Sasha Borissenko: A deep dive into Ngāi Tahu's court case on South Island water guardianship

The Clutha River. Photo / Supplied

OPINION:

In a legal first, South Island iwi Ngāi Tahu lodged a statement of claim in the Christchurch High Court last week seeking recognition of "rangatiratanga" over all freshwater in the Ngāi Tahu takiwā (region). The area covers all of the South Island up to the White Bluffs, southeast of Blenheim.

Rangatiratanga as a concept can be translated to mean leadership, authority, or autonomy for example, but it is not ownership, it is a practice with rights, responsibilities and obligations.

Here, Te Runanga o Ngāi Tahu, the representative body of Ngāi Tahu, and 15 tribal leaders have asked the courts to make declarations that the iwi have shared authority with the Crown over policy and management of the waterways. It also seeks costs, as well as declarations that recognise the Crown's failings, namely breaching its good faith obligations.

The move comes after years of trying and failing to engage with the Crown in order to fix degradation of rivers and lakes caused by what could be described as environmental mismanagement. In its submission on the Action for Healthy Waterways Discussion Document to the Ministry for the Environment for example, the iwi said:

"Our waters are in crisis and our people who actively mahinga kai have consistently expressed their concerns about the state of our waterways for decades. With rangatiratanga comes kaitiakitanga. Therefore, Ngāi Tahu whānui has a collective responsibility to seek action to protect and restore all of its waters."

A bit of history

According to the Statement of Claim Ngāi Tahu has exercised the rights, responsibilities and obligations of rangatiratanga in the area from before 1840 to the present day. It was recognised and guaranteed by Article II of Te Tiriti o Waitangi.

The Crown and iwi settled historical grievances in a Deed of Settlement signed November 21, 1997. The Deed of Settlement was given effect by the Settlement Act by way of an apology, which recognised Ngāi Tahu as tangata whenua of, and as holding rangatiratanga within, the takiwā of Ngāi Tahu Whānui.

There have also been a number of times where the state has outlined and promised to resolve issues.

For example, a June 2004 Ministry for the Environment working paper stated that: "Māori have particular interests in freshwater in New Zealand, arising out of their traditional interests and the guarantees contained in the Treaty of Waitangi. The strength of these interests is not always reflected in water management and allocation decisions."

"One possible risk management approach is a process which seeks to engage Māori on broader water allocation issues in a manner which gives proper weight to the Crown-Māori relationship, and encourages the exploration of solutions which address the interests of all parties."

Similar sentiments were expressed in a 2006 Cabinet Policy Committee paper by the Minister of Agriculture and Minister for the Environment and Forestry; a July 2008 Ministry for the Environment document entitled Proposed National Policy Statement for Freshwater Management; a 2009 Cabinet Paper entitled New Start for Freshwater; a June 2009 document prepared for the Ministry of the Environment entitled Māori Perspectives on Water Allocation; and the November 2011 Briefing for Incoming Minister for the Environment and Minister for Climate Change Issues, for example.

In the 2013 case of NZ Māori Council v Attorney-General, the Supreme Court cited Crown statements that it was "open to discussing the possibility of proprietary rights in water, short of full ownership" and expressly committed to achieving "recognition of and redress for Māori rights and interests in water and geothermal resources".

And more recently, the May 2020 Ministry for the Environment Document entitled Action for healthy waterways – Information for Iwi and Māori, stated that "The Crown intends to conduct further engagement with Māori on freshwater policy more broadly."

Crown fails to walk the talk

But since 1840, Ngāi Tahu claims the exercise of rangatiratanga has been "constrained and encumbered by legislation and policies of the Crown".

They point to the Resource Management Act and National Policy Statement for Freshwater Management 2020, which "does not recognise, safeguard, or provide for Ngāi Tahu to exercise its authority to regulate, govern, or allocate; ensure the waterways' ongoing sustainability and quality, for the benefit of present and future generations; enjoy its right to development; and live according to customs and traditions".

The matter is also of international significance insofar as the United Nations Declaration on the Rights of Indigenous Peoples calls upon states to give legal recognition and protection to indigenous lands, territories, and resources.

"By failing to recognise, safeguard and accommodate pūtake-mauka/Ngāi Tahu rangatiratanga entitlements over wai Māori, the Crown has failed to act towards Ngāi Tahu reasonably and with the utmost good faith in a manner consistent with the honour of the Crown and its role as Treaty partner," the Statement of Claim reads.

Why now?

Why might this case be so significant, seeing as there has been a lot of talk and little action? Cue the Waitangi Tribunal freshwater inquiry Stage Two report of last year.

Presiding officer Chief Judge Wilson Isaac said the Resource Management Act and subsequent policies failed to meet Treaty of Waitangi standards.

"The [Resource Management Act] has allowed a serious degradation of water quality to occur in many ancestral water bodies, which are now in a highly vulnerable state."

Additionally it was found that the Act did not provide adequately for the rangatiratanga of iwi and hapū over their freshwater tāonga.

The tribunal suggested there would need to be a test case before the courts to determine whether native title in freshwater exists.

In other words, it is now, or never. And the High Court will now appoint a date for the preparation and presentation of evidence.