WHAKATŌHEA KOTAHITANGA WAKA v TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGA HAPŪ [2022] NZCA 7

WHAKATŌHEA KOTAHITANGA WAKA v TE KĀHUI TAKUTAI MOANA O NGĀ WHĀNUI ME NGAHAPŪ [2022] NZCA 7 [1 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA326/2021CA327/2021CA330/2021CA332/2021CA339/2021[2022] NZCA 7BETWEEN WHAKATŌHEA KOTAHITANGA WAKAApplicantsAND TE KĀHUI TAKUTAI MOANA O NGĀWHĀNUI ME NGA HAPŪTE ŪPOKOREHE TREATY CLAIMSTRUSTRespondentsAND THE ATTORNEY-GENERALIntervenerCounsel: R J B Fowler QC, A J Sinclair, M L Sharp, M Sinclair forWhakatōhea Kotahitanga WakaK S Feint QC and S W H Fletcher for Te KāhuiJ S Cooper QC and B Lyall for Te Ūpokorehe Treaty Claims TrustR L Roff, R E Budd and S L Gwynn for the Attorney-GeneralJudgment:(On the papers)1 February 2022 at 12 pmJUDGMENT OF CLIFFORD JThe application for stay is declined.____________________________________________________________________REASONS[1] These proceedings comprise appeals against a decision of the High Court inRe Edwards (Te Whakatōhea No. 2) that various applicants had not "met the tests" setout in s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) forthe grant of customary marine titles (CMTs) in the waters of the eastern Bay of Plenty.1[2] Whakatōhea Kotahitanga Waka (WKW) is a grouping of the third tothe seventh of those appellants.2Background[3] This is an application by WKW for what they describe as a stay of the judgmentof the High Court in Re Edwards pending the outcome of their appeals.3[4] Following its decision in Re Edwards the High Court will, in a two-weekhearing scheduled to begin on 14 February 2022 (the Stage 2 hearing), determine theterms of the orders granting CMTs to the successful applicants.[5] As relevant, s 98 of the Act provides for the making of recognition orders inthe following terms:98 Court may recognise protected customary right or customarymarine title(1) The Court may make an order recognising a protected customary rightor customary marine title (a recognition order).(2) The Court may only make an order if it is satisfied that theapplicant,—(a) in the case of an application for recognition of a protectedcustomary right, meets the requirements of section 51(1); or(b) in the case of an application for recognition of customarymarine title, meets the requirements of section 58.(3) No other court has jurisdiction to make a recognition order.1 Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025.2 Claude Edwards (deceased), Adriana Edwards and Ngā Rangatira o Whakatо̄hea me Ngā HapūKatoa (third appellant); Christina Davis on behalf of Ngāti Muriwai hapū (fourth appellant); BarryKiwara on behalf of Kutarere Marae (fifth appellant); Larry Delamere on behalf of Pākо̄whai Hapūof Whakatо̄hea (sixth appellant); and Dean Flavell on behalf of Hiwarau C, Taurangapikitoi,Waiо̄tahe and О̄hiwa of Whakatо̄hea (seventh appellant).3 Court of Appeal (Civil) Rules 2005, r 12(3)(a).[6] Section 109 establishes the process for the determination of the form ofrecognition orders. It provides:109 Form of recognition order(1) An applicant group in whose favour the Court grants recognition ofa protected customary right or customary marine title must submita draft order for approval by the Registrar of the Court.(2) Every recognition order must specify—(a) the particular area of the common marine and coastal areato which the order applies; and(b) the group to which the order applies; and(c) the name of the holder of the order; and(d) contact details for the group and for the holder.(3) A protected customary rights order must also include—(a) a description of the right, including any limitations on the scale,extent, or frequency of the exercise of the right; and(b) a diagram or map that is sufficient to identify the area.(4) Every customary marine title order must include—(a) a survey plan that sets out the extent of the customary marinetitle area, to a standard of survey determined for the purpose bythe Surveyor-General; and(b) a description of the customary marine title area; and(c) any prohibition or restriction that is to apply to a wāhi tapu orwāhi tapu area within the customary marine title area.[7] Once approved and sealed the Registrar of the Court must provide a copy ofthe order to the responsible Minister and the Chief Executive of Land InformationNew Zealand for publication in the Gazette and notification in accordance withthe terms of s 110, and entry in the marine and coastal register pursuant to s 114.[8] The question of the sealing of a recognition order is addressed separatelyby s 113:113 Orders sealed by CourtA recognition order must be sealed—(a) on the application of the applicant group; but(b) not before the expiry of the appeal period or the disposal ofany appeal.[9] It has become the High Court's practice to deal with applications forrecognition orders in two stages:(a) Stage 1 hearings determine who the successful applicant groups in acertain area are; and(b) Stage 2 hearings determine the nature and content of recognition orders.[10] WKW were, broadly speaking, unsuccessful in Re Edwards. They thenappealed and applied to the High Court to stay that decision pending this Court'sdetermination of their appeals. Their position was that, if one or more of their appealssucceed, then it is likely that any final recognition orders previously made bythe High Court following the Stage 2 hearing would have to be set aside.[11] WKW's application was opposed by Te Kāhui Takutai Moana o Ngā WhānuiMe Nga Hapū (Te Kāhui), a group comprising five applicants who had been successfulin Re Edwards regarding CMTs.[12] On 25 November 2021, Churchman J declined WKW's stay application.4[13] Applying the relevant tests, the Judge considered the appeal would not berendered nugatory if a stay was not granted.5 There had been an unexplainedfive-month delay between the Re Edwards decision and the stay application, duringwhich time the successful applicant groups had done a significant amount of work toprepare for the Stage 2 hearing.6 There was a risk the successful parties would be4 Re Edwards (Te Whakatōhea No. 4) [2021] NZHC 3180.5 At [17](a).6 At [17](b) and (c).injuriously affected by a stay pending resolution of all appeals.7 A stay also riskedwasting public resources expended on preparations for the Stage 2 hearing.8 Althoughthe issues raised by the appeals were novel and important, not issuing a stay would notprevent those issues being considered. Moreover, the largely factual issues raised byWKW's appeals would not be reversed by this Court's answers to the legal issuesraised.9 The balance of convenience therefore fell against WKW.10 In the Judge'sview, WKW's appeals, faced "formidable hurdles".11[14] Having been unsuccessful in the High Court, WKW applies to this Court for astay of the High Court's Re Edwards decision pending the determination ofthe appeals. In effect, and reflecting the terms of ss 98 and 109 and the High Court'spractice, WKW seek a stay of the Stage 2 hearing. In doing so it says s 113 of the Act,which provides that recognition orders cannot be sealed before any appeals have beendisposed of, had not been raised with Churchman J before the decision to proceed tofinalise the orders, nor as part of WKW's application for stay. WKW's applicationis again opposed by Te Kāhui. Te Ūpokorehe Treaty Claims Trust, the other successfulapplicant for a CMT, and the Attorney-General as intervener, indicated they abidethis Court's decision.[15] Following a teleconference with the parties on 22 December 2021, I directedthe application in this Court be put on hold and for the parties to return tothe High Court to bring s 113 to Churchman J's attention.[16] In a minute of 5 January 2022, Churchman J declined to alter his Novemberstay decision. In doing so he observed:[12] The Court is, and was, aware of s 113. Its terms are self-evidentand it provides a recognition order must not be sealed before the expiry ofthe appeal period or the disposal of any appeal.[13] Section 113 was not mentioned in either the submissions of counselin support of the stay application in the High Court, or the decision of25 November 2021 dismissing that application. The reason for that is, what7 At [17](c).8 At [17](f).9 At [17](e).10 At [17](g).11 At [17](h).the WKW appellants were seeking was not to stop the sealing of an order,but to stop the Stage 2 hearing proceeding.[14] The Court's decision of 25 November 2021 must speak for itself.It is not appropriate for the Court to engage with the contents of any of theaffidavits or memoranda that would appear to have been filed in theCourt of Appeal.[15] Whatever the outcome of Stage 2, it is clear that no order can be sealeduntil all appeals are disposed of.[17] Following that decision, WKW returns to this Court for a decision to be madeon its stay application.This application[18] WKW submits that s 113 evinces Parliament's intent that all appeals bedisposed of before recognition orders are finalised, sealed and take legal effect.The public interest favours avoiding the costs, time and administrative issues in havingto repeat the process of finalising recognition orders following any successful appeal.WKW says its appeals raise more than just factual matters. Rather, they also raiselegal issues, particularly around shared exclusivity, the Pūkenga report, andthe granting of orders to Ngāti Awa when it had not applied for them. They may alsobe affected by the legal issues raised by the other appellants.[19] Ms Adriana Edwards has filed an affidavit in support of WKW's application.She explains that WKW's delay in applying for a stay was caused by its attempts toobtain agreement amongst all the Whakatо̄hea applicant groups as to a tikanga-basedapproach to finalise recognition orders in way that was inclusive of all the groups.WKW initially thought it had been partially successful as they had applied fora customary marine title for all the Whakatо̄hea groups, including the six successfulhapū, and the CMT order was made over its application area. However, on3 September 2021, the High Court confirmed the Edwards applicants could not beinvolved in finalising the orders as it was not a successful applicant. Having beenexcluded from that process, WKW decided to file the stay application.[20] In opposing WKW's application, Te Kāhui supports Churchman J's decisionand his reasons for declining it. Section 113 of the Act does not give an explicitindication the finalisation of orders be stayed pending appeals. It is more efficientto proceed to Stage 2; indeed, there would still be utility in doing so irrespective ofthe appeals' outcomes. That is, the factual findings WKW dispute on appeal largelyconcern who is named on the orders rather than the area covered by the orders.Accordingly if WKW succeed on appeal, the mapping work will not have been wastedand the recognition orders could simply be amended as necessary.[21] WKW's reasons for its delay are rejected by Te Kāhui. It says it was notconsulted by WKW and says WKW should not be "leading the work". Ms Edwards'saffidavit amounts to her proceeding on the basis the unsuccessful WKW applicantgroups ought to be included in the CMT orders, even though they did not meetthe requisite statutory tests.Analysis[22] This application is governed by r 12(3)(a) of the Court of Appeal (Civil)Rules 2005. The principles to be applied in a stay application were set out bythis Court in Wootton v Wootton:12[9] In determining whether or not to grant a stay under r 12(3), the Courtmust weigh the factors "in the balance" between the successful litigant's rightsto the fruits of a judgment and "the need to preserve the position in casethe appeal is successful".13 Factors to be taken into account in this balancingexercise include:14(a) whether the appeal may be rendered nugatory by the lack ofa stay;(b) the bona fides of the applicant as to the prosecution ofthe appeal;(c) whether the successful party will be injuriously affected bythe stay;(d) the effect on third parties;(e) the novelty and importance of questions involved;(f) the public interest in the proceeding; and(g) the overall balance of convenience.12 Wootton v Wootton [2020] NZCA 478.13 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.14 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].[23] In my view it is clear WKW's appeals will not be rendered nugatory if a stayis not granted. That is implicit in WKW's argument that recognition orders might haveto be set aside if any of the appeals are successful.[24] WKW's explanation for the delay does not justify it. It appears to have beenmistaken that it was successful as regards CMT orders. As Churchman J directed on3 September 2021:In the substantive decision in this matter counsel for those parties who hadbeen successful in obtaining orders for either CMT or PCR were directed toliaise with the other affected parties and to file suggested draft orders by31 August 2021. An application out of time was received on behalf of the[WKW] group. It seeks an extension of time of two further months, untilthe end of October, to comply with the Court's directions. I am not preparedto grant the extension until the end of October sought by counsel. Some ofthe contents of the memorandum seem to ignore what was actually decided inthe Edwards/Whakatōhea decision. The parties who were awarded CMT werethe six nominated hapu not the various groups represented by the Counsel whosigned the memorandum. Some of those groups were awarded PCR.Although discussion and cooperation between the various groups who wereawarded PCR is preferable, if that cannot be obtained, then these partiesshould file draft PCR orders as specified. I am prepared to extent the time forthis to happen until 31 October 2021.The stage two hearing is scheduled to take place early in the new year.Granting a further two months would compromise that fixture date.(Emphasis added.)[25] I do not think the terms of the CMT conclusions made by Churchman J couldhave been read in any other way but that WKW was not a successful applicant fora CMT.15 Accordingly, WKW's attempts to resolve the issues by way of tikangaresolution would not appear to justify the delay because it simply had no interest inthe customary marine title orders.[26] If the Recognition Order hearing is, at this late stage, postponed, there willundoubtedly be prejudice to Te Kāhui and the other successful applicant groups.That hearing will involve a large number of parties, lawyers, and members ofthe public; and the High Court has already set aside two weeks for that hearing. It isbecause of that potential prejudice that I agree with Churchman J that Jackson v15 See Re Edwards, above n 1, at [660].Te Rangi, referred to by WKW, is distinguishable from the present case.16 In that case,Duffy J stayed a process for a fresh appointment to a statutory board until an appealagainst a judicial review decision, which had found the original appointment wasunlawful, was determined. She did so because to proceed with the appointment whenthere was potential for it to be reversed on appeal would be a waste ofpublic resources.17 Here, the preparations made to date, some of which has beenpublicly funded, may be wasted were a stay to be granted. Moreover, I agree withTe Kāhui that the outcome of the Stage 2 hearing will not be rendered useless if anyof the appeals currently before this Court succeed. Those outcomes may be amendedif, and to the extent, necessary.[27] Moreover, s 113 is clear that recognition orders may not be sealed and comeinto effect until all appeals are determined. Rather than supporting the conclusionappeals must be determined before a hearing on recognition orders can be made, inmy view s 113 supports the opposite conclusion. That is, s 113's unusual prohibitionon sealing pending the outcome of appeals protects appellants from the usual range ofprejudice said to arise where a challenged decision proceeds to execution. Nor, in myview, can the applicants point to any other material prejudice. Having been found byChurchman J not to have met the test for recognition orders in the areas in question,it is difficult to see, in the absence of those orders not being sealed until their appealshave been disposed of, what prejudice at all they face. In fact, the costs andinconvenience of a "wasted" recognition order hearing in the event of any of thoseappeals succeeding would appear to fall on the respondents to that appeal.[28] WKW's application for a stay is therefore declined. If questions of costs arise,they should be addressed separately. If that is the case, those affected are to file a jointmemorandum recording their agreement as to how those issues are to be disposed of.16 Jackson v Te Rangi [2015] NZHC 1149.17 At [28].Result[29] The application for stay is declined.Solicitors:Ngātahi Law, Auckland for ApplicantsAnnette Sykes & Co, Rotorua for Te KāhuiLyall & Thornton, Auckland for Te Ūpokorehe Treaty Claims TrustCrown Law Office, Wellington for the Attorney-General