In the Maori AppeIIate Court of New Zealand Te Waipounamu Registry Appeals 1998/3-9 IN THE MATTER of an appeal by the Attorney-General AND Port Marlborough New Zealand Limited, AND Te Atiawa Manawhenua Ki Te Tau Ih11 Trust, Rima EdwardsjTe Runanga 0 Muriwhenua, Marlborough District Council, New Zealand Marine Farming Association Inc, New Zealand Aquaculture Council Incorporated. AGAINST 3. preliminary decision of the Maori Land Court made on the 22nd of December 1997 (22A Nelson Minute Book 1-10) in respect of the foreshore and seabed of the Marlborough Sounds ansmg from an application made by Ngati Apa, Ngati Kaoata, Ngati Kuia, Ngati Rarua, Ngati Tamar Ngati Toa, Rangitane and Te Atiawa under sections 18, 131 and 132 of Te Ture Whenua Maori Act 1993.
2 Parties: Appellants The Attorney-General Solicitor-General J J McGrath QC, Counsel Assisted by Helen Aikman, Counsel Port Marlborough New Zealand Limited Mr M J Hunt, Counsel. Te Atiawa Manawhenua Ki Te Tau Ihu Trust Ms K L Ertel, Counsel Rima Edwards/Te Runanga 0 Muriwhenua Mr J M Dawson, Counsel Marlborough District Council Mr P J Radich, Counsel New Zealand Marine Farming Association Incorporated Sir Geoffrey Palmer, Counsel New Zealand Aquaculture Council Incorporated Ms K Feint, Counsel Respondent Te Tau lhu lwi Mr J Williams, Counsel Hearing: Coram: Heard at Wellington on 11 May 1998 His Honour Chief Judge ETJ Durie, Presiding His Honour Deputy Chief Judge N F Smith His Honour Judge G D Carter His Honour Judge W W Isaac Decision delivered at Wellington on the 19th day of October 1998 by Deputy Chief Judge N F Smith
Decision Application was made to the Maori Land Court by eight hapu from the northern part of the South Island seeking orders in respect to the land specified in the application, but described for the purpose of this decision as the Seabed and Foreshore of the Marlborough Sounds and the waters relating thereto, as follows: 1. An order under sections 131 and 18(h) of Te Ture Wn.enua Maori Act 1993 (the Act) declaring that the land is customary Maori land; or 2. A.n order under section 18(1)(i) of the Act declaring that the land is held by the Crown in a fiduciary capacity and 3. An order under Section 132 of the Act that an investigation be carried out as to the relative interests of the applicants in the land; and 4. Costs and all such other orders that the Court thinks just. The Court directed that it would deal first with the application under sections 18(1)(h) and 131 of the Act as to the status of the land concerned. It further indicated that, on the basis of the acceptance by the Crown and other objectors that Maori held customary right/title to the foreshore and seabed at the time of the signing of the Treaty of Waitangi, it would enquire into whether those rights/ title have since been extinguished. The matter was heard at Nelson on 30 and 31 October 1997 and dealt with legal submissions only, no formal evidence being presented. On the 22nd December 1997 the Court delivered a preliminary determination at the same time granting leave to the parties to appeal in accordance with the provisions of section 59(1) of the Act.
[n its decision the Court commenced from the premise that" it is assumed that there were exlsting MilOri cllstomary rights prior to 1340". It also acknowledged that there had been no evidential inquiry to establish that there were such rights, since the investigation would entail extended hearings and it was considered that the legal question was best determined before such a lengthy inquiry. The learned Judge dealt with the matter under two headings first, the foreshore, and at 22A Nelson Niinute Book folio 4 found: - ""When the Marlborough Sound Maori were separated from their customary lands adjacent to the foreshore by purchase, the customary rights to the foreshore not included in the sales or not having been expressly extinguished since sale by an Act OT other statutory instruments still remain. The Court is aware that there may have been express extinguishment of some of the foreshore but clarification of this must wait presentation of evidence." The second part of the decision related to the seabed and at 22A Nelson Minute Book folio 10 the Court found: "1 am of the opinion (as mentioned above) that a sovereignty title of similar import and characteristics to the radical title of the cornmon law passed and the customary rights (if any) still remain." The above issues involved the Court in a consideration at the Court of Appeal decision in re The Ninetv Mile Beach (1963) NZLR 461 and the interpretation of section 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1997. Appeals Vlere lodged against the decision of the Court by the seven bodies mentioned in the heading hereto. Without exception all stated in their grounds for appeal, inter alia, that the lower Court erred in its interpretation of the Ninetv I\,{i!" Rp~ch case decision and its application to the matter andl or in failing to state
a case to the High Court requesting clarification of the correctness or otherwise of the principles expounded in that case. placed on section 7 referred to above. Most also disputed the interpretation The Appellate Court gave notice first that it would hear as a preliminary matter, argument as to whether a case should be stated to the High Court to test the application of the Ninetv Mile Beach decision but later amended this direction to hear argument to determine: -- 1 Should a case be stated for the opinion of the High Court and if so; 2. Tne nature and substance of that case to be stated. Tne appeal was then to be adjourned to a later date for the hearing of the substantive appeals. The Maori AppeJlate Court sat on the 11th May 1998 to hear submissions. As a preliminary matter the Maori Appellate Court was required to rule on the - - status of Rima Edwards/Te Runanga 0 Muriwhenua and the rights of that party to be heard on appeal or on the question or the case stated. After hearing submissions from 1vfr Radich, counsel for the Marlborough District Council, challenging the right of Te Runanga 0 Muriwhenua to appear, and NIT Dawson in support of Te Runanga 0 l'lfuriwhenua's appearance, this Court ruled that Rima Edwards/Te Runanga 0 Muriwhenua had a particular interest in the challenge to the Ninetv Mile Beach case sufficient to be materially affected to a greater extent than the public at large. Therefore, in terms of sections 58(2) or 59(2) of the Act the runanga was entitled to be heard. That greater interest is exemplified if one considers that Muriwhenua are bound by the Ninetv Mile Beach decision through the doctrine of stare decisis as opposed to other coastal
tribes who may argue against or distinguish that decision. U there is to be any reconsideration of that decision it is most appropriate that Muriwhenua be represented. Counsel for the respondent argued against the Maori Appellate Court stating a case on any matter to the High Court, while counsel for Te Atiawa Manawhenua Ki Te Tau lhli Trust advocated, as did counsel for Muriwhenua, that any case stated should be limited to questions relating to the Ninetv Mile Beach decision of the Court of Appeal. All other counsel pressed for a case to be stated on much wider grounds including questions relating to the seabed. During submissions it appeared generally accepted tb.at much of the dissatisfaction arising from the Ninetv Mile Beach decision was caused by tbe inadequacy and inaccuracy of evidence available to the Court determining tbe question at that time. The Solicitor-General on behalf of the Crown at paragraph 39 of his submission - submitted that the question at stake raised fundamental issues as to the ownership of New Zealand resources and the status of customary law in New Zealand and went on to say: "It is important that these issues be examined by the highest Courts in New Zealand, drawing on both the common law and international law. Once those Courts have established the parameters of customary law in New Zealand, it will be appropriate for the Maori Land Court to consider whether specific areas are held as customary land in accordance with tikanga Maori." VVhilst this Court is in sympathy with the Crown submissions the concerns expressed by Ms Ertel thilt the referral of a case stated at this point of time is premature has considerable merit. If a Court is to deliberate on and answer any questions referred by way of a case stated, then to ensure that there is no _LL ~, 'ho n"rnnrb"d oroblems arising from the Ninety)v!ile Beach case that
Court should have berore it at least a resume of the facts, sufficient to apprise it of the position pertaining. There are no facts to bolster a case stated at this stage. The learned Judge in the lower Court, made it clear that his decision, headed "Interim Decision" was brought down in the absence of any evidential inquiry. At Y'A Nelson Minute Book folio '* following his determination in respect of customary rights relating to fares hares, as stated above, the learned Judge commented" the Court is aware that there may well have been express extinguishment of some of the foreshore but clarification of this must await presentation of roidence," Again at 22A Nelson Minute Book folio 7 it is recorded: "Te Ture Whenua Maori Act gives the Maori Land Court jurisdiction to determine whether such land has the status of Maori customa..ry land (5131/93), Once the Court so decides it has exclusive jurisdiction to investigate the title to the land and determine who are the owners (5132/93). "It is clearly incumbent upon the Tau Ihu Maori to prove to this Court that they hold the bed of Marlborough Sounds in accordance with tikanga Maori" and if they so prove that this Court can then proceed to the next statutory step - the investiga tion of Title". This Court accepts that it would be premature at this stage to state any case for consideration by the High Court in the absence of any factual matrix to which a Court charged with answering a case stated by this Court might refer. The application of principles of law often depend upon the facts and there is always the prospect that a party may wish to rely upon factual evidence to distinguish some precedent that might otherwise apply. rn reaching this decision we are conscious of the findings of Anderson J, in re Hauraki Maori Trust Board v Treatv of Waitangi Fisheries Commission (1995) NZLR 702 in which it was held first, that the Court should not prematurely or unnecessarily state a case, and secondly, that the essential merits of the plaintiff's case in public law can be exercised on the
s basis ot assumptions. This Court has some reservations as to the latter statement in that any case stated in this present ijlstance, whilst clearly having an impact upon" public la1v", must have its genesis in customary law, a matter which the Maori Land Court and Maori Appellate Court as a specialist Court should provide some guidance. This Court believes that the factual matrix required to support a case stated could best be established through inquiry by the Maori Land Court charged with the duty of hea..-ing the evidence contemplated by the lower Court to be taken for the purposes of establishil1g customary title to the land in question. That evidence, without any findings being made by the lower Court, should then be submitted back to the this Court for fu.rther consideration as to whether a case should be stated to the High Court. At that time the Appeilate Court will reconvene to hear argument as to whether a case should be stated and if so the nature of the question(s) to be answered. Accordingly, the Maori Land Court is now directed to conduct a full hearing of the application currently before it for the purposes of determining what land, if any, is customary land within the provisions of section 129 of the Act and on completion of the hearing, and without making any determination, refer the evidence back to this Court. This Court notes: 1 That in so far as the decision of the lower Court is recorded as an" interim" or "provisional determination" the appellants, for the purposes of section 58(6) of the Act and the preservation of their respective rights of appeal from any final determination bv the Court quite properly filed their notices of appeal, the substance of which will be considered when the hearing resumes.
q 2. There is one matter of concern to this Court which was adverted to during the hearing by the Chief Judge as presiding Officer, and that is the status of the applicants in the lower Court, now the respondents in the Appellate Court. Section 37(1) of the Act provides that the Maori Land Court may exercise its jurisdiction in the application of - (i) (ii) Any person claiming to have an interest in the matter; or "Not applicable" or (iii) The Court may grant to any person body or association leave to make an application to the Court for the exercise of its jurisdiction where the Court is satisfied:- (a) That a question of importance to the Maori people or any tribe or group of the Maori people is involved; and (b) That, because of the standing of the proposed applicant among the Maori people concerned and the proposed applicants relationship to or connection with any land to which the application relates, it is appropriate that leave be granted. A perusal of the record, minutes of the hearings, and judicial conference does not reveal that any such leave was sought or granted. This Court acknowledges the assistance afforded by the various counsel appearing through their very extensive and erudite submissions. The failure of trus Court to address each and everyone of those submissions individually in no way detracts from the weight applied thereto or the extent of the assistance those submissions
!O have afforded this Court. We congratulate all counsel on their submissions and thank them tor their assistance. The Appellate Court hearing is now adjourned sine die pending the taking of evidence as directed. Consequent upon the appointment of His Honour Chief Judge Durie to the Bench of the High Court, he will no longer be available to preside over this appeal, and the Maori Appellate Court will be reconstituted. His Honour N F Smith Deputy Chief Judge
Having read the decision to be delivered by Deputy Chiet Judge N F Smith I concur with the decision. His Honour E11 Durie Chief Judge His Honour G D Carter Judge -----,-------_._-- His Honour W W Isaac Judge