Retired High Court Judges Return To Rehear Major Customary Marine Title Cases
Two former High Court judges are returning to the bench under acting warrants to deal with unfinished business arising from New Zealand’s long-running customary marine title litigation.
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Chief Justice Dame Helen Winkelmann has announced that Justice Cheryl Gwyn has been appointed an Acting Judge of the High Court from 24 August 2026 until 23 August 2027, while Justice Peter Churchman will serve as an Acting Judge from 21 September 2026 until 30 June 2027.
The appointments were made by the Governor-General on the advice of the Attorney-General.
But these are not general-purpose appointments to help with an overcrowded court diary.
The announcement says the judges are being brought back specifically to rehear proceedings under the Marine and Coastal Area (Takutai Moana) Act 2011 over which they previously presided.
The Court says the rehearings are required because of statutory amendments and appellate decisions that have remitted matters to the High Court.
Parliament Changed The Rules
The background lies in the increasingly complicated litigation over what applicants must prove before obtaining customary marine title, or CMT.
The issue travelled through the courts in the Whakatōhea litigation, including Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui. The Court of Appeal’s decision was followed by a Supreme Court appeal concerning the proper interpretation of s 58 of the Marine and Coastal Area Act—the provision governing customary marine title.
In Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hāpū o Te Whakatōhea 2024 NZSC 164, delivered on 2 December 2024, the Supreme Court considered the statutory CMT test in litigation involving seven appeals.courtsofnz.govt+1
Parliament then amended the legislation.
The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Act 2025 received Royal assent on 24 October 2025 and came into force the following day, 25 October 2025,
The amendment altered the customary marine title test in s 58 and inserted a detailed definition of “exclusive use and occupation”. That definition requires a group or its members to have had both the intention and ability to control the relevant area, to the exclusion of others, throughout the relevant period without substantial interruption.legislation.govt+1
The existing requirement that the applicant group hold the area in accordance with tikanga remains part of the statutory CMT test. The 2025 legislation did not introduce tikanga as a wholly new, separate limb of the test; rather, it recast the exclusive-use-and-occupation requirement and created transitional arrangements for affected cases.legislation.govt+1
Those transitional provisions expressly permit the High Court to rehear affected applications.
That is how two judges who had effectively finished their ordinary High Court careers find themselves returning to exceptionally complicated litigation. Parliament, appellate courts and customary-title proceedings have combined to produce the judicial equivalent of being called back to the office after the farewell drinks.
Justice Cheryl Gwyn
Justice Gwyn retired from the High Court on 14 November 2025.courtsofnz.govt
Before joining the High Court in 2019, she was Inspector-General of Intelligence and Security, a role to which she was appointed in 2014.beehive.govt+1
Her public-law background is unusually strong. Gwyn was a Deputy Solicitor-General at Crown Law from 2003 to 2013 and then acting Deputy Solicitor-General from 2013 to 2014. In those roles she was responsible for Crown Law’s Attorney-General’s Group, including Treaty of Waitangi, constitutional and human-rights matters.
She began her private-practice career at Chapman Tripp and later became a partner at Russell McVeagh.
The Government’s original announcement of her High Court appointment provides further detail of her professional background.
Gwyn J subsequently became closely involved with the High Court’s MACA litigation.
Among the proceedings she heard were the Group M Wairarapa coastal applications, involving overlapping claims by groups including Te Hika o Pāpāuma, Ngāti Kere, Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua, Rangitāne and Ngāi Tūmapūhia-a-Rangi.
In Re Ngāi Tūmapūhia-a-Rangi Hapū Inc 2024 NZHC 309, Gwyn J considered the Group M Stage 1(A) customary marine title applications.
A later judgment, Re Ngāi Tūmapūhia-a-Rangi Hapū Inc 2025 NZHC 68, addressed wāhi tapu issues.
Gwyn J also issued a final Group M judgment in June 2025 after applying the Supreme Court’s decision in Whakatōhea Kotahitanga Waka (Edwards).
Her acting warrant therefore provides continuity in proceedings with which she already has extensive familiarity, rather than requiring another judge to absorb a formidable historical, expert and tikanga record from scratch.
Justice Peter Churchman
Justice Churchman has played a central role in the administration of MACA litigation.
The Courts’ MACA applications page records that the applications are centrally managed through the Wellington Registry under his oversight.
There are currently 201 active applications listed. Applications under the Act closed on 3 April 2017
Churchman was appointed to the High Court in 2017 after a career spanning commercial litigation, employment, environmental and public-law work.
His professional background included litigation practice at Anderson Lloyd, leadership of Kensington Swan’s national employment-law team, a move to the independent bar in 2005, and appointment as Queen’s Counsel in 2013.
His MACA involvement includes longstanding national case-management responsibilities and judicial work within the wider body of litigation that has produced major appellate decisions about the statutory regime.courtsofnz.govt+1
More recently, Churchman J decided the Ruapuke Island Group application in Re an application by Cain (on behalf of Landowners of Ruapuke Island Group) 2025 NZHC 2400. The decision, issued on 22 August 2025, granted customary marine title to the applicant group.
That decision was directly affected by the 2025 amendment legislation.
In a minute issued on 3 November 2025, Churchman J recorded that the new statutory transitional provisions meant the earlier decision “has no legal effect and never had legal effect”. He began the process for a rehearing of the application under the amended regime.
Why The Acting Warrants Matter
The appointments are more than an administrative footnote.
They expose the practical consequences of Parliament changing a governing legal test while a large body of litigation was already moving through the courts.
Judges have heard extensive historical, expert and tikanga evidence. Decisions have been delivered. Appeals have followed. Parliament has amended the legislation. Some applications and decisions must now be reconsidered under the amended statutory framework.
Bringing Gwyn and Churchman back provides the practical advantage of judicial continuity. Both already know the evidence, parties and procedural history of proceedings they will rehear.
It also illustrates how legally and procedurally unusual the MACA litigation has become.
The customary marine title regime has generated High Court decisions, competing appellate arguments, Supreme Court intervention, statutory amendments with significant transitional consequences, and rehearings before judges appointed under acting warrants.
For litigation based on applications filed before the statutory deadline of 3 April 2017, the finish line remains some distance offshore.
The Cases That Won’t Go Away: Gwyn And Churchman Return For MACA Rehearings
