Section 6 of the Resource Management Act 1991 (RMA) purports to set out “matters of national importance” to which all persons exercising functions and powers under the Act must “recognise and provide for.” Among these are matters such as the preservation of the natural character of the coastal environment, the protection of outstanding natural features and landscapes, and the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga. Specifically, section 6(e) elevates Māori interests into a planning context that places regulatory burdens on private landowners through local council decisions made under the RMA. At first glance, this framework may appear as a principled reconciliation between land use regulation and the Crown’s Treaty obligations.
However, upon closer examination, a critical tension emerges: the Crown’s obligation to honour Te Tiriti o Waitangi, which is a fiduciary and constitutional responsibility, has been partially offloaded onto private landowners without their consent and without compensation. This shift of duty is not merely administratively questionable—it is arguably illegitimate and ultra vires.
Te Tiriti o Waitangi was signed in 1840 between the Crown and various Māori rangatira. Its terms, in both the Māori and English texts, promised protection of tino rangatiratanga and undisturbed possession of taonga, while asserting a form of governance through kāwanatanga. In the modern constitutional structure of New Zealand, the Treaty has no standalone legal force unless incorporated into statute, as confirmed by the landmark case of New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (the Lands case). The judiciary there held that where Parliament has chosen to incorporate Treaty principles into legislation, those principles must be given due effect, but only within the scope and wording of that legislation. Thus, any attempt to act outside the bounds of statute—even if inspired by Treaty principles—is ultra vires.
Section 6 of the RMA imposes legal duties on “persons exercising functions and powers” under the Act to recognise and provide for the relationship Māori have with their taonga. However, the mechanism by which this duty operates often results in local authorities imposing land use restrictions, designation overlays, consultation requirements, and cultural impact assessments on landowners. This is done ostensibly to “give effect” to Treaty principles, which in effect transposes the Crown’s primary duty to honour the Treaty onto individuals who were never party to it. This creates a form of regulatory delegation not supported by express consent, nor by appropriate legislative clarity. In doing so, the Crown indirectly discharges its constitutional burden onto the populace. As Professor Paul McHugh wrote in The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (1991), “The Crown alone has the capacity to bear Treaty obligations. To diffuse that responsibility without proper structure is to risk the principle of accountability being eroded.”
The non-transferability of fiduciary duties is a core tenet of public and private law. As Paul Finn emphasised in his foundational work Fiduciary Obligations (1977), “It is the very essence of fiduciary responsibility that the fiduciary must act exclusively in the interest of the beneficiary… A fiduciary cannot validly transfer the burden of loyalty onto a third party where this would expose strangers to unintended obligations.” Similarly, Ernest J. Weinrib, in The Fiduciary Obligation (1975), noted that fiduciary relationships arise not from contract alone but from an intrinsic duty of loyalty and protection, which “cannot be delegated in ways that undermine the trust reposed.”
A close reading of the legislative language of section 6 reveals that it is directed at decision-makers—not landowners. However, the practical outcome of section 6(e) is that landowners become the de facto bearers of Treaty-related burdens. For example, when a property is identified in a district plan as being of significance to Māori, the owner may be prevented from developing or modifying the land without extensive consultation or compliance with cultural conditions. These obligations can be costly, time-consuming, and, in some cases, indefinite. The High Court in Ngāti Maru Trust v Auckland Council [2020] NZHC 2517 upheld the right of local authorities to include sites of significance to Māori in planning documents, even without specific iwi identification, noting that section 6(e) requires councils to be proactive. But what of the landowner’s rights? There is no statutory compensation, no procedural fairness embedded in the RMA for these burdens, and no clear means for objecting on the basis of unjust transfer of Treaty obligations. This legal asymmetry, wherein Māori interests are protected through state enforcement while private interests are subordinated without recompense, stands at odds with principles of fairness and legality.
The principle of legality in New Zealand administrative law holds that fundamental rights—such as the right to property—cannot be overridden by general or ambiguous language. This was reaffirmed in R v Hansen [2007] 3 NZLR 1, where the Court confirmed that legislation will be interpreted to avoid limiting rights unless Parliament’s intention to do so is unmistakably clear. Nothing in section 6 suggests that Parliament intended for the Crown’s Treaty duties to be imposed on private individuals. Nor is there an explicit intention to permit uncompensated land use restrictions in perpetuity for the purpose of advancing Treaty principles. Indeed, under the Public Works Act 1981, when the Crown takes land for public purposes, it is required to provide fair compensation. The RMA appears to allow public purposes—such as cultural protection—to be served through planning controls, without equivalent compensation mechanisms. This is not merely inconsistent with statutory compensation regimes—it undermines the rule of law.
Leonard Rotman, in Fiduciary Law (2005), specifically cautions against this practice. In the context of Crown-Indigenous relationships, he notes that “to shift fiduciary duties onto third parties, especially involuntarily, is inconsistent with the Crown's honour and defeats the basis of trust.” Similarly, J.C. Shepherd, in The Law of Fiduciaries (1981), asserts that “where a third party is made subject to a burden without having entered the trust or contract, the fiduciary has violated the boundaries of duty and the legal foundation of trust collapses.” This is precisely what occurs when the New Zealand Crown enables Treaty implementation through local government regulation of private land without directly bearing the costs or consequences.
Furthermore, the operation of section 6 must be seen in the context of the broader delegation framework under the RMA. The Act delegates substantial decision-making power to local authorities, which are not elected at the national level, and whose consultation processes are often performative rather than substantive. This means Treaty implementation via section 6 is effectively delegated to regional bureaucracies—actors with neither the constitutional standing nor the institutional legitimacy to discharge Crown obligations. In West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, the Supreme Court was unwilling to allow local authorities to consider climate change impacts under the RMA where Parliament had otherwise legislated national frameworks for doing so. By analogy, where the Crown bears Treaty obligations, it cannot, without explicit parliamentary authority, offload those obligations onto ratepayers or private citizens via regional enforcement.
The Crown's Treaty obligations are fiduciary in nature. This has been noted repeatedly by the Waitangi Tribunal and the courts. In the Lands case, Cooke P emphasised that the principles of the Treaty require both partners to act reasonably and in good faith. The duty lies with the Crown—not the population—to protect Māori interests. As such, any statutory scheme that shifts the implementation of this duty onto non-Crown actors must be strictly scrutinised. A fiduciary cannot escape responsibility by recruiting unwitting third parties to bear its burden. As Mark Walters wrote in The Morality of Aboriginal Law (2006), “The fiduciary relationship between Crown and Indigenous peoples cannot be offloaded to other members of the political community without violating the very premise of fiduciary accountability.”
It is also pertinent to recall the observations of constitutional theorists such as A.V. Dicey, who stated in Introduction to the Study of the Law of the Constitution (1885), that the rule of law demands that “every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” To impose Treaty obligations on landowners—while shielding the Crown from the financial and administrative burdens of its own promises—is to create a class of officials who evade the legal responsibility inherent in their Treaty partnership. It is also to reify an administrative form of racialised redistribution through regulation, without democratic consent or parliamentary clarity.
The jurisprudential concern, then, is not merely about planning law or Treaty policy. It is about the legitimacy of using the coercive power of the state to create obligations for private citizens that originate in public law duties. The RMA was not enacted to create a substitute Treaty partner class in the form of landowners. Nor was it intended as a vehicle to effectuate de facto Treaty settlements through zoning and planning overlays. Yet that is what is occurring in many jurisdictions, as district and regional councils increasingly entrench Māori concepts into planning instruments, and private citizens find their rights to use their land constrained—not by consent, but by obligation.
Justice Thomas once warned, in New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, that Treaty principles must not be weaponised in ways that create injustice against other citizens. “To speak of Treaty principles without justice to all is to betray the Treaty,” he wrote. That insight is prescient. For it is not merely the symbolic inclusion of Māori values that is at stake, but the very notion of equitable legal burdens and the Crown’s constitutional discipline in carrying out its Treaty obligations within lawful bounds.
Therefore, any implementation of section 6 that results in de facto regulatory expropriation of private land rights, without the due processes and protections of public law, should be considered ultra vires. It offends the principle of legality, ignores the fiduciary character of the Crown's Treaty responsibilities, and evades accountability through decentralised bureaucratic actors. It undermines trust in both the Treaty framework and in regulatory governance. If the Crown wishes to honour its Treaty promises by preserving sites of significance to Māori, it must do so transparently, lawfully, and with compensation where private interests are impacted. Anything less is not only administratively improper—it is a constitutional abdication.
The way forward may require legislative clarity to ensure that Treaty implementation does not become a backdoor means of regulatory encumbrance on private landowners. Alternatively, judicial intervention may be necessary to test whether councils have exceeded their authority under section 6. But what is clear is that the current framework blurs the boundary between public fiduciary duty and private regulatory burden in a way that is incompatible with both the spirit and the letter of New Zealand’s legal and constitutional traditions.
Zoran Rakovic is a structural engineer with nearly 30 years of experience, who has helped design and strengthen buildings across New Zealand—particularly in Christchurch’s earthquake recovery - while balancing life as a dad, granddad, and outdoor enthusiast. This article was sourced from his BLOG.
Te Tiriti o Waitangi was signed in 1840 between the Crown and various Māori rangatira. Its terms, in both the Māori and English texts, promised protection of tino rangatiratanga and undisturbed possession of taonga, while asserting a form of governance through kāwanatanga. In the modern constitutional structure of New Zealand, the Treaty has no standalone legal force unless incorporated into statute, as confirmed by the landmark case of New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (the Lands case). The judiciary there held that where Parliament has chosen to incorporate Treaty principles into legislation, those principles must be given due effect, but only within the scope and wording of that legislation. Thus, any attempt to act outside the bounds of statute—even if inspired by Treaty principles—is ultra vires.
Section 6 of the RMA imposes legal duties on “persons exercising functions and powers” under the Act to recognise and provide for the relationship Māori have with their taonga. However, the mechanism by which this duty operates often results in local authorities imposing land use restrictions, designation overlays, consultation requirements, and cultural impact assessments on landowners. This is done ostensibly to “give effect” to Treaty principles, which in effect transposes the Crown’s primary duty to honour the Treaty onto individuals who were never party to it. This creates a form of regulatory delegation not supported by express consent, nor by appropriate legislative clarity. In doing so, the Crown indirectly discharges its constitutional burden onto the populace. As Professor Paul McHugh wrote in The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (1991), “The Crown alone has the capacity to bear Treaty obligations. To diffuse that responsibility without proper structure is to risk the principle of accountability being eroded.”
The non-transferability of fiduciary duties is a core tenet of public and private law. As Paul Finn emphasised in his foundational work Fiduciary Obligations (1977), “It is the very essence of fiduciary responsibility that the fiduciary must act exclusively in the interest of the beneficiary… A fiduciary cannot validly transfer the burden of loyalty onto a third party where this would expose strangers to unintended obligations.” Similarly, Ernest J. Weinrib, in The Fiduciary Obligation (1975), noted that fiduciary relationships arise not from contract alone but from an intrinsic duty of loyalty and protection, which “cannot be delegated in ways that undermine the trust reposed.”
A close reading of the legislative language of section 6 reveals that it is directed at decision-makers—not landowners. However, the practical outcome of section 6(e) is that landowners become the de facto bearers of Treaty-related burdens. For example, when a property is identified in a district plan as being of significance to Māori, the owner may be prevented from developing or modifying the land without extensive consultation or compliance with cultural conditions. These obligations can be costly, time-consuming, and, in some cases, indefinite. The High Court in Ngāti Maru Trust v Auckland Council [2020] NZHC 2517 upheld the right of local authorities to include sites of significance to Māori in planning documents, even without specific iwi identification, noting that section 6(e) requires councils to be proactive. But what of the landowner’s rights? There is no statutory compensation, no procedural fairness embedded in the RMA for these burdens, and no clear means for objecting on the basis of unjust transfer of Treaty obligations. This legal asymmetry, wherein Māori interests are protected through state enforcement while private interests are subordinated without recompense, stands at odds with principles of fairness and legality.
The principle of legality in New Zealand administrative law holds that fundamental rights—such as the right to property—cannot be overridden by general or ambiguous language. This was reaffirmed in R v Hansen [2007] 3 NZLR 1, where the Court confirmed that legislation will be interpreted to avoid limiting rights unless Parliament’s intention to do so is unmistakably clear. Nothing in section 6 suggests that Parliament intended for the Crown’s Treaty duties to be imposed on private individuals. Nor is there an explicit intention to permit uncompensated land use restrictions in perpetuity for the purpose of advancing Treaty principles. Indeed, under the Public Works Act 1981, when the Crown takes land for public purposes, it is required to provide fair compensation. The RMA appears to allow public purposes—such as cultural protection—to be served through planning controls, without equivalent compensation mechanisms. This is not merely inconsistent with statutory compensation regimes—it undermines the rule of law.
Leonard Rotman, in Fiduciary Law (2005), specifically cautions against this practice. In the context of Crown-Indigenous relationships, he notes that “to shift fiduciary duties onto third parties, especially involuntarily, is inconsistent with the Crown's honour and defeats the basis of trust.” Similarly, J.C. Shepherd, in The Law of Fiduciaries (1981), asserts that “where a third party is made subject to a burden without having entered the trust or contract, the fiduciary has violated the boundaries of duty and the legal foundation of trust collapses.” This is precisely what occurs when the New Zealand Crown enables Treaty implementation through local government regulation of private land without directly bearing the costs or consequences.
Furthermore, the operation of section 6 must be seen in the context of the broader delegation framework under the RMA. The Act delegates substantial decision-making power to local authorities, which are not elected at the national level, and whose consultation processes are often performative rather than substantive. This means Treaty implementation via section 6 is effectively delegated to regional bureaucracies—actors with neither the constitutional standing nor the institutional legitimacy to discharge Crown obligations. In West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, the Supreme Court was unwilling to allow local authorities to consider climate change impacts under the RMA where Parliament had otherwise legislated national frameworks for doing so. By analogy, where the Crown bears Treaty obligations, it cannot, without explicit parliamentary authority, offload those obligations onto ratepayers or private citizens via regional enforcement.
The Crown's Treaty obligations are fiduciary in nature. This has been noted repeatedly by the Waitangi Tribunal and the courts. In the Lands case, Cooke P emphasised that the principles of the Treaty require both partners to act reasonably and in good faith. The duty lies with the Crown—not the population—to protect Māori interests. As such, any statutory scheme that shifts the implementation of this duty onto non-Crown actors must be strictly scrutinised. A fiduciary cannot escape responsibility by recruiting unwitting third parties to bear its burden. As Mark Walters wrote in The Morality of Aboriginal Law (2006), “The fiduciary relationship between Crown and Indigenous peoples cannot be offloaded to other members of the political community without violating the very premise of fiduciary accountability.”
It is also pertinent to recall the observations of constitutional theorists such as A.V. Dicey, who stated in Introduction to the Study of the Law of the Constitution (1885), that the rule of law demands that “every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” To impose Treaty obligations on landowners—while shielding the Crown from the financial and administrative burdens of its own promises—is to create a class of officials who evade the legal responsibility inherent in their Treaty partnership. It is also to reify an administrative form of racialised redistribution through regulation, without democratic consent or parliamentary clarity.
The jurisprudential concern, then, is not merely about planning law or Treaty policy. It is about the legitimacy of using the coercive power of the state to create obligations for private citizens that originate in public law duties. The RMA was not enacted to create a substitute Treaty partner class in the form of landowners. Nor was it intended as a vehicle to effectuate de facto Treaty settlements through zoning and planning overlays. Yet that is what is occurring in many jurisdictions, as district and regional councils increasingly entrench Māori concepts into planning instruments, and private citizens find their rights to use their land constrained—not by consent, but by obligation.
Justice Thomas once warned, in New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, that Treaty principles must not be weaponised in ways that create injustice against other citizens. “To speak of Treaty principles without justice to all is to betray the Treaty,” he wrote. That insight is prescient. For it is not merely the symbolic inclusion of Māori values that is at stake, but the very notion of equitable legal burdens and the Crown’s constitutional discipline in carrying out its Treaty obligations within lawful bounds.
Therefore, any implementation of section 6 that results in de facto regulatory expropriation of private land rights, without the due processes and protections of public law, should be considered ultra vires. It offends the principle of legality, ignores the fiduciary character of the Crown's Treaty responsibilities, and evades accountability through decentralised bureaucratic actors. It undermines trust in both the Treaty framework and in regulatory governance. If the Crown wishes to honour its Treaty promises by preserving sites of significance to Māori, it must do so transparently, lawfully, and with compensation where private interests are impacted. Anything less is not only administratively improper—it is a constitutional abdication.
The way forward may require legislative clarity to ensure that Treaty implementation does not become a backdoor means of regulatory encumbrance on private landowners. Alternatively, judicial intervention may be necessary to test whether councils have exceeded their authority under section 6. But what is clear is that the current framework blurs the boundary between public fiduciary duty and private regulatory burden in a way that is incompatible with both the spirit and the letter of New Zealand’s legal and constitutional traditions.
Zoran Rakovic is a structural engineer with nearly 30 years of experience, who has helped design and strengthen buildings across New Zealand—particularly in Christchurch’s earthquake recovery - while balancing life as a dad, granddad, and outdoor enthusiast. This article was sourced from his BLOG.
8 comments:
Whether legal or not, this will continue. Watts is proving very weak.
The Actual way forward is to honor the true intent of the treaty and uphold the principles as stated in it.
1. All Māori cede Sovreignty. Surly this renders a complete dismantling of the trible collective, as in, you no democratic individualism.
2 Guaranteed property rights for all regardless of perceived tribal affiliation. Remember tribes don't exist anymore.
3 All are subject to one equally applied system of law as drafted into legislation by the democratically elected government and subject to change through due process.
At the time of the signing it was the beginning of a slow process, but the intent of the treaty was agreed upon. Surely after 185 years the process of tribalism to full democractic representation and individual citizenship is complete.
Māori simply do not, in a biological or a political sense exist.
Why Is it so hard for the majority of our political class to grasp this simple concept and enforce it.
I hear your frustration—and share your concern about the political class’s inability to act decisively or even coherently on these foundational questions. That’s exactly why I’m focused on building momentum from the ground up. Waiting for courage at the top has left us stalled for decades. It’s time citizens reassert the principle of equal citizenship and push for clarity, fairness, and a common civic identity—starting where we live, speak, and vote.
To repudiate " trace Maori" goes against the current " woke narrative". Result: weeping and gnashing of teeth, emotive responses, howls of victimization, international media condemnation, endless hikois - or worse. A career car crash for anyone brave enough to try this. ... and no guarantee of massive citizen support.
Our once free, united nation is being destroyed by the [apartheid] racial demands.
It is way overdue to end ALL official recognition of race or ethnicity in ALL legislation in New Zealand.
With race/ethnicity no longer having official status, there would be:-
NO more race-based seats
NO race-specific party in Parliament.
NO more race-based wards in local government.
NO more census questions about ethnicity.
NO more co-governance, and NO more basis for claims of unending victimhood.
NO Waitangi Tribunal !
NO racial apartheid !
History tells us that no nation or society can survive while racist activists promote division and entitlement on the basis of race, (i.e. APARTHEID) and the only way to bring this to an end is by ceasing ALL official recognition of and status for race/ethnicity.
Very interesting commentary whose legal references expanded my knowledge of the ToW debate.
Dave Lenny
The elephant in the room needs to be stated and restated loudly and often.
Imported bloodlines have so-diluted the original Māori race to the extent that ‘Māori’ now exists only as a cultural concept.
They are not making any more full-blooded Māori. This means that as generations pass the proportion of Maori blood in anyone claiming to be ‘Māori’ will continually attenuate.
Even if it was the intention of Te Tiriti to set up a situation in which Maori at the signing of the treaty continued to govern themselves in a co-government arrangement with the Crown — It did not— surely anyone who has more of the blood of the coloniser than of the colonised has no legitimate claim to these rights.
Brown supremacist part-Māori need to be told that they are full of too tutae, and their cultural pretensions will no longer be entertained in public life..
Since the tribes are so flush with cash now I would suggest that they can now start by paying their own way in the form of taxes, exactly as taxpayers have been doing.
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