Tūhoe settlement shows how far we have come
nā Tom Bennion
In 1992 I went to Australia on an ANZAC fellowship to study aboriginal land claim settlements. The High Court of Australia had just issued its Mabo decision, which held that aboriginal groups had native title interests in the land which the Crown should have recognised over the last 200 years. Māori legal interests in land had been recognised for around 150 years, so in that sense, Australian law was literally catching up on 150 years of established property law in New Zealand.
But my focus was national parks legislation, and I discovered that in the iconic national parks of Kakadu, Uluru (Ayers Rock), and Kata Tjuta (The Olgas), aboriginal groups owned the parks and co-managed them with the government. At that time, no such situations existed in New Zealand. While historic arrangements over the beds of Lake Taupō and Lake Waikaremoana had left some measure of Māori ownership in nationally important natural areas, there was no equivalent of the Australian model; that is, iconic national parks owned and managed by indigenous groups in conjunction with the Crown. In New Zealand in 1992, such arrangements seemed to be a bridge too far.
With recent Treaty settlements that is rapidly changing. The Ngāi Tahu Settlement of 1997 was perhaps the first of the recent settlements to make national park and environmental issues central to tribal redress. It introduced notions such as tribal “overlays” that decision-makers had to take into account in managing national parks in the South Island.
The 2008 Waikato-Tainui river settlement, and the Whanganui river settlement this year, establish co-governance boards for those rivers – although in the case of the Waikato-Tainui settlement, under the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, the legal title remains unchanged, in other words, mostly in the Crown. The Whanganui River settlement has broken new ground with the establishment of the river itself as a distinct legal entity. Legislation will establish “Te Awa Tupua” as “an indivisible and living whole comprising the Whanganui River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.” Its human representative is a governing board of 17 people, with six members chosen from the Whanganui iwi and the remainder representing government, environmental, and business interests. When legislation for the settlement is passed, Crown-owned parts of the river bed will vest in Te Awa Tupua.
An interesting feature of these settlements is the language that is used, which places indigenous groups at the centre of conservation management. To date, legislation for national parks has not done this, focusing instead on “public enjoyment”.
The recent settlement with Tūhoe, enshrined in the Te Urewera Act 2014, also creates a new legal entity, “Te Urewera”, over around 208,000 hectares that make up the Te Urewera National Park. The human representative for Te Urewera will be a management board comprising four Tūhoe and four Crown representatives, and after three years, six Tūhoe and three Crown members. The Crown and Tūhoe will co-appoint board members.
An interesting feature of these settlements is the language that is used, which places indigenous groups at the centre of conservation management. To date, legislation for national parks has not done this, focusing instead on “public enjoyment”. The purpose of the National Parks Act 1980 is “preserving in perpetuity as national parks, for their intrinsic worth and for the benefit, use, and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest.” Compare that with the very different Te Urewera Act 2014.
These Treaty settlements are not just establishing new governance arrangements; they are also talking in a new way about the management of the environment in New Zealand.
Tom Bennion is a Wellington lawyer specialising in resource management and Māori land claim and Treaty issues. Formerly a solicitor at the Waitangi Tribunal, he is the editor of the Māori Law Review. He recently wrote a book titled Making Sense of the Foreshore and Seabed.