IN THE HIGH COURT OF NEW ZEALAND CIV-2017-485-512

WELLINGTON REGISTRY Groups A-U

IN THE MATTER OF the Marine and Coastal Area

(Takutai Moana) Act 2011

AND

IN THE MATTER OF an application by CLETUS

MAANU PAUL for an order
recognising Customary Marine
Title

MEMORANDUM OF COUNSEL IN RELATION TO PRIORITY

AND OVERLAPPING CLAIMS

11 January 2018

Phoenix Law Limited

Barristers and Solicitors
200 Willis Street
PO Box 27400
Marion Square
Wellington 6141
Phone: (04) 384 1304
Email: mason@phoenixlaw.expert
Counsel Acting: Janet Mason
Counsel Assisting: Yvette Rigby
MAY IT PLEASE THE COURT:

1. This Memorandum of Counsel (“MoC”) is filed:

a. on behalf of Cletus Maanu Paul (“the Applicant”), the Chairperson

of the Mataatua District Maori Council (“DMC”), for his claim filed
under the Marine and Coastal Area (Takutai Moana) Act 2011 (“the
MACA Act”) on behalf of all Māori (“the Application”); and
b. in response to the Minute of Collins J dated the 27th of September
2017 (“the Minute”), which directed that the Applicant file an MoC
in order to:
i. advise the Court if he disagrees that the statutory priority
claims under section 125 of the MACA Act (“the SP
Claims”) are those identified in paragraph 6 of the Minute;
ii. advise the Court of any overlapping claims that should be
heard in conjunction with one or more of the SP Claims;
and
iii. file any amended application and identify any proceedings
he considers may be heard with another claim that is not an
SP Claim. The same MoC should also explain what priority,
if any, should be given to such claims and the basis of that
priority.1

2. The matters set out above at sub-paragraph 1(b) are addressed in further detail
below.

A Statutory Priority Claims

3. The Applicant does not disagree that the SP Claims are those identified in
paragraph 6 of the Minute.

1
Minute of Collins J CIV-2017-485-218, 27 September 2017 at [9].

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B Overlapping Claims re Priority Proceedings

4. The Applicant advises that, as the Application relates to the entire marine and
coastal area (“MCA”) of Aotearoa New Zealand, all of the SP Claims overlap with
the Application. Consequently, the Application ought to be heard in conjunction
with the SP Claims.

C Proceedings To Be Heard Together/Priority Matters

5. His Honour has directed that the Applicant, inter alia, identify any proceedings
that he considers may be heard with another claim that is not an SP Claim and
explain what priority, if any, should be given to such claims, and the basis of that
priority.

6. The Applicant respectfully requests that, before substantive hearings for any
applications take place, the interlocutory issues raised in this MoC ought to first
be heard, as a matter of priority.

7. In this regard, the Applicant requests that the issue of the nature and extent of
customary marine title (“CMT”), and the criteria relevant to the interpretation of
the test for determining CMT under the MACA Act, be determined prior to any
applications being heard. To this end, the Applicant requests timetabling
directions for a judicial conference (“JC”) to be convened.

8. In essence, the Applicant respectfully submits that:

a. prior to any individual application(s) being heard, the issue of what

constitutes “exclusive use and occupation without substantial
interruption” (“EU & O”) ought to be determined;
b. in particular, the extent that EU & O can co-exist with incidents of
public access and navigation, that is, does public access and
navigation reduce, cancel out, or destroy claims of EU & O?;

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 c. the Court’s decision on the above issue will assist greatly in
determining the extent of the CMT claims, and therefore the nature
and extent of the evidence required to be produced and filed;
d. if the above matter is not determined prior to the hearing of
applications, the Applicant fears that:
i. substantial resources, including the Courts’ and the
applicants’ time and funds, will be expended in an
inefficient and ineffective manner, gathering
evidence that may not be relevant and/or
unnecessarily hearing the same arguments at every
proceeding;
ii. a further injustice will occur because Māori, not
knowing what exactly the criteria for EU & O are,
will gather and file evidence , that may, at the end
of the day be irrelevant; and
e. the Applicant, therefore, respectfully requests timetabling directions
for a JC to be convened.

9. The Applicant submits that the Application, which is for CMT over the entire
CMA of Aotearoa New Zealand, raises certain important preliminary matters, in
particular, in relation to the test for CMT as set out in the MACA Act.

10. In order to be granted a CMT, an applicant must satisfy the Court that they have
met the following requirements (“the CMT Test”):

Customary marine title exists in a specified area of the common marine

and coastal area if the applicant group—
(a) holds the specified area in accordance with tikanga; and
(b) has, in relation to the specified area,—
(i) exclusively used and occupied it from 1840 to the present day
without substantial interruption; or

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 (ii) received it, at any time after 1840, through a customary transfer
in accordance with subsection (3) [emphasis added].2

11. One of the aspects of the CMT Test that has received extensive academic
commentary has been the second element of the test, which is whether the
applicant group has exclusively used and occupied the specified area from
1840, without substantial interruption.

12. The MACA Act provides some guidance in terms of the meaning of EU & O.
Section 59 states:

59 Matters relevant to whether customary marine title exists

(1) Matters that may be taken into account in determining whether customary
marine title exists in a specified area of the common marine and coastal
area include—
(a) whether the applicant group or any of its members—
(i) own land abutting all or part of the specified area
and have done so, without substantial interruption,
from 1840 to the present day:
(ii) exercise non-commercial customary fishing rights
in the specified area, and have done so from 1840
to the present day; and
(b) if paragraph (a) applies, the extent to which there has been
such ownership or exercise of fishing rights in the specified area.

(3) The use at any time, by persons who are not members of an applicant
group, of a specified area of the common marine and coastal area for
fishing or navigation does not, of itself, preclude the applicant group from
establishing the existence of customary marine title.3

13. The literal meaning of EU & O is that the applicant group can be the only group
to use and occupy the specified area. If one takes this literal interpretation, it is
arguable that almost no areas of the CMA in Aotearoa New Zealand have been
exclusively used and occupied by any one Māori group. Instead, most of the CMA

2
MACA Act, s 58(1).
3
MACA Act, s 59.

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 is or has been accessed by the public for fishing, recreation and navigation.
Consequently, a literal interpretation of the CMT Test would exclude claims for
all but the most remote of areas. The fact that such a literal interpretation has not
been intended by Parliament is evident in section 59(3), which states:

The use at any time, by persons who are not members of an applicant
group, of a specified area of the common marine and coastal area for
fishing or navigation does not, of itself, preclude the applicant group from
establishing the existence of customary marine title.4

14. However, whilst section 59(3) provides some guidance with regard to the
relationship between EU & O and public use, that guidance is limited. The effect
of section 59(3) is to clarify that public use for fishing and navigation does not, in
and of itself, act as a jurisdictional bar to the establishment of CMT. It is not clear
whether extensive public use for fishing and navigation would be destructive of a
CMT claim. Neither is it clear whether it is only fishing and navigation which can
co-exist with CMT, or whether other public recreational uses, such as swimming,
could be destructive of CMT.

15. In Re Tipene, which involved a small discrete area off the Tītī Islands, also known
as the Muttonbird Islands, off Rakiura/Stewart Island, Mallon J concluded:

The evidence that has been presented of exclusive use and occupation of
the Tītī Islands by Rakiura Māori from 1840 without substantial
interruption is overwhelming. This makes it unnecessary to consider in
detail what may or may not constitute exclusive use and occupation
without substantial interruption for the purposes of s 58 of the Act. It is
sufficient to note, as the submissions for Te Rūnanga put it, that the clear
words of the Act need to be applied with an appreciation for the context in
which the particular claim arises. Remoteness, the environment and
changes in technology are all relevant when considering notions of
occupation, use and continuity. These may explain periods of no or
occasional use while nevertheless maintaining a connection to the land
[emphasis added].5

4
MACA Act, s 59(3).
5
Re Tipene [2017] NZAR 559 at [149].

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16. In order, therefore, to make sense of the CMT Test, the Courts will need to hear
legal submissions and arguments from applicants and parties based on, inter alia,
native title jurisprudence from other commonwealth jurisdictions, and of course,
the relevant provisions of the MACA Act, and the statutory framework and
context.

17. The Applicant considers that EU & O can, and does, co-exist with public use and
access rights and with navigation. Counsel is aware that other parties, including
the Crown, Local Authorities, and certain groups such as Hobson’s Choice, may
not agree with this interpretation, preferring instead a minimalist interpretation of
the CMT Test.6 These divergent views are likely to be the subject of extensive
legal argument before this Court in each and every application, of which there are
387.

18. Although the SP Claims are to be heard first, these overlap with a substantial
number of other claims and are spread over a number of the High Court
Application Areas (the “Areas” or “Area”). Consequently, the Courts will still
have to hear similar and/or identical arguments, possibly at least 21 times, as there
are 21 Areas, in which case the criteria for demonstrating EU & O will likely
develop in a piecemeal fashion.

19. One approach is to select only one Area, and for the SP Claims in that Area to
proceed as a priority Area. However, such an approach is likely to be met with
objections from applicants, as it is envisaged that all applicants would want to be
involved in making submissions in the determining of this crucial issue, as
opposed to leaving it up to other applicants in one Area only. Moreover, this
makes it very difficult for all the other applicants who need to proceed with
gathering their evidence. They will not know whether evidence of public use of
the specified area is relevant or not.

6
Whilst Counsel cannot, and does not, speak for these parties, it is a reasonable assumption to advance based
on material available publicly and already filed in these proceedings.

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20. In many situations, such a conundrum might seem like a trivial matter, but in this
instance, EU & O must be demonstrated from 1840 onwards, that is, evidence is
required to cover a period of almost 180 years. Such an exercise is a significant
undertaking and is not assisted by the ambiguity patently manifest in the current
statutory definition of CMT, and the criteria of EU & O as set out therein.

21. Counsel therefore submits that the more effective and efficient option is for this
matter to be heard first as an interlocutory issue. If the Court should decide that
EU & O can co-exist with any level of public access and navigation, no matter
how extensive, then the Applicant’s view is that the vast majority of the CMA in
Aotearoa New Zealand would be capable of a CMT recognition order. Counsel
notes that, when all of the applications for CMT are taken together, they apply to
the entirety of Aotearoa New Zealand’s CMA.

22. The Marine and Coastal Area Team located within the Office of Treaty
Settlements (“the MACA Team”), who are responsible for funding the
applications, have advised that there is a cap on the available funding. In the
absence of criteria and/or guidelines as to what would constitute EU & O, and
therefore what evidence is required for the applicants to prove their case, the
Applicant, and presumably all other applicants, are having to gather extensive
evidence, in order to cover all bases. Given the restrictions on funding, the
Applicant is concerned that there will not be the funding available which will
allow applicants to properly put their case, which would then raise serious issues
of breaches of Tiriti/Treaty principles, natural justice and fairness.

23. In such circumstances, it would appear sensible to establish the criteria for proving
CMT, prior to all applicants gathering evidence to demonstrate CMT, so as
to assist the applicants in their efforts to gather evidence in the most cost-efficient
and fair manner possible.

24. Counsel submits that it may be helpful to think of these proceedings in two stages.
The first stage relates to the extent of the CMT Test and the criteria, and

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 consequently, the evidence required for applicants, regardless of who they are, to
demonstrate or prove CMT (“the Proving Title Stage). The second stage is the
identification stage, which is about determining exactly who the owners/holders
of CMT ought to be (“the Owner Identification Stage”). Counsel respectfully
submits that the most important issue to be dealt with currently by this Court is in
stage one – the nature and extent of CMT. The Applicant submits that it is useful
conceptually to see these two stages as separate.

25. The Applicant hopes that relevant applicants can work together to resolve any
issues of overlapping claims during the Owner Identification Stage. Many of the
matters that may arise during the Owner Identification Stage lend themselves to
Tikanga/Māori law based resolution processes. In any event, the High Court is
able to be assisted by the input of the Māori Appellate Court, as provided for under
section 99 of the MACA Act which provides that the Court may refer matters of
Tikanga to the Māori Appellate Court or to Pūkenga for opinion or advice.

26. To this end, Counsel proposes that the issues for determination, if His Honour is
minded to convene an interlocutory JC, ought to be as follows:

a. does the requirement in section 58(1) of the Marine and Coastal Area
(Takutai Moana) Act 2011, that the applicant group must show that
they have exclusively used and occupied the specified area from
1840 to the present day without substantial interruption, allow all
public access, for instance, all fishing, all navigation and recreation
in that area, to co-exist with any claims to customary marine title?;
and
b. what other criteria are relevant and/or necessary to demonstrating
customary marine title?

27. Secondly, Counsel submits that the Applicant’s request for an interlocutory
hearing ought to be granted priority because of the status of the Application.

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28. The Application is supported by a number of District Māori Councils (“DMCs”),
including:

a. Mr Rihari Dargaville, Chairperson of Te Tai Tokerau DMC, on

behalf of Te Tai Tokerau DMC;
b. Mrs Titewhai Harawira and Mr John Tamihere, on behalf of the
Tamaki Makaurau DMC;
c. Mr Desma Ratima, Chairperson of Takitimu DMC, on behalf of the
Takitimu DMC; and
d. Ms Diane Black and Mr Rangi McClean, on behalf of the Tamaki ki
te Tonga DMC (together called “the Supporting DMCs”).

29. The Applicant and the Supporting DMCs are members of the NZMC. The
NZMC’s functions, which are extensive, are set out in section 18 of the MCD Act,
and provide it with an overarching statutory advocacy role in relation to the
physical, economic, industrial, educational, social, moral and spiritual wellbeing
of all Māori in Aotearoa New Zealand, and in particular, to collaborate with,
amongst others, the Crown and its departments on such matters (“the SA
Responsibilities”). Under section 16 of the MCD Act, the functions of the DMCs,
in their respective Districts, are identical to the functions of the NZMC.

30. The Applicant and the Supporting DMCs thus have SA Responsibilities under the
MCD Act to protect and advance Māori Tino Rangatiratanga over the CMA. In
accordance with their SA Responsibilities, the Applicant and the Supporting
DMCs are duty-bound to advocate for their constituents, who number in the
hundreds of thousands, and live and have customary interests throughout Aotearoa
New Zealand.

31. Counsel submits that the Application thus acts as an umbrella claim for Māori
throughout the country and, in light of this, should be afforded top priority in the
High Court.

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32. In MoCs dated the 21st of September and the 12th of October 2017, Counsel sought
leave to file further evidence, by the end of November 2017, that the Application
does have the support of many Māori throughout Aotearoa New Zealand (“the
Further Evidence”). This time was sought because the Applicant had not yet
received funding for legal or other services in relation to his Application. He had
hoped that funding would have been received by mid-October 2017.

33. In an MoC dated the 30th of November 2017, Counsel advised that the Applicant
had not received any funding from the MACA Team and leave was sought to file
the Further Evidence eight weeks after the funding for the Application was
received. That leave was subsequently granted.7

34. Counsel again advises that, to date, the Applicant has not received any funding
from the MACA Team, who continue to place burdensome and unnecessary
bureaucratic obstacles in the Applicant’s pathway to funding. It is now expected
that funding will be available by mid-February.

35. The Applicant further considers that the Application ought to be heard in
conjunction with the application by Mr Rihari Dargaville for an order recognising
Customary Marine Title and Protected Customary Rights of New Zealand Māori
Council Members, as both applications relate to the entire CMA of Aotearoa New
Zealand.8

D Next Steps

36. Counsel respectfully suggests the following timetable:

7
Email from Lizzie McColl (Registrar at Wellington High Court) to Yvette Rigby (Legal Counsel at Phoenix
Law) regarding the request for an extension to file further evidence (4 December 2017).
8
An Application by Rihari Dargaville for an Order Recognising Customary Marine Title and Protected
Customary Rights of New Zealand Māori Council Members CIV-2017-485-538, 30 March 2017.

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 a. all other parties file submissions in relation to the Applicant’s
request for an interlocutory JC on the extent of the CMT Test by the
31st of January 2018;
b. the Applicant to file submissions in response by the 14th of February
2018;
c. His Honour’s Directions are issued; and
d. if His Honour grants the Applicant’s request, timetabling directions
for a judicial conference to be convened are issued.

Dated 11 January 2018

__________________________________
Janet Mason Yvette Rigby
Counsel Acting Counsel Assisting

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