Wai Manawa Whenua has lodged an appeal to the Court of Appeal following the recent High Court decision in its freshwater case against the Crown, saying the ruling raises significant constitutional questions about whether assurances given by the Crown to Māori can be legally enforced.
The High Court found that assurances given by the Crown during the Mixed Ownership Model (MOM) litigation were limited to that programme and did not mean the Crown was legally obligated to recognise Māori rights and interests in freshwater. The Court also found that the remedies sought would interfere with Parliament’s role in developing policy and the introduction of legislation.
Wai Manawa Whenua says the decision leaves unresolved serious questions about the legal status of assurances the Crown provides to the courts when addressing Treaty obligations.
“This ruling raises serious concerns because it suggests that commitments made by the Crown in these circumstances may be treated as political promises rather than legal obligations,” said Kingi Smiler, Chairman of Wai Manawa Whenua.
“We believe litigation assurances, particularly ones about compliance with Crown responsibilities grounded in Te Tiriti o Waitangi, give rise to legal obligations. When the Crown gives assurances to the Court and Māori detrimentally rely on those assurances in good faith as the Treaty partner, there must be legal accountability.”
The appeal will ask the Court of Appeal to consider the wider constitutional and Treaty implications of the High Court’s reasoning, including Māori access to justice and the role of the courts in determining the legal effect of Crown assurances given in Treaty-related litigation.
Mr Smiler said the appeal was necessary to ensure Māori rights and interests in freshwater are not further diminished while policy and legislative changes continue.
There is also a significant imbalance in the resources available to each party. We are having to raise our own funds to hold the Crown accountable for its assurances, while the Crown is able to draw on public resources to defend its position. The issues we are raising concern the long-term protection of our waterways for all New Zealanders and the recognition that Māori authority, where ancestral ties and responsibilities as kaitiaki to keep the water healthy, endure.
The appeal also comes at a time when legislative protections like Te Mana o Te Wai are removed by this Coalition Government, while many waterways across Aotearoa remain over-allocated and degraded.
Wai Manawa Whenua says it will continue to pursue the case to ensure Māori rights and interests in fresh and geothermal water are properly recognised and protected through the courts.
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Media contact: Lyn Harrison 027 245 2477