Tau v Attorney-General

[2022] NZHC 2604

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000534

[2022] NZHC 2604

BETWEEN

RAWIRI TE MAIRE TAU

First named First Plaintiff

AND

TIPENE GERARD O’REGAN

Second named First Plaintiff

AND

EDWARD WELLER ELLISON

Third named First plaintiff

AND

DAVID THOMAS HIGGINS

Fourth named First Plaintiff

AND

MICHAEL RICHARD SKERRETT

Fifth named First Plaintiff

AND

DAVID TOHURANGI ELLISON

Sixth named First Plaintiff

AND

TEWERA EDWIN KING

Seventh named First Plaintiff

AND

RICHARD RANGI WALLACE

Eighth named First Plaintiff

AND

JOHN ARTHUR HENRY

Ninth named First Plaintiff

AND

ELIZABETH ROWELLYN BROWN

Tenth named First Plaintiff

AND

FRANCOIS DENNIS TUMAHAI

Eleventh named First Plaintiff

AND

JAMES MASON RUSSELL

Twelfth named First Plaintiff

AND

NICHOLAS GRAHAM METZGER

Thirteenth named First Plaintiff

TAU v THE ATTORNEY-GENERAL [2022] NZHC 2604 [10 October 2022]

AND

RANGI THEODORE BUNKER

Fourteenth named First Plaintiff

AND

REI VEITCH SIMON

Fifteenth named First Plaintiff

AND

TE RUNANGA O NGĀI TAHU

Second Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

AND

FEDERATED FARMERS OF NEW ZEALAND

Intervener

AND

ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED

Intervener

AND

NEW ZEALAND FISH AND GAME COUNCIL

Non Party

Hearing:	12 September 2022
Appearances:	C F Finlayson KC, J W J Graham and X Y Lau for Plaintiffs L Theron and J B Watson for Defendant (by VMR)
Judgment:	10 October 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 10 October 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Table of Contents

Para No

What is the claim about, and not about?	[9]
The Crown’s defences	[17]
The law	[19]
The disputed categories	[22]
Category 6	[26]
Ministry of Justice	[28]
Documents of senior officials	[29]
The date range and cl 6.10	[40]
Category 7	[50]
Relevant agencies	[51]
Documents of senior officials	[54]
Categories 8 and 9	[56]
Transfer of proceeding to a High Court Judge	[63]
Timetabling	[70]
Result	[73]

[1]                  Ngāi Tahu1 claims rangatiratanga and pūtake-mauka2 rights and entitlements in their takiwā3 in relation to wai māori (fresh water). It says wai māori is a taonga and the assertion of its rights and entitlements is grounded in tikaka4 and riteka5. It contends these rights and entitlements have been constrained, encumbered, eroded, or removed by the conduct of the Crown and seeks declarations to recognise, restore or accommodate them.

[2]                  Since November 2021, when the Court dismissed an application by Ngāi Tahu to have the existence of its pūtake-mauka and rangatiratanga entitlements determined as a preliminary question,6 the parties have been attempting to reach agreement on the terms of a tailored discovery order. They have had a good deal, but not complete, success in this regard.

[3]                  There is agreement in relation to five categories of documents and disagreement in relation to four others.

[4]                  Attached as schedule 1 are the five tailored discovery categories upon which the parties are agreed.

[5]                  Attached as schedule 2 are the four disputed categories of documents. The differences between the parties…