IN THE WAITANGI TRIBUNAL Wai 2577, #2.5.5 Wai 2579, #2.5.5 Wai 2580, #2.5.2 Wai 2581, #2.5.2 Wai 2582, #2.5.2 Wai 2583, #2.5.2 Wai 2584, #2.5.2 Wai 2585, #2.5.2 Wai 2577 Wai 2586, #2.5.2 Wai 2579 Wai 2580 Wai 2587, #2.5.2 Wai 2581 Wai 2588, #2.5.2 Wai 2582 Wai2583 Wai 2584 Wai 2585 Wai 2586 Wai 2587 Wai 2588 CONCERNING the Treaty of Waitangi Act 1975 the Marine and Coastal Area (Takutai Moana) Act 2011 DECISION OF THE CHAIRPERSON ON APPLICATIONS FOR AN URGENT HEARING CONCERNING THE MARINE AND COASTAL AREA (TAKUTAI MOANA) ACT 2011 16 Pouto-te-rangi 2017
Introduction 1. On 21 December 2016, the Tribunal received a statement of claim and application for an urgent hearing concerning the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). This claim was lodged by Te Riwhi Whao Reti, Hau Hereora, Romana Tarau, Karen Herbert and Edward Cook on behalf of T e Kapotai (Wai 2577). 2. The applicants allege that they have been or are likely to be prejudicially affected by MACA as it erodes Te Kapotai's customary and common law rights and inhibits their ability to exercise rangatiratanga over the takutai moana in their rohe. 3. Since this claim was registered, the Tribunal has received fourteen other statements of claim and urgency applications which have been registered from various hapo and whanau (the applicants), all seeking urgent inquiry into MACA. The claims 4. This memorandum-directions directly concerns the applications for urgency in respect of the claims listed below: a) Wai 2577, the Marine and Coastal Area (Takutai Moana) Act (Te Kapotai) b) Wai 2579, the Marine and Coastal Area (Takutai Moana) Act (Waihoroi Shortland and Pita Tipene) c) Wai 2580, the Marine and Coastal Area (Takutai Moana) Act (Te Waimate Taiamai) d) Wai 2581, the Marine and Coastal Area (Takutai Moana) Act (Ani Taniwha) e) Wai 2582, the Marine and Coastal Area (Takutai Moana) Act (Rosaria Hotere) f) Wai 2583, the Marine and Coastal Area (Takutai Moana) Act (Pomare Hamilton) g) Wai 2584, the Marine and Coastal Area (Takutai Moana) Act (Tangi Tipene) h) Wai 2585, the Marine and Coastal Area (Takutai Moana) Act (Aorangi Kawiti) i) Wai 2586, the Marine and Coastal Area (Takutai Moana) Act (Gray Theodore) j) Wai 2587, the Marine and Coastal Area (Takutai Moana) Act (Deidre Theodore) and k) Wai 2588, the Marine and Coastal Area (Takutai Moana) Act (Violet Nathan) claim. Background 5. The Marine and Coastal Area (Takutai Moana) Act (MACA) was enacted in 2011 and came into force on 1 April 2011. Sections 95(2) and 100(2) of the Act set out timeframes in respect of applications for the recognition of rights available under the Act. Applications for the recognition of rights under the Act occur through either High Court or Crown engagement process. Section 95(2) provides that a group seeking an agreement recognising a protected customary right or customary marine title must have given the responsible Minister notice of this intention no later than six years after the 2
commencement of the Act. Section 100(2) provides that the High Court must not accept for filing or otherwise consider any application in respect of a recognition order filed outside of the six year timeframe. Procedural History 6. On 21 December 2016 the Tribunal received a statement of claim (Wai 2577, #1.1.1) and urgency application (Wai 2577, #3.1.1) from Te Riwhi Whao Reti, Hau Hereora, Romana Tarau, Karen Herbert and Edward Cook on behalf of Te Kapotai. This claim was registered on 23 December 2017 (Wai 2577, #2.1.1). On 23 December 2016 I directed the Crown and interested parties to respond to the Wai 2577 submissions by 21 January 2017 (Wai 2577, #2.5.1). I also directed the applicants to file in reply to the Crown and interested parties by 4 February 2017. 7. On 17 January 2017 the Tribunal received a statement of claim (Wai 2579, #1.1.1) and urgency application (Wai 2579, #3.1.1) from Waihoroi Shortland and Pita Tipene on behalf of Te ROnanga a Ngati Hine and Ngati Hine. This claim was registered on 17 January 2017 (Wai 2579, #2.5.1). On the same day, I directed the Crown and interested parties to respond to the Wai 2579 application, and for the applicants to file in reply, by the same dates specified for Wai 2577 (Wai 2579, #2.5.1). 8. Crown submissions and evidence in response to the Wai 2577 statement of claim and urgency application were received on 20 January 2017. The Crown opposes the application on the basis that the claimants have not demonstrated that they are suffering, or will suffer, significant prejudice as a result of a current or pending Crown action, and that the issues identified by the claimants do not justify a grant of urgency. 9. On 20 January 2017 the Tribunal also received: a) a statement of claim (Wai 2580, #1.1.1) and application for urgency (Wai 2580, #3.1.1) from Bonny Craven on behalf of Te Waimate Taiamai. This claim was registered on 25 January 2017 (Wai 2580, #2.1.1). On 25 January 2017 I directed the Crown and interested parties to respond to the Wai 2580 application by 2 February 2017 (Wai 2580, #2.5.1). I directed the applicants to file in reply to the Crown and interested parties by 7 February 2017. b) a statement of claim (Wai 2581, #1.1.1) and application for urgency (Wai 2581, #3.1.1) from Ani Taniwha on behalf of herself and her whanau, the people of Whangaroa HapO of Ngati Kawau, Ngati Kawhiti, Ngati Haiti, Ngaitupango, Ngati Kahu 0 Roto Whangaroa, Te Uri 0 Tutehe, Te Uri Mahoe, Te Uri Tai, Te Uri 0 Te Aha and Te Uri 0 Te Pona. c) a statement of claim and application for urgency from Arapeta Wikito Pomare Hamilton, Angeline Greensill and Te Rua Rakuraku on behalf of the descendants of Pomare II, Ngati Manu, Te Uri Karaka, Te Uri a Raewera, Ngapuhi ki Taumarere tribes, Tainui 0 Tainui ki Whangaroa and Ngati Ira of Te Whakat6hea (Wai 2583, #1.1.1). 10. On 23 January 2017 the Tribunal received a statement of claim (Wai 2582, #1.1.1) and application for urgency (Wai 2582, #3.1.1) from Rosaria Hotere and Jane Hotere on behalf of themselves and their whanau. 11. The Crown sought an extension to 27 January 2017 for filing its response to Wai 2579, and filed these submissions and evidence on 26 January 2017. The Crown noted that the Wai 2577 and Wai 2579 applications raise essentially the same issues and therefore the Crown's response to Wai 2577 could apply equally to Wai 2579. 12. On 27 January 2017 the Tribunal received statements of claim from: 3
a) James William Maxwell, Arapeta Geoffrey Mio, Muriwai Jones, Dave Te Marama Peters, Te Aururangi Davis, Nola Ripeka Hinehaurangi Melrose and Bettina Taumau Maxwell on behalf of the Nga Tai hapu (Wai 2584, #1.1.1); b) Te Raumoa Balneavis Kawiti and Rhonda Aorangi Kawiti on behalf of the Kawiti Marae Committee, the Kawiti whanau and descendants of Ngati Hine, Ngati Manu, Te Kapotai, Ngati Rahiri, Ngati Rangi, Ngaitewake and Nga Puhi iwi (Wai 2585, #1.1.1); c) Gray Theodore, Pereme Porter and Rangimarie Maihi on behalf of Ngapuhi (Wai 2586, #1.1.1); d) Deidre Nehua on behalf of herself and the hapo and iwi of Te Tai Tokerau(Wai 2587, #1.1.1); and e) Maringitearoha Kalva Emily Pia Broughton and Violet Nathan (Wai 2588, #1.1.1). On 27 January 2017 the Tribunal also received a consolidated urgency application for those five claims (Wai 2584, #3.1.1; Wai 2585, #3.1.1; Wai 2586, #3.1.1; Wai 2587, #3.1.1 & Wai 2588, #3.1.1). 13. On 2 Febuary 2017 the Crown filed submissions in response to the Wai 2580 and Wai 2581 applications, arguing that these claims are in substance the same as the previous ones and stating that it opposes a grant of urgency on the same grounds as Wai 2577 and Wai 2579. 14. On 3 February 2017 the Wai 2577 and Wai 2579 applicants filed joint submissions and evidence in reply to the Crown response of 2 February 2017. 15. On 7 Feburary 2017 the Wai 2580 and 2581 applicants also filed submissions in reply. 16. On 14 February 2017 I directed the Crown and interested parties to respond to the Wai 2581, Wai 2582, Wai 2583, Wai 2584, Wai 2585, Wai 2586, Wai 2587 and Wai 2588 submissions by 28 February 2017 (Wai 2581, #2.5.1; Wai 2582, #2.5.1; Wai 2583, #2.5.1; Wai 2584, #2.5.1; Wai 2585, #2.5.1; Wai 2586, #2.5.1; Wai 2587, #2.5.1 & Wai 2588, #2.5.1). I also directed the applicants to file in reply to the Crown and interested parties by 14 March 2017. 17. On 27 February 2017 the Crown submitted its response to Wai 2582, Wai 2583, Wai 2584, Wai 2585, Wai 2586, Wai 2587 and Wai 2588, noting that it had already responded to Wai 2581 in previous submissions. The Crown submits that the statutory deadlines contained in MACA are not in breach of the Treaty, and that the applicants have had six years to lodge applications with the Crown or the High Court. 18. At the date of this direction four further urgency applications are being processed in relation to MACA, and memoranda seeking interested party status in one or more of the MACA urgency applications have been received from: a) Tracey Rawson, Kylie Rawson, Sonny Hape and James Rika on behalf of the Te Taahawai Hapu (on 20 January 2017), b) Steve Panoho on behalf of Te Rae Trust and Lydia Karaitiana on behalf of herself, her whanau and Ngati Kahu (on 20 January 2017), c) Anaru Kira on behalf of the Wai 375, Wai 520 and Wai 523 (on 20 January 2017), d) The Wai 1787 and Wai 1092 claimants on behalf of Nga Uri 0 Te Upokorehe (on 20 January 2017), e) Waitangi Wood, Kana Pourewa, Te Huranga Hohaia and Terry Tauroa (on 20 January 2017), 4
f) Kaiteke Te Kemara I, Te Ruki Kawiti and Hongi Hika on behalf of Ngati Rahiri and Ngati Kawa (on 20 January 2017), g) The Wai 78, Wai 120, Wai 1837, Wai 2217, Wai 1632, Wai 88, Wai 89 and Wai 1623 claimants (on 23 January 2017), h) Rihari Dargaville, Marama Stead, Denis Handley and Elizabeth Baker on behalf of their whanau and hapu (on 23 January 2017), i) Te Raa Nehua on behalf of Ngati Hau and Sailor Morgan on behalf of Ngati Ruamahue (on 30 January 2017), j) The Ngati Makino Heritage Trust (on 9 February 2017), k) Sheena Ross, Vivian Dick, Muriel Faithful, Miriam Ngamotu and Julia Makoare on behalf of their whanau, Ngati Korokoro and Te Pouka, and Garry Hooker on behalf of his whanau and Ngati Pou (on 14 February 2017), I) Hemi-Rua Rapata (on 23 Febuary 2017), m) The Wai 156 claimant for an on behalf of Te Whakapiko: hapu ad Manaia (on 8 March 2017), n) Jane Mihingarangi Ruka Te Korako and Robert Kenneth McAnergney on behalf the Grandmother Council of the Waitaha Nation, including the three hapu of Ngati Kurawaka, Ngati Rakaiwaka and Nggati Pakauwaka (on 8 March 2017), and 0) The Ngatiwai Trust Board (on 10 March 2017). Parties' Submissions Applicants' Submissions 19. The applicants' submissions are notably similar and for the purpose of this direction I have summarised and addressed the main issues together. 20. The applicants allege that Part 2 of MACA confers control and authority over takutai moana to the Crown and local government. In particular, the applicants state that s 11 provides the takutai moana a "common marine and coastal area" status. This status means that neither the Crown nor any other person is capable of owning the common marine and coastal area. The applicants allege that this extinguishes their customary rights in relation to coastal areas and affects their abilities to exercise authority over takutai moana. 21. Further, the applicants contend that this status allows the Crown to retain all meaningful authority over takutai mana under MACA. In effect this means that the applicants are not able to have their commercial interests in the takutai mana recognised in a meaningful way under the Act. The applicants also note that provisions in Part 2 of the Act allow land that has been given this status to be alienated through a special Act. 22. Several of the applicants note that s 11 in Part 2 of the Act seeks to replace common law customary rights. They argue that the ways in which the Act allows customary rights to be recognised significantly reduces their rights in the marine and coastal area compared to the possible rights the applicants may have had at common law. 23. The applicants allege that Part 3 of MACA creates a regime that recognises legal rights and interests in a manner that is inconsistent with guaranteed rights under Te Tiriti a Waitangi. The applicants submit that the abrogation of the applicants' rights under the Act causes significant prejudice and prevents the applicants from exercising 5
rangatiratanga over takutai moana. This in turn creates a system that strips the applicants of taonga which are guaranteed to them under Te Tiriti 0 Waitangi. 24. The applicants allege that MACA contains an arbitrary statutory deadline of 6 years, which forces the applicants to participate in the Crown's regime. The applicants claim that the statutory timeframe and engagement process forces the applicants into a position where they must either accept an abrogation of their rights under MACA or have their rights to the takutai moana extinguished by the Act on 3 April 2017. 25. The applicants argue that the legislation confuses customary title with customary rights. The applicants state that customary rights are not extinguished by loss of title. Further, the applicants submit that protected customary rights under the Act are limited and the mana of the right holder is undermined. 26. The applicants allege that the process of applying for the recognition of their customary rights under the Act is prejudicial, restrictive and time consuming. Further, several applicants claim that they do not possess the time or resources to make applications to have their rights recognised through the High Court before this date. The Wai 2577 applicants note that while there is funding available for a High Court process, this funding may not cover all associated legal costs. Other applicants state that the Crown has failed to provide sufficient funding for those groups looking to participate in either the High Court or Crown engagement processes. 27. Further, the applicants allege that the Act is not materially or substantially different from its predecessor, the Foreshore and Seabed Act 2004. The Wai 2579 applicants note that the Committee on International Convention on the Elimination of All Forms of Racial Discrimination found that the Foreshore and Seabed Act 2004 was discriminatory towards Maori as it extinguished the possibility for Maori to obtain customary title and did not offer redress for such extinguishment. The applicants allege that their rights to obtain customary title will be extinguished without redress under the current Act on 3 April 2017 should they not have made an application in respect of the recognition of these rights. The applicants state that they will suffer significant and irreversible prejudice as a result of this arbitrary statutory deadline if they are not be able to participate in either High Court or Crown engagement process due to resource constraints. 28. In addition, some applicants note that it is unreasonable and unfair for the Crown to expect some groups to participate in a Crown engagement process to have their rights to takutai moana recognised given the Crown has not engaged with or recognised the mandate of these groups in respect of the settlement of historic Treaty claims. 29. In the Wai 2580 and Wai 2581 applicants' reply to the Crown dated 7 February 2017, the applicants noted that out of the 44 applications made to the Crown under the Act, the Crown has only signed terms of engagement with seven groups. The Crown has declined to engage with 10 of the groups of applying for recognition of rights under the Act. The applicants submit that it is unclear what remedy the Crown considers is available to those groups the Crown declines to engage with following the statutory deadline. Crown's Submissions 30. The Crown adopts its submissions made in response to Wai 2577 for all other urgent applications concerning MACA. The Crown opposes the applications for urgency on the basis that the applicants have not demonstrated that they are suffering, or will suffer, significant and irreversible prejudice as a result of a current or pending Crown action in relation to MACA. 6
31. Specifically, the Crown argues that the statutory time limit set in MACA does not require that the claimants file an application under MACA. If they disagree with the Act and do not wish to seek an order or agreement, then the deadline does not expose them to significant and irreverible prejudice. Further, the time limit only applies to giving notice to the Minister or making an application for recognition to the High Court. The Crown states that the requirements for giving notice are not onerous. In any event, the applicants have brought this claim at the last minute and it is unlikely that any legislative steps could be taken before 3 April 2017. 32. Moreover, the applicants have not established an urgent need for broad inquiry into the general consistency of MACA with Treaty principles. The Crown states that many of the concerns the applicants have raised about the Act are based on a misapprehension of the statutory scheme. The Crown submits that MACA does not extinguish any rights. Rather, it provides for the recognition of rights in the takutai moana. 33. The Crown notes that a substantial amount of the evidence filed by the applicants focuses on resource management issues and the regulatory framework for the takutai moana generally. However, the applicants have not demonstrated why an expansive inquiry into resource management issues and the regulatory framework in respect of the marine and coastal area generally (matters which the Crown says are outside the scope of the Act anyway) meets the Tribunal's threshold for urgency. 34. Finally, in response to the applicants' concerns about the similarities between the Crown recognition of mandate in Treaty settlements and the mandating process under MACA, the Crown notes that the mandating process under the Act is separate from the mandating process that applies in respect of Treaty settlement negotiations. The Crown would consider an application for recognition of customary rights under MACA, even if the group making the application was involved in litigation about Treaty settlement negotiations. Urgency Criteria 35. The Tribunal's Guide to Practice and Procedure states the following with regards to applications for an urgent hearing: In deciding an urgency application, the Tribunal has a regard to a number of factors. Of particular importance is whether: The claimants can demonstrate that they are suffering, or are likely to suffer, significant and irreversible prejudice as a result of current or pending Crown actions or policies; There is no alternative remedy that, in the circumstances, it would be reasonable for the claimants to exercise; and The claimants can demonstrate that they are ready to proceed urgently to a hearing. Other factors that the Tribunal may consider include whether: The claim or claims challenge an important current or pending Crown action or policy; An injunction has been issued by the courts on the basis that the claimants have submitted to the Tribunal the claim or claims for which urgency has been sought; and Any other grounds justifying urgency have been made out. Prior to making its determination on an urgency application, the Tribunal may consider whether the parties or the take or both are amenable to alternative 7
Discussion resolution methods, such as informal hui or formal mediation under clause 9A of schedule 2 to the Treaty ofwaitangi Act 1975. 36. On 23 December 2016, the Deputy Chairperson issued a direction which noted that the applicants had filed the Wai 2577 urgency application on 21 December 2017, just three months prior to the statutory deadline of 3 April 2017 (Wai 2577, #2.5.1). It therefore appeared that the applicants expected the Tribunal to hear the parties on the urgency application, determine the urgency application, inquire into their claim, and report on their claim and make findings and recommendations within a very narrow timeframe. The Crown would then have to consider any findings and recommendations made by the Tribunal and pass legislation amending the statutory deadline in the Marine and Coastal Area (Takutai Moana) Act 2011. The Deputy Chairperson indicated that this expectation may be unrealistic and problematic given that the deadline has been in existence, and the applicants have known about it, since MACA was enacted in 2011. 37. As detailed in this direction, the Tribunal has received a large number of applications regarding MACA since Wai 2577 was filed in December 2016. I note that not all filing has yet been received in relation to all the applications now before me, specifically I await applicant submissions in reply to those of the Crown for several of the more recent applications. Further, several claims are still being processed for registration and neither the Crown nor the applicants have therefore had the opportunity to respond to those. However, to date the submissions are remarkably similar and I consider I have sufficient information before me to determine whether urgency should be granted in respect of all applications concerning MACA. Also because the statutory deadline is fast approaching, it is important to issue this determination without further delay. 38. An important deteminant to granting urgency is that there is no alternative remedy that in the circumstances, it would be reasonable for the claimants to exercise. This issue was one of the key arguments brought by the applicants as to why these claims demand the immediate attention of the Tribunal. The 3 April 2017 statutory deadline is imminent and, once it passes, they will be barred from applying for recognition of their customary interests under MACA. 39. This means that until 3 April 2017, the applicants can seek to have their rights in takutai moana recognised by applying to the High Court or notifying the Minister of their intention to seek a recognition agreement. This clearly presents an alternative path for the applicants to take. Further, it should not be overlooked that the applicants have had the opportunity to make such an application since 2011 and have waited until that date has become imminent to file claims with the Tribunal. 40. This lack of action, in my view, cannot be used to justify a claim for urgency. Delay is a relevant consideration when determining whether an application for an urgent hearing should be granted. In 2016 the Court of Appeal upheld the reasoning of the High Court in TOrahui v Waitangi Tribunal (TOrahui v Waitangi Tribunal [2015] NZHC 1624, at [89]), where Williams J stated: It [the applicant] would be expected to set out the steps it has taken to avoid suffering significant and irreversible prejudice. The more extensive those steps, the more powerful the applicant's case. The reverse will also be true. An applicant that has sat on its hands is less likely to succeed. 41. As indicated, all claimants still have until 3 April 2017 to file applications with the High Court or notify the Minister. It would appear reasonable to expect them to utilise this alternate remedy whilst it still exists. It would also appear reasonable to have expected claimants to have utilised this remedy over the last 6 years. They have not done so, 8
and the claimants lack of action in my view cannot now be used to justify their urgency application. 42. For these reasons, I am of the view that the applicants cannot sustain a claim for urgency and all the applications for urgency are declined. 43. In making this finding I have not considered the claimants' substantive claims against MACA itself.that is because the expiry of the statutory deadline does not prevent the Tribunal from inquiring into those claims. 44. On this point I note that the claims, as they relate to the substance of the MACA, are significant. Not only do they include the deadline issue, which could still be inquired into once the deadline has passed, they also concern the recognition and provision for Maori customary rights and interests in the takutai moana by the Crown. They allege that the legislative regime implemented by the Crown through MACA extinguishes those rights in breach of the principles of the Treaty of Waitangi. 45. As stated these issues are significant and notwithstanding that the applications for urgency have been declined, the applicants may be able to persuade me that consideration should be accorded to these claims to ensure that they are heard within a reasonable timeframe. 46. I therefore invite submissions from claimants on how, and to what extent, these claims should be progressed by midday, Monday 1 May 2017. 47. The Crown is to respond to the submissions of claimants by midday, Friday 26 May 2017. The Registrar is to send a copy of this direction to counsel for the applicant, Crown counsel and all those on the notification list for: Wai 2577, the Marine and Coastal Area (Takutai Moana) Act (Te Kapotai) Wai 2579, the Marine and Coastal Area (Takutai Moana) Act (Waihoroi Shortland and Pita Tipene) Wai 2580, the Marine and Coastal Area (Takutai Moana) Act (Te Waimate Taiamai) Wai 2581, the Marine and Coastal Area (Takutai Moana) Act (Ani Taniwha) Wai 2582, the Marine and Coastal Area (Takutai Moana) Act (Rosaria Hotere) Wai 2583, the Marine and Coastal Area (Takutai Moana) Act (Pomare Hamilton) Wai 2584, the Marine and Coastal Area (Takutai Moana) Act (Tangi Tipene) Wai 2585, the Marine and Coastal Area (Takutai Moana) Act (Aorangi Kawiti) Wai 2586, the Marine and Coastal Area (Takutai Moana) Act (Gray Theodore) 9
Wai 2587, the Marine and Coastal Area (Takutai Moana) Act (Deidre Theodore) and Wai 2588, the Marine and Coastal Area (Takutai Moana) Act (Violet Nathan) claim. DATED at Wellington this 16 th day of March 2017 ~l \ Chief Judge W W Isaac Chairperson WAITANGI TRIBUNAL 10