Unable to persuade the council to amend the plan, which was released in 2017, the iwi took its objection to the Environment Court.
Although the Environment Court made some other changes to the Freshwater Plan as sought by the trust, those were not on the key issues.
The court ruled it did not have the jurisdiction to direct the council to include provisions in the plan, recognising and providing for proprietary interests. And, even if there were such jurisdiction, there was insufficient evidence before the court to establish that TWK had an unextinguished customary or native title over the bodies of fresh water in its rohe, the Environment Court said.
It also ruled there was no power under the Resource Management Act (RMA) that enabled the Environment Court to require the council, through provisions in its plan, to resource the trust with technical and financial assistance in relation to freshwater issues.
The trust appealed to the High Court but it upheld the earlier court’s findings and noted it was restricted to dealing with an error of law — reflective of Parliament’s intention that the factual decision-making be left to the expertise of the Environment Court, which comprised in this case an Environment Court judge, a Māori Land Court judge and the Environment Commissioner.
The trust challenged the Environment Court’s finding that it didn’t have the jurisdiction to rule on the issue of native title. While that was an issue of law, it was not something on which the Environment Court had erred, Justice Christine Grice found.
She agreed with the Environment Court that while the time may have come for a test case in relation to the issue of native title in the context of freshwater resources, neither that court nor the High Court on appeal had the jurisdiction to consider that issue.
The Court of Appeal was of the same view. It said it was not seriously arguable that the jurisdictional finding was in error and therefore an issue as to the correct approach under the RMA to assess evidence of proprietary rights in fresh water was academic and did not justify the grant of leave to appeal.
In a decision released this month, the Appeal Court said: “It is apparent from the title of the RMA, its purpose, and its overall scheme, that the focus of the legislation is on the management of natural and physical resources, not the underlying ownership of such resources . . .
“. . . As both the Environment Court and the High Court observed, this can be contrasted with the framing of the Marine and Coastal Area (Takutai Moana) Act 2011, which sets out a regime specifically designed for the legal recognition of customary interests in the marine and coastal area,” the Appeal Court said.
It noted the jurisdiction finding was also strongly supported by the legislative history of the RMA, which was summarised by the Waitangi Tribunal in The Stage 2 Report on the National Freshwater and Geothermal Resources Claims.
The tribunal observed that Māori had raised the issue of ownership of natural resources “constantly throughout the resource management law reform process between 1988 and 1990”. The Government, however, elected to exclude ownership of resources from the scope of the legislation, on the basis that ownership issues would be addressed separately. Instead, the
RMA would only “regulate” the use of resources.
The tribunal ultimately concluded that the RMA was “ . . . in breach of treaty principles because the Crown refused to recognise Māori proprietary rights during the development of the Act . . . The result is that the RMA does not provide for Māori proprietary rights in their freshwater taonga”.
Acknowledging those conclusions reached by the Waitangi Tribunal, the Appeal Court said the trust’s proposed appeal was not the appropriate vehicle to revisit the law reform process or provide a remedy for any breach of the Treaty of Waitangi. The appropriate course was via other legal or political avenues.
Meanwhile, Te Whanau a Kai Trust chairman David Hawea says naturally the trust is disappointed with the courts’ decisions. He said the struggle so far had felt like a David and Goliath situation. However, the trust’s legal advisers strongly believed the courts are wrong. The trust was now exploring other avenues to get its proprietary rights recognised.
The (High) Court “totally misread” the submissions on evidence of proprietary ownership and was “too focused on what it believed”.
Asked whether the trust felt the proposed reform of the RMA might hold more promise for recognition of iwi proprietary rights over natural resources, Mr Hawea said no. He envisioned it would be like the situation that has arisen with the replacement of the Foreshore and Seabed Act 2004 with the Marine and Coastal Area Act 2011 (MACA). The MACA provided the ability for those losing property rights to challenge the Act and consequently the
New Zealand coastline had since been claimed by iwi and hapū around the entire country. However, the Crown still had “wriggle room” under the new legislation
to “usurp authority”, as it had always done.
