Max Pakinga-Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
Summary
The High Court dismissed a judicial review against the Judicial Conduct Commissioner’s recommendation to convene a panel to investigate alleged misconduct by District Court Judge Ema Aitken.
Background
Statutory framework
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) sets out a detailed process for accountability of judges for misconduct. The Act aims to maintain the balance between these accountability mechanisms and the need to protect security of judicial tenure from political interference.
Under the Act, the Judicial Conduct Commissioner is the point of first receipt for complaints of judicial misconduct. In the most serious cases, the Commissioner may recommend to the Attorney-General to convene a Judicial Conduct Panel to investigate the alleged misconduct. When a Panel is convened, they are tasked with investigating the matter and making a recommendation as to whether the judge should be removed from office.
The Attorney-General may commence the process for removal of the judge if (and only if) the Panel recommends this course of action following their investigation.
The incident
In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club (“Incident”).
Following a complaint about the Incident, the Commissioner recommended that the Attorney-General convene a Panel. The Commissioner noted that there were differing accounts of what occurred during the Incident, and particularly whether Judge Aitken’s outburst had a political motive.
Before the Attorney-General acted on the recommendation, Judge Aitken filed judicial review proceedings alleging the recommendation was unlawful on four grounds and seeking that the matter be referred back to the Commissioner for further investigation.
In February2025, the court granted interim orders recommending that the Crown take no further action to convene the Panel.
The Case
Commissioner’s role
The court held that the Act was intended to propose a number of discrete steps that must be satisfied before a judge could be removed from office.
The Commissioner’s function within this scheme was to filter out unmeritorious complaints, and to recommend appropriate next steps for meritorious ones. Given their function, the Commissioner was expected only to form a preliminary view of the subject-matter of the complaint. The Commissioner could recommend convening a Panel if they were satisfied that the complaint was plausible and that the alleged conduct, if substantiated, could warrant consideration of removing the Judge from office.
The Commissioner did not have licence to determine disputed issues of fact, which was a function reserved by the Act for a Panel (if one was appointed).
First ground - Failure to identify legal standard
Judge Aitken alleged the Commissioner had erred in law by failing to expressly identify the legal standard against which the alleged conduct was to be measured.
The court held there was no general rule that the Commissioner had to expressly identify the relevant standard. In marginal cases, failure to do so might indicate that the Commissioner had misapplied the legal test, but this was not such a case. If a political dimension to the Judge’s conduct was substantiated, this would certainly warrant consideration of Judge Aitken’s removal.
Second ground - Failure to provide sufficient reasons
Judge Aitken’s second ground alleged the Commissioner had failed to provide sufficient reasons for their decision (as required by s 18(2) of the Act) because they had failed to identify the relevant legal standard and clearly apply that standard to the facts before them.
The court was satisfied that the Commissioner’s reasons were adequate in the circumstances.
The ambit of any statutory requirement to provide reasons was context-dependent. A quasi-judicial body might be expected to provide fairly robust reasons if they were making authoritative determinations on facts and law, particularly where the decisions made were publicly available and relied on by third parties. However, given the Commissioner’s determinations were both preliminary and (ordinarily) confidential, the requirement to provide reasons was far less stringent.
In these circumstances, Commissioner’s reasons were sufficient. They were neither required nor permitted to go into any further detail than they had regarding conflicting factual accounts of the Incident.
Third ground - Insufficient preliminary examination
The Judge’s third ground alleged that the Commissioner could not properly form the opinion required under s 18(1) without referring her response about alleged political animus back to the complainant.
The court rejected this argument. An iterative approach to disputed evidence might be necessary in particular cases, but it was not an absolute legal requirement. There was no evidence it would have made any difference in this case. The claim was in essence an invitation for the Commissioner to determine disputed factual allegations, a function that the Act did not permit the Commissioner to perform.
Fourth ground – Failure to determine initial scope of Panel enquiry
Judge Aitken’s final ground of challenge was that the Commissioner’s cursory reasons meant that the scope of the resulting Panel inquiry would be unclear.
The court held that the scope of the inquiry was clear. While the Commissioner did not expressly set it out, his reasons read as a whole and with regard to attachments and appendixes clearly established that the Panel would investigate the Incident, including the allegation that Judge Aitken’s actions were politically motivated. If that motivation were made out, this would suggest breach of constitutional convention that could certainly warrant removal from office.
Result
The court dismissed the application in its entirety and allowed interim orders restricting further action to lapse. Before the hearing, the Attorney-General recused herself from further involvement, as it had been her that referred the complaint to the Panel.
The acting Attorney-General, who is now responsible for the matter, convened a panel on 22 July 2025. The Panel is scheduled to hear the complaint in February 2026, and to report back to the Attorney-General with its recommendations by Easter 2026.
This decision sets a clear precedent about the limits of the Judicial Conduct Commissioner’s functions, which provides welcome clarity following earlier cases that developed the law in response to more complex facts.
For further information on this or similar cases please contact Director, Brigitte Morten.
Summary
Two hapū successfully challenged the decision to refer Port of Tauranga’s wharf extension application to a fast-track consenting panel.
Background
The Port of Tauranga is New Zealand’s largest shipping port. There are two main wharves and facilities - Sulphur Point on the west of the Stella Passage and Mt Maunganui to the east. The Whareroa Marae is just south of the Mount Maunganui facilities.
The demand for the port meant that the existing facilities of the port needed to be extended. In October 2021, the Port sought resource consent to reclaim land around the port (including undertaking dredging in the passage for that purpose) and to extend the wharves on both sides.
The Port’s application for resource consent was referred directly to the Environment Court. The development was strongly opposed by hapū associated with Whareroa Marae.
Between December 2023 and December 2024, the Environment Court issued two judgments. The overall result was that consent was granted for approximately two thirds of the wharf extension at Sulphur Point. The court reserved its position on the remaining one third of the Sulphur Point extension, and the entirety of the Mount Maunganui extension.
While the matter continued through the courts, the Fast Track Approvals Act 2024 (“FTA”) was announced. The FTA was intended to streamline and accelerate environmental consents for major infrastructure projects. There were two mechanisms for projects to become eligible for determination by expert panel – by listing projects in Schedule 2 of the FTA or referred to a panel by the Minister of Infrastructure.
In an early press-release, the Government announced that the Stella Passage Development was to be a listed project. The project announced included extension of the Sulphur Point and Mount Maunganui wharves, as well as associated reclamation and dredging.
Listed projects were added to the Bill that became the FTA at the Committee of the Whole House stage. In Schedule 2 as it was enacted, the Stella Passage Development referred only to the Sulphur Point wharf extension – the reference to the Mount Maunganui wharf extension was omitted.
After enactment, the Port applied to the Environmental Protection Authority (“EPA”)to have its application for the Stella Passage Development (including the Mount Maunganui wharf extension) referred to an expert panel. Under s 46 of the FTA, the EPA could only refer an application if it “relate[d] solely to a [project listed in Schedule 2 of the FTA]”.
The EPA referred the project, and an expert panel was convened. Before the expert panel commenced its determinations, two hapū affiliated to Whareroa Marae filed judicial review proceedings challenging the EPA decision as an error of law.
The case
The sole issue before the court was whether the Port’s application for the Stella Passage Development could be interpreted as “solely” relating to the Schedule 2 listing (which did not expressly refer to the Mount Maunganui wharf extension). If it did not, the EPA’s decision to refer the application was beyond its powers.
The Port argued that while Schedule 2 did not expressly refer to the Mount Maunganui extension, the omission was a drafting mistake. They pointed to context clues within the description of the project, including its designated name (the Stella Passage Development, suggesting works on both sides of the passage), and that the project’s geographic description was 8.5 ha in the Sulphur Point and Mount Maunganui region (which could only have made sense if the Mount Maunganui extension was included). They also stated that the Schedule 2 description of the development contained at least one other error, suggesting a rushed or careless drafting process.
The court accepted that in some cases, it could interpret legislation in a manner contrary to its clear wording – this would ordinarily be appropriate to correct an obvious error or avoid a result that was absurd or clearly contrary to Parliament’s intent. However, the courts would generally only depart from the clear meaning of the words where there was no other available interpretation.
The court was not satisfied that a drafting error was the only explanation for the omission of the Mount Maunganui extension from Schedule 2. It was also possible that Parliament deliberately excluded the extension.
The court compared the FTA regime, with its focus on speed, to the default resource consent regime under the Resource Management Act 1991. The latter, the court held, allowed for a balancing of interests (including Māori relationships with their lands) to achieve the purpose of sustainable management. While the FTA required decision-makers to take some of these factors into account, it did not involve the same kind of balancing exercise, and was more heavily weighted towards speed.
The court observed that the Environment Court had distinguished between the impacts of the Sulphur Point and Mount Maunganui extensions in its decision, the latter of which noted unresolved concerns about cultural and amenity values impacts on the Whareroa Marae.
A thoughtful Minister (or advisor) could have been aware of this decision, and that there could have been a legitimate distinction in environmental impacts between the two. In this context, they could have concluded that the more nuanced approach required under the Resource Management Act was appropriate instead of the accelerated FTA procedure.
Accordingly, the court held that it was not sufficiently clear that Parliament intended to include the Mount Maunganui extension as a listed project in Schedule 2. As a result, the Port’s application did not relate solely to a listed project, and the EPA had acted beyond its powers when referring the application to an expert panel.
Result
The court left it for the parties to agree on permanent orders, while making an interim order that no further work is to be done on the Port’s Stella Passage Development under the fast-track approvals process.
The Port is currently seeking an urgent amendment to the FTA to ensure that the Mount Maunganui extension is included in the Stella Passage Development.
For further information on this or similar cases please contact Director Brigitte Morten
Summary
The Supreme Court, in a two part judgment, determined customary rights in the foreshore and seabed in the Eastern Bay of Plenty.
Background
Following repeal of the Foreshore and Seabed Act 2004, Māori customary rights in the foreshore and seabed are recognised under the Marine and Coastal Areas (Takutai Moana) Act 2011 (“MACA”). Customary rights applicants can apply for two types of orders – customary marine title (“CMT”), and protected customary rights (“PCR”).
CMT and PCR can be recognised through court ordered “recognition orders”, or via agreements negotiated with the Crown. Any “applicant group” can apply for CMT and PCR. Applicant group means 1 or more iwi, hapū, or whanau groups seeking customary rights, including a person appointed by 1 or more of those groups to represent them in seeking those rights
The High Court determined a number of claims relating to the Eastern Bay of Plenty in 2021. Subsequently, many of those claims were appealed to the Court of Appeal and then to the Supreme Court.
In 2024, the Supreme Court delivered its first part judgment on the appeals, overturning in part the Court of Appeal’s test for CMT under s 58 of MACA. It confirmed that “exclusive use and occupation” must be interpreted in light of tikanga, and therefore does not require possession to the exclusion of all others (as is the case in the Western conception of property rights). However, it found the Court of Appeal had erred in treating any significant third-party activity as a substantial interruption, rather than requiring proof that such activity displaced the applicants’ tikanga-based authority.
The Court’s decision also held that overlapping CMT claims could be recognised, though it left the detail of this, along with several other matters, to a second part of the judgment.
That second judgment (the subject of this brief) addresses the applicability of MACA rights to the beds of navigable rivers, overlapping CMT claims, the status and mandate of applicant groups, and how the correct approach to factors relevant to the “exclusive use and occupation” requirement of CMT, including the relative weight to give evidence of physical control compared to spiritual and cultural connection.
Concurrently to these proceedings, the government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, which it states returns the test for CMT to the original intent of Parliament. The Select Committee reported on the Bill in December 2024 and is currently awaiting its second reading.
The case
Customary rights in “navigable rivers” not extinguished
The area encompassed in one of the CMT orders made in the High Court included the mouths of two rivers. MACA recognised that CMT in the coastal marine area could extend up to 1 km up river. However, CMT and PCR could not be recognised where the underlying customary rights had been extinguished by law.
The Attorney-General submitted that customary rights in navigable rivers had been extinguished by s 261(2) of the Coal Mines Act 1979. Section 261(2) of the Coal Mines Act 1979 deemed that, unless the Crown had granted property rights in the riverbed, the riverbed “shall remain and be deemed to have always been vested in the Crown.” It also confirmed that minerals, including coal, within such riverbeds were the Crown’s “absolute property”.
The High Court held the section did extinguish customary rights. The Court of Appeal did not consider the issue, holding that even if customary rights had been extinguished, they were revived by s 11(3) of the MACA. The Attorney-General appealed, arguing the section vested beneficial ownership in navigable riverbeds in the Crown in a manner inconsistent with underlying customary rights.
The Supreme Court upheld the Court of Appeal’s decision, but on the basis that s 261(2) did not, as a matter of statutory interpretation, extinguish customary rights. Following Attorney-General v Ngati Apa (which concerned a similarly worded statute), the Court held the statutory language was insufficiently clear to extinguish customary title. It did not expressly extinguish such rights, nor did it do so impliedly. Notwithstanding its sweeping language, the court held that Parliament intended s 261(2) as the declaration of the common law principle that where the Crown granted land abutting a navigable river, it did not relinquish property rights (including mineral rights) up to the middle of the river.
The court relied on contextual clues, Parliamentary materials, and the Ngati Apa case to support this interpretation, which read limitations into s261(2) that are not contained in its text.
Because customary rights had not been extinguished, it followed that MACA recognition orders could extend to navigable rivers in the coastal marine area. The effect of this finding on the relevant CMT order was left to be dealt with by the High Court in a subsequent hearing.
“Shared exclusivity” affirmed
Te Upokorehe, a group claiming to be an iwi, sought CMT around Ōhiwa Harbour to the exclusion of the Te Whakatōhea iwi and its hapū, a claim disputed by those groups.
The Court of Appeal held the MACA allowed for joint management (or “shared exclusivity”) of overlapping CMT claim areas by different applicant groups, but that it did not provide for separate but overlapping claims. Te Upokorehe appealed.
The Supreme Court upheld the Court of Appeal’s decision, affirming the MACA definition of “applicant group” implicitly recognised the complex inter-relationships between the rights of local iwi, hapū, and whānau groups. Separate but overlapping claim areas were inconsistent with MACA, and would cause significant practical difficulties for third parties (given that CMT confers quasi-property rights).
Accordingly, the court dismissed Te Upokorehe’s appeal.
Flexible approach to “applicant group”
The MACA defines applicant group as “one or more iwi, hapū, or whānau groups”. To obtain PCR or CMT in a particular area, the applicant group must establish they meet the statutory requirements for those rights as a collective.
Applicant group status was an issue in three of the appeals heard by the Supreme Court.
WKW appeal
Applicant group Whakatōhea Kotahitanga Waka(“WKW”) sought CMT and PCR on behalf of the iwi Te Whakatōhea. Hapū of Te Whakatōhea initially supported the claim, but subsequently withdrew their support, and challenged WKW’s claim for recognition orders on behalf of the entire iwi.
The Supreme Court, upholding the Court of Appeal, held that whatever the practical benefits of having an unfragmented, iwi-wide recognition orders, the withdrawal of hapū mandate meant the WKW appeal was no longer seeking recognition on behalf of the iwi, and therefore no longer an applicant group.
Ngāti Muriwai appeal
Ngāti Muriwai applied for recognition orders as a hapū of the Te Whakatōhea iwi. Other hapū argued that Ngāti Muriwai was not an applicant group as it was not a distinct hapū within the iwi.
The lower courts rejected Ngāti Muriwai’s application because they had not been a distinct hapū of Te Whakatōhea at 1840. Ngāti Muriwai appealed.
The Supreme Court allowed the appeal. Even if Ngāti Muriwai did not meet the definition of hapū, it was still a “whānau group” per the definition of applicant group. Accordingly, it was entitled to participate in joint management of the claim area in combination with the iwi and other hapū. This would be the case even if Ngāti Muriwai could not independently establish that it met the requirements for CMT or PCR in the claim area.
Kutarere Marae appeal
Kutarere Marae, formed in the 1930s from a number of disparate whānau unaffiliated to local hapū, sought recognition of their customary rights through negotiating with the Crown rather than court order.
The lower courts held that it was not an “applicant group” and could not pursue such negotiations. The Supreme Court overturned these decisions, holding that it was not the role of the courts to prevent any alleged applicant group from negotiating with the Crown.
Holistic approach to “exclusive use and occupation”
This group of appeals concerned applications by various local iwi and hapū (including Te Whakatōhea, Ngāti Awa, Ngāi Tai, and Te Whānau-ā-Apanui) for CMT over Whakaari/White Island and the nearby Te Paepae o Aotea. The lower courts rejected all the claims, placing weight on disputes between applicants over exclusivity and concluded that evidence of seasonal resource use, shared connections, and spiritual associations did not meet the requirement of continuous and exclusive use and occupation.
The Supreme Court reframed the test. Drawing on the first part of its judgment, it held that “exclusive use and occupation” must be assessed through a tikanga lens, and that it can be manifested not only by physical settlement but also by rāhui, spiritual authority, collective control, and enduring customary practice.
A key contextual factor in the claim area was that Whakaari and Te Paepae o Aotea were uninhabitable – this made reliance on Western notions of physical use and occupation less appropriate, and consequently greater weight could be given to spiritual and cultural connections with the claim area, provided these connections were “holistic” and demonstrated an exercise of mana over the area.
The lower courts, in adopting a less holistic approach that focused largely on inter-iwi disputes about seasonal fishing rights, had asked themselves the wrong question. The court therefore referred the matter back to the High Court for redetermination in line with the Supreme Court’s broader approach.
Result
Following determination of the appeals, the determination of customary rights claims for several applicant groups (Ngāti Muriwai, Kutarere Marae, and Te Kāhui in respect of Whakaari and Te Paepae o Aotea) and the effect of the navigable rivers judgment on the relevant CMT order were referred to the High Court for another hearing. The remaining appeals were dismissed
Implications
The decision affirmed several notable points about MACA from the first part of the judgment, including:
The rulings are likely to lead to further activity in the High Court, and increased complexity in granting and administering recognition orders. The holistic approach to “exclusive use and occupation” may make CMT orders easier to obtain. All of this, however, is subject to the passage of Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, currently awaiting its second reading. The Bill, if enacted, will result in a test for CMT that fundamentally differs from that adopted by the courts, with those changes taking effective retrospectively from 25 July 2024 (the date the Bill was announced by the Government).
More significant is the court’s judgment on navigable rivers, which is applicable beyond MACA. The court’s determination that customary title to navigable riverbeds was not extinguished by the Coal Mines Act, thereby raising the question of whether it has been extinguished at all. Future litigation on this point seems almost inevitable, inviting comparisons between this case and the Ngati Apa case in 2003 that preceded the Foreshore and Seabed Act. Whether this decision has the same significance as Ngati Apa remains to be seen.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Franks Ogilvie appeared alongside Jack Hodder KC for the Landowners' Coalition in this matter.
