TE RUNANGA O NGAI TAHU V THE ATTORNEY-GENERAL AND ORS CA563/2009

TE RUNANGA O NGAI TAHU V THE ATTORNEY-GENERAL AND ORS CA563/2009 15 June 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA563/2009 [2010] NZCA 262BETWEEN TE RŪNANGA O NGĀI TAHU Appellant AND THE ATTORNEY-GENERAL First Respondent AND THE WAITANGI TRIBUNAL Second Respondent AND NGĀTI APA KI TE WAIPOUNAMU TRUST Third Respondent AND NGĀTI RARUA IWI TRUST Fourth Respondent AND TE RŪNANGA O TOA RANGATIRA INCORPORATED Fifth Respondent AND NGĀTI TAMA MANAWHENUA KI TE TAU IHU TRUST Sixth Respondent AND TE RŪNANGA O RANGITANE O WAIRAU INCORPORATED Seventh Respondent AND TE ATIAWA MANAWHENUA KI TE TAU IHU TRUST Eighth Respondent Hearing: 15 June 2010 Court: William Young P, Ellen France and Randerson JJ Counsel: M G Colson and E J Henshilwood for Appellant V L Hardy for First and Second Respondents T J Castle for Third, Fourth and Eighth RespondentsB E Ross and S P Sparksman for Fifth Respondents No appearance for Sixth and Seventh Respondents Judgment: 15 June 2010 Reasons: 22 June 2010JUDGMENT OF THE COURTA The application for an extension of time to 16 July 2010 for applying for the allocation of a hearing date and for filing the case on appeal is granted. B The seventh respondent is struck out of the proceedings as a party. C Costs are reserved.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Te Rūnanga o Ngāi Tahu (Ngāi Tahu), the appellant, unsuccessfully brought judicial review proceedings 1 challenging various findings and recommendations made by the Waitangi Tribunal (the Tribunal) in its report into claims by Te Tau Ihu iwi (the term used to describe the third to eighth respondents collectively). 2Ngāi Tahu appealed to this Court against that decision but did not apply for a fixture or file the case on appeal within the six months provided for in r 43(1) of the Court of Appeal (Civil) Rules 2005. That means the appeal is treated as having been abandoned unless an extension of time is granted under r 43(2). Ngāi Tahu sought an extension of the six month period to 16 July 2010.1 Te Rūnanga o Ngāi Tahu v The Attorney-General HC Wellington CIV-2007-485-2602, 14 August 2009.2 Waitangi Tribunal Te Tau Ihu o te Waka a Maui: Report on Northern South Island Claims(WAI 785, 2008).[2] The application was opposed by the fifth respondent, Te Rūnanga o Toa Rangatira Inc (Ngāti Toa). The third, fourth, seventh and eighth respondents consented to an extension. The first, second and sixth respondents did not oppose. When the matter was heard on 15 June 2010, we gave an oral judgment granting the application and we now record that judgment and set out our reasons.Background[3] Ngāi Tahu considers Ngāi Tahu has exclusive rights and interests within the takiwa 3 set out in the Ngāi Tahu Claims Settlement Act 1998. Ngāti Toa (and the other iwi referred to as Te Tau Ihu iwi) maintain that they have customary rights and interests within that area. They say their interests should be acknowledged by the Crown in its current settlement negotiations with Ngāti Toa. [4] The extent of the respective iwi interests in the area has been the subject of consideration by the Tribunal and in litigation over a number of years. What is now a lengthy history is set out in more detail by MacKenzie J in the High Court decision.4 For present purposes, we need only note that the focus of Ngāi Tahu's proposed appeal is on the findings and recommendations made by the Tribunal concerning the inter-relationship between the claims of Te Tau Ihu and some of Ngāi Tahu's claims. The latter have been addressed by the Tribunal in its earlier report. 5Evaluation[5] It is common ground that, as this Court said in Russell v Commissioner of Inland Revenue, 6 non-compliance with r 43 and the resulting need for leave "requires the exercise by this Court of a positive discretion". 7[6] Ngāti Toa said the discretion should be exercised against Ngāi Tahu. Ms Ross on behalf of Ngāti Toa submitted that the appeal was being kept on foot for3 See [22] of the judgment of MacKenzie J. See also s 8 of the Ngai Tahu Claims Settlement Act and s 5 of Te Rūnanga o Ngāi Tahu Act 1996.4 At [2] – [31].5 Waitangi Tribunal The Ngai Tahu Report (WAI 27, 1991).6 Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 (CA).7 At [10].a collateral purpose, namely, to influence Ngāti Toa's negotiations with the Crown. Accordingly, she maintained that Ngāi Tahu does not genuinely want to pursue the appeal and it should be dismissed. [7] The factors which favoured Ngāi Tahu's application are, first, that the application was made in a timely manner and the extension sought is a short one, just over four months. Secondly, there is a practical answer to Ngāti Toa's concerns, namely, that by 16 July 2010 Ngāi Tahu will have to have filed its case on appeal and sought a hearing date or it will run the risk of the appeal being dismissed. Thirdly, the majority of the respondents either consent to or do not oppose an extension. Finally, it is relevant also that there is some overlap between the issues raised on the appeal and those being dealt with in the course of the negotiations. [8] In these circumstances, we considered it was appropriate to grant Ngāi Tahu a short extension of time.Disposition[9] For these reasons, the application for an extension of time to 16 July 2010 for applying for the allocation of a hearing date and for filing the case on appeal was granted. [10] At the hearing, we granted the application of the seventh respondent, Te Rūnanga o Rangitane o Wairau Inc to be struck out from the proceedings as a party.Costs[11] In the circumstances, we consider costs should be reserved and determined when the appeal is resolved.Solicitors: Bell Gully, Wellington for Appellant Crown Law Office, Wellington for First and Second Respondents Gascoigne Wicks, Blenheim for Third Respondent Kensington Swan, Wellington for Fifth Respondent