Water rights: Māori Council seeks precedent-setting court judgment

1:54 pm on 5 March 2020

The contentious fight for Māori water rights is ramping up a notch, as Māori groups prepare to take court action.

Suicide Prevention Australia and National Māori Authority chairman Matthew Tukaki.

Māori Council executive director Matthew Tukaki. Photo: RNZ / Rebekah Parsons-King

The Māori Council is the latest to announce that it is mounting a case for Māori water rights in the High Court.

It comes after the Waitangi Tribunal recommended litigation to get a definitive answer over who owns water once and for all.

Māori Council executive director Matthew Tukaki said the council had decided it would take a case to the High Court next month.

"For a lot of people, both inside and outside the Te Ao Māori world, it offers a sense of stability," he said.

"Instead of waiting and hoping or not knowing how this thing might happen - they are keen to see it go through the process.

"Because it just puts a circle around what has been an unknown in the world of water for many years now."

The council is after a precedent-setting judgment from the court and is working through the details of its case now.

The Waitangi Tribunal and the Supreme Court have both acknowledged Māori have first rights to freshwater, but that has not been backed up by government policy.

In August, the Tribunal released its report into the Freshwater and Geothermal Inquiry.

In a rare move, it recommended that someone take a test case to court to determine whether native title to freshwater still exists under New Zealand common law.

Tamaki Legal managing director Darrell Naden was involved in the tribunal inquiry and said Māori had a strong case if they took that route.

"We did extensive closing submissions on the common law and customary rights to freshwater, and one of the conclusions has been that there has been no statute in New Zealand yet that has extinguished customary rights to freshwater," he said.

"What that means is that customary rights to freshwater still stand, and that's the starting point."

Naden said this would be the first Māori water rights case of its kind - and it was gathering steam.

All eyes on test case for Māori rights

Tribunal claimant Maanu Paul revealed late last year that he is preparing a test case for the High Court too, and will meet with the Māori Council next week.

Maanu Paul

Tribunal claimant Maanu Paul. Photo: RNZ / Laura Bootham

His lawyer Janet Mason said she was getting a lot of interest in the case, and up to 20 of her other Māori client groups were considering being involved.

She also expected many iwi would be too.

Te Rarawa iwi leader Haami Piripi said they were considering the option.

"We made strong submissions to the Waitangi Tribunal about our customary ownership of water and we haven't had a good enough response from the Crown really to divert us from court," he said.

"We have been ignored for nearly 200 years in terms of our customary association and ownership of water.

"We don't think that is the best way to proceed because having an interest means we need to realise that interest for our future generations."

Piripi said he would speak further with other interested claimants and had to weigh up the cost of court action before making a decision.

"We think we are in a strong position, which is why we think the Crown has been adverse to acknowledging ownership and interest in water," he said.

"We are not going to give that up easy."

Environment Minister David Parker declined to be interviewed, but said it was within their right to go to court.

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Environment Minister David Parker. Photo: RNZ /Dom Thomas

He said the government's priority was improving water quality, then it would look into water allocation issues, but that would not be complete before the election in September.

Tukaki said as well as court action, the Māori Council would work on plans to improve water quality and address water allocation.

"I understand it is a big question for any government of whatever colour to come out with what could be a vexed discussion about water ownership in this country," he said.

"This is more a long haul one, but it is probably one of the biggest issues in Te Ao Māori that we will be facing in the kaupapa space than anything else."

Lawyer Janet Mason agreed this was a major issue, and said it would be a novel proceeding.

She said those interested were discussing the strongest case to put forward and more would be known within a month.

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