NEW ZEALAND MĀORI COUNCIL v TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ [2022] NZCA 224

NEW ZEALAND MĀORI COUNCIL v TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ[2022] NZCA 224 [3 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA303/2021CA314/2021CA326/2021CA327/2021CA330/2021CA332/2021CA339/2021[2022] NZCA 224BETWEEN NEW ZEALAND MĀORI COUNCILApplicantAND TE KĀHUI TAKUTAI MOANA O NGĀWHĀNUI ME NGA HAPŪRespondentCourt: Cooper P, Clifford and Gilbert JJCounsel: F E Geiringer for ApplicantK S Feint QC and S W H Fletcher for RespondentJudgment:(On the papers)3 June 2022 at 9.30 amJUDGMENT OF THE COURTThe application for intervention is granted.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application by the New Zealand Māori Council (the Council) forleave to intervene in the appeals brought against the High Court's decision Re Edwards2(Te Whakatōhea No. 2), which dealt with a number of applications made underthe Marine and Coastal Area (Takutai Moana) Act 2011 for customary marine titles(CMTs) and protected customary rights (PCRs) in the waters of the easternBay of Plenty.1[2] Te Kāhui Takutai Moana o Ngā Whānui Me Ngā Hapu (Te Kāhui), which is agrouping of several Whakatōhea hapū who were generally speaking successful inthe High Court, oppose this application.2Background[3] The Council is a statutory body constituted under s 17 of the Māori CommunityDevelopment Act 1962. The Council is set up to promote, encourage and assist Māoriin a range of areas. Its general functions, as set out in s 18 of that Act, includeconsidering and discussing matters relevant to the social and economic advancementof Māori. In exercising its functions, the Council may "make such representations tothe Minister [of Māori Affairs] or other person or authority as seem to it advantageous"to Māori.3 The Council sees one of its roles as advancing Māori interests throughthe courts, and indeed has done so previously on a number of occasions.4[4] The Council did not appear in the High Court. It has not sought to involveitself in any specific application for the recognition of customary interests underthe Act. Its role is not, it says, to advocate for the recognition of the particular group'srights, especially when such applications may conflict with overlapping claims ofother Māori groups. Exactly why it did not appear in the High Court as an interestedperson was not explained to us.51 Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025.2 Te Kāhui comprises Te Rua Rakuraku on behalf of Ngāti Ira o Waiо̄weka; Te Ringahuia Hata onbehalf of Ngāti Patumoana; Mandy Mereaira Hata and Te Riaki Amoamo on behalf ofNgāti Ruatakenga; Tracy Francis Hillier on behalf of Ngāi Tamahaua Hapū and Te Hapū Tītoko oNgāi Tama; Karen Stefanie Mokomoko and Pita Tori Biddle for and on behalf of Te Uri oWhakatо̄hea Rangatira Mokomoko; and Muriwai Maggie Jones on behalf of Ngāi Tai andRiriwhenua Hapū.3 Maori Community Development Act 1962, s 18(3).4 For example, New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA)(the Lands case); Attorney-General v New Zealand Māori Council [1991] 2 NZLR 129 (CA)(the Radio Frequencies case); New Zealand Māori Council v Attorney-General [1994] 1 NZLR513 (PC) (the Broadcasting Assets case); and New Zealand Māori Council v Attorney-General[2013] NZSC 6, [2013] 3 NZLR 31 (the Mighty River Power case).5 Marine and Coastal Area (Takutai Moana) Act 2011, s 104.3[5] The present application was filed after some delay. While the Councilpromptly signalled to the Court in June 2021 it was likely to intervene, it could notmake an application at that time. All Council members lose office every three yearsand must be reappointed. Coincidentally, the appeals against the High Court decisionwere brought at the time between those events. In his affidavit, Ven Harvey Ruru,the Council's co-chairperson, explained that once he was reappointed the Councilmade its intervention application on 17 November 2021. Ven Ruru explained that thedelay was also attributed to the inability of the Council to search this Court's file until16 November 2021, the day before the intervention application was made. Its earlierapplication for access to court documents had been overlooked by the Court.[6] On 23 November 2021, this Court said it would deal with the presentapplication on the papers.[7] In a minute of 11 March 2022, we asked the Council to clarify the basis for itsintervention in the appeals. In particular, we asked the Council whether it anticipatedproviding submissions on the legal tests for both customary marine titles and protectedcustomary rights. Given what we understand of the appeals so far, particularly ofthe appeal brought by the Landowners Coalition, a revisiting of the customary marinetitle aspects would appear inevitable. We also asked the Council what its positionwould be if the Crown supports the Judge's approach, or if the Crown adopts orsupports aspects of the Landowners Coalition's appeals.AnalysisRelevant legal test[8] Applications for leave to intervene are made under r 48 of the Court of Appeal(Civil) Rules 2005. Rule 48(2) gives this Court "all the powers and duties of the courtof first instance concerning procedure". As the High Court has the inherentjurisdiction to grant leave to a non-party to intervene, r 48(2) gives this Courtthat power.4[9] The principles for determining such an application were summarised in thisCourt's decision in Ngāti Whātua Ōrākei Trust v Attorney-General as follows:6(a) The power is broad in nature but should be exercised with restraint toavoid the risk of expanding issues, elongation of hearings andincreasing the costs of litigation.(b) In an appeal involving issues of general and wide importance the courtmay grant leave when satisfied that it would be assisted bysubmissions from the intervener.(c) The fact that the case raises issues of principles transcending theparticular facts is not in itself sufficient to extend rights of hearingbeyond the parties.(d) The Court will take into account the relevant expertise or the uniqueposition of an intended intervener as well as the impact of theintervention on appeal.Submissions[10] The Council wishes to be heard in this Court on the correct legal test forrecognition of CMTs or PCRs under the Act. The possible precedential effect ofthe interpretation of those tests may, it submits, affect all Māori. It wishes to providesubmissions only to the extent the High Court's interpretation findings are to berevisited by this Court, and accordingly its intervention will not expand or delaythe issues before this Court. The Council's statutory duty and unique role makes itwell-placed to provide those submissions.[11] This Court's consideration of the interpretation of the tests for recognition issaid to have added importance because of a claim currently before theWaitangi Tribunal. In that claim, the Council's position is that the tests forrecognition are inconsistent with tikanga and accordingly breach the Crown'sTreaty of Waitangi obligations. Based on the Crown's opening submissions for stage 2of the inquiry before the Tribunal, provided to us as an exhibit to Ven Ruru's affidavit,the Crown appears to be using the High Court's judgment in Re Edwards as anexample of how "tikanga will be placed at the forefront" of how the Act is to beinterpreted and applied.6 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11](footnotes omitted).5[12] Te Kāhui oppose the Council's intervention. While it recognises the Council'smana, it is not appropriate for the Council as an outside body to represent Māori byintervening in the proceedings when the Māori who are before the Court do not wishto be represented by it. Whakatōhea's tikanga is that the hapū speak for themselves.This Court already has multiple different kaupapa Māori perspectives before it and sothe Council is unlikely to bring an additional perspective to the appeals. Rather, theCouncil's intervention is likely to increase hearing time and delay resolution ofthe appeals and its assistance to the Court is likely to be limited because it did notappear in the High Court.[13] Furthermore, Te Kāhui says the issues before the Waitangi Tribunal in respectof the Act are not relevant to the appeals. As regards the Council's late filing, Te Kāhuiunderstands some delay caused by the elections was inevitable, but it was incumbenton counsel to follow up any request for access to the Court file.Our assessment[14] The Council's memorandum of 10 May 2022 could only provide limitedanswers to the questions we posed in our 11 March 2022 minute. Counsel confirmedthat if, as we suggested, all matters relating to protected customary rights can beresolved without revisiting the relevant legal test, the Council would not seek tobe heard. Nor does it seek to be heard on matters of fact or the application of the testsin individual cases. As regards the second issue, the Council was limited in what itcould say of its position without being able to respond to more detailed submissionsfrom the Crown or the Landowners Coalition.[15] Notwithstanding those limited answers to our questions, we are of the viewthe application should be granted.[16] While the appeals raise mostly factual contentions as to who should be grantedapplications for recognition, it is likely this Court will deal for the first time with anumber of legal issues raised by the Act. In particular, what constitutes holdingspecified areas "in accordance with tikanga", and "exclusive use and occupation" from1840 to the present day without substantial interruption. Those issues, as each hearingdeals with defined areas of the common marine and coastal area, will be case-specific6and their outcomes will be, in a large way, dependent on the tikanga of a particularapplicant group or groups.[17] In our view, the Council's role makes it well-placed to provide a pan-Māoriperspective in a way that transcends the individual interests of the applicant groupsinvolved in the appeals. That may be useful given the different variations in tikangaacross the country. To put it simply, the Council could represent the general Māoriinterest, rather than the interests of specific whanau, hapū or iwi. That may be ofassistance as this Court deals with the legal issues raised for the first time againstthe backdrop of some 200 other applications under the Act to be considered bythe High Court.[18] While the Council's application has been delayed, it has been partly explained.Moreover, the resolution of the appeals has already been delayed by this Court havingto deal with a number of other interlocutory applications. It is unclear therefore whatprejudice, if any, Te Kāhui faces by the delayed application.[19] We do, however, recognise the potential for prejudice to parties by expandingthe scope of the appeals. The Council's role will be a limited one. The Council mustprovide submissions only on the legal issues raised by the parties.Result[20] The application for intervention is granted.Solicitors:Woodward Law Offices, Lower Hutt for ApplicantAnnette Sykes & Co, Rotorua for Respondent