Tau v Attorney-General - [2024] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-534

[2024] NZHC 1741

BETWEEN
RAWIRI TE MAIRE TAU ET ORS

First Plaintiffs

AND

TE RŪNANGA O NGĀI TAHU

Second Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

AND

THE TRUSTEES OF THE TĀTAU TĀTAU O TE WAIROA TRUST

Proposed Intervenor

Hearing: 12 June 2024

Appearances:

(Hon) CF Finlayson KC, JWJ Graham and XY Lau for the Plaintiffs

MG Colson KC and JB Watson for the Defendant
MK Mahuika and TL Thoms for Tātau Tātau o Te Wairoa Trust

Judgment:

27 June 2024

JUDGMENT OF HARLAND J

(Application for Intervention by Tātau Tātau o Te Wairoa Trust)

Introduction

[1] The trustees of the Tātau Tātau o Te Wairoa Trust (the Trust) have applied to join this proceeding as an interested party on specific terms. The plaintiffs support the application. While initially opposing the application, by the time of the hearing, the defendant did not oppose the application being granted but sought to limit the amount of evidence the applicants wish to present to the Court.

TAU v ATTORNEY-GENERAL [2024] NZHC 1741 [27 June 2024]

[2]I have decided to grant the application on the conditions that appear in para

[26] below. This judgment sets out my reasons for doing so.

Background

[3] The plaintiffs proceeding comprises an application for four declarations sought under the Court’s inherent jurisdiction. In their amended statement of claim dated 7 September 2021, the plaintiffs advance two causes of action, namely that:

(a) Ngāi Tahu has pūtaki-mauka/rangatiratanga entitlements over wai māori in its takiwā; and

(b) the Crown has a relational duty of good faith to Ngāi Tahu to work in cooperation and partnership to design and implement a regime for the regulation, governance and allocation of wai māori that recognises, safeguards and accommodates the rights and interest of Ngāi Tahu in wai māori in its takiwā.

[4] The defendant has filed a statement of defence which includes five affirmative defences. Mr Finlayson KC, for the plaintiffs, submitted that the defendant’s statement of defence has put in issue and therefore requires the plaintiffs to prove what rangatiratanga is and what it means. As the concept of rangatiratanga is at the core of the plaintiffs’ case, Mr Finlayson submitted this engages the need for evidence about tikanga as a high level concept as well as evidence of tikanga as it specifically concerns and relates to the plaintiffs entitlements, rights and interests over wai māori in its takiwā.

[5]The affirmative defences raised by the defendant include that:

(a) legislation has been enacted which has given the Crown the right to control and use freshwater;

(b) some or all of the rights asserted, if they exist, have been modified, suspended or extinguished as they relate to water;

(c) the claims in this proceeding are, in substance, the same as claims settled pursuant to the Ngāi Tahu Deed of Settlement;

(d) Ngāi Tahu is estopped from seeking a different response to the claims in the Deed of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tau v Attorney-General

Details

AGLC: Tau v Attorney-General [2024] NZHC 1741
Case: [2024] NZHC 1741
Decision Date: 27 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tau v Attorney-General was heard, involving Rawiri Te Maire Tau and others, as well as Te Rūnanga o Ngāi Tahu, as plaintiffs, against the Attorney-General, with the Trustees of the Tātau Tātau o Te Wairoa Trust seeking to intervene. The case revolves around claims of Ngāi Tahu's pūtaki-mauka/rangatiratanga entitlements over Māori water in their takiwā and the Crown's relational duty of good faith to cooperate in the regulation and governance of Māori water. The defendant contested the plaintiffs' claims with several affirmative defences, including the assertion that legislation had already granted the Crown control over freshwater and that some rights had been extinguished. The court had to decide whether the Trust should be allowed to intervene in the proceedings and, if so, under what conditions.

The court granted the application for intervention, permitting the Trust to file four affidavits, each not exceeding 20 pages, and to submit written evidence of the same length. The Trust's counsel was also allowed to attend the hearing and other court proceedings. The court reasoned that the Trust's intervention was justified as the outcome of the case would likely affect their rights and interests in Māori water. The court noted that the Trust's perspective would provide a broader understanding of the issues involved, particularly regarding tikanga considerations. While the Crown did not oppose the intervention, it argued for limiting the Trust's evidence to one affidavit. The court, however, found that the Trust's broader and specific evidence was relevant and could be accommodated within the hearing time.

The final orders of the court were that the Trust could intervene and submit the specified evidence and written submissions, and that their counsel could participate in the proceedings. This decision allows the Trust to present its perspective on the broader tikanga landscape and the specific issues related to Lake Whakakī, the Wairoa River, and inland water bodies in Te Rohe o Te Wairoa.

Orders