Lessons from Re Tipene [2016]

Re Tipene [2016] NZHC 3199 was the first case to successfully go through the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011 for customary marine title. Over the years Mr Tipene’s application was revised on numerous occasions making his journey difficult. This publication aims to highlight the lessons to be learnt from Re Tipene.

Lesson 1:

Be specific on what areas you are seeking customary interests over

At [46]-[47].

Original: Pohowaitai and Tamaitemioka islands.

Final Amendment: The area encompassed within a 200 m radius of the rock in front of the landing area used to access Pohowaitai and Tamaitemioka islands, to the south-west of Stewart Island (included GPS co-ordinates).

The Act is silent as to how much detail an applicant needs in regards to the specified area.

It is through this case that we know the Court has a preference for applicants being specific by using maps, GPS co-ordinates and providing an in-depth description.

Lesson 2:

Be specific on who the applicant group is

At [8]-[10] and [46].

Original: Mr Tipene on behalf of the Tipene family.

Final Amendment: Rakiura Maori with customary interests around Pohowaitai and Tamaitemioka islands.

The Attorney-General and Te Rūnanga o Ngai Tahu believed the applicant group was insufficiently specified, the applicant group was wider than the specified whānau and that more evidence was needed to show mandate. Mallon J held that Mr Tipene’s final amendment of the applicant group is sufficiently defined, the evidence presented shows interests to the islands and that whānau from those islands have sufficient mandate.

If the area is home to iwi, hapu and whānau, strategically it may have been in the applicant’s best interests to specify the applicant group from a whānau level because it would have given them the opportunity to be very specific. On the other hand, if there are obvious cross-claims, this strategy may not work.

Lesson 3:

Ensure the applicant has mandate from the applicant group

At [8]-[10].

Both the Attorney-General and Te Rūnanga o Ngai Tahu argued on similar lines that Mr Tipene did not have the mandate to bring the application on behalf of the applicant group because he could not show that he had the support. Mallon J listened to Mr Tipene’s evidence and concluded he did have mandate because those who exercise the fires of occupation make the decisions on behalf of all those who whakapapa to the islands.

It is in the applicants best interests to demonstrate that they have sought a mandate from their applicant group.

Lesson 4:

Recognition Order Title Holder does not need to be confirmed from the start

At [46], [179] and [197].

Original: Mr Tipene’s daughter which was further refined to ‘Supervisor(s) of Pohowaitai and Tamaitemioka islands appointed under Regulation 6 of the Regulations’.

Final Amendment: The holder is yet to be determined. The parties are to make further submissions on that issue.

If granted title, the holder(s) of the Recognition Order have responsibilities to fulfil such as dealing with resource consents or permits in the area, preparing a planning document and being available for consultations pertaining to the specified area1 - this may be why the supervisors of the islands did not want to be named as title holders. In this case the Court understood the choice was not easy and so were flexible with when a decision needed to be made.

It is a good idea that all your whanau and other interested parties are content with the title holder or at least are in discussion throughout proceedings as to who would be best suited to take on the responsibilities.

Lesson 5:

Do not underestimate the power of publicly notified meetings

At [175].

Through numerous publicly notified hui and notices, Mr Tipene could show the Court that he has given interested parties ample opportunity to come forward and discuss the application. Mallon J was satisfied that those beneficial owners from Pohowaitai and Tamaiteioka who did not take the opportunity to engage have by default given Mr Tipene authority. This shows that it is in your best interests to make your position publicly known, in particular when there are cross-claims.

Under the Act your first public notice need only come after the application is filed.2 However, we have recommended to our clients that is in their best interests to hold publicly notified hui. Not only will this unveil cross-claims but it is evidence to show the Court that their application has been open and transparent from the start.

Lesson 6:

Abutting land will be important in other cases

In Re Tipene there was no issue with abutting land as their specified areas were islands.

Most applicant groups will need to show who owns the abutting land or the area right behind their specified area.3

Conclusion

Though Re Tipene may not be relied on heavily because it concerns islands, it nevertheless provides lessons that give a helpful insight into what approach the Court is taking towards granting customary marine title.

While applications closed on 3 April 2017, we are happy to answer any questions you may have.

Where can you find other related articles?

‘Did you hear about that Muttonbirding case?’

1 Marine and Coastal Area (Takutai Moana) Act 2011, s60. 2 Section 103. 3 Section 59.

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