NGĀI TAKOTO IWI [2023] NZHC 301

NGĀI TAKOTO IWI [2023] NZHC 301 [24 February 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2017-485-320CIV-2017-485-208CIV-2017-485-240[2023] NZHC 301UNDER the Marine and Coastal Area(Takutai Moana) Act 2011IN THE MATTER OF an application by Ngāi Takoto Iwi for ordersrecognising Customary Marine Title andProtected Customary RightsOn the papers:Appearances: H C Andrews for Ngāi Takoto IwiS Wroe for Ngā Uri o Ngāti KuriS M Downs and J Lang for Trustees of Te Rūnanga Nuio Te AupōuriG Melvin for Attorney-GeneralJudgment: 24 February 2023JUDGMENT OF CHURCHMAN J[1] The applicant, Ngāi Takoto, seeks leave to become an interested party to theapplications for recognition orders of Ngāti Kuri Trust Board and Te Rūnanga Nui oTe Aupōuri Trust under the Marine and Coastal Area (Takutai Moana) Act 2011 (theMACA Act).1[2] The applicant accepts and acknowledges this application is being made wellafter the due date to file a notice of appearance in respect of applications under theMACA Act in accordance with s 104. However, the applicant says the circumstanceshere are appropriate for the applicant to join as an interested party at a later date.1 CIV-2017-485-208 and CIV-2017-485-240 respectively.Background[3] In a minute dated 9 November 2022, noting the inconsistencies between themap attached to Ngāi Takoto's original application, a map filed on 23 August 2021(the 2021 map), and a revised map filed on 24 May 2022 (the 2022 map), I expressedmy view that a strike out hearing should be scheduled for the next available date after22 November 2022 unless Ngāi Takoto was willing to withdraw the 2022 map, andinstead rely on the map filed on 23 August 2021.2[4] On 22 November 2022, the applicant advised that it may be prepared towithdraw the 2022 map and retain their claim area as shown in the 2021 map. Theapplicant advised that if that were to occur, it would seek leave to become an interestedparty to other claims under the MACA Act.[5] As advised, the applicant has now withdrawn their 2022 map and has retainedtheir claim area as shown in the 2021 map. The applicant says the withdrawal of the2022 map is offered as a pragmatic resolution to matters raised by the Attorney-General.[6] The applicant now seeks leave to become an interested party to the applicationsof Ngāti Kuri and Te Aupōuri. In respect of these applicants, I understand thatNgāti Kuri has advised it will abide the decision of the Court in respect of theapplicant's application, and that while Te Aupōuri has not advised a position in respectof the applicant's application, it has indicated it is prepared to discuss mattersregarding the iwi's respective MACA claim areas kanohi ki te kanohi at a governancelevel.2 Re Ngā Takoto Iwi HC Whangārei CIV-2017-485-320, 9 November 2022 (Minute ofChurchman J) at [15].Jurisdiction under the MACA Act[7] Section 104 of the MACA Act provides that "[a]ny interested person mayappear and be heard on an application for a recognition order if that person has, by thedue date, filed a notice of appearance."3[8] The "due date" is not in fact defined in the Act. However, it is clearly areference to the date by which any application for a recognition order under the Acthad to be filed, pursuant to s 100, namely "not later than 6 years after thecommencement of th[e] Act". That date was 3 April 2017.[9] Section 100(2) expressly provides that the Court "must not accept for filing orotherwise consider any application that purports to be filed after that date."[10] However, in Re Tipene, Mallon J held that the Court may permit interestedparties to appear and be heard even if they have missed the due date for filing a noticeof appearance.4[11] In Re Rota it was clearly contemplated that someone whose application couldnot be accepted for reason of being filed after the due date could join as an interestedparty to other applications that had been lawfully made.5 The applicant's barristerfailed to submit the application before the due date (5pm on 3 April 2017) and theapplication was received only on 6 April 2017. In a minute, Mallon J expressed herpreliminary view that because the application was not filed in the Court on 3 April2017, it was not filed within the statutory timeframe. However, she suggested that theclaimants "could potentially file a notice of appearance in respect of the Māori councilapplication", the Māori Council having filed an application which purported to extendto the marine and coastal area of the entire country with the claimed intention ofprotecting Māori interests where applicants failed to meet the statutory timeframe.The applicant's barrister accepted her Honour's preliminary view that the Court did3 There is no definition of "interested person" in the Act: Re Tipene [2014] NZHC 2046 [Re Tipene(27 August 2014)] at [10]; and Tangiora v Attorney-General [2014] NZHC 2049, [2015] 2 NZLR66 at [11].4 Re Tipene (27 August 2014), above n 3, at [22]–[23]; and see Re Tipene [2016] NZHC 3199,[2017] NZAR 559 [Re Tipene (22 December 2016)] at n 74.5 Re Rota [2017] NZHC 1445 at [2(c)].not have discretion to accept the late application he filed, and advised that the applicantintended to join as interested party to other applications that had been made.6[12] Her Honour, dealing with another issue, namely a submission from anotheraffected party, also stated that party "may wish to become an interested party to [analready existing] application if and when it is progressed."7[13] I have previously granted leave for a party who has filed a notice of appearanceand application for leave to appear as an interested party in proceedings late to appearas an interested party.8 In Re Edwards (No 6), the party in question did not hold theresource consents and did not own the asset affected as at the due date.9 They thereforecould not have filed a notice within the specified time and I considered it wasappropriate to grant them leave to appear as an interested party accordingly.10[14] This Court has also previously reserved leave for parties potentially affectedby the grant of recognition orders to participate in the second part of the hearing of aclaim.11[15] Similarly, though against a slightly different legal backdrop, in New ZealandMāori Council v Te Kāhui Takutai Moana O Ngā Whānui Me Nga Hapū, the Court ofAppeal granted the Council leave to intervene in appeals brought against the HighCourt's decision Re Edwards (Te Whakatōhea No 2), though exactly why the Councildid not appear in the High Court as an interested party was "not explained".12 TheCourt considered the Council's participation could be of assistance to the Court and itwas unclear what prejudice, if any, the applicant faced by the delayed application.13The Court did recognise the potential for prejudice to the parties by expanding thescope of the appeals and limited the Council's involvement only to the legal issuesraised by the parties accordingly.146 At [2(c)].7 At [4].8 Re Edwards (No 6) [2022] NZHC 1160.9 At [11].10 At [11]–[12] and [14].11 See Re Edwards (No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [666].12 New Zealand Māori Council v Te Kāhui Takutai Moana O Ngā Whānui Me Nga Hapū [2022]NZCA 224 at [4].13 At [17]–[18].14 At [19].[16] In Re Tipene, the Court allowed the applicant to amend his application underthe MACA Act to broaden the applicant group and to refine and reduce the applicationarea.15 The application was permitted over the Attorney-General's objection, Mallon Jholding that the essence of the application had not changed.16 Her Honour noted theCourt should not take an unduly narrow approach to permissible amendments.17[17] Tangiora v Attorney-General is also helpful.18 The issue in that case was notthat an application was filed after the due date but rather that the applicant consideredthe person was not an "interested person".19 Nevertheless, Mallon J made somehelpful remarks.[18] As her Honour noted, the Act is silent on what is to happen if a person files anotice of appearance outside the due date.20[19] However, her Honour stated:[26] It seems likely that the Act intended there to be some flexibility tohear from persons likely to be directly affected by an application, even if theyfail to file a notice of appearance by the due date. It also seems likely that theAct intended that the Court retain some control over whether a party claimingan interest in an application is properly a party who should be before the Court,whether they have filed a notice of appearance before or after the due date.[27] As discussed in Re Tipene,21 in my view a person who has not filed anotice of appearance by the due date may nevertheless be permitted to appearand be heard through the exercise of the Court's inherent jurisdiction. In thatcase the Court will consider such factors as the nature of the case, the natureof the interest claimed, the quality of the information before the Court andpractical considerations [20] Her Honour concluded:[28] I consider that, through these powers, the Court retains sufficientcontrol over whether a person is properly before the Court. A person who candemonstrate a sufficient interest may be included even if they have missed thedue date. A person who has signalled their interest through filing a notice ofappearance by the due date will be able to be heard unless they have no15 Re Tipene [2015] NZHC 169 [Re Tipene (13 February 2015)].16 At [16]; and see Re Tipene (22 December 2016), above n 4, at [46(c)] and n 80.17 At [21].18 Tangiora v Attorney-General, above n 3.19 At [25(c)].20 At [25(d)].21 Re Tipene (27 August 2014), above n 3.legitimate interest at all (that is, if they disclose no reasonably arguable case),or they act in a way that causes prejudice or delay, or is frivolous or vexatious,or is otherwise an abuse of the Court.[21] Her Honour considered the Act contemplated a "wider rather than narrowerapproach to who may appear and be heard".22Decision[22] The applicant says the circumstances are appropriate here for its application tojoin as an interested party to be approved. The applicant says granting its applicationwould assist the other applicants and the Attorney-General to progress the MACAclaims in Te Hiku to a speedy resolution.[23] It also says it would ensure that its MACA application aligns with the area ofinterest recognised in the settlement of their Treaty land claims, that the applicant doesnot become vulnerable to the unsubstantiated claims of other claimant groups, and thatthe outcomes of the MACA Act applications are durable and appropriate in accordancewith the Act's purpose, "rather than simply being determined on a 'first-in first-correct'basis."[24] As noted, the Act does not specify a process for parties to join applications ata later date. However, as I have canvassed above, in respect of such applications thereare not the same strict time limits as exist in relation to originating applications forrecognition orders under the Act, and such applications for leave to appear as aninterested party have been allowed in appropriate circumstances.[25] I am prepared to grant the present application. The applicant's participation asan interested party will result in the Court being more fully informed than it would bewithout its participation, and I consider its presence is necessary to justly determinethe other applicants' applications here.23[26] I also consider granting the application aligns with the purpose of the Act, inparticular to recognise the mana tuku iho exercised in the marine and coastal area by22 Tangiora v Attorney-General, above n 3, at [29].23 See r 4.1 of the High Court Rules 2016.iwi, hapū, and whānau as tangata whenua, and to provide for the exercise of customaryinterests in the common marine and coastal area.24[27] I am also satisfied that granting the application will not prejudice or delay anyparty (including Ngāti Kuri and Te Aupōuri), given that no steps have yet been takentowards bringing their applications to hearing. By contrast, I accept there would besignificant prejudice to the applicant, their mana and their overall wellbeing if theapplication was not granted. I accept they would suffer difficulties in pursuing theirrights and obligations regarding the Te Rerenga Wairua and Manawatāwhi areas if thiswas so.[28] Of course, leave to be joined as an interested person following the due datewill not always be allowed.25 However, in this circumstance I consider the applicationis appropriate.Outcome[29] Leave for the applicant to become an interested party to the applications ofNgāti Kuri and Te Aupōuri is granted.Churchman JSolicitors:The Environmental Lawyers for Ngāi Takoto IwiTukau Law Limited for Trustees of Te Rūnanga Nui o Te Aupōuricc: S Wroe for Ngā Uri o Ngāti Kuri24 Marine and Coastal Area (Takutai Moana) Act 2011, s 4(1)(b)–(c).25 See Re Reeder [2021] NZHC 2726, [2022] 3 NZLR 304 at n 9, where Powell J refused leave fora party to be joined as an interested person in a minute dated 7 May 2021.