TANGIORA v THE ATTORNEY-GENERAL [2014] NZHC 2049

TANGIORA v THE ATTORNEY-GENERAL [2014] NZHC 2049 [27 August 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-794[2014] NZHC 2049IN THE MATTER OF an application under the Marine andCoastal Area (Takutai Moana) Act 2011BETWEEN Pauline Tangiora for and on behalf ofRONGOMAIWAHINE IWIApplicantAND THE ATTORNEY-GENERALRespondentHearing: 3 July 2014Counsel: L Watson for Ms TangioraC Linkhorn and A Williams for the Attorney-General (abides)C Corry for CORANZ (interested party)Judgment: 27 August 2014JUDGMENT OF MALLON JIntroduction[1] Ms Tangiora, on behalf of Rongomaiwahine Iwi, has applied for orders recognising a protected customary right and a customary marine title in a part or specified area of the common marine and coastal area.1 The application relates to an area around the coastline of the Mahia Peninsula on the east coast of the North Island (from Whareongaonga/Paritu in the north to the mouth of the Nuhaka River in the south2).[2] The application for recognition of a protected customary right is made on the grounds that the right has been exercised since 1840, that it continues to be exercised1 Marine and Coastal Area (Takutai Moana) Act 2011, ss 51, 58 and 98.2 As further defined in Ms Tangiora's amended application dated 31 July 2013.in the area in accordance with tikanga by Rongomaiwahine Iwi, and that it is not extinguished by law.3[3] The application for recognition of a customary marine title is made on the grounds that Rongomaiwahine Iwi holds the area in accordance with tikanga, that they have exclusively used and occupied it from 1840 to the present time without substantial interruption, and/or that they received it through a customary transfer between or among members of Rongomaiwahine Iwi in accordance with tikanga.4[4] The application is at the interlocutory stage. The Council of Outdoor Recreation Associations of New Zealand Incorporated (CORANZ) has filed a notice of intention to appear in respect of Ms Tangiora's application. Ms Tangiora submits that CORANZ is not an "interested person" and therefore should not be permitted toappear and be heard. A hearing took place to consider this issue. This judgment determines that issue.The legislation[5] The stated purpose of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) is as follows:54 Purpose(1) The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and(c) provide for the exercise of customary interests in the common marine and coastal area; and(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).3 Marine and Coastal Area (Takutai Moana) Act 2011, s 51(1).4 Section 58(1) and (3).5 Section 4(1).[6] The Act sets out two mechanisms by which legal recognition may be given to protected customary rights and customary marine title. One of those mechanisms is by application to the High Court for a recognition order.6 The burden of proof upon applicants is as follows:7106 Burden of proof(1) In the case of an application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right—(a) has been exercised in the specified area; and(b) continues to be exercised by that group in the same area in accordance with tikanga.(2) In the case of an application for the recognition of customary marine title in a specified area of the common marine and coastal area, the applicant group must prove that the specified area—(a) is held in accordance with tikanga; and(b) has been used and occupied by the applicant group, either—(i) from 1840 to the present day; or(ii) from the time of a customary transfer to the present day.[7] The Act includes procedural provisions relating to such applications.8 These include requirements as to service, public notice, and who may appear and be heard on an application.[8] Section 102 provides:102 Service of applicationThe applicant group applying for a recognition order must serve the application on—(a) the local authorities that have statutory functions in the area of the common marine and coastal area to which the application relates; and6 Section 100.7 Section 106(2).8 Part 4, sub-part 2.(b) any local authority that has statutory functions in the area adjacent to the area of the common marine and coastal area to which the application relates; and(c) the Solicitor-General on behalf of the Attorney-General; and(d) any other person who the Court considers is likely to be directly affected by the application.[9] Section 103 provides that public notice of the application must be given.That notice must be given "not later than 20 working days after filing theapplication."9 The public notice must include a date "for filing a notice of appearance in support of or in opposition to the application".10 That date "must benot less than 20 working days after the first public notice of the application ispublished."11[10] Section 104 provides:104 Who may appear on application for recognition orderAny interested person may appear and be heard on an application for a recognition order if that person has, by the due date, filed a notice of appearance.[11] There is no definition of "interested person" in the Act. The Court has somefurther specific powers in relation to applications under the Act. Section 107 provides:107 Court's flexibility in dealing with application(3) The Court may strike out all or part of an application for a recognition order or a notice of appearance filed under section 104 if it—(a) discloses no reasonably arguable case; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the Court.9 Section 103(1).10 Section 103(2)(f).11 Section 103(3).(6) This section does not affect the Court's inherent jurisdiction.[12] Section 108 provides for procedural rules, not inconsistent with the Act, to be made under the Judicature Act 1908. No such rules have been enacted.The procedural steps taken in this case[13] Ms Tangiora's amended application was filed on 21 August 2013. TheHawke's Bay Regional Council, the Gisborne District Council and the WairoaDistrict Council were served with a copy of the application. Public notice of the application was given on 24 August 2013. That notice advised that any notice of appearance in support of or in opposition to the application was to be filed by 30 September 2013.[14] Following that notice the Court received responses from the following persons: the Attorney-General; the Hawke's Bay Regional Council; the GisborneDistrict Council; the Trustees of Tāmanuhuri Tutu Poroporo Trust; CORANZ; andDr Hugh Barr (the secretary of CORANZ). All these responses were received on or before 30 September 2013.[15] By a minute dated 14 November 2013 I directed that the presently named parties (Ms Tangiora and the Crown) were to advise whether they wished to raiseany issue as to whether any of the above parties were "interested parties" under s 104. Ms Tangiora raised whether Dr Barr's response was separate from CORANZ'sresponse. In any event, Ms Tangiora advised that issue was taken with bothresponses on the basis that they were not "interested parties".[16] A timetable was put in place for the filing of written submissions on this issue. Subsequently, and in light of a related issue which had arisen in another application under the Act,12 I directed that the parties could have the opportunity to present oral submissions at the same time as the hearing which had been scheduled in respect of that other application. Counsel for Ms Tangiora and counsel for12 Re Tipene [2014] NZHC 2046.CORANZ took up that opportunity. Counsel had previously advised that Dr Barr did not wish to pursue the matter in his personal capacity.CORANZ[17] An affidavit was filed by Dr Barr in support of CORANZ. The affidavit explains that CORANZ was incorporated on 22 September 1988. Its objectives include: acting as a strong voice for recreational users; promoting the protection and wise management of outdoor recreation resources; advocating for the continuation of public ownership of all currently publicly owned outdoor recreation resources; and working to retain free, egalitarian and public access to publicly managed lands, waters and other resources.[18] The affidavit further advises that its members include recreational societies of fishers and anglers in New Zealand. Its activities include researching and making submissions on important outdoor recreational issues. It made submissions on the Marine and Coastal Area (Takutai Moana) Bill and spoke about them before theMāori Affairs Select Committee. It has made submissions to the Office of Treaty Settlements on four applications for customary marine title under the recognition agreement procedure that is provided for under the Act.13Submissions[19] Counsel for Ms Tangiora submits that a person must qualify as an "interested person" if they are to appear and be heard on an application under the Act. He submits that the Court must retain jurisdiction as to who qualifies as an "interested person". He says that the Court recognised this by requesting that Ms Tangiora and the Crown advise if any issue was taken with those who had responded to the public notice. He says that this is reinforced by s 107 of the Act pursuant to which a notice of appearance may be struck out.[20] Counsel for Ms Tangiora notes that "interested person" is not defined in theAct. He submits that the Court may take guidance from the High Court Rules. He refers to rule 4.1 which provides:13 Marine and Coastal Area (Takutai Moana) Act 2011, ss 95-97.The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—(a) persons whose presence before the court is necessary to justly determine the issues arising; and(b) persons who ought to be bound by any judgment given.[21] He also refers to the High Court's jurisdiction to permit interested parties tointervene in a proceeding. He submits that CORANZ is not a person whose presence is necessary to determine the issues arising on the application and that it does notmeet the Court's criteria for an intervenor.14[22] He submits that CORANZ is an advocacy group opposed to the Act. Its view was considered by the Select Committee prior to its enactment. The legislature has decided that in certain circumstances recreational interests are to be curtailed. CORANZ does not represent persons who are directly affected. To the extent that CORANZ seeks to advance a public interest, that interest is represented by the Attorney-General and the local authorities who have filed notices of appearance. Moreover, CORANZ asserts a love of the coast throughout New Zealand and not a particular interest in that part of the coast that is the subject of the application.[23] CORANZ responds that, as outlined in its affidavit, it has a track record of genuine interest in issues which affect the recreational opportunities of New Zealanders. It says that "interested person" should be given a wide meaning andmust mean something beyond a person who is directly affected. It says that it is difficult to predict the level of involvement it will seek because the application is broadly defined at this stage. It accordingly submits that the challenge to its interest is premature. It says that its main interest is to make sure that important facts are not overlooked by other parties. It has an information base that may be of assistance to the Court. Whether the Crown or the local authorities obtain that information will depend on their inclination to do so. It intends to act in responsible and balanced way.14 Referring in particular to Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-1795, 9 August 2011 at [25]-[31].Analysis[24] It seems that the Act contemplates that:(a) Some persons (those likely to have an interest) are to be informed of the application directly by being served with it.(b) Other persons (who are not relevant local authorities and who have not been identified by the Court under s 102(d), but who may nevertheless have an interest) are to be informed of the application via public notice.(c) In either case, if an interested person wishes to appear and be heard they are to file a notice of appearance by the due date, which in this case was 30 September 2013.[25] The Act is silent on what is to happen if:(a) a person likely to be directly affected is not identified by the Court as a person who is to be served prior to the due date for filing a notice of appearance; or(b) the Court directs that a person be served but service is not carried out prior to the due date for filing a notice of appearance; or(c) a person files a notice of appearance by the due date but the applicantconsiders that they are not an "interested person" (the issue which hasarisen here); or(d) a person who is not likely to be directly affected, but who claims an interest in the application, files a notice of appearance outside the due date.[26] It seems likely that the Act intended there to be some flexibility to hear from persons likely to be directly affected by an application, even if they fail to file anotice of appearance by the due date. It also seems likely that the Act intended that the Court retain some control over whether a party claiming an 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,15 in my view a person who has not filed a notice of appearance by the due date may nevertheless be permitted to appear and be heardthrough the exercise of the Court's inherent jurisdiction. In that case the Court will consider such factors as the nature of the case, the nature of the interest claimed, the quality of the information before the Court and practical considerations. A person that has filed a notice of appearance by the due date will be able to appear and be heard unless an order is made striking out the notice of appearance. Section 107 sets out the grounds on which such an order can be made.[28] I consider that, through these powers, the Court retains sufficient control over whether a person is properly before the Court. A person who can demonstrate a sufficient interest may be included even if they have missed the due date. A person who has signalled their interest through filing a notice of appearance by the due date will be able to be heard unless they have no 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.16[29] The issues that arise in an application under the Act are important. The purposes of the Act reflect the potentially wide interests in the marine and coastal area of New Zealand. Consistently with this, the Act has not sought to define"interested persons". The Act does not require that a person have an interest in theproceeding that is different from an interest in common with the public generally, as was the case with the predecessor legislation.17 These matters support a wider rather than narrower approach to who may appear and be heard.1815 Re Tipene, above n 12.16 Marine and Coastal Area (Takutai Moana) Act 2011, s 107(3).17 Foreshore and Seabed Act 2004, s 72.18 This is also consistent with the approach in the Māori Land Court: see r 5.9 of the Māori LandCourt Rules 2011 and, for example, Easthope v Pirika - Te Ngae Farm Trust (2012) 62 Waiariki MB 92 (62 WAR 92).[30] In light of these matters I consider that CORANZ's notice of appearanceshould not be struck out. Its actions to date show that it is a party genuinely interested in the marine and coastal area. It is premature to say that it has no legitimate interest. It may provide relevant information. It may not. Providing CORANZ acts responsibly, as it intends to do, it may appear and be heard if it wishes to do so.Result[31] I decline to strike out CORANZ's notice of appearance. Costs are reserved. A case management conference will be convened shortly to put in place timetable directions for the steps that remain to be taken to advance the application to a hearing.Mallon J