Why Ngāi Tahu is seeking greater control of water in crucial court case

At present, water management is delegated by the Government to regional authorities.

Ngāi Tahu wants a system whereby it is involved as well in the management of its tribal area (takiwā) which covers much of the South Island.

It wants the court to order that a new system be co-designed between the Crown and Ngāi Tahu. The Crown is opposing the bid.

The court case was raised by the chairman of Te Rūnaga o Ngāi Tahu, Justin Tipa, in a speech on Waitangi Day at Ōnuku Marae attended by Prime Minister Christopher Luxon.

“Our claim is not about owning water,” Tipa said.

“It’s also not about challenging the Crown’s right to govern, or about legislated treaty principles, or whatever else people might claim.

“It’s about acknowledging that Ngāi Tahu – as an iwi and a collective legal identity – holds specific rights regarding freshwater in our takiwā, including the entitlement – and the obligation – to exercise authority over its responsible management.”

Ngaī Tahu’s rangatiratanga has been ignored for decades, and the state of freshwater in its takiwā has gotten worse.

“It’s not good enough. And we’re doing something about it. So, we’re going to court on that one. That’s the rule of law – another central plank of our constitutional monarchy.

“And on the other side of the trial, our hope is that we’ll be able to develop a solution that ensures we’re getting the highest and best use of our freshwater resources, for the benefit all New Zealanders.”

The case is expected to run for several weeks.

What is Ngāi Tahu claiming?

It is seeking declarations by the court including:

Declarations are akin to legally enforceable court judgments.

What is Ngāi Tahu not claiming?

It is not seeking ownership or title of any water bodies in its tribal area but a recogition of legal rights derived from rangatiratanga.

What are rangatiratanga entitlements?

They are the rights and obligations Ngāi Tahu seeks to have declared over freshwater in its tribal area. Ngāi Tahu says rangatiratanga is fundamentally a right to self-determination and to live according to traditions.

It includes chiefly authority over people and resources but also the duty to look after the resources. It is derived from its ancestral authority, not from the Treaty of Waitangi or the 1998 law enshrining the Ngāi Tahu settlement but rangatiratanga is confirmed in both the Treaty and Act. Ngāi Tahu argues that rangatiratanga cannot be extinguished although it can and has been constrained by the Crown’s laws on water.

Ngāi Tahu sought to have water included in its negotiations in the 1990s ahead of the settlement but the Crown had made it clear it was off the table.

While the Ngāi Tahu Claims Settlement Act 1998 is for historical claims (before September 21, 1992), it also heralded a new era of co-operation between the Crown and Ngāi Tahu, besides which, its claim before the court is a contemporary claim in a modern post-settlement world.

What is the essence of Ngāi Tahu’s case?

Successive Governments have acknowledged that Māori have rights and interests in water but Ngāi Tahu would argue that they have largely been empty words, with little to show for it, and with no recognition of its rangatiratanga over it.

With tikanga being part of the New Zealand common law, it provides the basis for the recognition of rangatiratanga entitlements.

Under the current regulatory regime, the quality of rivers, lakes and groundwater has been degraded, polluted, over-allocated or has been significantly changed.

Ngaī Tahu is consulted by local authorities on water issues but so are other members of the public and nothing in the current set up, including the concept of Te Mana o Te Wai, is a partnership or recognises its rangatiranga. It still allows others to set the rules.

That’s why it wants the court to order the Government to work with it to design a new system that involves Ngāi Tahu in regulation, governance and allocation of freshwater in its areas that will restore the health of the waterways.

What is the essence of the Crown’s objection?

The Crown is expected to argue that the claim is that there is nothing to rule upon. There has been no decision, policy, statute or real dispute at the heart of the case and the court is being asked to declare legal rights based on a broad concept of rangatiratanga, which can mean different things at different times.

The Crown is likely to argue that the court is effectively being asked to tell the Government and the Parliament to develop law with Ngāi Tahu and that crosses the line of non-interference by courts. Comity requires the courts and Parliament to stay in their lanes.

The case may well include submissions on the extent to which tikanga can shape the law, whether it can be the source of legal rights, whether it simply needs to be considered, and whether it can gazump statute.

The Crown’s position is that its settlement with Ngāi Tahu was comprehensive and included water.

What would happen if Ngāi Tahu won the case?

The case is limited to freshwater in Ngāi Tahu’s tribal area but success in the court would have wide-reaching political ramifications and force a major rethink on water management policy.

Ngāi Tahu is not looking for a so-called pan-Māori settlement that would cover all of New Zealand. But the Government could hardly ignore the implications for the rest of the country if Ngāi Tahu won.

The Crown could well appeal to the Court of Appeal and the Supreme Court, as could Ngāi Tahu if it lost.

Who are the key players in the case?

The claim was lodged in October 2020 and has 15 tribal leaders as named plaintiffs including Sir Tipene O’Regan. The first plaintiff and leading witness is Rawiri Te Maire Tau, an expert in Ngāi Tahu tikanga and history, and a professor of history at Canterbury University.

Ngāi Tahu’s main lawyer is former Attorney-General Christopher Finlayson KC who returned to the law after retiring from politics in 2019. He acted for Ngāi Tahu before he entered politics.

The case in being heard by Justice Melanie Harland. She was appointed a District Court judge in 2007, specialising in resource management cases heard in the District Court. She was made an Environment Court judge in 2009 and was appointed to the High Court in 2021.

The Crown’s barrister is Mike Colson KC. He is likely to call key Government officials to give evidence on water management in New Zealand and the steps taken to increase the involvement of Māori in it.

How is water regulated now?

Under the Resource Management Act, the Government has delegated authority to regional councils to manage water consents and allocation. The Government has also produced a national policy statement on freshwater management giving specific directions including obligations under the concept of te mana o te wai, which prioritises the health of water bodies. It also requires that tangata whenua are actively involved in freshwater management (including decision-making processes), and that Māori freshwater values are identified and provided for. And it says every regional council must include an objective in its regional policy statement that describes how the management of freshwater in the region will give effect to te mana o te wai.