NGATI TU KI NGAPUHI [2023] NZHC 745 ()

NGATI TU KI NGAPUHI [2023] NZHC 745 (17 April 2023)IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2017-404-573[2023] NZHC 745UNDER the Marine and Coastal Area(Takutai Moana) Act 2011IN THE MATTER OF an application by Maia Maria NovaHonetana on behalf of Ngāti Tu ki Ngāpuhifor orders recognising Customary MarineTitle and Protected Customary RightsOn the papers:Counsel: B J Loader for ApplicantJudgment: 17 April 2023JUDGMENT OF CHURCHMAN JIntroduction[1] By memorandum dated 3 April 2023, the applicant, Maia Maria NovaHonetana, on behalf of Ngāti Tu ki Ngāpuhi, seeks leave for Ngāti Tu ki Ngāpuhi toappear as an interested party on a number of applications for recognition orders forcustomary marine title and protected customary rights under the Marine and CoastalArea (Takutai Moana) Act 2011 (the Act).[2] The applications in which the applicant seeks leave for Ngāti Tu ki Ngāpuhi toappear as an interested party are the following:CIV-2009-488-205 Te Uri O Hau Settlement TrustCIV-2017-404-442 Ropu o RangiririCIV-2017-404-537 Nga Puhi nui tonu, Ngāti Rahiri, Ngāti Awa,Ngā Tahuhu and NgaitawakeCIV-2017-404-545 Ngāti ManuhiriCIV-2017-404-546 Ngāti RehuaCIV-2017-404-554 Nga Hapu o Ngāti Wai IwiCIV-2017-404-555 Te Whanau o Hone Papita Raua Ko Rewa AtariaPaamaCIV-2017-404-558 NgaitawakeCIV-2017-404-563 Te Runanga o Ngāti WhātuaCIV-2017-404-566 Te Waiariki, Ngāti Korora, Ngāti TakapariHapu/Iwi, Hapu of Niu TireniCIV-2017-404-567 Te TaouCIV-2017-404-570 Te Hikutu HapūCIV-2017-404-579 Nga Hapu o Tangaroa ki Te Ihu o Manaia tae atu kiMangawhaiCIV-2017-485-231 Ngāti HineCIV-2017-485-239 Te Rae Ahu Whenua TrustCIV-2017-485-250 Ngāti PukengaCIV-2017-485-281 Patuharakeke Te IwiCIV-2017-485-283 NgātiwaiCIV-2017-485-286 PatuharakekeCIV-2017-485-305 Te ParawhauCIV-2017-485-378 Ngāti Maraeariki, Ngāti RongoCIV-2017-485-398 Ngāti Kawau & Te Waiariki KororaCIV-2017-485-409 Whangaroa Ngaiotonga TrustCIV-2017-485-515 Reti WhanauCIV-2017-485-799 Te Parawhau HapuCIV-2017-488-029 Mokau WhanauCIV-2017-485-279 Ngāti TakapariThe application[3] The applicant has served copies of its application on all those applicants whoseapplications it wishes to become an interested party to. The Court has not receivedany notices of opposition to the application or any other communication from thoseother parties. Accordingly, I proceed on the basis that the application is unopposed.However, I still need to consider whether the application should be granted.[4] The background to the current application is that, on 17 August 2022, theapplicant filed an amended application under the Act for recognition orders. Theamended application reduced the geographic scope of the original application. Sincethen it has come to counsel's attention that interested party status was not sought onany applications that overlapped the application area. It is perhaps unsurprising thatthis was not done at the time of the filing of the original application given its widegeographic extent.[5] The applicant is therefore no longer an applicant for recognition orders inrespect of a number of adjacent application areas but still has a legitimate interest inthe outcome of those applications. That is why it has sought interested party status inthe applications set out above, all of which either sit adjacent to overlap its ownamended application area.[6] The real issue for determination is whether the particular circumstances of thiscase and the consequences of having filed an amended application justify the Court ingranting the application notwithstanding that it is out of time.Discussion[7] Section 104 of the Act provides that "[a]ny interested person may appear andbe heard on an application for a recognition order if that person has, by the due date,filed a notice of appearance."[8] It is accepted this application is being made well after the "due date", which,pursuant to s 100, expired on 3 April 2017. Nevertheless, counsel submits thecircumstances are such that it is appropriate here for the applicant to join as aninterested party notwithstanding this deadline.[9] It is clear that Ngāti Tu ki Ngāpuhi is an interested party within the meaning ofs 104. Firstly, it is itself an applicant, having applied for recognition orders under theAct. Secondly, the area of its substantive application overlaps or is adjacent to theapplication areas of all applications for orders in respect of which it seeks to becomean interested party. In these circumstances, the Court is likely to benefit from itsparticipation in the applications that it wants to participate in. Indeed, in respect ofthose applications which overlap its own, it is arguable that no application toparticipate as an interested party was required as it can fully participate as anoverlapping applicant. It is therefore appropriate that Ngāti Tu ki Ngāpuhi be grantedleave to appear as an interested party.[10] I am satisfied that, in the particular circumstances of this case, there is noprejudice that will be incurred by other parties in granting this application.[11] In the absence of any countervailing considerations, and in the absence of anyopposition, I do not consider the fact the application is brought out of time is anobstacle to the application being granted here.Result[12] The application for Ngāti Tu ki Ngāpuhi to appear as an interested party inrespect of the applications for which leave is sought is granted.Churchman JSolicitors:Loader Legal, Auckland for Applicant