KAIKOURA AND HURUNUI LANDOWNERS ASSOCIATION INC v MINISTER OF FISHERIES [2022] NZHC 702

KAIKOURA AND HURUNUI LANDOWNERS ASSOCIATION INC v MINISTER OF FISHERIES [2022]NZHC 702 [7 April 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-000604[2022] NZHC 702BETWEEN KAIKOURA AND HURUNUILANDOWNERS ASSOCIATIONINCORPORATEDApplicantAND THE MINISTER OF FISHERIESRespondentHearing: 28 March – 1 April 2022Appearances: P A Cowey and DL L Bell for the ApplicantD Watson for the RespondentR J B Fowler QC and J Innis for the Applicants for JoinderJudgment: 7 April 2022JUDGMENT OF GRICE JRe Application for joinder to proceedings by Te Rūnanga o Ngāi Tahu andTe Rūnanga o Kaikōura Incorporated[1] This is an application by Te Rūnanga o Ngāi Tahu and Te Rūnanga o KaikōuraInc for joinder to these proceedings. Ngāi Tahu was the applicant for the extension tothe Oaro Mātaitai reserve and for the establishment of the other two reserves. Theincorporated association is essentially the vehicle for the Ngāi Tahu interests. For thepurposes of the joinder application, I refer to both applicants as "the Ngāi Tahuparties". In view of the need for the parties to consider a timetable to hearing Idelivered a summary of the result and reasons orally on 1 April 2021. This is thereasons judgment which I indicated would be delivered in due course.[2] The application for joinder came as a result of the Ngāi Tahu parties beingserved pursuant to the directions of the Court.1 The proceedings seek judicial reviewof ministerial decisions to extend one Mātaitai reserve (Oaro Mātaitai) and to establishthe Tūtaeputaputa Mātaitai and Kahutara Mātaitai reserves.[3] The Landowners Association is an incorporated body set up to deal with theissues surrounding these Mātaitai reserves. The members are landowners who live inthe area of the reserves. The area covered by the reserves is 3,074 hectares in relationto the Oaro Mātaitai reserve, 35,867 hectares in relation to the Tūtaeputaputa Mātaitaireserve and 5,414 hectares of land within the Kahutara Mātaitai reserve.Background[4] Mātaitai reserves are established under the Fisheries Act 1996.2 Thisempowers the Governor-General to make regulations for the purposes of recognisingand providing for customary food gathering and for the making of Mātaitai reserves.In general terms, Mātaitai reserves recognise and provide for traditional fishingthrough local management by tangata whenua. They usually allow customary andrecreational fishing but not commercial fishing. The reserves are developed andmanaged by tangata whenua to recognise and provide for the special relationshipbetween tangata whenua and their traditional fishing grounds and non-commercialcustomary fishing. The Mātaitai reserves may have bylaws.[5] On or about 11 September 2015, Te Rūnanga o Kaikōura Inc applied to theMinister of Primary Industries (the Minister) to extend the already-established OaroMātaitai reserve and to establish the Kahutara and Tūtaeputaputa Mātaitai reserves.3The Minister determined that each of the applications met all the criteria set out in therelevant regulations and extended and established the Mātaitai reserves by signing therelevant notices. These were published on 12 September 2018 and took effect from10 October 2018.4 The descriptions of the reserve areas are set out by reference to1 Minute of Gwyn J, dated 1 February 2022.2 Section 186. The Fisheries (South Island Customary Fishing) Regulations 1999 were promulgatedon 11 October 1999. These provided for the process for application and establishment for Mātaitaireserves.3 Statement of claim, dated 3 November 2021, at [7].4 At [18]–[21].description and maps. The central concern of the applicant is that the descriptions arebased on geographic regions and much of the area is land including rugged andhigh-country areas. The applicant says the extent of the Mātaitai reserves is incapableof being ascertained because of the way they have been described in the relevantnotices.5[6] The applicant's second ground of review is that there was a lack of probativeevidence, so the evidence before the Minister could not reasonably have been capableof satisfying him that the area of the Mātaitai reserves were identified as traditionalfishing grounds.6 The third ground is a breach of natural justice, which alleges theMinister failed to follow the prescribed notification process and failed to properlynotify the local community in terms of the requirements of the regulations.7[7] The Crown supports the application of the Ngāi Tahu parties, as they were theapplicants for the reserves.[8] The Landowners Association opposes their joinder. It says the Minister'sdecisions on 14 March 2018 to determine the applications and the subsequentdecisions of 8 August 2018 to extend and establish the relevant reserves were madeon the basis of the information the Minister had before him on 14 March 2018. Asthey are a matter of record, there should be no need for the Ngāi Tahu parties to beinvolved, despite the fact they were the applicants for the reserves. Similarly, theAssociation says the wording of the notices fall to be reviewed on their face and thatis purely a matter of law.[9] The applicant says the review is entirely based on a question of legality. TheAssociation is not arguing, for instance, that the Minister acted "unreasonably" or"irrationally". If that were the argument, it accepts the Ngāi Tahu parties' perspectivemight possibly have had some value for the Court.[10] The applicant says the review is focused on what the Minister did on what hehad before him. The Landowners Association does not wish to sue Ngāi Tahu nor5 At [29].6 At [38].7 At [42].does it contest the applications made by Ngāi Tahu. The applicant is not opposed toMātaitai reserves as such, but only to the uncertainty and process which surroundedthe establishment of these reserves.[11] The Landowners Association says that as the Minister is not permitted toprovide backfill evidence, Ngāi Tahu cannot do that either. Therefore, there is noevidence or justification for their joinder.[12] In addition, the Landowners Association says the matter has been set down fora one-day hearing on 28 June 2022 and timetabling orders have been made. Evidencehas been filed in accordance with that timetable. The joinder of the Ngāi Tahu partieswould inevitably lead to the loss of that hearing date.[13] The Minister supports the joinder of the Ngāi Tahu parties and says they shouldhave been joined from the outset. The Minister also says the applicant has been onnotice from an early stage that a delay in serving the Ngāi Tahu parties may have toextend the timetable. That will lead to the vacating of the present fixture on 28 June2022. However, counsel are confident that if the joinder occurred, they would be ableto agree on a combined timetable to a new hearing date.[14] The Minister also indicated that the Ngāi Tahu parties and the Minister wouldwork together to ensure that their evidence and submissions were coordinated andwould not cover the same ground and therefore would not add anything, as Iunderstand it, to the hearing time. Indeed, the Crown and the Ngāi Tahu parties havealready agreed on a timetable, which is attached. The applicant has not been involvedas it wishes to await the outcome of this decision.Principles of joinder[15] The relevant joinder provisions are set out in the Judicial Review ProcedureAct 2016. Section 9(1) provides:9 Respondents(1) The following persons must be named as a respondent to anapplication:(a) the person whose act or omission is the subject matter of theapplication; and(b) if the application relates to any decision made in proceedings,every party to those proceedings.[16] As the Minister's decision was not made in a proceeding, the applicant wasrequired only to name the Minister as respondent. Nevertheless, under s 14(1) of theAct, a Judge may direct a person to be named as a respondent at any time before thehearing of the judicial review application. There are no specified criteria for theexercise of this power.[17] There is also jurisdiction to join a party under the High Court Rules 2016. TheHigh Court Rules apply to all civil proceedings, subject to, amongst other things, anystatute that prescribes the practice and procedure of the Court in a proceeding underthat statute.8 Rule 4.1 states that the parties joined to a proceeding must "be limited,as far as practicable, to persons whose presence before the Court is necessary tojustly determine the issues arising".[18] The Judge may order at any stage of the proceeding that a party be named asa defendant if the person's presence before the Court may be necessary to adjudicateon and settle all questions.9 The order may be made on terms the Court considersjust.10[19] The Full Court of the High Court in Wilson v Attorney-General [JudicialConduct] (No 2) summarised the legal position as follows: 11[20] Emerging from the cases is that joinder is appropriate where theparty's interests are, or may be, directly or indirectly affected by the judicialreview application. In such situations, it would be unjust to decide the issuesin the absence of the party so affected, or potentially affected. As HammondJ pointed out in Westhaven Shellfish Ltd v Chief Executive of Ministry ofFisheries (2002) 16 PRNZ 501 (HC) at [14], "[j]oinder is not an all or nothingthing". Fairness to the applicant, who is having another party interposed inhis proceeding, demands that the Court consider whether the joinder should8 High Court Rules 2016, r 1.4.9 Rule 4.56(1)(b)(ii).10 Rule 4.56(2).11 Wilson v Attorney-General [Judicial Conduct] (No 2) [2010] NZAR 509.be for all or only limited purposes. The level of participation should be onlywhat is necessary to protect the interests of the party being added.[20] In Royal Forest and Bird Protection Society of New Zealand Inc v Minister ofFisheries, Mallon J pointed out that the decision-making Minister might decide not toappeal the High Court decision following the judicial review but the joined partiesmight wish to do so.12 She commented, in that case, that the joinder applicants'interests were sufficiently affected that they should be able to bring an appeal.13[21] The Ngāi Tahu parties say their interests are directly affected by the applicationand therefore should be joined as respondent.14[22] I accept the interests of the Ngāi Tahu parties are directly affected by thejudicial review application. They were the applicants for the Mātaitai Reserves. Thepoint of the regulatory framework is to recognise and provide for rights andobligations, including customary food gathering, by the establishment of the Mātaitaireserves. If the decisions creating the reserves are declared invalid and the noticesestablishing them and their boundaries are quashed and set aside, it is obvious that theNgāi Tahu parties will be directly affected. They are the tangata whenua of theMātaitai reserves and, on any view, their interests would be substantially affected. Thebylaws recognise Ngāi Tahu as kaitiaki (guardians) whose role is to managenon-commercial fishing. The tangata kaitiaki appointed to a Mātaitai reserve can issuecustomary fishing authorisations to allow customary food gathering (not just for huiand tangi), can recommend changes to the recreational and customary fishing rules inthe reserve and recommend reinstatement of limited commercial fishing. There is nodoubt that is a significant role for Ngāi Tahu.[23] In addition, the second ground of the judicial review application is based on "alack of probative evidence" which relates to the lack of satisfaction that the proposedarea is "an identified traditional fishing ground" and "of a size appropriate to effective12 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2020]NZHC 741 at [39].13 At [39].14 Citing Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA) at 34;and Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission CA178/97, 14 October1997 at 15.management of tangata whenua".15 Ngāi Tahu provided some, if not all, of theinformation and the evidence in support of that claim at the time of the application.No doubt the review will include mixed issues of law and fact. It will requireconsideration of issues of tikanga and effective tangata whenua management. Theseare matters upon which Ngāi Tahu should be entitled to submit. The extent of theevidence before the court will be a matter for the hearing Judge but the relevant tikangaand the role of tangata whenua will be directly in focus.[24] Similarly, in relation to relief if the claim is made out, the issue of discretionwill arise and that also must be relevant to the Ngāi Tahu parties. Counsel pointed outthat enquiries as to the steps taken in reliance of the validity of notice and the futilityof the outcome, for instance, will all become relevant. They are matters that mustengage the Ngāi Tahu interests. The court will be assisted by their presence. It is inthe interests of justice that they be heard.[25] In this case the Ngāi Tahu parties were the applicants for the reserves, theyprovided the evidence (or, at least, much of it) upon which the Minister relied uponfor his decision. They are the tangata whenua and exercise kaitiakitanga over thereserves. Issues of tikanga will necessarily become relevant to the arguments in thejudicial review. In my view, there is no doubt that the Ngāi Tahu parties should bejoined to this application. They have an interest that is directly affected and have aright to be heard on the issues and to have the standing to appeal.[26] In the circumstances, given the cooperation between the Minister and the NgāiTahu parties in their approach to the evidence and submissions, I do not consider itnecessary to make orders limiting Ngāi Tahu's involvement. It would be difficult todo so at this stage. In any event, there is evident cooperation between the Ministerand the Ngāi Tahu parties. This will ensure focus to the proceedings and avoidduplication. Therefore, I do not limit the scope of their participation at this point.Result[27] The applications by the Ngāi Tahu parties to join as respondents are granted.15 Fisheries (South Island Customary Fishing) Regulations, reg 20(1)(c).[28] The timetable may need amendment beyond the proposal attached. I invitecounsel to confer on this matter and any amended timetable, if by consent, may bedealt with by the duty Judge. The scheduled date for hearing is vacated. A new datefor one day is to be set for a time after 3 August, on the basis that the timetable willnot be extended beyond that in the attached document.[29] If counsel are unable to agree on costs, submissions should be filed by theapplicant for costs within five days from the date of this judgment and by therespondent party within a further five days for determination on the papers.__________________Grice JSolicitors:Parry Field Lawyers, ChristchurchCrown Law, WellingtonR J B Fowler Queens Counsel, Wellington Attachment:SCHEDULE 1: PROPOSED AMENDED TIMETABLE(by Respondent and Ngāi Tahu parties to be joined)Ngāi Tahu parties to file andserve statement of defence10 workingdays from grantof applicationto join14 AprilThe applicant to file and serveany further evidence andnominations for the commonbundle of documents+ 15 workingdays10 MayThe respondent to file and serveits evidence and its nominationsfor the common bundle ofdocuments+ 10 workingdays24 MayNgāi Tahu parties to file andserve evidence and nominationsfor the common bundle ofdocuments+ 2 workingdays26 MayThe applicant to file and serveany evidence in reply and anyfurther additions to the commonbundle of documents+ 10 workingdays10 JuneThe applicant to file and servethe common bundle ofdocuments+ 5 workingdays17 JuneThe applicant to file and serve itssubmissions+ 5 workingdays27 JuneThe respondent to file and serveits submissions+15 workingdays18 JulyNgāi Tahu parties to file andserve submissionsThe respondent to file and servea joint bundle of authorities+ 2 workingdays20 JulyThe matter be set down for a oneday hearing on the first availabledate 10 working days after finalfiling03 Aug