The landmark case, lodged by Ngāi Tahu in 2020, finished eight weeks of hearings in the High Court at Christchurch yesterday before Judge Melanie Harland.
Ngāi Tahu’s case calls for declarations to be made by Judge Harland about the iwi’s rights to rangatiratanga (chiefly authority) over wai Maori (freshwater) in its takiwā (territory).
The objective was to enable the iwi to work with the Crown on freshwater management to stop and reverse widespread degradation of rivers and lakes.
Speaking to a packed courtroom, the iwi’s barrister Chris Finlayson, KC, said yesterday that the case had been brought on behalf of "all who wish to be able to swim, fish and drink in our lakes and rivers."
The iwi was "out of other options" when fighting to end degradation of wai Māori, which had continued since the Resource Management Act.
Throughout the hearings, the iwi’s legal team stressed it was not seeking to ride roughshod over parliamentary powers and laws.
The team also stressed the purpose of the Ngāi Tahu Claims Settlement in 1998 was to give recompense and a state apology for past wrongs and not prevent ongoing iwi rights that needed to be deployed now for the sake of waterways.
Mr Finlayson, a former attorney-general, said Ngāi Tahu had not come to the court "to flex their muscle" as one of the largest and earliest settling iwi.
"They are not here seeking to reopen their settlement. They are not here to try to do a better deal for their historical grievances. They are here because there is an imbalance in our law and a crisis in our water."
The RMA’s stated purpose is to sustain and safeguard the "life-supporting capacity" of freshwater. However, the court heard evidence during the hearings about waterway degradation.
Senior research fellow at Victoria University of Wellington Mike Joy and associate professor at University of Canterbury’s Ngāi Tahu Research Centre Tim Chambers were among academics who spoke for the defence.
They were cross-examined by Federated Farmers, an intervening party that argued Ngāi Tahu rights had been ended by legislation.
The Crown’s legal team had also argued in its closing submissions earlier this week that rangatiratanga and draft declarations proposed by Ngāi Tahu for Judge Harland’s consideration were vague and existing laws and powers of Parliament presided.
The Crown gave an example that someone could not claim rights to a piece of land if they did not have a title to it.
Mr Finlayson had responded, saying the case was "not dealing with hypothetical rights".
Declarations by the judge about existing rights would not interfere with laws and could facilitate negotiation in the "interests of the crown, Ngāi Tahu and everyone else".
The RMA rule book had not safeguarded Ngai Tahu ability to exercise its rangatiratanga but also did not extinguish it rights, which were affirmed in the Treaty of Waitangi.
The threshold for exclusion of rights was a high one that had not been met by any legislation, Mr Finlayson said.
"If you are going to extinguish rights it has got to be plain as a pikestaff ... it would have needed to have been done so unequivocably and expressly and it has not done so."
He agreed it was a complex and sensitive matter but this should not prevent declarations by Judge Harland if she was satisfied she had jurisdiction.
Judge Harland said her decision would "not be easy" and she hoped to rule within months.
