High Court finds that Māori Land Court does not have jurisdiction to determine ownership of water…

In a recent High Court case a New Zealand Power Company challenged a Māori Land Court decision relating to the status of part of the Waikato Riverbed.

The land in question comprises part of the Waikato Riverbed which is currently used by the Power Company for hydropower generation.

In 2019, the Māori claimants associated with the land sought (among other things) a declaration that the Māori claimants are the owners of the river water that flows over the riverbed.

The Power Company, supported by the Attorney-General, applied to strike out this claim on the basis that the Māori Land Court only has jurisdiction to determine the status and ownership of land, it does not have jurisdiction to determine ownership of water.

The Māori Land Court noted that it is unclear whether it can inquire into customary water rights, or whether this jurisdiction has been ousted by the definition of land in the Te Ture Whenua Māori Act 1993.

The Māori Land Court therefore declined to strike out the claim, finding that the Māori claimants’ water claim requires further consideration and is not clearly untenable.

The Māori Land Court further noted that water ownership is a contentious and developing area of law that should be considered in full and not struck out.

The Power Company, again supported by the Attorney-General, then challenged the Māori Land Court’s decision by way of a judicial review in the High Court.

The High Court decision

In the High Court, the Power Company again advanced the argument that the Māori Land Court has no jurisdiction to determine a question of ownership to water.

The High Court noted that when the Māori Land Court is assessing whether land is Māori customary land it may be important to understand the relationship with any water associated with that land, and to make its decisions accordingly. The High Court also noted that the Māori Land Court is obliged to take into account tikanga and te ao Māori.

However, the High Court ultimately found that the Māori Land Court’s jurisdiction is limited to making orders in relation to land, and that it therefore does not have jurisdiction to declare that the Māori claimants’ own the river water.

The High Court concluded that the Māori claimants’ claim relating to ownership of water should be struck out.  

Outcome

While the High Court did strike out the claim relating to ownership of water, the Māori claimants are able to proceed with another aspect of their claim, namely that the riverbed has the status of Māori customary land. For more information on the High Court’s decision relating to the customary land claim, read our article here.

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