ngāti Whakamarurangi is not separatelyidentified, as members of Ngāti Whakamarurangi fall under the mantle of Tainui hapūo Tainui waka or are otherwise closely connected through intermarriage. Ms Greensillexplains that Ngaati Maahanga me Ngaa Uri o Te Awaitaia chose not to be named aspart of the applicant group by reason of their extant application lodged with the Crownfor direct negotiations over an area which extends beyond the application area in thisapplication. The question becomes whether the inclusion of Ngāti Tamainupōrepresents an unwarranted expansion to the group of applicants.[14] Ms Greensill states that the whānau, hapū and iwi of the Whāingaroa MoanaCollective have always been inclusive people, with relationships throughintermarriage and permeable boundaries which allow access to each other's takiwā forparticular purposes. Ms Greensill states in her affidavit:27. Our society is a complex woven tapestry that is cemented byrelationships sourced in whakapapa. Our rohe moana is integral to our identityand livelihoods and it is our responsibility to see that our relationship with itis protected. We do this collectively.[15] Ms Greensill says the decision to file the amended application identifying theapplicant group as the members of the Whāingaroa Moana Collective rather thanTainui hapū o Tainui waka was so as to recognise the customary rights and interests ofall members of the Whāingaroa Moana Collective on the basis of the sharedexclusivity of the application area, which reflects the tikanga of the hapū of the areawho have shared whakapapa and have worked together in the exercise of theircustomary practices since before 1840. Ms Greensill states that the members of theWhāingaroa Moana Collective have been sharing the Whāingaroa Moana forgenerations, in accordance with tikanga.[16] I am satisfied in this case that amending the existing application to be for andon behalf of the members of the Whāingaroa Moana Collective was a pragmatic wayto recognise what Ms Greensill says is the shared exclusivity which the members ofthe Whāingaroa Moana Collective enjoy over the common marine and coastal areawithin their rohe. Caution is required before granting such an amendment, as there isa real risk that as a result of such an amendment the applicant group may includepersons whose identity could not have been known from the original application. Inthis case, and indeed perhaps by a fine margin, I am satisfied the amended applicantgroup is so sufficiently connected to the original applicant group, including theapplicant herself being changed, and who are on the basis of the material before me soinextricably linked by whakapapa and a shared history of use, that it is not the casethat their claims "could not possibly have been identified from the originalapplication" and it is appropriate to allow the present proposed amendment. As I havesaid in an earlier case (although in that case not dealing with an amended applicantgroup), I consider that "while the details of the present application have changed, thenature of the claim has not".4[17] I am satisfied the amendment to the named applicant group does not representa fresh cause of action and may be allowed.Clarification as to PCR orders sought[18] As noted above, at the judicial case management conference in Hamilton on20 June 2023, I asked for clarification as to what activities the applicant group soughtrecognition in respect of under PCR orders.4 Tukōkō and Ngāti Moe [2023] NZHC 473 at [20].[19] In order to be granted orders for CMT, an applicant group must demonstratehow it has held the application area in accordance with tikanga and exclusively usedand occupied that area from 1840 to the present day without substantial interruption.In order to be granted orders for PCR, the applicant group must demonstrate rightswhich have been exercised since 1840 and continue to be exercised by the applicantgroup in the common marine and coastal area in accordance with tikanga and have notbeen extinguished as a matter of law.[20] In the aim of providing greater clarity as to the activities over which theapplicant group seeks recognition under PCR orders, the second amended applicationhas accordingly differentiated between those activities which are said to meet thestatutory test for CMT, and those said to be capable of being the subject of PCRs. Theapplicant says this has removed any activities which are statutorily barred from beingthe subject of PCRs (such as fishing for species subject to the Fisheries Act 1996 ortaking/harvesting aquatic plants not customarily found within the common marine andcoastal area).[21] The list of activities in the second amended application follows loosely that inthe original application. However, the list is more expansive than the one in theoriginal application. Again the question arises as to whether this constitutes a freshcause of action and is an abuse of process.[22] In the circumstances, I am satisfied it is not. The amended list of activities wasprovided at my request for greater particulars as to exactly what protection is beingsought under PCR orders. The list of activities follows generally that in the originalapplication, but with greater information provided, listing in more detail the differentsorts of activities that are included within the categories of what was originally appliedfor. I am satisfied this does not expand the application so much as to constitute a freshcause of action. The amended list of activities in the second amended application isallowed.Conclusion[23] Each of the amendments requested under the second amended applicationarguably borders on an indulgence. Overall, however, I am satisfied in respect of eachcategory of amendment that the amendments do not amount to a fresh cause of actionand should be allowed.Churchman JSolicitors:Annette Sykes & Co, Rotorua for Applicant