TE PARAWHAU [2023] NZHC 804 ()

TE PARAWHAU [2023] NZHC 804 (18 April 2023)IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-305[2023] NZHC 804UNDER the Marine and Coastal Area(Takutai Moana) Act 2011IN THE MATTER OF an application by Tamihana Paki on behalfof Te Parawhau for orders recognisingCustomary Marine Title and ProtectedCustomary RightsOn the papers:Counsel: C Hockly for Applicant (CIV-2017-485-305)G S G Erskine for Ngā Hapū o Tangaroa ki Te Ihu o Manaiatae atu ki Mangawhai (CIV-2017-404-579)M Chen and C Saunders for Te Rūnanga o Ngāti Whātua(CIV-2017-404-563)S de Groot and O Manning for the Trustees of the Te Uri o HauSettlement Trust (CIV-2009-488-205)G Melvin for Attorney-GeneralJudgment: 18 April 2023JUDGMENT OF CHURCHMAN J[Re Whangārei Coast Southern Boundary]Introduction[1] The applicant, Tamihana Te Akitai Paki on behalf of Te Parawhau, has filed amemorandum with the Court providing an update and outcome of further discussionsregarding the proposed boundaries for the hearings being planned for the WhangāreiCoast hearing area.[2] I have also received memoranda in response from three affected applicants inthe Whangārei Coast hearing area, namely Ngā Hapū o Tangaroa ki Te Ihu o Manaiatae atu ki Mangawhai (NHOT), Te Rūnanga o Ngāti Whātua (TRONW), and Trusteesof the Te Uri o Hau Settlement Trust on behalf of the Hapū of Te Uri o Hau (Te Uri oHau).[3] The key issue for determination here concerns the southern boundary of theWhangārei Coast hearings, in particular whether the southern boundary should beconfirmed as Bream Tail.Positions of the parties[4] The applicant says it was proposed in memoranda and at the case managementconferences that the northern boundary of the Ngāti Manuhiri application be thesouthern boundary of the Whangārei Coast hearing area.[5] The northern boundary of the Ngāti Manuhiri application is Bream Tail.[6] The applicant in its memorandum has now advised the Court that its preferredsouthern boundary of the Whangārei hearing area remains Bream Tail, the northernboundary of the Ngāti Manuhiri application area, as proposed.[7] The applicant has indicated that Ngāti Manuhiri was advised of this positionand supports the update now being provided to the Court.[8] However, the proposal is opposed by NHOT and Te Uri o Hau. TRONWsupports Te Uri o Hau and abides the decision of the Court.[9] NHOT proposes that the southern boundary of the Whangārei Coast area forhearing be at the Mangawhai River rather than at Bream Tail. This is because theMangawhai River is at the southern boundary of NHOT's application area.1 It is somefive kilometres to the south of Bream Tail. NHOT's application area currently lieswithin both the Whangārei Harbour and Whangārei Coast areas. Both areas have beenset down for substantive hearings in 2024 for 10-12 weeks each. If the southernboundary for the Whangārei Coast hearing area is situated at Bream Tail, NHOT says1 As described in NHOT's originating application, "[t]he southern coastal boundary is the northernbank at the mouth of the Mangawhai River."it will need to participate in a third substantive hearing just for the area from BreamTail to the Mangawhai River five kilometres to the south. That hearing would likelybe the proposed "Central East Coast" hearing area, which may involve 18 otherapplicants. Alternatively, if the southern boundary of the Whangārei Coast area is atthe Mangawhai River, NHOT says it would avoid the time, costs and delay ofparticipation in a large third substantive hearing.[10] Te Uri o Hau opposes the southern boundary for the Whangārei Coast hearingarea aligning with Bream Tail. Te Uri o Hau is pursuing coastal marine title in respectof its claim area through direct engagement with the Crown and says it wishes to seethese negotiations through to resolution. Te Uri o Hau advises that as a result it doesnot wish to participate in the High Court hearing of the Whangārei Coast area.[11] Te Uri o Hau says it commenced its discussions with the Crown many yearsago, and the Crown has indicated its desire to resolve Te Uri o Hau's claim as a priority,given the advanced status of its research and claim. It says it has regular kōrero andhui with the Crown to discuss progress, and wants to progress its negotiations with theCrown as quickly as possible. Nevertheless, Te Uri o Hau says it is possible itsnegotiations with the Crown will still be continuing when preparation and involvementin the Whangārei Coast hearing is required as per the timetable directions. Te Uri oHau is concerned the hearing process will require it to duplicate its efforts in twodifferent fora and undermine both its direct engagement process with the Crown aswell as its process of resolving conflicts concerning overlapping interests throughkōrero with overlapping complainants consistent with tikanga. Te Uri o Hau thereforedoes not support confirmation of the southern boundary area aligning with Bream Tail,and requests an adjustment to the southern boundary to exclude its claim area, movingthe boundary to be in line with Waipu Cove extending seaward.[12] TRONW supports Te Uri o Hau and expresses that it has no desire to hinder orslow the progress of Te Uri o Hau in direct engagement with the Crown. On the matterof the southern boundary of the Whangārei Coast hearing area, TRONW advises itabides the decision of the Court.Discussion[13] By way of background, on 23 May 2022, TRONW filed a memorandumrequesting that the southern boundary of the Whangārei Coast area be adjusted toexclude the application area of Te Uri o Hau on the basis that Te Uri o Hau was indirect engagement with the Crown in relation to its claim and making good progress.The proposed southern boundary was in line with Te Uri o Hau's northern east coastboundary, at approximately Waipu Cove.[14] On 16 June 2022, the applicant and Ngātiwai filed a joint memorandumseeking to move the southern boundary further south, from Waipu Cove down toBream Tail. This boundary overlaps with the top of Te Uri o Hau's claim area.[15] Following a case management conference held on 21 June 2022, in my minuteof 1 July 2022, I said: "[a]ccepting that wherever the boundary is drawn, one or moreapplicants will be adversely affected", I confirmed that the boundary should be drawnin accordance with the joint memorandum, that is at Bream Tail.2 I noted I wassatisfied drawing the boundaries of the Whangārei Coast hearing area in this wayrepresented a reasonable compromise in balancing the interests of the affected parties,and confirmed this would be the boundary.3[16] Later in that minute, I noted that counsel for Ngāti Manuhiri supported theproposal to refine the boundaries of the hearings to avoid any overlap with the NgātiManuhiri application area. I directed counsel for the applicant to file a memorandum"within 60 days updating the Court as to the outcome of any further discussionsregarding proposed hearing boundaries."4 It appears that counsel has conferred withNgāti Manuhiri regarding the boundary adjustment. Ngāti Manuhiri are supportive ofthe boundary proposed. I am unclear as to why Te Uri o Hau was not also included inthese discussions, as it is directly affected by the boundary adjustment. It is apparentthat Te Uri o Hau opposes the boundary being situated at this location. Counsel oughtto have engaged in discussions with Te Uri o Hau and it is regrettable that they did notdo so.2 Minute of Churchman J [Case Management Conferences (CMCs) 2022], 1 July 2022 at [145].3 At [147].4 At [182].[17] Nevertheless, ultimately I consider the correct outcome here is that thesouthern boundary be confirmed as outlined in my minute of 1 July 2022, that is atBream Tail. This will mean that the hearing area will exclude the Ngāti Manuhiriapplication area, as suggested in my minute of 1 July 2022 following the casemanagement conference held on 21 June 2022.[18] In reaching this conclusion, I am fully aware of the adverse effects on NHOTand Te Uri o Hau. It is of course undesirable that NHOT will be required to participatein a third substantive hearing. However, it is unavoidable that, in some instanceswhere there are overlapping claims that it is impossible to devise a system for thehearing of these claims that does not involve on or more parties in having to participatein more than one hearing. This is a consequence of the nature of overlapping claimsover large application areas.[19] Any boundary drawn in relation to the areas that will be the subject of thishearing is inevitably going to have adverse effects on one or other applicant. I amsatisfied, as I was in my minute of 1 July 2022, the drawing of the boundary at BreamTail represents the best compromise in this situation, and NHOT's participation in athird hearing is an unfortunate but necessary consequence of that.[20] The same applies in respect of Te Uri o Hau. Although it is imperative that, inthe dual pathway process for recognition of customary title, the application processthrough the Courts does not unduly interfere with direct negotiations between an iwigroup and the Crown, the participation of Te Uri o Hau is similarly a necessaryconsequence of what I considered in my earlier minute, and continue to consider, isthe best compromise in the situation. In saying this, I emphasise to counsel for theapplicant the importance of engaging in discussions with Te Uri o Hau as an affectedparty.Conclusion[21] The southern boundary of the Whangārei Coast hearing area is confirmed asbeing at Bream Tail, as provisionally outlined in my minute of 1 July 2022.Churchman JSolicitors:Hockly Legal, Auckland for Applicant CIV-2017-485-305)Kemps Weir Lawyers, Auckland for CIV-2017-404-563Minter Ellison Rudd Watts, Auckland for CIV-2009-488-205Crown Law, Wellington for Attorney-Generalcc: Afeaki Chambers, Auckland for CIV-2017-404-579