Carter v Attorney-General - [2025] NZCA 677

Appeal — Te Ture Whenua Māori Act 1993 — Māori Land Court — statutory interpretation — customary rights — jurisdiction

Appeal dismissed.  There is no order as to costs.

The trustees of the Whatitiri Māori Reserves Trust (the Trustees) hold the land around the Poroti Springs, which is Māori freehold land, for the benefit of three hapū.  They, supported by the New Zealand Māori Council, filed a claim against the Attorney-General and the Northland Regional Council in the Māori Land Court.  They seek customary rights in the wai of the Poroti Springs, separate to the whenua, and damages for injury to those rights, relying on s 18 of Te Ture Whenua Māori Act 1993 (the Act).  The parties sought declarations in the High Court as to whether the Māori Land Court has jurisdiction to hear and determine the claims. 

The High Court determined that the Māori Land Court does not have jurisdiction to make orders for customary title in respect of freshwater or to order damages for injury to customary title to water under s 18.  The Trustees and the New Zealand Māori Council appeal.  The Attorney-General and the Northland Regional Council oppose the appeal.

Issue 1: Does the Māori Land Court have jurisdiction to consider claims to water separate from land?

Held: no.  The text of the Act alone does not provide a propitious context to find jurisdiction over water in light of the lack of references to water and s 18’s basis being s 129’s requirement that all land in New Zealand have one of six statuses.  A central purpose of the Act is to facilitate and promote “the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whānau, their hapū and their descendants” and to “protect wāhi tapu”.  Tikanga and te ao Māori will often be important to the Act’s operation and interpretation, although the fit will not always be comfortable, and the statutory context must also be considered.

In te ao Māori, and at tikanga for the hapū, whenua is inherently and holistically interlinked with the rest of the environment, including wai.  As the Crown agrees, the Māori Land Court has jurisdiction to adjudicate on water rights that are incidents of freehold title under s 18(1)(a).  The pleaded claim, however, is to water only.  The Act’s focus is on the legal status of land.  The interconnectedness of wai and whenua in te ao Māori and at tikanga does not support the Māori Land Court having jurisdiction to consider a claim only to water separate from associated land: there is no land with any legal status on which to ground the claim within the Act.  Neither case law nor policy arguments affect that interpretation.  The Māori Land Court does not have jurisdiction to consider the claim under s 18(1)(a) or (h).

Issue 2: Does the Māori Land Court have jurisdiction to award damages for injury to water here?

Held: no.  consistent with the Privy Council’s decision in McGuire v Hastings District Council, neither does the Māori Land Court have jurisdiction under s 18(1)(c) to award damages for the lawful exercise of statutory powers under the RMA, which is what is sought.