A Step Closer to a Treaty Partnership

The Treaty of Waitangi partnership with the Department of Conservation (DOC), the government agency responsible for the management of the natural environment, is a top priority for iwi throughout Aotearoa. A recent Supreme Court appeal by Ngāi Tai ki Tāmaki Tribal Trust delivered a landmark result that will change that relationship forever. Nā Christopher Brankin.

Te ao tūroa and the species and resources within it are intrinsic in Ngāi Tahu – with mahinga kai standing alongside the eight major land sales of Te Waipounamu as the “Ninth Tall Tree” of Te Kerēme (the Ngāi Tahu Claim). The relationship between Te Rūnanga o Ngāi Tahu and DOC is multi-layered and constantly evolving. Its foundation is section 4 of the Conservation Act 1987, which states: “This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.” This is the strongest existing legislative requirement to uphold the Treaty, although interpretation has varied.

Last year, the correct interpretation of section 4 came under scrutiny in Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation, heard on appeal in the Supreme Court. This case related to concessions granted by DOC permitting two entities to run commercial tourism activities on Rangitoto and Motutapu Islands – both in the takiwā of Ngāi Tai ki Tāmaki. The iwi had pursued this matter through the courts, losing challenges in both the High Court and Court of Appeal. Both courts agreed that DOC’s approach had created errors of law, but neither directed DOC to reconsider or overturn its decisions. Ngāi Tai ki Tāmaki then appealed to the Supreme Court.

The iwi argued that DOC should not have granted the permits, and had been incorrect in deciding that there was no potential “preference” for iwi in the concession process. Ngāi Tai ki Tāmaki also argued that iwi economic considerations should be taken into account in the concession process.

In August 2018 Te Rūnanga o Ngāi Tahu sought and was granted leave to join the proceedings of the Supreme Court appeal. While Te Rūnanga supported the position held by Ngāi Tai ki Tāmaki, there were additional factors driving the decision to become involved. This case was the first time that the correct interpretation of section 4 was being considered as high as the Supreme Court, and would have national implications for how DOC engages with iwi. Furthermore, the appeal would draw heavily on Ngāi Tahu Māori Trust Board v Director-General of Conservation 1995 (the “Whales Case”), which had formerly been the leading case on section 4.

At issue in the Whales Case was a permit DOC granted for a whale watching business in Kaikōura without informing existing Ngāi Tahu-owned businesses, which until then had the only permits for the area. The Ngāi Tahu Māori Trust Board challenged the Director-General’s decision, and the case proceeded to the Court of Appeal, where it was held that the principles of the Treaty of Waitangi should be interpreted and applied widely. The permit was denied. While this decision was relevant only to the specific facts of the Whales Case, it provided an important interpretation of the Crown’s Treaty obligations, and formed part of the Ngāi Tai ki Tāmaki argument.

Ngāi Tai ki Tāmaki was successful in its appeal. The Court considered that the errors in the initial judgements were significant enough to require DOC to reconsider the concession decisions. Like Ngāi Tahu with the Whales Case, this was a significant victory for Ngāi Tai ki Tāmaki.

In a broader context, many are excited at the potential of this ruling as a true game changer for mana whenua. The Supreme Court judgement made significant statements on how DOC should approach the interpretation and application of section 4. The Court also affirmed and built on the law that was established through the Whales Case.

The Supreme Court not only ruled in favour of Ngāi Tai ki Tāmaki on the facts of the particular case, but also took the opportunity to set out the following principles to strengthen the Treaty’s role in conservation legislation:

• Section 4 is a powerful Treaty clause that requires more than just procedural steps – substantive outcomes for iwi may be necessary
• Section 4 requires consideration to whether there should be a preference in favour of iwi in the concession process, and to the potential for iwi to receive an economic benefit from the concessions
• DOC must consider whether section 4 requires that no concessions be granted in the circumstances, despite demand for those services
• Enabling iwi to reconnect to ancestral lands by taking up opportunities on conservation land (through concessions and other opportunities) is one way the Crown can give practical effect to Treaty principles (including the principle of active protection)
• DOC must, as far as possible, “apply the relevant statutory and other relevant legal considerations in a manner that gives effect to the relevant principles of the Treaty”
• Section 4 (and hence the Treaty principles) should not be trumped by other considerations or be part of a general “balancing” exercise. Rather, those other objectives must be achieved to the extent that can be done consistently with section 4, in a way that best gives effect to the relevant Treaty principles
• The Conservation General Policy (and the General Policy for National Parks) is incorrect in stating that where legislation and the Treaty principles conflict, the legislation prevails.

These principles provide a significant opportunity to revisit how DOC, the New Zealand Conservation Authority, and others govern and administer public conservation land, and the role of Ngāi Tahu in those processes. Already, two National Park Management Plan processes have been paused while the implications of this ruling are considered.

The Crown and Ngāi Tahu must consider how this landmark case will affect how we interact with each other. It certainly seems like the balance will swing closer to what iwi consider to be an appropriate Treaty partnership, and the conversation on what it truly means to give effect to the principles of the Treaty will begin.