JOHN HENRY TAMIHERE, LAURIE PORIMA AND RAYMOND PHILLIP HALL ON BEHALF OF CLETUS MAANU PAUL v ATTORNEY-GENERAL [2023] NZSC 135

JOHN HENRY TAMIHERE, LAURIE PORIMA AND RAYMOND PHILLIP HALL ON BEHALF OFCLETUS MAANU PAUL v ATTORNEY-GENERAL [2023] NZSC 135 [19 October 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 111/2022[2023] NZSC 135BETWEEN JOHN HENRY TAMIHERE, LAURIEPORIMA AND RAYMOND PHILLIPHALL ON BEHALF OF CLETUS MAANUPAULApplicantAND ATTORNEY-GENERALRespondentCourt: O'Regan, Williams and Kós JJCounsel: J Mason and N Thrupp for ApplicantG L Melvin and Y Moinfar-Yong for RespondentK M Anderson and M J Dicken for Maungaharuru-Tangitū TrustC M Hockly for Rongomaiwahine Iwi TrustJudgment: 19 October 2023JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The late Mr Paul, a long-standing member of the New Zealand Māori Counciland former Chair of the Mataatua District Māori Council, applied to the High Courtunder s 98 of the Marine and Coastal Area (Takutai Moana) Act 20111 for ordersrecognising customary marine title over all New Zealand's marine and coastal area,"on behalf of all Māori".1 Herein, "the Act".[2] The purpose of the application was said to be protective: to enable Māorigroups who had not yet applied to do so after the six-year statutory deadline prescribedin s 100 of the Act:100 Who may apply(1) An applicant may apply to the Court–(a) for a recognition order; or(b) to vary or cancel a recognition order.(2) However, the application must be filed not later than 6 years after thecommencement of this Act, and the Court must not accept for filingor otherwise consider any application that purports to be filed afterthat date.[3] Mr Paul subsequently amended the application. The most recent of these is thesecond amended application. It incorporates eight named applicants who, collectively,claim approximately 75 per cent of New Zealand's coastal and marine area. It is nolonger expressed as made on behalf of all Māori.[4] The High Court and Court of Appeal struck out Mr Paul's application in boththe original (nationwide) and (second) amended forms.2 The nationwide applicationfailed to comply with the requirements of s 101 of the Act that an application "describethe applicant group", "identify the particular area of the common marine and coastalarea to which the application relates", and "name a person to be the holder of the orderas the representative of the applicant group".3 It was held to constitute an abuse ofprocess.4 As to the second amended application, adding new applicants was held tobe a material change to the original application, meaning the amended application wasitself time-barred.5 The legislative provisions were unambiguous: theTreaty of Waitangi could not be used to support an alternative interpretation.62 Re Paul [2020] NZHC 2039 (Churchman J) [HC judgment]; and Paul v Attorney-General[2022] NZCA 443 (Brown, Clifford and Goddard JJ) [CA judgment].3 HC judgment, above n 2, at [13] and [51]; and CA judgment, above n 2, at [49], [57], [59] and[61].4 HC judgment, above n 2, at [65]; and CA judgment, above n 2, [75].5 HC judgment, above n 2, at [64]; and CA judgment, above n 2, [78]–[79].6 HC judgment, above n 2, at [60]; and CA judgment, above n 2, at [43] and [49].[5] After the Court of Appeal's judgment was delivered, Mr Paul died.Messrs Tamihere, Porima and Hall wish to continue an appeal from that decision, andseek a new parties order.7Leave application[6] The applicants challenge the striking out of the application. They raise severalpoints of law in their application for leave to appeal. In essence, they are whether theCourt of Appeal erred in determining that:(a) the nationwide application failed to comply with mandatoryrequirements in s 101 of the Act;(b) the nationwide application, having been filed for the improper purposeof circumventing the statutory deadline for making applications underthe Act, was an abuse of process; and(c) the second amended application introduced fresh causes of action andnew applicant groups after the statutory deadline for filing applicationsunder the Act and was therefore an abuse of process.8[7] The applicants also contend their proposed appeal raises some more generalquestions of law. First, should a tikanga-consistent interpretation of the Act haveprevailed? Secondly, is the statutory deadline a breach of the Treaty? Thirdly, if thestatutory deadline is a breach, is it so egregious that the Court cannot as a matter oflaw and/or justice allow the provision to extinguish customary propriety rights?[8] They contend that it is necessary in the interests of justice to allow the appealbecause it raises issues about the consistency of the Act with the Treaty and tikanga.The legislation is novel and (it is alleged) may have the effect of permanently7 Under r 5(2) of the Supreme Court Rules 2004. The respondent abides the decision of the Courton this matter.8 The notice of application for leave to appeal also challenged the Court of Appeal's award of coststo the Maungaharuru-Tangitū Trust, an interested party, but the point was not pursued further inwritten submissions and we would not have found it met the criteria for leave to appeal to thisCourt in any event.extinguishing indigenous rights. The applicants argue that a substantial miscarriageof justice may therefore occur if this Court does not grant leave to appeal.Our assessment[9] This Court must decline leave to appeal unless it is necessary in the interestsof justice for it to hear and determine the appeal.9 In this instance we consider theapplicants have insufficient prospect of success on appeal to meet that criterion.10[10] We consider the applicants' prospects of success in persuading us that thenationwide application complied with the s 101 requirements are insufficient towarrant leave. While a collective application may be made under the Act, it wouldstill be necessary to show Mr Paul had been appointed on behalf of all iwi, hapū orwhānau groups having or claiming interests in New Zealand's marine and coastalarea.11 It is not suggested by the applicants that Mr Paul did in fact represent all suchiwi, hapū, or whānau groups. Finally, given the time bar in s 100(2), we see noappearance of error in the Court of Appeal's conclusion that the substitution of theeight new applicants in the amended application constituted new applications inbreach of that provision.[11] As to the role tikanga and the Treaty might play in construing the Act, we notethe respondent's advice that, even if national applications such as Mr Paul's wereexcluded, the entire marine and coastal area of New Zealand is subject to applicationsfiled in time by purported representatives of iwi, hapū and whānau. It would hardlyadvance the principles of the Treaty or tikanga if the statutory deadline could becircumvented in order to facilitate intergroup conflict. In any event, while theapplicants can no longer advance their own applications, the Act contains provisionfor interested parties to be heard on the applications of others.129 Senior Courts Act 2016, s 74(1).10 Prime Commercial Ltd v Wool Board Disestablishment Co Ltd [2007] NZSC 9, (2007) 18 PRNZ424 at [2]; and Hookway v R [2008] NZSC 21 at [4].11 Marine and Coastal Area (Takutai Moana) Act 2011, ss 101(c) and 9(1) definition of"applicant group".12 Section 104.[12] Accordingly, while the arguments advanced by the applicants are ones ofgeneral importance, it is not necessary in the interests of justice for this Court to hearand determine the appeal.13Further matters[13] We note that the context is one in which parallel pathways are established underthe Act for recognition of customary marine title and protected customary rights.Those pathways are: (1) recognition by agreement (the Crown engagement pathway)and (2) recognition by an order of the High Court (the High Court pathway). Werecord that, in response to questions raised by the Court, the respondent has confirmed:(a) the legislation does not affect the High Court's inherent jurisdiction topermit later notices of appearance by an interested party to joinproceedings in the High Court pathway after the s 100(2) date (and,thus far, the High Court has exercised its discretion to do so on eachoccasion it has been sought);(b) there is a possibility that Crown engagement pathway applicants maynot have seen a public notice of an overlapping High Court pathwayapplication;14 and(c) that risk is mitigated by (1) publicly available sources of information,including the High Court's own database15 and Te Arawhiti's onlinegeospatial tool, Kōrero Takutai, which includes the mapping of allapplications under the Act,16 (2) steps taken in proceedings to directthat overlapping Crown engagement pathway applicants are served andgiven an opportunity to participate, and (3) steps taken by Te Arawhiti13 LFDB v SM [2014] NZSC 197, (2014) 22 PRNZ 262 at [20]–[21]; and Terranova Homes andCare Ltd v Service and Foodworkers Union Nga Ringa Tota Inc [2014] NZSC 196, [2015]2 NZLR 437 at [16].14 Section 103 of the Act requires an applicant group applying for a recognition order to give publicnotice of the application no later than 20 working days after filing the application.15 Ngā Kōti o Aotearoa | Courts of New Zealand "MACA Spreadsheet" (2023)<www.courtsofnz.govt.nz>.16 Te Arawhiti | The Office for Māori Crown Relations "Kōrero Takutai (maps)"www.tearawhiti.govt.nz; and Te Arawhiti | The Office for Māori Crown Relations "Te Kete Kōreroa Te Takutai Moana Information Hub" <maca-nds.maps.arcgis.com>.to provide Crown engagement pathway applicants with informationabout relevant activity in the High Court pathway.[14] The applicants say that despite these protections, some potential claimantshave failed to meet the statutory deadline, and are disadvantaged accordingly. As wesee it, however, if this is the case, it is the consequence of the statutory language andany solution to that issue must lie with Parliament.Result[15] The application for leave to appeal is dismissed.[16] It is unnecessary therefore for us to deal with the new parties order sought.17[17] The respondent did not seek costs, and we take the view that this is not a casein which costs should be awarded to interested parties in this Court.Solicitors:Phoenix Law Ltd, Wellington for ApplicantCrown Law Office, Wellington for RespondentDLA Piper, Wellington for Maungaharuru-Tangitū TrustHockly Legal, Auckland for Rongomaiwahine Iwi Trust17 See above at [5].