PAUL v ATTORNEY-GENERAL [2022] NZCA 443

PAUL v ATTORNEY-GENERAL [2022] NZCA 443 [27 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA744/2020[2022] NZCA 443BETWEEN CLETUS MAANU PAULAppellantAND ATTORNEY-GENERALRespondentMAUNGAHARURU-TANGITŪ TRUSTInterested PartyRONGOMAIWAHINE IWI TRUSTInterested PartyHearing: 2 March 2022Court: Brown, Clifford and Goddard JJCounsel: J Mason for AppellantY Moinfar-Yong for RespondentK M Anderson and M J Dicken for Maungaharuru-Tangitū TrustC M Hockly and B R Lyall for Rongomaiwahine Iwi TrustJudgment: 27 September 2022 at 10.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay costs to Maungaharuru-Tangitū Trust for a standardappeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) repealedthe Foreshore and Seabed Act 2004 and restored customary interests whichthe 2004 Act had extinguished. The Act introduced a regime whereby on applicationthe High Court could grant orders recognising a protected customary right orcustomary marine title in relation to particular identified marine and coastal areas. Thestatutory deadline for the filing of applications under the Act was 3 April 2017.1[2] On that day the appellant (Mr Paul) filed an application in the High Court foran order recognising the customary marine title and protected customary rights ofthe Manu Paora whānau in a specified area in Ōhope and the adjacent coastline.[3] On the same day Mr Paul also filed an application "on behalf of all Māori"seeking an order recognising customary marine title in respect of the entire marine andcoastal area of New Zealand (the nationwide application).2 The apparent object wasto provide Māori groups, who had not filed an application within the statutorydeadline, the ability to do so in the future. First and second amended applications werefiled on 4 March and 21 May 2020.[4] The Attorney-General sought an order striking out the nationwide applicationand the subsequent amended versions. Two interested parties, Maungaharuru-TangitūTrust (MTT) and Rongomaiwahine Iwi Trust (Rongomaiwahine), supportedthe strike out application. On 12 August 2020 the High Court struck outthe nationwide application, both in its original and amended forms.3 Mr Paul appealsagainst that judgment.41 Being six years after the commencement of the Act, as provided in s 100(2).2 It was described at various case management conferences in the High Court as an"umbrella application" and a "protective application".3 Re Paul [2020] NZHC 2039.4 An application under s 69 of the Senior Courts Act 2016 for leave to appeal directly tothe Supreme Court was dismissed: Paul v Attorney-General [2020] NZSC 132.The statutory context[5] The purpose of the Act is detailed in s 4:(1) The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of thelegitimate interests of all New Zealanders in the marine andcoastal area of New Zealand; and(b) recognise the mana tuku iho exercised in the marine andcoastal area by iwi, hapū, and whānau as tangata whenua; and(c) provide for the exercise of customary interests in the commonmarine and coastal area; and(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).(2) To that end, this Act—(a) repeals the Foreshore and Seabed Act 2004 and restorescustomary interests extinguished by that Act; and(b) contributes to the continuing exercise of mana tuku iho in themarine and coastal area; and(c) gives legal expression to customary interests; and(d) recognises and protects the exercise of existing lawful rightsand uses in the marine and coastal area; and(e) recognises, through the protection of public rights of access,navigation, and fishing, the importance of the commonmarine and coastal area—(i) for its intrinsic worth; and(ii) for the benefit, use, and enjoyment of the public ofNew Zealand.[6] The Act further provides in s 6 for the restoration of customary interests:(1) Any customary interests in the common marine and coastal area thatwere extinguished by the Foreshore and Seabed Act 2004 are restoredand given legal expression in accordance with this Act.(2) Any application under this Act for the recognition of customaryinterests must be considered and determined as if the Foreshore andSeabed Act 2004 had not been enacted[7] The Act makes express reference in s 7 to the Treaty of Waitangi:In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi),this Act recognises, and promotes the exercise of, customary interests ofMāori in the common marine and coastal area by providing,—(a) in subpart 1 of Part 3, for the participation of affected iwi, hapū, andwhānau in the specified conservation processes relating tothe common marine and coastal area; and(b) in subpart 2 of Part 3, for customary rights to be recognised andprotected; and(c) in subpart 3 of Part 3, for customary marine title to be recognised andexercised.[8] The recognition of customary interests is addressed in pt 4 of the Act.Both a protected customary right and customary marine title may be recognised eitherby a recognition agreement between an applicant group and the responsible Ministeron behalf of the Crown,5 or by an order of the High Court made on an applicationunder s 100.6[9] The power of the Court to recognise a protected customary right orcustomary marine title is provided in s 98, which relevantly states:(1) The Court may make an order recognising a protected customary rightor customary marine title (a recognition order).(2) The Court may only make an order if it is satisfied thatthe applicant,—(a) in the case of an application for recognition of a protectedcustomary right, meets the requirements of section 51(1); or(b) in the case of an application for recognition of customarymarine title, meets the requirements of section 58.(3) No other court has jurisdiction to make a recognition order.(4) On and after the commencement of this Act, the jurisdiction ofthe Court to hear and determine any aboriginal rights claim is replacedfully by the jurisdiction of the Court under this Act.5 Marine and Coastal Area (Takutai Moana) Act 2011, ss 95 and 96.6 Section 94.[10] An application for a recognition order under s 100 was required to be madebefore the statutory deadline in s 100(2):(2) However, the application must be filed not later than 6 years afterthe commencement of this Act, and the Court must not accept forfiling or otherwise consider any application that purports to be filedafter that date.[11] Section 101 stipulates the contents of applications:An application for a recognition order must—(a) state whether it is an application for recognition of a protectedcustomary right, or of customary marine title, or both; and(b) if it is an application for recognition of a protected customary right,describe that customary right; and(c) describe the applicant group; and(d) identify the particular area of the common marine and coastal area towhich the application relates; and(e) state the grounds on which the application is made; and(f) name a person to be the holder of the order as the representative ofthe applicant group; and(g) specify contact details for the group and for the person named to holdthe order; and(h) be supported by an affidavit or affidavits that set out in full the basison which the applicant group claims to be entitled to the recognitionorder; and(i) contain any other information required by regulations made undersection 118(1)(i).[12] The expression "applicant group" is defined in the interpretation sectionas follows:7applicant 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; or7 Section 9(1).(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 be therepresentative of that applicant group and to apply for, and hold, anorder or enter into an agreement on behalf of the applicant group[13] The nature of the connection between an applicant group and the particulararea to which its application relates is spelled out in the context of the burden of proofspecified in s 106:(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.[14] Applications for recognition orders are to be served in accordance with s 102,and public notification must be given in accordance with s 103 not later than20 working days after the filing of the application.[15] Section 107 confers flexibility on the Court in dealing withrecognition applications. It includes the Court's power to strike out applications,which is the focus of argument on this appeal:(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.That section does not affect the Court's inherent jurisdiction.8Relevant background[16] More than 200 applications for recognition orders were filed in the High Courtprior to the expiration of the statutory deadline. The Attorney-General is an interestedparty in all of the applications.9 The Court progressed those applications by holding aseries of case management conferences at various locations throughout the country.Some applications have now been determined by the High Court and are the subjectof appeals to this Court.10The nationwide application[17] The nationwide application filed on 3 April 2017 relevantly stated:1. I, CLETUS MAANU PAUL, apply to the High Court for orders pursuantto s 98 of the Act to recognise the customary marine title ("Title") onbehalf of all Māori ("the Applicants") in the Marine and Coastal Area("the MCA") as defined in the Act, over the entire MCA of AotearoaNew Zealand ("the Application Area"), and as set out in paragraph 3below.The Applicant Group:2. The Applicants claim ownership over the Application Area based on theirfirm belief that they hold and exercise tino rangatiratanga, over the entireMCA of Aotearoa New Zealand and have done so since time immemorialup until 1840 and since 1840, substantially uninterrupted.Area to which the application relates:3. The area to which this Application relates is the entire area of the MCA ofAotearoa New Zealand, as defined in the Act, and includes; all islands tothe outer limits of the territorial sea; and, the MCA surrounding all islandsand reefs lying off shore from the coastline to a distance of 12 nautical8 Section 107(6).9 The Attorney-General's right to participate in applications under the Act as an interested party wasconfirmed by the High Court in Re Rihari [2019] NZHC 2658.10 Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025 (appealed from in CA303/2021,CA314/2021, CA326/2021, CA327/2021, CA330/2021, CA332/2021 and CA339/2021); andRe Ngāti Pāhauwera [2021] NZHC 3599 (appealed from in CA68/2022).miles; and, the entire foreshore and territorial waters of AotearoaNew Zealand.Grounds on which the customary marine title and protected customaryrights are sought:4. The grounds on which these orders are sought are that:a. the Applicants have held and exercised tino rangatiratanga over theApplication Area in accordance with tikanga since before 1840; andb. the Applicants have exclusively used and occupied theApplication Area from 1840 to the present day without substantialinterruption.[18] The application concluded with the following paragraph:10. The Applicants respectfully seek leave to reserve the right to amendthis Application, including: amending its nature and scope; and, byadding additional parties.[19] Subsequently Mr Paul filed an affidavit dated 4 April 2017, described as beingin support of the application, in which he explained:1. I am the Chairperson of the Mataatua District Māori Council("the Mataatua DMC") and was elected to this position in April 2012.I am also the Co-chairperson of the New Zealand Māori Council("NZMC").3. I depose this Affidavit in support of the Application forCustomary Marine Title ("Title") under the Act over the entireterritorial waters of Aotearoa New Zealand ("the Application Area"),including, specifically, the Mataatua District.4. In my capacity as the Co-chairperson of the NZMC and theChairperson of the Mataatua DMC, it is our position that thisapplication for Title be filed for the Application Area because we, andour constituents, are of the firm belief that Māori hold and exercisetino rangatiratanga, which includes customary title over all of themarine and coastal area ("MCA"), as defined in the Act, including titleto all of the dry land of Aotearoa New Zealand at 1840, untillegitimately purchased from us.A: Functions and role of the NZMC5. The NZMC is established under the Māori Community DevelopmentAct 1962 ("MCD Act"). The NZMC's functions are set out in section18 of the MCD Act and are extensive and provide us with an over-arching advocacy role in relation to the physical, economic, industrial,educational, social, moral and spiritual wellbeing of all Māori inAotearoa New Zealand, and in particular, to also collaborate with,amongst others, the Crown and its departments on such matters.6. The NZMC has, consistent with our statutory functions, played anactive advocacy role in protecting many of our resources on behalf ofour Māori people, including dry lands, waters, and other taonga.7. We therefore consider that we are the appropriate entity, and are bestplaced, to apply for Title on behalf of all Māori in Aotearoa NewZealand over the Application Area.[20] On 18 August 2017 counsel for the New Zealand Māori Council(the Māori Council) filed a memorandum for the purpose of clarifying that not onlywas the Māori Council not involved in any application under the Act, but it had madedirections that meant that no District Māori Council could lawfully be involved in anysuch application. For the reasons elaborated in the memorandum, counsel stated thatthe purported basis upon which Mr Paul's application (and also another nationwideapplication filed by Rihari Dargaville) had been brought was invalid, neitherapplication having received or even sought the approval of the Māori Council'scommittee responsible for approving litigation brought in the name of a District MāoriCouncil. Specifically with reference to Mr Paul, the memorandum stated:Mr Paul was the co-chair of the NZMC from 2012 until 16 April 2016.He refused to accept the decision of the NZMC not to further appoint him asits co-chair until 5 July 2017. The High Court has now formally declared thathe is no longer a co-chair.11 He holds no other post. He has not been givenany authority to take any action on behalf of the NZMC.[21] In a memorandum responding to the Māori Council's memorandum, Mr Paulreferred to litigation which he had brought challenging the validity of resolutions madeby the Māori Council, including the relevant resolution that it was necessary forlitigation in the name of a District Māori Council to have the Māori Council'sapproval. Mr Paul emphasised that he had made the nationwide application in hisown name, not on behalf of the Māori Council, and that given his duties as a kaumātuawith national standing he was able to act in a representative capacity on behalf ofall Māori. Mr Paul stated that the application was filed on behalf of all Māori inaccordance with his firm belief that all Māori hold and exercise tino rangatiratangaover Aotearoa New Zealand and its marine and coastal area.11 Durie v Paul [2017] NZHC 1845.[22] The Attorney-General served a notice for further particulars requesting thatMr Paul specify the whānau, hapū or iwi who sought recognition under the applicationand state whether Mr Paul was a member of each of those groups. In response, counselfor Mr Paul filed a memorandum dated 16 March 2018 which stated:3. The application is brought on behalf of all Māori and, therefore, onbehalf of all whānau, hapū and iwi.4. The Applicant is Māori.(Footnote omitted.)[23] On 10 April 2018 the Attorney-General filed a notice of appearance in respectof the nationwide application, which stated that the application did not comply withs 101 of the Act as it did not:(a) state (clearly) whether it was an application for recognition of aprotected customary right, or of customary marine title, or both;(b) clearly identify the particular area of the common marine and coastalarea to which the application related;(c) describe the applicant group;(d) name a person to be the holder of the order as the representative ofthe applicant group; and(e) specify contact details for the group and for the person named to holdthe order.[24] Neither the nationwide application itself nor Mr Paul's affidavit had explicitlystated that the object of the application was to overcome difficulties presented by thestatutory deadline. However that this was its purpose was spelled out in amemorandum of counsel for Mr Paul dated 10 June 2019, which materially stated:12. The Application was not filed with the intention of cutting across otherapplications or undermining them in any way. The Application is notin opposition to other applications.13. Rather, the Application was filed as a vehicle for those who hadmissed the Statutory Deadline, due to a lack of resources orknowledge, to protect their interests. Otherwise, Māori who wouldpotentially meet the tests under the MACA Act for [customary marinetitle], would be prevented from having their rights recognised.14. The Application specifically states that rights are reserved to addparties or to amend the Application area. There are a number of Māorigroups who have approached the Applicant with the intention to jointhe Application, because they have been precluded from participationin these proceedings as they missed the Statutory Deadline.15. The Applicant is working through a process with these parties, andenvisages that they will be added as Applicants throughout the courseof this year.[25] In a minute dated 25 July 2019, addressing matters arising from various casemanagement conferences, Churchman J made reference to Mr Paul's 10 June 2019memorandum. He noted that a number of counsel had raised the concern that the"protective" applications were needlessly complicating their clients' claims and hadindicated that strike out applications were in contemplation. The Judge stated:[41] There is no doubt that the existence of the two national applications,which do not identify any particular claim or interests, is causing frustrationfor a number of other claimants.[42] However, before entertaining a strike-out application, the Court willgive the two national claimants the opportunity to file a memorandumspecifying precisely what claims they are actually advancing, on whose behalfthose claims are made and what geographic areas they relate to.Such memoranda will be filed and served within one month from the date ofthis minute.[43] To the extent that there will be geographic areas where no specificclaim is being advanced, the Court will expect the national applicants to makethat clear and to withdraw from further involvement in relation to hearings inrespect of those areas.[44] Should the national applicants fail to comply with this direction thenthe Court will entertain applications that the claims should be struck out.The amended applications[26] In a first amended application filed on 4 March 2020, several Māori individualswere joined as applicants in relation to areas of land and sea described in the documentand depicted on maps annexed to it. Mr Paul remained as the first applicant "on behalfof all Māori not already represented in customary title proceedings under the Act" inrespect of an area described as "those parts of the [marine and coastal area] of AotearoaNew Zealand which they whakapapa to". The first amended application also reserveda right of amendment.[27] In a minute dated 11 March 2020, Churchman J repeated indications inprevious minutes that there were threshold jurisdictional requirements that needed tobe met before an application can be valid. He noted that Mr Paul's claim did notidentify the applicant group, nor the boundaries of any claims that might be advancedby such a group, and observed that it was unfair to applicants who had brought claimswithin the time limit to face uncertainty as to whether future claims may be filed whichaffected them. A one-day fixture on 28 May 2020 was allocated for the hearing of astrike out application. In a subsequent minute of 5 May 2020, the Judge noted:[11] There is significant prejudice to all of the applicants who havecommenced applications within the time limits stipulated in the Act and whoseapplications comply with the requirements of the Act in relation to identifyingthe claimant and the area in respect of which the claim is made, if thereremains a possibility of an amorphous claim in respect of all of New Zealand,of the nature being advanced by [Mr Paul]. It is therefore in the interests ofall applicants whose claims comply with the requirements of the Act to havethis matter resolved promptly.[28] On 21 May 2020 a second amended application was filed. Mr Paul remainedas an applicant but the reference to "on behalf of all Māori" was not repeated.[29] The implications for the interested parties of the purported joinder ofnew applicants in the amended claims were spelled out in their submissions inopposition to the appeal. With reference to the claims by Evelyn Ratima andHillary Seymour, the MTT submissions explained: two of the areas identified by them relate to the area claimed by MTT in itsapplication for recognition orders. The MTT application, along with all otherapplications that 'crossed over' in the Hawke's Bay area (from Poututu Streamin the north to Awatoto in the south) were heard by the High Court inFebruary/March 2021, with a decision issued on 22 December 2021.The hearing which was the subject of that decision involved four overlappingapplications and occupied seven weeks of hearing time. Consequently it wassubmitted that the prejudice caused to MTT by the new claims was very real.[30] Similarly, the Rongomaiwahine submissions drew attention to the fact that theclaims of Kereopa and Lewis Rātapu and Hillary Seymour overlapped significantlywith the Rongomaiwahine application. Counsel for Rongomaiwahine rejected thesuggestion that there was only a risk of slight prejudice to existing applicants andsupported the Judge's conclusion that the proposed amendments gave rise to realissues of prejudice.12The strike out application[31] Together with the second amended application Mr Paul filed a memorandumcontending that the need for a strike out hearing was obviated by the filing of thefurther amended application. In response, by way of a memorandum dated25 May 2020, the Attorney-General observed that the effect of the second amendedapplication was to replace the original application with eight discrete claims todifferent parts of the common marine and coastal area by 13 named individuals whowere not named in the original application. The Attorney-General submitted that, ifamendments of that type were to be allowed, there would be nothing to prevent anyother applicant from amending their application to introduce new claims by iwi, hapūor whānau groups. It was submitted that the application was an abuse of process interms of s 107 of the Act and this foreshadowed the proposition that the nationwideapplication should be struck out.[32] Counsel for Mr Paul submitted that a formal strike out applicationwas required. Out of an abundance of caution the Judge directed the Attorney-Generalto file an interlocutory application specifying the grounds on which the strike out wassought, with Mr Paul having five days to file a formal notice of opposition.However other applicants who wished to support the strike out were not required tofile formal interlocutory applications.[33] On 18 June 2020 the Attorney-General filed an application to strike outthe nationwide application and both of the amended applications on thefollowing grounds:12 Re Paul, above n 3, at [62].2.1 The second amended application seeks to replace Mr Paul's originalapplication filed on 3 April 2017 with eight discrete claims to differentparts of the common marine and coastal area in New Zealand by13 individuals who were not named in the original application.In doing so, the amended application seeks to introduce new causesof action, which are materially different from the original application,after the statutory deadline for filing applications. For that reason,the application amounts to an abuse of process in terms of s 107 ofthe Act and ought to be struck out in its entirety.2.2 It cannot be proper for an omnibus application to be introduced afterthe statutory deadline for filing applications under the Act.If the Court were to permit such an amendment, there would benothing to prevent any other applicant from amending theirapplication to introduce new claims by iwi, hapū or whānau groupsseeking recognition of customary marine title or protected customaryrights in respect of other, unrelated parts of the takutai moana.2.3 In addition, the original application filed before the statutory deadlinefor making applications under the Act was brought as a placeholderon behalf of (at the time, unspecified) Māori applicants who mightwish to advance a claim in the future but had not otherwise done so.That purpose is improper and amounts to an abuse of process in termsof s 107 of the Act, because it sought to circumvent the statutorydeadline for filing applications under the Act.2.4 Further, the original application disclosed no reasonably arguable casebecause it failed to specify the iwi, hapū or whānau for which therecognition order was sought. By seeking recognition orders onbehalf of all Māori rather than one or more iwi, hapū orwhānau groups, the application was fundamentally inconsistent withthe requirements of the Act and so untenable it could not succeed.The High Court judgment[34] On 23 July 2020 Churchman J heard argument on the strike out application.At the same time, the Court heard argument on the validity of a similarly broadapplication under the Act, filed by Rihari Dargaville, which was the subject ofproceeding CIV-2017-404-538. On 11 August 2020 Churchman J delivered ajudgment in Re Dargaville13 and on 12 August 2020 he delivered the judgmentthe subject of this appeal. The Judge ruled that the nationwide application failed tocomply with the mandatory requirements of being made on behalf of an iwi, hapū orwhānau, providing a description of a particular area of the marine and coastal area towhich the application relates, and specifying the name of the person proposed asthe holder of the order.1413 Re Dargaville [2020] NZHC 2028.14 Re Paul, above n 3, at [13].[35] With reference to a submission from Mr Paul, invoking the Treaty of Waitangi,that s 107 should be given a broad interpretation so as to render the nationwideapplication valid, the Judge accepted that the effect of ss 4(1) and 7 of the Act meantthat the Treaty would undoubtedly play a role in the interpretation exercise undertakento resolve any ambiguities in the statutory wording that might arise. However, heconcluded that s 107 did not give rise to any ambiguity. Given that subss (3) to (6) ofs 107 were almost an exact copy of r 15.1 of the High Court Rules 2016 (the Rules),the Judge considered it was difficult for the Treaty or its principles to be read into themso as to modify their plain and well-established meaning.15[36] The Attorney-General submitted that the nationwide application had been filedfor an improper purpose, namely that it had effectively been filed as a "placeholder"on behalf of Māori applicants who wished to advance a claim but had not done sobefore the statutory deadline. In response, it was submitted for Mr Paul that the Actpermitted such an application if the predominant and sole purpose was to bring a claimon behalf of all Māori for the benefit of that group.[37] The Judge concluded that the filing of an application for the specific purposeof circumventing the mandatory time limit in the Act was an improper purpose and anabuse of the process of the Court.16 The Judge's reasoning is elaborated inthe Dargaville judgment:17[45] If "protective" applications of this nature were held to be permissiblethen effectively, a claim could be advanced by any claimant group in the futurethat they were entitled to advance a claim under the umbrella of suchan application. Section 4 of the Act includes as its purpose the establishmentof "a durable scheme to ensure the protection of the legitimate interest of allNew Zealanders in the marine and coastal area of New Zealand "[46] As this Court said in Re Ngāti Pāhauwera:The durability of this legislation, and this purpose, isweakened if impermissible material changes are allowed to bemade to applications under the Act after the limitation periodhas long since passed, because it may undermine theapplications of other whānau, hapū, and iwi. Again, asobserved by Mallon J, the Court must not take an unduly15 At [60].16 At [65].17 Re Dargaville, above n 13 (footnotes omitted).narrow approach to permissible amendments, but they mustin fact, be permissible.The Judge further ruled that the attempt to add, long after the deadline had expired,new applicants who were not referred to at all in the original application amounted toa material change to Mr Paul's application and was also an abuse of process.18[38] The Judge accepted the submissions for MTT and Rongomaiwahine thatpermitting the second amended application to proceed would cause prejudiceand delay.19 In response to the submission for Mr Paul that the support ofthe Attorney-General's strike out application by the two trusts was "plainly avexatious objection", the Judge stated:[68] This submission ignores the fact that while the Act certainly doesallow applications by whānau, hapū and iwi, it also mandates that thoseapplications had to be filed no later than six years after the commencement ofthe Act. That date has long since expired.[69] Applicants who had filed applications providing all the detail requiredby the Act prior to the expiry date for such applications, were entitled to knowthe identity of any other cross-applicants and the particular details of theirclaims. That is the purpose of the public notice requirements in s 103. It isunfair to all applicants (such as [Rongomaiwahine] and MTT) who filedapplications in time, to face the prospect of further applications by unknownparties being filed at any indefinite time in the future as Mr Paul specifically"reserves" the right to do.[70] There is nothing vexatious about applicants who have fully andproperly complied with the requirements of the Act objecting tocross-applications affecting the area of their claim filed well out of time andnot in compliance with the prescriptive provisions of the Act.[39] As the Judge was satisfied that all four criteria in r 15.1(1) of the Rules ands 107(3) of the Act were met, the nationwide application was struck out in its entirety.20Scope of the appeal[40] The notice of appeal specified the following grounds:a. the High Court was wrong in law, including in Tikanga, in its approach tothe requirements under which an applicant group will be recognised to18 Re Paul, above n 3, at [64].19 At [67].20 At [71].fall within the definition set out in s 9 of the Marine and Coastal Area(Takutai Moana) Act 2011 ("the MACA Act");b. the High Court misconstrued and mischaracterised the roles andresponsibilities of Mr Cletus Maanu Paul, under Tikanga, and as amember of the New Zealand Māori Council ("NZMC");c. the High Court was wrong in law, including in Tikanga, in its approach tothe conditions under which an amended application amounts to a materialchange;d. the High Court misconstrued the factual circumstances regarding theaddition of applicants to Mr Paul's application and misapplied the law inseveral ways, including its decision that amendments to the applicationneeded to be notified under s 103 of the MACA Act; ande. consequently, the High Court was wrong in finding that the Appellants'application met the criteria set out in s 107(3) of the MACA Act, anddetermining the Appellants' application be struck out in its entirety.[41] The parties were unable to reach agreement on a list of issues pursuant to r 42Aof the Court of Appeal (Civil) Rules 2005. The substantive area of difference arosefrom the appellant's wish to include the following in the list of issues:g. is the Statutory Limitation a breach of te Tiriti o Waitangi/the Treatyof Waitangi?h. if so, can the Court declare that, in the circumstances before it, thebreach of te Tiriti/the Treaty is so egregious that the Courts cannot, asa matter of law, and/or, justice, enforce such a provision?[42] These issues not having been raised in the High Court, unsurprisinglythe judgment does not consider them. However in a memorandum directed to theidentification of relevant issues on the appeal, counsel for Mr Paul contended thatthose two issues should be included because the justiciability of the appellant'sTreaty rights is considered to be fundamental to the determination of the appeal.Counsel rejected the view of the Attorney-General that this Court has no jurisdictionto determine those issues. In their written submissions on behalf of Mr Paul, counselcontended that the effect of the statutory deadline in extinguishing customary titlerights was such an egregious breach of the Treaty that it cannot be allowed to standand as such warranted this Court's determination that the statutory deadline ins 100(2)21 is ultra vires the power of Parliament.21 See [10] above.[43] In our view the Attorney-General's stance (which was supported by bothRongomaiwahine and MTT) is plainly correct. As counsel for Rongomaiwahinesubmitted,22 to entertain such an argument would be fundamentally out of keepingwith this Court's place within the country's constitutional arrangements. The statutorydeadline cannot simply be ignored by this Court or disregarded on the grounds ofalleged inconsistency with the Treaty.[44] With the benefit of hearing oral argument we consider that the issues properlyraised by the appeal are as follows:(a) Did the Judge err in determining that the nationwide application failedto comply with mandatory requirements in s 101 of the Act?(b) Did the Judge err in determining that the nationwide application, havingbeen filed for the improper purpose of circumventing the statutorydeadline for making applications under the Act, was an abuse ofprocess?(c) Did the Judge err in determining that the second amended applicationintroduced fresh causes of action and new applicant groups after thestatutory deadline for filing applications under the Act and wastherefore an abuse of process?Error in finding failure to comply with s 101 mandatory requirements?Description of applicant group[45] Section 101(c) directs that an application for a recognition order is to describethe applicant group. Mr Paul made the nationwide application in his own name.He did not name an iwi or hapū or whānau on whose behalf the application was made.[46] Drawing attention to the phrase "includes a legal entity" in limb (b) of thedefinition of "applicant group" in s 9, Ms Mason submitted on behalf of Mr Paul that22 Citing Kereopa v Te Roroa Whatu Ora Custodian Ltd [2013] NZCA 327; and Paki vAttorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.the Act anticipates applications do not necessarily have to be made by iwi, hapū orwhānau groups. Applications can be filed by representative persons or entities, forinstance a company, an iwi trust or a marae committee, although any suchrepresentative person or entity must be appointed by the iwi, hapū or whānau.[47] Ms Mason contended that the use of the word "includes" indicates that theclass of representative entities is non-exhaustive and can include "other configurationsin a similar vein" to that described in limb (b). Thus she submitted that atikanga-consistent interpretation would allow Mr Paul to represent iwi, hapū orwhānau because of Mr Paul's mana and status, he having long been a kaumātua witha significant national profile and a member of the Māori Council for 57 years. It wassubmitted that the judgment was erroneous in stating that the submissions for Mr Paulhad not addressed the issues raised about the Māori Council.[48] In addition to the inclusive formulation of limb (b), Ms Mason emphasised thereferences in the Act to the Treaty, in particular in ss 4(1)(d) and 7, submitting that,given this context, provisions of the Act should be interpreted in a way that would beconsistent with the Treaty. She contended that a purposive construction of thoseprovisions would, together with s 6, lead to an interpretation that the nationwideapplication was consistent with the purpose of the Act. In particular it was submittedthat the phrase "iwi, hapū, or whānau" can mean "all Māori", and that under tikangaMr Paul, as a well-respected kaumātua, falls within the ambit of an "applicant group".Attention was drawn to the observation of Cooke P in New Zealand Māori Council vAttorney-General that a broad, unquibbling and practical interpretation is demanded,and his Honour's acceptance that the correct approach when interpreting ambiguouslegislation is for the court not to ascribe to Parliament an intention to permit conductinconsistent with the principles of the Treaty.23[49] However, as this Court recognised in Ngaronoa v Attorney-General, the Treatycannot be invoked to support an alternative interpretation where the clarity of thestatutory language is such that the court is not required to undertake aninterpretative exercise.24 We accept the Attorney-General's submission that there is23 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655–656.24 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 at [51]–[52].no ambiguity in either the definition of "applicant group" in s 9 or the requirement ins 101(c) that applications identify the iwi, hapū or whānau groups on whose behalfthe applications are made. We agree with the tenor of the submissions of MTT andRongomaiwahine that those provisions cannot be interpreted so as to permit anapplication for recognition to be made simply on behalf of "all Māori".[50] Ms Mason further contended that the High Court misconstrued andmischaracterised the submissions about the status of Mr Paul under tikanga.We accept, as the Attorney-General acknowledged, that the Judge erroneouslyrecorded that there was no challenge by Mr Paul to the statement in theMāori Council's memorandum and we have drawn attention to the memorandum ofcounsel for Mr Paul in response dated 21 September 2017.25[51] The Attorney-General emphasised that it was not contended that tikanga cannever play a role in a particular interpretative exercise. However he submitted that thecontent of such tikanga cannot simply be asserted by Mr Paul and cannot be presumedby the Court. The point was made that the concept of a person having mana orauthority under tikanga to represent all iwi, hapū and whānau in New Zealand is not aconcept that commentary or case law suggests is notorious. Consequently, the contentof the relevant tikanga was required to be established through evidence.[52] Both Rongomaiwahine and MTT also engaged with this issue. While statingthat there was no wish to undermine Mr Paul's status as a kaumātua and rangatira forhis hapū and iwi, his place in the Mataatua District Māori Council or his contributionto the Māori Council, Rongomaiwahine submitted that it was not apparent how hisstatus could be relevant to the rohe whenua or rohe moana of Rongomaiwahine, whichcentres around Mahia.[53] Similarly MTT submitted that it is not a tikanga-consistent interpretation toallow an individual to represent "all Māori" without any mandate to do so.It submitted:25 At [21] above.As described by the Supreme Court in the Trans-Tasman case,26 tikanga is a'body of Māori customs and practices, part of which is properly described ascustom law.' It cannot be said that status as a Co-Chair of the NZMC andkaumātua of an individual's own iwi and hapū gives Mr Paul the right to claimto represent the rest of the Māori population, a large number of whom arealready represented. It is submitted this would not be in accordance withtikanga. It is also inconsistent with tikanga that a group claims over top ofother mandated groups who claim mana whenua/mana moana in the area(eg, MTT) without any prior knowledge or discussion – 'kanohi kitea'('seeing your face' = being seen).(Footnote added.)[54] These contentions, which we find persuasive, inform our conclusion that therelevant provisions of the Act are not susceptible to a purportedly tikanga-consistentinterpretation that an application may be lodged on behalf of "all Māori".Identification of a particular area[55] The nationwide application described the application area as the entire area ofthe marine and coastal area of Aotearoa New Zealand including, among other things,the entire foreshore and territorial waters of Aotearoa New Zealand. The submissionfor Mr Paul explained that the "express purpose of the omnibus claim" was to claim awide area and then refine it over time as hui took place, allowing those withcustomary title who did not meet the statutory deadline to join the application. It wassubmitted that the High Court's reasoning concerning the s 101(d) requirement waswrong in fact and in law because:(a) it concluded that the nationwide application did not provide adescription of the area to which it related when it actually did; and(b) it assumed that an application claiming all of Aotearoa New Zealand'scoastal marine area would not be consistent with the Act.[56] The claim to the entirety of the New Zealand coastline was a reflection ofMr Paul's belief, stated in his affidavit, that Māori hold and exercisetino rangatiratanga over the entire marine and coastal area.27 A geographical claim of26 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] 1 NZLR 801 at [169].27 See [19] above.that breadth was congruent with the nationwide claim being made "on behalf ofall Māori".[57] However this description is plainly not in accordance with the requirement ins 101(d) that a "particular area" be identified. As MTT submitted, this requirementenvisages the identification of a specific location. This information must be providedso that the recognition order can specify the particular area of the common marine andcoastal area to which the order applies.28 Section 109(4) states:(4) Every customary marine title order must include—(a) a survey plan that sets out the extent of the customary marinetitle area, to a standard of survey determined for the purposeby the Surveyor-General; and(b) a description of the customary marine title area; and(c) any prohibition or restriction that is to apply to a wāhi tapu orwāhi tapu area within the customary marine title area.[58] In addition MTT makes the valid point that the requirement for particularity isalso imposed for a practical reason. Section 62(3) of the Act applies where a personapplies for a resource consent, permit or an approval in relation to a part of thecommon marine and coastal area in respect of which no customary marine title orderor agreement applies, but an applicant group has applied to the Court under s 100 forrecognition of customary marine title and notice has been given in accordance withs 103.29 It provides that before a person may lodge an application that relates to a rightconferred by a customary marine title order or agreement, that person must notifythe applicant group about the application and seek its views. MTT submitted that itwas untenable that, as the whole of New Zealand was purportedly subject to thenationwide application, every applicant for these categories of resource consent,permit or approval throughout the entire country had been required to consult withMr Paul since April 2017. We agree. This requirement underscores the need forapplications under the Act to be specific about the area to which they apply, and the(local) applicant group on whose behalf they are made.28 Marine and Coastal Area (Takutai Moana) Act, s 109(2)(a).29 Section 62(2).[59] For these reasons we agree with the argument of the Attorney-General,Rongomaiwahine and MTT that the Judge was correct to hold that the nationwideapplication failed to comply with the requirement to identify a particular area.Name of proposed order holder[60] Section 101(f) requires that an application name a person to be the holder ofthe recognition order as the representative of the applicant group. The submission forMr Paul was that the nationwide application satisfied this requirement becauseMr Paul was named as the applicant on behalf of all Māori, and it was implicit that hewould be the one to hold the orders.[61] Given the generic nature of the nationwide application filed in his name it isprobably fair to say that Mr Paul was the only person who could have been nominatedas the holder of the order. However he was not so nominated, presumably for thereason that when the protective application had eventually served its purpose he wouldnot have that role. The fact remains that no holder was specified and the Judge'sconclusion that there was a failure to comply with s 101(f) was plainly correct.Conclusion[62] There was no error in the Judge's conclusion that the nationwide applicationdid not comply with the requirements in s 101(c), (d) and (f).30 This was not the resultof deficient drafting but rather reflected a deliberate decision to avoid specifying anapplicant group or groups and related geographical locations. While we doubt that itis useful to adopt the "nullity" terminology urged upon us by MTT, we consider thatthe nationwide application was plainly inconsistent with the scheme of the Act andshould for this reason be struck out.30 We note that the Judge also concluded that the nationwide application did not comply withthe Act's mandatory requirements because it was not filed before the statutory deadline.This conclusion was incorrect, but it is unnecessary to address this matter given our finding thatthe Judge correctly determined that s 101(c), (d) and (f) had not been complied with.Error in determination that the nationwide application was an abuse of process?[63] The essence of the Attorney-General's argument in the High Court was thatMr Paul's claim had effectively been filed as a placeholder on behalf of potentiallyeligible others who had not filed an application before the statutory deadline but mightin the future wish to do so.[64] In advancing the appeal in this Court Ms Mason reprised her response inthe High Court, namely that Mr Paul does not deny that the nationwide applicationwas filed as "an omnibus application" with the object of providing a benefit to thoseMāori groups who did not have the wherewithal and/or the resources to file their ownapplications before the deadline. However she submitted that in the context of the Actit is not an abuse of process to file an application on behalf of a larger group as a"protective" measure to ensure that the rights of the constituent members of that largergroup are preserved.[65] The concept of a "protective claim" is recognised in civil litigation, albeit withmixed enthusiasm.31 As explained in Limitation Periods:32A claimant may issue proceedings in order to prevent the limitation periodfrom expiring, even though he has no present intention of pursuing thelitigation. However, it is likely to be an abuse of process to issue proceedingswhere the claimant has no present awareness of proper grounds for bringingthe action, but is aware that such grounds may come to existence at a laterdate.[66] Addressing the concept in Barton v Merrett,33 Saville J said:In the present case there is no doubt that the writs were issued when they werein order to avoid a possible defence of limitation. To my mind this alonewould not prevent the writs from being struck out, given there was no presentintention of pursuing the matter nor any known basis for the claim. Parliamenthas stipulated the periods within which proceedings must be begun so thatunless the proceedings are begun within the relevant period (or the plaintiffcan bring himself within one of the exceptions) then it is nothing to the pointthat he may have wished to protect the position in case something turned up31 See the observations of May LJ in Steamship Mutual Underwriting Association Ltd v Trollope &Colls (City) Ltd (1986) 33 BLR 77 (CA) at 88–89.32 Andrew McGee Limitation Periods (9th ed, Thomson Reuters, London, 2022) at [2.049](footnote omitted).33 Barton v Merrett [1993] 1 Ll Rep 540 at 541–542, followed in West Bromwich Building Society vMander Hadley & Co [1998] CLC 814 (CA).at a later stage. To allow him to do so would in effect be to extend the periodbeyond that thought appropriate by Parliament.[67] The cases which have considered "protective" claims have involved claimantscommencing proceedings in an endeavour to preserve their own interests when theexpiration of the limitation period for lodging their claim looms.34 The present caseis different. As Ms Mason emphasised, Mr Paul did not file the nationwide applicationout of any sense of personal or self-interest. Indeed, as earlier noted,35 he had alreadyfiled an application for a recognition order with reference to his own interests andthose of the Manu Paora whānau in respect of a specified area in Ōhope and theadjacent coastline.[68] Whether a "protective" claim of this kind can be brought under the Act turnson whether such claims are expressly provided for in the Act, or otherwisecontemplated by it. To the contrary, the High Court considered that a protectivenationwide claim, designed to postpone the deadline for filing specific claims, wasinconsistent with the scheme of the Act and an abuse of process.36[69] However Ms Mason contended that the Act should be construed so as to permitan omnibus application of the nature filed by Mr Paul. The basis for that contentionappeared to be that otherwise the customary title of those who had not filed anapplication within the statutory period would be extinguished, a consequence which,it was said, would be repugnant to the Crown's obligations underthe Treaty. The Attorney-General responded that the omission to seek a recognitionorder does not result in customary title being extinguished. Such interests continue toexist and iwi, hapū and whānau continue to have the right to participate in conservationprocesses afforded by s 47 of the Act whether or not an application is made for arecognition order.[70] But in any event, in our view an argument to the effect that the limitation periodcan be extended in this manner, potentially indefinitely, is not sustainable in the faceof s 100(2). That provision not only prescribes a filing deadline applicable to all claims34 Decisions relied upon by Ms Mason, such as Re Tipene [2015] NZHC 169 andRe Ngāti Pāhauwera, above n 10, are of that nature.35 At [2] above.36 Re Paul, above n 3, at [65].to the Court for a recognition order in the terms "not later than", but also explicitlyemphasises the implications of that statutory deadline by the direction in the balanceof the subsection, which states: and the Court must not accept for filing or otherwise consider anyapplication that purports to be filed after that date.[71] The imposition of a universal deadline for the filing of applications isconsistent with an intention on the part of Parliament that the resolution of allapplications for recognition orders should be expedited and not delayed. There are anumber of pointers in the legislative history which support that view.[72] One example is found in the report of the 2009 Ministerial Review Panel whichinformed the policy of the Act. In explaining why it did not favour the proposal fora "judicial model", the Panel stated:37This option has the advantage of comparative simplicity. But there would bedisadvantages. It would mean that rights in the foreshore and seabed wouldhave to be litigated on a case by case basis over a long period of time. Such aprocess is likely to be protracted, laborious and expensive and could result inan unmanageable patchwork of litigation.[73] The concern about cost and delay is apparent in the speech ofthe Attorney-General, Mr Finlayson QC, in the course of the In-Committee debate:38The next point that needs to be addressed is an application for a recognitionorder. The matter of principle that people may wish to discuss concerns whichcourt one should apply to. I have tried in the bill to provide the best of bothworlds. An application will be made to the High Court, but the court mayrefer any question of tikanga to the Māori Appellate Court.Members may wonder why I chose the High Court and not the Māori LandCourt. I suppose I was very influenced by the history of the Ngāti Apalitigation that began in the Māori Land Court. It went to the Māori AppellateCourt, thence to the High Court, and then the Court of Appeal, and by leave itcould have gone to the Privy Council.I am also very conscious that proceedings in both the Māori Land Court andthe Māori Appellate Court are capable of being the subject of applications forjudicial review. So if anyone really wanted to delay a matter or opposea matter down to the wire, the easy thing to do, if something had begun in theMāori Land Court, was to seek judicial review of anything.37 Pāki ki uta, Pākia ki tai: Report of the Ministerial Review Panel (Ministry of Justice,30 June 2009) vol 1 at 149–150.38 (17 March 2011) 670 NZPD 17393.I was very concerned about cost and delay, which is why I have put in the billthat the proceeding commence in the High Court, but, as I say, it is best ofboth worlds because there can be reference to the Māori Appellate Court forany question of tikanga. The opinion of the Māori Appellate Court will bebinding on the court. The court may also refer any question of tikanga toan expert.[74] Permitting new applications to be filed well after the deadline has the potentialto undermine recognition orders already made by the High Court in respect of claimsfiled within the specified period. It invites the prospect of a reopening of such claims.Such a consequence is inconsistent with the statutory objective of a durable schemeand is contrary to the finality of the High Court's processes.[75] The nationwide application may have been filed with the best of intentions.However, viewed objectively, it is a device designed to circumvent the limitationperiod which Parliament has determined is appropriate for claims for recognitionorders under the Act. The courts' processes cannot be engineered in such a fashion soas to defeat the Parliamentary intent. We agree with the Judge that thenationwide claim was an abuse of process and should be struck out.Error in determination as to the status of the second amended application?[76] Much of the argument on this issue focused on the question whether theamendments to the original application, including adding several new applicants,comprised material changes. Ms Mason submitted that the "cause of action" in thenationwide application and in the amended applications was the same, citingthis Court's discussion of new causes of action in ISP Consulting Engineers Ltd vBody Corporate 89408.39 She suggested that the original claim had simplybeen "refined".[77] Mr Hockley for Rongomaiwahine observed that this was a rather dramaticrefinement. He argued that the amended applications were more akin to eight newapplications in respect of eight discrete new areas on behalf of eight different applicantgroups.39 ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160, (2017) 24 PRNZ 81at [38].[78] Our view on this issue can be shortly stated. To the extent that the amendedclaims introduced new applicants making applications in their own right, their claimswere new claims which were first filed subsequent to 3 April 2017. Hence they weretime-barred. Consequently the amended claims were correctly struck out.[79] So far as Mr Paul's nationwide claim is concerned, the attempted joinder ofnew applicants cannot serve to legitimise his purported protective claim. That claimas filed was not a valid claim. It cannot be redeemed by the subsequentimplementation of the very device designed to circumvent the limitation provision.Result[80] The appeal is dismissed.[81] The Attorney-General does not seek costs. Nor does Rongomaiwahine.However MTT does so. It made a significant contribution to the argument and we donot consider that there are sound reasons why costs should not follow the event.Accordingly the appellant must pay MTT costs for a standard appeal on a band A basiswith usual disbursements but only in respect of one counsel.Solicitors:Phoenix Law Ltd, Wellington for AppellantCrown Law Office, Wellington for RespondentDLA Piper, Wellington for Maungaharuru-Tangitū TrustHockly Legal, Auckland for Rongomaiwahine Iwi Trust