High Court finds that tikanga is a relevant consideration for strike-out applications under the Marine and Coastal Area (Takutai Moana) Act

In a recent High Court decision, the Court considered whether a strike-out application filed under Marine and Coastal Area (Takutai Moana) Act was inconsistent with tikanga.  

The strike-out application was filed by a Rūnanga in response to a claim made by two claimants under the Act. This claim overlapped the claim made by the Rūnanga.

The strike-out application was made by the Rūnanga on the basis that the claimants had not complied with the mandatory statutory requirements under the Act. It was also alleged that the claimants’ applications did not meet the statutory requirement that the area claimed was held in accordance with tikanga.

The claimants opposed the strike-out application noting that, among other things, striking out their claim would be inconsistent with tikanga.

The claimants argued that striking out their claim would be inconsistent with tikanga because there was a risk of a hara (transgression) being created against the claimants and those whom they represent.

They argued that the Act is infused expressly with tikanga, and this enables the claimants the opportunity to pursue their rights and interests. It was also argued that it would be contrary to tikanga to proceed with litigation without discussing the claim with other groups affected.

The Court accepted that tikanga principles were relevant to the strike-out application, given the importance of tikanga in dispute resolution in te ao Māori.

The Court considered that the substance of the Act is heavily concerned with tikanga.  The strike-out provisions also gave the Court discretion, which meant that tikanga considerations would likely be both relevant and consistent with the Act.

The Court noted that it is a sensible management of relationships consistent with tikanga to call on the principles of whanaungatanga, supported by whakapapa, to seek understandings (if not agreements) where possible regarding overlapping claims.

The Court considered that, because of the steps the Rūnanga had taken to attempt engagement with the applicants, the strike-out application was not of itself in breach of tikanga.

The Court adjourned the strike-out proceedings and directed the claimants to amend their applications to comply with the Act and the mandate requirements under tikanga. One of the applications was struck out in part due to lack of standing.

Peter Johnston and Alex McCracken