Bob Edlin: High Court ruling in quarry case calls for consenting panels to apply “a Treaty lens”....

High Court ruling in quarry case calls for consenting panels to apply “a Treaty lens” and be careful to consider iwi CAARs

On the Breaking Views blog today, Steven Gaskell draws attention to the Waitangi Tribunal’s decision that the Government’s review of Treaty clauses in 23 laws is a breach of the Treaty itself.

According to Gaskell, the tribunal is saying nobody may tamper with “the sacred text” – or rather, “the sacred principles of a text that never actually mentioned any principles in the first place”.

The Treaty of Waitangi – he reminds us – has three simple articles which deal with:

• sovereignty,
• property rights, and
• protection.

Clear enough. But somewhere between the ink drying in 1840 and a courtroom in 1986, someone decided that wasn’t nearly complicated enough. So, voilà the “principles of the Treaty” were born. Not found in the Treaty, of course, but around it — like ivy that grows over the house and then claims to own the place.

Since then, every government that fancied itself enlightened has sprinkled these “principles” through our laws like confetti. Environmental acts, transport acts, conservation acts, even education all must now “give effect to the principles of the Treaty.”

Which sounds noble until you realise no one can actually agree what those principles are. “Partnership”? “Participation”? “Protection”? Depends who’s asking and who’s being funded to interpret it this week.

Despite their flexibility, Treaty principles are held dear by the country’s judges.

They were invoked in the High Court’s decision in Te Taiwhenua o Heretaunga v Environmental Protection Agency Expert Consenting Panel [2025] NZHC 2397.

In a statement posted on the Scoop website, Te Taiwhenua o Heretaunga and Ngāti Kahungunu Iwi Incorporated declare:

The ruling affirms the legal requirement for expert consenting panels to meaningfully apply Treaty of Waitangi principles under the COVID-19 Recovery (Fast-track Consenting) Act 2020.

PoO has not studied this case. But according to the press statement, it concerned the approval of a large-scale aggregate quarry at Maraekākaho within “the rohe” of Heretaunga and the former bed of the Ngaruroro River prior to its deliberate restriction.

The High Court found that the Panel failed to adequately evaluate cultural effects and Treaty principles, despite the detailed Cultural Assessment and Aspirations Report (CAAR) submitted by Te Taiwhenua o Heretaunga.

Marei Apatu, speaking on behalf of Te Taiwhenua o Heretaunga, said:

“This decision is a significant affirmation of our mana and the enduring relevance of Te Tiriti o Waitangi in environmental decision-making. The Court has made clear that statutory bodies must do more than gesture toward Treaty principles—they must apply them rigorously and transparently.”

The press statement says Justice Isac found the Panel had acknowledged its Treaty obligations and referenced the Hiringa Energy precedent.

But

“… it did not properly evaluate the cultural impacts and the significance of the river and the location”.

Cultural impacts?

“Significance” of the river?

What could these be?

The press statement goes on:

The Panel also failed to assess the principle of active protection or the CAAR’s Treaty partnership score, which was just 2.5 out of 19.

This raises another question: What is CAAR?

PoO consulted Grok, an Artificial Intelligence chatbot which (we were advised) can answer questions, generate images, write code, and summarize documents, and aims for truthfulness and objectivity, although it has also faced controversy and doesn’t necessarily get things right every time.

Grok told us:

CAAR stands for Cultural Assessment and Aspirations Report. In the context of New Zealand’s resource consent processes (particularly under the Resource Management Act 1991 or fast-track consenting regimes like the COVID-19 Recovery (Fast-track Consenting) Act 2020), a CAAR is a document prepared by iwi (Māori tribes) or their representatives.

It outlines the cultural significance of a proposed project site, potential adverse effects on Māori cultural values, taonga (treasures), and the environment, and the aspirations of the iwi for the area. This report helps decision-makers (e.g., expert panels) fulfill their obligations under the Treaty of Waitangi principles, such as active protection and partnership with Māori.

CAARs are often submitted during environmental impact assessments for developments like quarries, infrastructure, or energy projects, ensuring that Treaty principles are integrated into consenting decisions. [PoO’s emphasis}

Grok then explained the Treaty Partnership Scoring system.

The Treaty partnership score is a quantitative tool embedded within a CAAR to evaluate the strength of the partnership between the project applicant (or the Crown) and the affected iwi, as required by the principles of the Treaty of Waitangi.

The Treaty principles—often summarized as partnership, participation, and protection—mandate good faith collaboration between the Crown (or its agents) and Māori in decision-making that impacts iwi interests.

This score assesses how well the proposed project aligns with Treaty partnership obligations. It is typically scored out of 19 points, based on a structured framework that measures various dimensions of engagement and mitigation.

A low score (e.g., 2.5 out of 19) indicates weak partnership efforts, such as inadequate consultation, failure to address cultural impacts, or insufficient co-design of mitigations, which could signal a breach of Treaty duties.

Grok then gave a rundown on the Scoring Framework

While exact methodologies may vary by iwi or report, the score generally evaluates factors like:

• Pre-engagement and Consultation: Depth and timeliness of discussions with iwi (e.g., early involvement vs. tokenistic meetings).

• Cultural Impact Assessment: Recognition of site-specific taonga, wāhi tapu (sacred sites), or mahinga kai (food-gathering areas).
• Mitigation and Benefits: Concrete actions to avoid harm, such as site protections, co-governance, or economic opportunities for iwi.

• Aspirations Alignment: How the project supports long-term iwi goals, like environmental restoration or cultural revitalization.

• Active Protection: Evidence of proactive steps to uphold rangatiratanga (Māori self-determination).

The score is derived from a rubric where each criterion is rated (e.g., 0–3 points), summed to a total out of 19. Higher scores reflect robust, good-faith partnerships; lower ones highlight gaps that require remediation.

And why does this matter?

On that question, Grok references none other than

… a landmark High Court case (Te Taiwhenua o Heretaunga v Environmental Protection Authority Expert Consenting Panel [2025] NZHC 2397).

Yep. As we already know, the court quashed the quarry consent partly because the panel failed to properly consider the CAAR’s Treaty partnership score of just 2.5/19.

The ruling emphasized that panels must “meaningfully apply” Treaty principles, including evaluating this score, to avoid errors of law.

This sets a precedent for future consents, reinforcing that cultural effects must be viewed “through a Treaty lens.”

Back to the press statement on Scoop

Te Piringa Hapū, Te Waiora Taiao Kaihautu Patricia Nuku of Omahu say they hope the applicants come to the table and meet with them and the community “to kōrero in good faith, to reset the relationship”

They further say they understand the need for gravel to support roading and economic recovery in the region.

But “there are alternative sites available” and “at the very least, our interests should be given proper recognition”.

Ngāti Kahungunu Iwi Incorporated Director of Environment and Natural Resources, Ngaio Tiuka hails the judgement as “a wake-up call that fast-track or streamlined processes should not effectively by-pass sound decision-making and the community purely in the name of perceived economic recovery.”

In his article, Steven Gaskell says the Luxon government wants to tidy up references to treaty principles on our law books.

Perfectly reasonable, one might think. But according to the Waitangi Tribunal, that’s a breach of the Treaty. Yes, you read that right: changing laws that added something that was never in the Treaty somehow breaches the Treaty. That’s bureaucratic yoga at Olympic level.

The Tribunal assures us it’s “not too late” for the Government to change course, Gaskell points out.

But this means dropping the whole idea and doing what Wellington officialdom tells it “because in modern New Zealand, questioning the invented principles of a 19th-century document is apparently more dangerous than ignoring the document itself”.

He says it’s time to stop treating the “principles” like divine scripture:

The Government’s job is to uphold the Treaty, not the mythology built around it.

He reckons the Government is right to insist that Treaty clauses should uphold the fundamental human rights and equality of all New Zealanders.

That’s not racism; that’s democracy. Equality before the law is the cornerstone of any free society, and it’s already enshrined in both the New Zealand Bill of Rights Act and international law.

The original Treaty promised Māori “the same rights and duties as British subjects,” not a separate system of governance or privilege based on ancestry”.

The Waitangi Tribunal’s dismissal of equality as “not a Treaty principle” – Gaskell argues – shows how far modern Treaty interpretation has drifted from the document’s actual text.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.