Tau v Attorney-General

[2020] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-534

[2020] NZHC 3241

BETWEEN

RAWIRI TE MAIRE TAU

First Named First Plaintiff

AND

TIPENE GERARD O’REGAN

Second Named First Plaintiff

AND

EDWARD WELLER ELLISON

Third Named First Plaintiff

AND

DAVID THOMAS HIGGINS

Fourth Named First Plaintiff

AND

MICHAEL RICHARD SKERRETT

Fifth Named First Plaintiff

AND

DAVID TOHURANGI ELLISON

Sixth Named First Plaintiff

continued…2

Hearing:	(Determined on the Papers)
Counsel:	J W J Graham and R M A Jones for the Plaintiffs L Theron for Defendant
Judgment:	9 December 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 9 December 2020 at 12.00 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar 9 December 2020

TAU v ATTORNEY-GENERAL [2020] NZHC 3241 [9 December 2020]

AND

TEWERA EDWIN KING

Seventh Named First Plaintiff

AND

RICHARD RANGI WALLACE

Eighth Named First Plaintiff

AND

JOHN ARTHUR HENRY

Ninth Named First Plaintiff

AND

ELIZABETH ROWELLYN BROWN

Tenth Named First Plaintiff

AND

FRANCOIS DENNIS TUMAHAI

Eleventh Named First Plaintiff

AND

JAMES MASON RUSSELL

Twelfth Named First Plaintiff

AND

NICHOLAS GRAHAM METZGER

Thirteenth Named First Plaintiff

AND

RANGI THEODORE BUNKER

Fourteenth Named First Plaintiff

AND

REI VEITCH SIMON

Fifteenth Named First Plaintiff

AND

TE RŪNANGA O NGĀI TAHU

Second Plaintiff

AND

ATTORNEY-GENERAL

Defendant

[1]    Mr Andrew Simpson, the Chair of the Central South Island Fish & Game Council (the applicant), has sought access to the statement of claim and notice of proceeding filed in this matter. The plaintiffs oppose the application. The defendant does not.

[2]    Given the detailed memoranda filed on behalf of the plaintiffs opposing the search request, I asked the Registrar to refer the same to the applicant for a reply. Further submissions were received from the applicant, together with a reply on behalf of the plaintiffs.

[3]    The applicant’s request for access to the file is not the only one that has been made. Dunningham J in Tau v Attorney-General, issued on 19 November 2020, dealt with two requests for copies of the pleadings pursuant to the Senior Courts (Access Court Documents) Rules 2017 (the Rules).1 I have been assisted in preparing this judgment by her Honour’s judgment.

[4]    The grounds upon which the plaintiffs oppose the present application are essentially the same as considered by Dunningham J, being in summary:2

(a)The courts are cautious about requests for access to court documents before the substantive hearing, and while the pleadings are unsettled.

(b)The reasons advanced for the request for access are not compelling, nor do they raise considerations that engage with the Rules.

(c)The plaintiffs’ claim contains extensive sacred and traditional knowledge that is precious to them. That information will be the subject of evidence and will eventually be delivered in open court.

(d)It is in the interests of the orderly and fair administration of justice to decline the request for access.

[5]    As in the present case, the plaintiffs in their submissions made to Dunningham J, noted that the request for access did not set out the conditions that the applicant was willing to consent to. With respect, I agree with Dunningham J’s comments that the failure to set out conditions is not fatal. Other than general conditions, such as agreeing not to publish material obtained from a court file and to

1      Tau v Attorney-General [2020] NZHC 3063.

2 At [5].

keep it confidential, it is difficult for an applicant who does not know the contents of a file to know what conditions may assuage a party resisting the request for access.   I put this factor to one side.

[6]    The present applicant is concerned that the orders that it understands might be sought in this proceeding will have impacts for the applicant’s statutory functions in relation to sports, fish and game birds in the area for which it is responsible.

[7]    The applicant notes a link between it and Te Rūnanga o Ngāi Tahu and Ngāi Tahu by reference to s 278 of the Ngāi Tahu Claims Settlement Act 1998. Section 278 operates to appoint  Te Rūnanga  o  Ngāi  Tahu  as  a  statutory  advisor  to  each  Fish & Game Council whose region falls wholly or partly in the boundaries of the Ngāi Tahu claim area.

[8]    The applicant’s submissions record its understanding that the plaintiffs are seeking recognition of their rangatiratanga over freshwater in the Ngāi Tahu takiwā (area). The applicant says such would overlap with its responsibilities.

[9]    The applicant says it needs a proper understanding of the proceeding because of its anticipated impact on the performance of its statutory functions.

[10]   Dunningham J, in declining an application by Canterbury Regional Council for access to the file, held these proceedings did not affect the statutory framework in which the Regional Council currently operates.3 Her Honour could not see any real benefit to the Council in seeing the pleadings at the current stage.

[11]   I accept the plaintiffs’ submissions that the present applicant is in a similar position. The proceedings do not affect the statutory framework in which Fish & Game operates.

3 At [15].

[12]   Given the early stage of the proceeding, that is there is no presumption that access to information is the primary consideration in applications such as this, and given the plaintiffs concerns as to the cultural sensitivity of the information in the claim and its schedules, the application is declined.

[13]   As was the case in Dunningham J’s decision, the application can be revisited if the request is renewed prior to the substantive phase of the litigation.

Associate Judge Lester

Solicitors:

Chapman Tripp, Christchurch Crown Law, Wellington