Native Title and Freshwater Rights

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Environmental / Resource Management

Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115

This appeal raised significant questions of law concerning the jurisdiction of the Environment Court and whether native title extends to freshwater.

Te Whānau a Kai appealed the Gisborne District Council’s decision in respect of submissions on the proposed Gisborne Regional Freshwater Plan (Freshwater Plan). The appeal sought amendments to the Freshwater Plan to recognise the customary (including proprietary) interests of Te Whānau a Kai in freshwater within its rohe, and by so doing, that its interests in those waters be taken into account in all decision making. The key issues and the Court’s findings are summarised below.

Can the Court direct the inclusion of provisions in the Plan which recognise and provide for the exercise of proprietary interests in freshwater?

The Court considered that the statutory framework of the Resource Management Act 1991 does not enable the Environment Court, or the Council, to recognise and provide for a proprietary right or interest in freshwater of the kind claimed by Te Whānau a Kai. Whilst the Court accepted in principle that a Māori claim to customary propriertry rights or aboriginal title in a freshwater body could be recognised under the New Zealand common law, the Environment Court lacks the inherent jurisdiction of the High Court to determine unresolved questions as to the application of native title to freshwater.

Does Te Whānau a Kai have unextinguished native title (and proprietary interest) in the freshwater bodies in its rohe?

The Trust produced expert evidence which was directed towards establishing that Te Whānau a Kai held an unextinguished customary title to freshwater. The Court noted that the regualtion of freshwater does not equate to an extinguishment of customary title. However, it was held that even if the Environment Court had the appropriate jurisdiction, the expert evidence was insufficient to establish unextinguished customary or native title to freshwater in the Trust’s rohe without site specific evidence of continuity of connection and use under tikanga.

Can the Court direct the inclusion of provisions in the Plan that require the Council to provide technical and financial assistance and resourcing to Te Whānau a Kai?

The Court did not consider it the role of the Environment Court to direct a local authority, through the addition of new objectives to its Plan, as to how it should allocate, or to whom it should direct resources. While RMA provisions for consultation require the Council to be satisfied on certain matters, the Court held that there is no legislative authority to direct that the Council provide resourcing.

Are the other plan amendments sought by Te Whānau a Kai appropriate?

Whilst much of the relief sought by the Trust was declined, several other changes to the Plan were approved to foster a stronger Māori voice in future collaboration with the Council. The approved changes to the Freshwater Plan came in the form of new definitions and amendments to the objectives, policies, methods, and rules of the Plan which give explicit recognition to the kaitiaki role of iwi and hapū.

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