WAAKA v THE TRUSTEES OF THE MAUNGAHARURU-TANGITŪ TRUST [2023] NZCA 408

WAAKA v THE TRUSTEES OF THE MAUNGAHARURU-TANGITŪ TRUST [2023] NZCA 408 [31 August2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA709/2022[2023] NZCA 408BETWEEN TORO WAAKA, CHAANS TUMATAROA-CLARKE, GERALD ARANUI, CHARLESLAMBERT, THERESA THORNTON,SIOBHAN STOREY AND TOM KEEFEAS TRUSTEES OF THE NGĀTIPĀHAUWERA DEVELOPMENT TRUSTApplicantsAND THE TRUSTEES OF THEMAUNGAHARURU-TANGITŪ TRUSTFOR AND ON BEHALF OF NGĀTIKURUMŌKIHI, NGĀTIMARANGATŪHETAUA, NGĀTIWHAKAARI, NGĀI TAUIRA, NGĀI TERURUKU KI TANGOIO AND NGĀITAHURespondentsHearing: 14 August 2023Court: Cooper P, Gilbert and Goddard JJCounsel: S A Grant and R N Smail for ApplicantsK M Anderson and M J Dicken for RespondentsG L Melvin and C C Barnett for Attorney-General as InterestedPartyM K Mahuika for Ngāti Pārau as Interested PartyJudgment: 31 August 2023 at 10.00 amJUDGMENT OF THE COURTA The application by Ngāti Pāhauwera for an extension of time to appealunder r 29A of the Court of Appeal (Civil) Rules 2005 is adjourned.B We direct that the application:(a) be heard at the same time as the appeal from the High Courtstrike out decision ([2020] NZHC 1139); and(b) be heard at the same time as the substantive appeals from theHigh Court Stage One and Stage Two decisions ([2021] NZHC 3599and [2023] NZHC 15).C Leave is granted to Ngāti Pāhauwera to file, as evidence in support of theirapplication for an extension of time, the parts of Mr Waaka's affidavitsworn on 9 February 2023 set out at [34] below.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction[1] On 22 December 2021 the High Court delivered a substantive judgment inrespect of applications by Ngāti Pāhauwera, the Maungaharuru-Tangitū Trust (MTT),Ngāti Pārau and Ngāi Tahu ō Mōhaka Waikare under the Marine and Coastal Area(Takutai Moana) Act 2011 (Stage One decision).1[2] On 19 January 2023 the High Court delivered a substantive judgment on anumber of outstanding issues that had not been determined by the Stage One decision(Stage Two decision).2[3] Four appeals to this Court have been filed from the Stage One decision(the Stage One appeals). Three appeals have been filed from the Stage Two decision(the Stage Two appeals).3 The Stage One appeals and Stage Two appeals will be heardtogether: a 10-day fixture before the Permanent Court is to be allocated.1 Re Ngāti Pāhauwera [2021] NZHC 3599.2 Re Ngāti Pāhauwera (Stage 2) [2023] NZHC 15.3 Two of these appeals were brought within time. One was brought out of time, but an extension oftime to appeal was granted in a minute dated 12 June 2023.[4] This judgment relates to a further proposed appeal by Ngāti Pāhauwera.Ngāti Pāhauwera wish to appeal against a decision of the High Court delivered inMay 2020 striking out part of that iwi's application for recognition orders under s 107of the Act (the strike out decision).4 Ngāti Pāhauwera had a right of appeal against thestrike out decision, but did not file an appeal within the prescribed timeframe.5Ngāti Pāhauwera now seek an extension of time to pursue that appeal, under r 29A ofthe Court of Appeal (Civil) Rules 2005 (Rules). That application is opposed by MTTand Ngāti Pārau. The Attorney-General abides the decision of this Court.[5] We have concluded that it would be premature to decide whether an extensionof time should be granted. Rather, it is in the interests of justice for that application tobe heard at the same time as the proposed appeal from the strike out decision, togetherwith the Stage One and Stage Two appeals. The panel that hears the Stage One andStage Two appeals will be better placed to determine whether the extension of timeshould be granted.[6] Our reasons for adopting this approach are set out briefly below.Background[7] Ngāti Pāhauwera filed its application to the High Court for recognition ordersunder the Act on 15 March 2017. That application followed an earlier attempt byNgāti Pāhauwera to establish customary rights under s 48 of the Foreshore and SeabedAct 2004, filed as long ago as June 2005. Ngāti Pāhauwera has pursued its claim forrecognition of customary rights in the foreshore and seabed through many channelsover an extended period.[8] The High Court decided to hear together, and actively case managed, theapplications by Ngāti Pāhauwera, MTT, Ngāti Pārau and Ngāi Tahu ō Mōhaka Waikarein relation to a substantial part of the Hawkes Bay marine and coastal area.In March 2018 the High Court directed that each applicant must file a memorandum4 Re Ngāti Pāhauwera [2020] NZHC 1139 [Strike out decision].5 An appeal could be filed as of right within 20 working days of the date of the strike out judgment:r 29 of the Court of Appeal (Civil) Rules 2005. The last date for lodging an appeal was 24 June2020.attaching a map which showed accurate boundaries of their application areas.On 13 December 2018 counsel for Ngāti Pāhauwera filed a memorandum whichincluded a map labelled "Ngāti Pāhauwera High Court Application Area".[9] MTT and Ngāti Pārau say that the boundaries of the application area onNgāti Pāhauwera's map extended further south than the claimed area initiallyidentified in the application filed by Ngāti Pāhauwera, and in maps included in theevidence filed by Ngāti Pāhauwera in support of their application. They say that thenew map extended the southern boundary of the application area to Bluff Hill inNapier, some 10 kilometres south of the southern boundary, previously identified asthe current mouth of the Esk River.[10] Ngāti Pāhauwera do not accept that their initial application was limited in thisway: they say (in summary) that the new map did not materially change theirapplication, and that references to the mouth of the Esk River in their originalapplication were references to the location of the mouth of that river in 1840, beforethe 1931 earthquake. They say that prior to 1931 the Esk River flowed into the seanear to the current mouth of the Ahuriri estuary. All of this is contested by MTT.MTT strike out application[11] MTT applied to the High Court to strike out the "purported amendment" to theNgāti Pāhauwera application on the basis that the amended boundary substantiallyincreased the area to which the Ngāti Pāhauwera application related, with the resultthat it completely overlapped the MTT application area and partially overlapped theNgāti Pārau application area. MTT contended that this was a material extension whichwas time-barred under s 100(2) of the Act, an abuse of process, and prejudicial to MTTand other parties due to the extent of overlap with their claims.[12] Ngāti Pāhauwera sought an oral hearing of the strike out application, but thiswas declined by Churchman J. The Judge dealt with the strike out application on thepapers. As already mentioned, on 27 May 2020 the Judge delivered the strike outdecision. He struck out the Ngāti Pāhauwera claim insofar as it related to the extendedapplication area (the strike out area).6[13] Ngāti Pāhauwera say they wanted to appeal from the strike out judgment whenit was delivered, but they made a deliberate decision not to file an appeal at that timebecause of concerns that this would jeopardise the Stage One fixture set down forhearing some nine months later.Stage One and Stage Two hearings[14] The Stage One hearings took place over some seven weeks in February toMarch 2021. Judgment was delivered on 22 December 2021.[15] The Stage Two hearing took place on 23–26 May 2022. A judgment wasdelivered on 19 January 2023.Ngāti Pāhauwera application for an extension of time to appeal[16] Meanwhile, on 20 December 2022, Ngāti Pāhauwera applied under r 29A ofthe Rules for an extension of time in which to appeal from the strike out decision.This application was made some two years and five months out of time, a year afterdelivery of the Stage One judgment, and some seven months after the Stage Twohearing.[17] The application is opposed by MTT and by Ngāti Pārau.Discussion[18] After hearing brief argument from the parties in relation to the application foran extension of time to appeal, we have decided that it would be premature todetermine the application at this time.[19] It was common ground before us that the central question in deciding whetherto grant an extension of time is what the interests of justice require.7 Relevant factors6 Strike out decision, above n 4.7 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].include the length of the delay, the reasons for the delay, the prejudice or hardship toother parties with a legitimate interest in the outcome, and the significance of the issuesraised by the proposed appeal to the parties and more generally. In some cases themerits of the proposed appeal may also be relevant. Unless the merits of an appeal areobviously very strong or very weak, the court should be cautious about consideringthem in too much detail in the context of an application for extension of time.8[20] This is not a case in which it is possible to say with any confidence that theproposed appeal from the strike out decision is certain to succeed, or doomed to fail.We therefore put to one side the merits of the proposed appeal.[21] We accept that the subject matter of the proposed appeal, which goes toNgāti Pāhauwera's ability to pursue a claim for recognition of customary marine title(CMT) in relation to the strike out area, is of great significance to Ngāti Pāhauweraand to other parties with overlapping claims. The significance of the underlying rightsto all parties supports the grant of an extension of time to ensure that substantive justicecan be done.[22] On the other hand, Ngāti Pāhauwera made a conscious choice not to appealwithin the prescribed time. Their delay in applying for an extension of time waslengthy and was not fully explained. In particular, there was no explanation for theseven-month delay after the Stage Two hearing. This counts against an extension oftime.[23] MTT and Ngāti Pārau say that they will suffer significant prejudice if anextension of time is granted, and if the strike out appeal is allowed. They say that ifan extension of time is granted and the strike out appeal succeeds, there would needto be a lengthy rehearing before the High Court of the Ngāti Pāhauwera extendedapplication and of their overlapping applications.[24] It became apparent in the course of the hearing that the extent of prejudice toMTT and Ngāti Pārau from permitting the proposed appeal to proceed would turn onthe outcome of the Stage One and Stage Two appeals. If those appeals are successful8 At [39].and this Court directs a rehearing before the High Court of claims relating to the areain question, the prejudice to other parties as a result of permitting Ngāti Pāhauwera topursue its claim to the strike out area would be much reduced.[25] The outcome of the Stage One and Two appeals will also shed light on whetherthe incremental prejudice to other parties caused by Ngāti Pāhauwera's delay inseeking to appeal could be cured by an appropriate award of costs.[26] It also became apparent in the course of the hearing that the extent of prejudiceto Ngāti Pāhauwera from being denied an opportunity to appeal from the strike outdecision may turn on whether Ngāti Pāhauwera had a real prospect of success in aclaim for recognition of CMT in respect of the strike out area. That cannot beascertained at present, but may become clearer at the hearing of the Stage One andStage Two appeals.[27] In these circumstances it seems to us that the interests of justice are best servedby preserving the ability of this Court to do justice to the parties on a more informedbasis, in light of the outcome of the Stage One appeals and Stage Two appeals.The panel that hears those appeals will also have the benefit of a more detailedunderstanding of the claims to CMT made by the parties. Put another way, it is in theinterests of justice that this Court adopt the course that minimises the risk of a seriousinjustice to any party. It is not yet possible to determine whether a serious injusticewould be suffered by Ngāti Pāhauwera if they are denied the opportunity to pursuetheir claim to CMT in respect of the strike out area or, conversely, whether a seriousinjustice would be done to other parties by requiring them to participate in a further(lengthy) High Court hearing that would otherwise be unnecessary.[28] We also consider that the cost implications of granting a r 29A extension oftime to appeal are best considered at that later stage, as at that time this Court will bebetter placed to ascertain what, if any, incremental cost other parties would face as aresult of granting an extension of time to Ngāti Pāhauwera.[29] We have therefore concluded that the best course of action is for this Court tohear at the same time:(a) the Ngāti Pāhauwera r 29A application for an extension of time;(b) the Ngāti Pāhauwera strike out appeal; and(c) the Stage One and Stage Two appeals.[30] We would not expect the incremental time required to hear theNgāti Pāhauwera extension of time application and strike out appeal to be material, inthe context of the 10-day fixture that is to be allocated for the Stage One and Stage Twoappeals. The overall fixture length should not need to be extended.Evidence filed in support of application for extension of time to appeal[31] It is however convenient to address now an issue concerning the evidence filedin support of the application for an extension of time to appeal. Ngāti Pāhauwera'sapplication filed on 20 December 2022 was accompanied by an affidavit ofMs Bonny Hatami in support. MTT filed a memorandum opposing the extensionapplication on 25 January 2023, as contemplated by r 19A of the Rules. MTT did notfile any evidence, but attached to its rule 19A memorandum various High Courtdocuments (including an affidavit of Ms Tania Hopmans filed in the High Court insupport of MTT's strike out application).[32] When Ngāti Pāhauwera filed their submissions on 9 February 2023, they alsofiled an affidavit from Mr Toro Waaka sworn on 9 February 2023 that was 18 pageslong and attached 26 exhibits totalling 339 pages. MTT objects to the filing of thisaffidavit on the basis that (in summary) the Rules do not provide for further evidenceto be filed by the applicant with its submissions; much of this voluminous materialwas not referred to in Ngāti Pāhauwera's submissions so does not appear to berelevant; and MTT had no opportunity to respond to this evidence.[33] The Rules do not provide for Ngāti Pāhauwera to file further evidence withtheir submissions. This evidence should — so far as it is relevant — have been filedwith the application on 20 December 2022, so MTT could respond to it in the mannerprovided for by the Rules. There is also considerable force in MTT's submission thatmuch of this material does not appear to be relevant to the application for an extensionof time to appeal.[34] We grant leave to Ngāti Pāhauwera to adduce as evidence in support of theirapplication paragraphs 1–3, 19–26 and 51–68 of Mr Waaka's affidavit andpages 86–104 (Mr Waaka's brief of evidence in the High Court) and 332–339(email correspondence) of the accompanying bundle of exhibits. This material isrelevant to whether the strike out area did represent a material extension of the claimedarea, and to the circumstances in which Ngāti Pāhauwera decided not to appeal fromthe strike out decision in May/June 2020. (We record that Mr Waaka's High Courtbrief is relevant only as evidence of what Ngāti Pāhauwera were claiming at that time,and is received for that limited purpose only: not as evidence on the merits of anyparty's claim for recognition of CMT.)[35] If Ngāti Pāhauwera wish to rely on any other parts of Mr Waaka's affidavit insupport of their extension of time application, they must formally apply for leave todo so. That application would then be determined by a single judge, who would alsoconsider whether MTT should be given an opportunity to file evidence in response.Result[36] The application by Ngāti Pāhauwera for an extension of time to appeal underr 29A of the Rules is adjourned.[37] We direct that the application:(a) be heard at the same time as the appeal from the High Court strike outdecision; and(b) be heard at the same time as the substantive appeals from theHigh Court Stage One and Stage Two decisions.[38] Leave is granted to Ngāti Pāhauwera to file, as evidence in support of theirapplication for an extension of time, the parts of Mr Waaka's affidavit sworn on9 February 2023 set out at [34] above.Solicitors:Mac & Co Lawyers, Auckland for ApplicantsDLA Piper, Wellington for RespondentsCrown Law Office | Te Tari Ture o te Karauna, Wellington for Attorney-GeneralKāhui Legal, Wellington for Ngāti Pārau