Bob Edlin: Treaty principles don't come from the Treaty – they come from the courts

A Supreme Court judgement in August last year has led to the Department of Conservation undertaking partial reviews of the Conservation General Policy and the General Policy for National Parks, to give better effect to the principles of the Treaty of Waitangi.

And what are these principles?

Conservation Minister Eugenie Sage told Point of Order:

“The principles of the Treaty of Waitangi are not explicitly stated in the articles of the Treaty itself.”

Nope.

“They have evolved primarily though jurisprudence…”  

They also have significant governance and constitutional implications.

Another stage in this evolutionary process was the Supreme Court’s ruling which   buttressed an iwi’s claim to exclusive rights to conduct commercial tours for at least five years on the Rangitoto and Motutapu islands in the Hauraki Gulf.

Ngāi Tai ki Tāmaki went to court to challenge DoC’s issuing five-year tourism concessions to Fullers and the Motutapu Island Restoration Trust on the islands.

The islands, administered by DoC, are the subject of Ngāi Tai treaty claims.

The High Court and Court of Appeal 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, where a majority of the judges agreed 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.

Conservation Minister Sage told Point of Order this not mean iwi should be given preferential entitlements on all conservation lands.

She said:

“The Ngāi Tai ki Tāmaki  judgment is clear that all applications must be considered in light of their particular context and on a case-by-case basis. There can be no blanket rule about how Treaty principles – including active protection – are given effect in statutory decision-making.

“The judgment clarifies that in some circumstances, giving effect to the Treaty principle of active protection will require decision-makers to consider extending a degree of preference to iwi as well as the potential associated economic benefit of doing so.

“However, active protection of Māori interests will not always require or entail consideration of a degree of preference. It can manifest in other ways, like ensuring concessionaires pronounce the names of people and places correctly when operating commercial tours.”

Sage said the judgment also sets out that section 4 of the Conservation Act 1987 does not create a power of veto for iwi or hapū over the granting of concessions, or any exclusive right to concessions.

The Minister and the New Zealand Conservation Authority in August announced the partial review by DoC of Conservation General Policy and the General Policy for National Parks.  This aims to review how those policies are being implemented and where improvements can be made.

The review process has yet to be finalised, according to DOC’s website.

The participation of conservation boards, stakeholders, and the wider public will be sought “when the partial review process begins in earnest next year”.

In the press statement which announced the reviews, Sage said DoC had an obligation under section 4 of the Conservation Act.

“ …  to give effect to the Treaty of Waitangi in the way it manages conservation lands and waters. I have asked the DOC to consider ways it can better deliver on those responsibilities across its work.

“The partial reviews will be progressed together and will focus exclusively on issues associated with section 4 of the Conservation Act.”

NZ Conservation Authority chairman Edward Ellison said in the same statement that improving the way Treaty principles are considered in conservation decisions was a priority for the authority.

“To recognise the significant interest Māori have in the way the Department delivers its Treaty obligations, the work will begin with a period of early engagement with Māori.

“We want Māori to be involved in designing the process for delivering the partial review.”

Sage said she recognised that New Zealand’s natural places were “important to all New Zealanders as well as Māori…”

Intentional or not, this portrays Maori and “all New Zealanders” as two separate peoples.

Iwi certainly separate their interests from those of the Crown in pressing for treaty “partnerships.

An article on Ngai Tahu’s Te Karaka website, headed A Step Closer to a Treaty Partnership, says the Treaty of Waitangi partnership with DoC “is a top priority” for all iwi.

It described the Supreme Court ruling in the Ngāi Tai ki Tāmaki Tribal Trust case as

“… a landmark result that will change that relationship forever.”   

The Te Karaka article says

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.

The article describes the Supreme Court ruling in the Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation as the “correct” interpretation.

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.

The leading case on section 4 previously had been Ngāi Tahu Māori Trust Board v Director-General of Conservation 1995 (the “Whales Case”).

In that case, the trust board challenged DoC’s granting a permit to a whale watching business in Kaikōura without informing existing Ngāi Tahu-owned businesses, which until then had the only permits for the area.

The Court of Appeal held that the principles of the Treaty of Waitangi should be interpreted and applied widely. The permit was denied.

A further step has been taken in the Ngāi Tai ki Tāmaki case.

According to the Te Karaka report, the Supreme Court not only ruled in favour of the iwi but also set out a slew of 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.

Te Karaka said 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.

As Sage acknowledged to Point of Order, judges have played a critical role in formulating Treaty principles and  shaping the concept of a Treaty partnership.

We asked:

• Which specific principles of the Treaty does the Minister believe should be given better effect and in which of the Treaty clauses are they expressed?

She replied:

Section 4 of the Conservation Act 1987 requires the Minister of Conservation and DOC to give effect to the principles of the Treaty of Waitangi in the interpretation and administration of the Act (including all enactments listed in Schedule 1 of the Act). This is one of the strongest weightings of Treaty of Waitangi principles in legislation.

The principles of the Treaty of Waitangi are not explicitly stated in the articles of the Treaty itself.  They have evolved primarily though jurisprudence, most notably the Lands case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641).

The Treaty principles most relevant to DOC’s work are as follows:

–       Partnership – mutual good faith and reasonableness

–       Informed decision-making

–       Active protection

–       Redress and reconciliation

Further information on the Treaty principles and DOC can be found here. 

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.