Freshwater Litigation

In 2020 Ngāi Tahu filed a statement of claim in the High Court seeking recognition of its rangatiratanga (tribal authority) over wai māori (freshwater) in the Ngāi Tahu Takiwā (tribal area). The trial took place in the Christchurch High Court for eight weeks from February to April 2025. The Ngāi Tahu freshwater claim involved the presentation of extensive evidence demonstrating:

• the ongoing exercise of rangatiratanga by Ngāi Tahu in relation to freshwater across its takiwā;
• the degraded state of freshwater, risking both ecological and human health;
• the failure of successive governments to address these issues in partnership with Ngāi Tahu;
• International examples of indigenous water rights being recognised and exercised to the benefit of communities and the environment.

A decision is pending.

Ngāi Tahu took this action because we believe the Crown has failed to protect freshwater; the current system is not sustainably managing freshwater across the takiwā.

Mahinga kai (traditional food-gathering) is central to our cultural identity. However, freshwater throughout the takiwā is so severely degraded that it's no longer safe to undertake mahinga kai activities, eat the kai we gather, and pass on these traditions to future generations. This degradation has rapidly increased over the last three decades since the Ngāi Tahu Settlement and the Resource Management Act.

During Ngāi Tahu Settlement negotiations freshwater was ‘parked’ for another day because it was thought to be too complex at the time. However, the Settlement did recognise Ngāi Tahu as tangata whenua and holding rangatiratanga over their takiwā and a formal apology committing to a ‘new age of co-operation’ was made.

The Waitangi Tribunal and Crown has repeatedly recognised Māori freshwater ‘rights and interests’, but this has not been translated into policy and implementation.

Ngāi Tahu has been involved in most central government consultations and working groups on freshwater. We’ve also been involved in plan reviews and changes, resource consents hearings, and local catchment and restoration groups. However, these processes have been costly and challenging for Ngāi Tahu to participate in, and have not turned the dial on freshwater outcomes. Ngāi Tahu had no option but to take on this claim.

The case asks the Court to make declarations. Declarations are statements about legal rights. The declaration sought can be summarised as:

• Ngāi Tahu has rangatiratanga over freshwater in our takiwā, but the way freshwater is currently regulated in New Zealand constrains our exercise of rangatiratanga.
• The Crown has an obligation to accommodate Ngāi Tahu rangatiratanga over freshwater and ought to design and develop in partnership with Ngāi Tahu a framework for the regulation, governance and allocation of freshwater in the takiwā.

What is rangatiratanga over freshwater?

Rangatiratanga is about rights but is also about the exercise of responsibilities and obligations over freshwater as people who have lived alongside our rivers and lakes for centuries.

Rangatiratanga involves the ability to care for freshwater for the benefit of present and future generations, aspects of regulating freshwater use and development in accordance with tikanga, and the ability to exercise practices and values that define Ngāi Tahu culture.

Ngāi Tahu respects parliamentary sovereignty (or the Crown’s kāwanatanga / ability to govern). This case seeks to reconcile rangatiratanga and kāwanatanga to find a way for Ngāi Tahu and the Crown to work together on freshwater issues.

Is the case about ownership of wai māori? Is it focused on particular water bodies?

No. It is important to note that this is not a case about the ownership of freshwater, title to river or lake beds, or customary title to specific waterways. The case is about wai māori as a resource generally. It is about our ability to exercise our rights, but also our responsibilities and obligations over freshwater as a natural resource.

Is this a case about the Resource Management Act (RMA)?

No. The case is more constitutional in nature. The RMA is an example of how Ngāi Tahu rangatiratanga has been constrained by the Crown, and how the Crown’s existing legislative frameworks have failed to protect the health and wellbeing of freshwater. A new system for freshwater governance and management ought to be designed in partnership with Ngāi Tahu.

Is this a case about Mahinga Kai?

The case is about freshwater. The case is not about rights to mahinga kai, aspects of which have already been addressed in the Ngāi Tahu Treaty Claims Settlement. However, mahinga kai requires healthy freshwater habitats therefore our evidence did cover the importance mahinga kai and examples of degradation, but the focus is on water.

What will it mean if the Court rules in favour of Ngāi Tahu?

The objectives of the litigation are;

• Uphold Rangatiratanga: Confirm that Ngāi Tahu rights and responsibilities for freshwater in its tribal area remain intact. Hold the Crown to its commitments: Address decades of inadequate freshwater action and ensure the Crown honours its obligations towards Ngāi Tahu.
• Share decision-making: Move beyond consultation to genuine Treaty partnership that enables the Crown and Ngāi Tahu to co-design a more effective freshwater regulatory framework in our takiwā.
• Restore freshwater health: Partner in developing solutions that protect and restore waterways, benefiting all who swim, fish, drink and rely on freshwater.

Will this litigation only serve to benefit Ngāi Tahu?

No. Ngāi Tahu believes that better management of freshwater across the takiwā will benefit everyone who relies on safe, healthy water for swimming, fishing, or drinking. Our communities deserve a freshwater management system that protects the environment while enabling sustainable growth and development.

Ngāi Tahu, like all New Zealanders, also wants to see our economy thrive, but this cannot be at the expense of our environment. We can innovate and continue to develop in way that supports our environment to ensure it continues to sustain us now and for future generations.