There are no official records for New Zealand’s longest delay between a court hearing and the judgement.
High Court guidelines say judges expect 90 percent of reserved decisions to be delivered within three months of the last day of the hearing. The Chief High Court Judge regards a reserved judgement as being “outstanding beyond a reasonable time” once six months have elapsed.
So where does that leave Justice Melanie Harland and her decision on the Ngai Tahu Freshwater Statement of Claim hearing which finished on April 4th last year?
That’s sixteen months since the hearing ended. Although records on the longest delay are not kept it’s entirely possible this is the largest time lapse ever between hearing and judgement in our judicial history.
With an election now less than three months away it’s entirely possible Her Honour will not be delivering anything this side of November 7th.
To recap: Ngai Tahu were beneficiaries of a $170 million Treaty settlement in 1998 and subsequent top-up relativity payments of $276 million. That’s been invested in a variety of business and property ventures so successfully that Ngai Tahu Holdings now has assets worth in excess of $2 billion.
But that’s not enough. They want more, and more.
In 2024 the iwi extracted at least $100 million from Meridian and Genesis so the power companies could continue using Waitaki River water to generate 16 percent of the country’s electricity.
In recent weeks the Department of Conservation named Ngai Tahu as the preferred operator for the Crown owned Molesworth Station, the country’s largest farm.
Then in an eight week hearing in the High Court at Christchurch early last year Ngai Tahu asked that declarations be made giving Ngai Tahu rangatiratanga over all freshwater in the iwi’s takiwa or region, effectively all the South Island apart from some areas around Nelson and Marlborough.
To quote the former Ngai Tahu boss Lisa Tumahai: “Rangatiratanga is not ownership. Owning something means using it however you like. Rangatiratanga as a concept and a practice encompasses rights, responsibilities and obligations. And that includes the obligation to do what we can to stop the continued degradation of our freshwater systems.”
Ngai Tahu believe that much South Island water has become polluted because of intensive dairying.
The case reported on 1News tonight (August 9th) of a school in Mid Canterbury having a nitrate level in its water supply of 11.5 milligrams per litre of water (mg/l) would reinforce that claim.
The World Health Organisation approved level for safe drinking water is 11.3 mg/l.
Some scientists claim that high nitrate levels in water cause both birth defects and colorectal cancer.
The claim by Ngai Tahu is complicated from a scientific, environmental and political perspective.
That some rivers and lakes in the South Island have high nitrate levels cannot be denied. There are also some other rivers which are almost pure. I live beside the Clutha and we take our water from a bore 27 metres down in the Bendigo Aquifer. Our nitrate level is a negligible 0.114 mg/cubic metre or 1000 litres, and that’s with a 2,800 hectare corporate dairy operation about 40 kilometres upstream near Hawea.
But the braided rivers of the Canterbury Plains are under severe pressure from the intensive dairying operations which have converted the traditional Canterbury mixed farming operation that prevailed till the 1990s.
As of the 2023/24 season there were 1200 dairy herds in Canterbury making up 971,500 milking cows and 280,500 effective hectares of dairy production. The average of 3.4 cows per hectare is significantly higher than the New Zealand average of 2.7.
Canterbury now has about 17 percent of the country’s entire dairy farming land. But then we’re talking about the country’s largest export earner here. To the end of June this year the country’s dairy farmers and processors earned over $28 billion selling their product around the world.
So it’s a conundrum. What’s more important? Making a living or keeping the Canterbury Plains water safe for drinking and playing in.
The answer surely lies in having balance between the two.
Ngai Tahu believes they should be given a prominent role in decisions about freshwater, but their own role in creating the problem can’t be ignored either. Ngai Tahu owns eight dairy farms with over 8000 cows. It’s the second largest dairy farmer in Canterbury.
The iwi also has 2 appointed councillors on the Canterbury Regional Council, the body responsible for water allocation and quality in the region.
The current government wants to amend the hierarchy of what one might call a water philosophy, known as Te Mana o Te Wai or TMOTW. This was designed with a hierarchy of obligations whereby the health of the water was placed above the health of the population and the economic benefits that could be derived from use of the water.
A legislated change to TMOTW will only happen if the new resource management laws are passed before the end of this parliamentary term.
Ngai Tahu’s claim for rangatiratanga over freshwater might have far reaching consequences. Justice Harland may well find that the iwi has ownership-like rights and that the Crown’s assumption of exclusive control over freshwater was inconsistent with Treaty guarantees. That could lead to new water allocation mechanisms, potentially including economic recognition of Ngai Tahu interests.
Which means all bets are off when it comes to hydro-electric and irrigation schemes.
Even a middle-ground outcome whereby the judge concludes that Ngai Tahu ‘s customary rights have not been adequately recognised will have consequences in the future. That’s because existing consent holders could retain their rights till those consents expire but renewals will be subject to new governance and financial arrangements.
The best outcome is that Justice Harland finds that existing legislation substantially accommodates the Crown’s obligations and that water users face no threats to their supply or the cost of water now or into the future.
Her Honour must know that whatever she decides will have a huge impact on the South Island economy.
In a worst case scenario Ngai Tahu, already an economic powerhouse in Canterbury especially, and with no limit to their ambition, will effectively be calling the tune for agriculture across the country’s most productive provinces, and farmers will be paying the piper.
A judgement before the election is likely to provoke severe political backlash either way. The matter will almost certainly go to the Court of Appeal and then the Supreme Court so the case still has considerable time to run.
Even so, sixteen months and counting for the initial judgement strikes this lay person as an absurdly long wait.
Peter Williams was a writer and broadcaster for half a century. Now watching from the sidelines. Peter blogs regularly on Peter’s Substack where this article was sourced.
With an election now less than three months away it’s entirely possible Her Honour will not be delivering anything this side of November 7th.
To recap: Ngai Tahu were beneficiaries of a $170 million Treaty settlement in 1998 and subsequent top-up relativity payments of $276 million. That’s been invested in a variety of business and property ventures so successfully that Ngai Tahu Holdings now has assets worth in excess of $2 billion.
But that’s not enough. They want more, and more.
In 2024 the iwi extracted at least $100 million from Meridian and Genesis so the power companies could continue using Waitaki River water to generate 16 percent of the country’s electricity.
In recent weeks the Department of Conservation named Ngai Tahu as the preferred operator for the Crown owned Molesworth Station, the country’s largest farm.
Then in an eight week hearing in the High Court at Christchurch early last year Ngai Tahu asked that declarations be made giving Ngai Tahu rangatiratanga over all freshwater in the iwi’s takiwa or region, effectively all the South Island apart from some areas around Nelson and Marlborough.
To quote the former Ngai Tahu boss Lisa Tumahai: “Rangatiratanga is not ownership. Owning something means using it however you like. Rangatiratanga as a concept and a practice encompasses rights, responsibilities and obligations. And that includes the obligation to do what we can to stop the continued degradation of our freshwater systems.”
Ngai Tahu believe that much South Island water has become polluted because of intensive dairying.
The case reported on 1News tonight (August 9th) of a school in Mid Canterbury having a nitrate level in its water supply of 11.5 milligrams per litre of water (mg/l) would reinforce that claim.
The World Health Organisation approved level for safe drinking water is 11.3 mg/l.
Some scientists claim that high nitrate levels in water cause both birth defects and colorectal cancer.
The claim by Ngai Tahu is complicated from a scientific, environmental and political perspective.
That some rivers and lakes in the South Island have high nitrate levels cannot be denied. There are also some other rivers which are almost pure. I live beside the Clutha and we take our water from a bore 27 metres down in the Bendigo Aquifer. Our nitrate level is a negligible 0.114 mg/cubic metre or 1000 litres, and that’s with a 2,800 hectare corporate dairy operation about 40 kilometres upstream near Hawea.
But the braided rivers of the Canterbury Plains are under severe pressure from the intensive dairying operations which have converted the traditional Canterbury mixed farming operation that prevailed till the 1990s.
As of the 2023/24 season there were 1200 dairy herds in Canterbury making up 971,500 milking cows and 280,500 effective hectares of dairy production. The average of 3.4 cows per hectare is significantly higher than the New Zealand average of 2.7.
Canterbury now has about 17 percent of the country’s entire dairy farming land. But then we’re talking about the country’s largest export earner here. To the end of June this year the country’s dairy farmers and processors earned over $28 billion selling their product around the world.
So it’s a conundrum. What’s more important? Making a living or keeping the Canterbury Plains water safe for drinking and playing in.
The answer surely lies in having balance between the two.
Ngai Tahu believes they should be given a prominent role in decisions about freshwater, but their own role in creating the problem can’t be ignored either. Ngai Tahu owns eight dairy farms with over 8000 cows. It’s the second largest dairy farmer in Canterbury.
The iwi also has 2 appointed councillors on the Canterbury Regional Council, the body responsible for water allocation and quality in the region.
The current government wants to amend the hierarchy of what one might call a water philosophy, known as Te Mana o Te Wai or TMOTW. This was designed with a hierarchy of obligations whereby the health of the water was placed above the health of the population and the economic benefits that could be derived from use of the water.
A legislated change to TMOTW will only happen if the new resource management laws are passed before the end of this parliamentary term.
Ngai Tahu’s claim for rangatiratanga over freshwater might have far reaching consequences. Justice Harland may well find that the iwi has ownership-like rights and that the Crown’s assumption of exclusive control over freshwater was inconsistent with Treaty guarantees. That could lead to new water allocation mechanisms, potentially including economic recognition of Ngai Tahu interests.
Which means all bets are off when it comes to hydro-electric and irrigation schemes.
Even a middle-ground outcome whereby the judge concludes that Ngai Tahu ‘s customary rights have not been adequately recognised will have consequences in the future. That’s because existing consent holders could retain their rights till those consents expire but renewals will be subject to new governance and financial arrangements.
The best outcome is that Justice Harland finds that existing legislation substantially accommodates the Crown’s obligations and that water users face no threats to their supply or the cost of water now or into the future.
Her Honour must know that whatever she decides will have a huge impact on the South Island economy.
In a worst case scenario Ngai Tahu, already an economic powerhouse in Canterbury especially, and with no limit to their ambition, will effectively be calling the tune for agriculture across the country’s most productive provinces, and farmers will be paying the piper.
A judgement before the election is likely to provoke severe political backlash either way. The matter will almost certainly go to the Court of Appeal and then the Supreme Court so the case still has considerable time to run.
Even so, sixteen months and counting for the initial judgement strikes this lay person as an absurdly long wait.
Peter Williams was a writer and broadcaster for half a century. Now watching from the sidelines. Peter blogs regularly on Peter’s Substack where this article was sourced.
7 comments:
It's absolutely ludicrous to even suggest that any race has ownership, or stewardship over water that falls from the skies.
Just stop the bullshit.
It belongs to everyone, and no one.
Nowhere else in the world would this be discussed.
NZ only nonsense.
An absurd situation indeed. The TV One 'news' piece looked like a set-up /hit job to me reeking of TVNZ and Ngai Tahu collusion, probably involving other parties to this farce. On which basis I would expect release of the judgment in favour of Ngai Tahu very soon!
Of course they want more and more! Somebody should research those who, 20-30 years ago, predicted how the gravy train would grow ... and, then, once it reaches a threshold size, would never end. Those insightful people were probably called racists, or gloom and doomers, or exaggerators or whatever. But they have been proved correct. Grandchildren today will be hearing about grievances and unlimited Maori rghts when they become grandparents. It will be like the massive DEI machine: simply not possible to scale back.
Are you kidding me that a judge alone is going to make the decision whether a tribe owns and thereby controls all the water in the South Island ?
I thought Parliament made those calls based on a referendum ?
Apparently, if you are clever enough, you can con a judge that the wind blowing off the Tasman Sea , which drops it's water over the Alps belongs to you !
And that judge can release their decision when it suits them when it's politically convenient ?
If Luxon wants riots in the streets, then allow this to happen.
Bloody ridiculous.
Imagine if the Justice system in New Zealand was beyond reproach what this nation could achieve .
Peter, as a former lawyer I can tell you that a 16 month delay in the issue of a judgment is extraordinary. I had one case where the High Court Judge sat on the judgment for 9 months, and then issued it with no acknowledgment or apology, which didn't do much to foster the respect and courtesy that we supposedly owe the Judiciary. Don't forget that Justice Melanie Harland hasn't been deliberating on the merits of the Ngai Tahu claim all this time. She's been working on a plethora of new cases, and holidaying to recharge her batteries, while her recollection of the arguments put to her at the Ngai Tahu hearing fade day by day. There's only one reason why this decision has been stalled for such an inexcusable period of time. The Judiciary are paralysed by the enormity of the decision they are called upon to make - do they disappoint the darlings of the woke era, or do they impoverish the entire South Island?
Dont expect anything bold and rational. Straight dismissal will incur the wrath of her fellow industry, and incur risk of violence from a multitude brain washed haka hyped trace maori.
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