Tau v Attorney-General - [2021] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-534

[2021] NZHC 3108

BETWEEN
RAWIRI TE MAIRE TAU AND OTHERS

First Plaintiff

AND

TE RŪNANGA O NGĀI TAHU

Second Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: (Determined on the papers)

Counsel:

C F Finlayson QC, J W J Graham and R M A Jones for Plaintiffs M G Colson QC and L Theron for Defendant

S P Jerebine and C S S Woodhouse for Environmental Defence Society Inc in watching brief capacity

N J Edwards for Federated Farmers of NZ Inc in watching brief capacity

Judgment:

18 November 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

TAU & OTHERS v ATTORNEY-GENERAL [2021] NZHC 3108 [18 November 2021]

[1] The plaintiffs seek declarations as to their rights in relation to wai māori (freshwater) that are grounded in tikanga – or in the Ngāi Tahu dialect tikaka – specifically their rangatiratanga and their entitlement to exercise such rights pursuant to pūtake-mauka / rangatiratanga entitlements.1

[2] The following declarations are sought in the first cause of action which is based on the asserted rangatiratanga over wai māori rights:

(a)A declaration that Ngāi Tahu has pūtake-mauka / rangatiratanga entitlements to wai māori.

(b)A declaration that the present freshwater legislative and regulatory regime constrains and encumbers the exercise by Ngāi Tahu of its pūtake-mauka / rangatiratanga entitlements.

(c)A declaration that the Crown ought to design and implement in co-operation and partnership with Ngāi Tahu a regime for the regulation, governance and allocation of wai māori that recognises, safeguards and accommodates pūtake-mauka / Ngāi Tahu rangatiratanga entitlements over wai māori within its takiwā.

(d)A declaration that, in order to comply with its obligations, the Crown ought not to develop or implement any legislation or policy which would further constrain or encumber pūtake-mauka / Ngāi Tahu rangatiratanga entitlements.

[3] The plaintiffs submit declarations (b) to (d) will only have to be considered if it is found that they hold rangatiratanga rights in relation to wai māori, that is, they are dependent upon the plaintiffs being granted declaration (a).

1 In a glossary annexed to the amended statement of claim pūtake-mauka is defined as: “a unique Ngāi Tahu term used to refer to the ancestral source of one’s rights upon the landscape whether it be the land, waterways or other taonga.”

[4] In this application the plaintiffs seek an order that the following issue be determined by way of preliminary question:2

Does Ngāi Tahu have pūtake-mauka / rangatiratanga entitlements to wai māori within its takiwā?

[5]Ngāi Tahu pleads that rangatiratanga means:

… sovereignty, chieftainship, right to exercise authority, chiefly autonomy. Derived from the concept of mana. Carries with it implications of authority, control and regulatory oversight, by the 19th century it evolved to mean the capacity to make law. Rangatiratanga was guaranteed to signatories of Te Tiriti o Waitangi. Under the Settlement Act, the Crown recognises Ngāi Tahu rangatiratanga.

[6]This definition of rangatiratanga is not accepted by the Crown.

[7]Ngāi Tahu pleads that, for…

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 [2021] NZHC 3108
Case: [2021] NZHC 3108
Decision Date: 18 November 2021

CaseChat Overview and Summary

The plaintiffs, Rawiri te Maire Tau and others, along with Te Rūnanga o Ngāi Tahu, sought declarations regarding their rights in relation to wai māori (freshwater) under tikanga. Specifically, they sought a declaration that Ngāi Tahu has pūtake-mauka/rangatiratanga entitlements to wai māori, and that the Crown should design and implement a regime for the regulation and allocation of wai māori in partnership with Ngāi Tahu, recognising their rights. The Crown disputed the existence of such rights, asserting that legislation and other actions had modified, suspended, or extinguished any rights asserted by the plaintiffs. The plaintiffs applied for a preliminary question to be decided: whether Ngāi Tahu has pūtake-mauka/rangatiratanga entitlements to wai māori within its takiwā. Associate Judge Lester considered the application, examining the interaction between the issues to be addressed at the first trial and those left for the second. The Court was concerned that to grant the application would involve a rejection of the Crown's submissions as to the effect of its positive defences, which would mean the Judge determining the preliminary question would have to confront afresh whether the proposition underlying the plaintiffs' application was correct. The Court found there were difficult demarcation questions between the issues to be addressed at the first and second trial, and that the application should be declined. The Court also considered other questions identified in Haden v Attorney-General, and found they did not favour the application being granted. The application was dismissed.

Orders