The proposal by the New Zealand Government to create in the Kermadec Ocean one of the world’s largest marine sanctuaries began in splendour and descended into disorder – and all for reasons which experience should have made thoroughly predictable by now.

The proposal by the New Zealand Government to create in the Kermadec Ocean one of the world’s largest marine sanctuaries began in splendour and descended into disorder – and all for reasons which experience should have made thoroughly predictable by now.

Then Prime Minister John Key made the announcement on the international stage, at a UN Conference in New York in 2015. He has said since that he thought it would be “pretty much universally supported”, which may explain why the Government failed to consult Māori first.

That was a mistake because Māori have commercial fishing rights in the Kermadec through the Treaty of Waitangi Fisheries Settlement Act 1992. They are not currently using them, but they are still property and the proposed sanctuary establishment legislation will effectively extinguish those property rights, while preventing the payment of compensation.

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Māori anger at the Government’s mismanagement led to a threat by the Māori Party to abandon its coalition arrangement with National, litigation in the High Court and the Waitangi Tribunal by iwi interests and to the Bill being suspended at second reading stage while the Government seeks to negotiate a solution which will keep the Māori Party on side.

Potential solutions include a co-management deal which would not extinguish quota rights but would impose a ‘no take’ period to be reviewed after 25 years.

The dispute is not over the proposed marine park, which has broad support among both Māori and Pakeha, but over the Government’s failure to respect Māori rights under the Treaty of Waitangi.

The Treaty has no independent legal status as a directly enforceable legal instrument, but is recognised as New Zealand’s founding document and is legally effective in the New Zealand Courts at least to the extent it is referred to in other Acts of Parliament, and as a part of New Zealand’s common law. 

Currently, there are 62 Acts which refer to the Treaty. These include the State Owned Enterprises (SOE) Act 1986, the Resource Management Act 1991 (RMA) and the Local Government Act 2002 (LGA).

Claims under the Treaty are heard by the Waitangi Tribunal. Generally the Tribunal can only make recommendations which the government may or may not accept. The exceptions are Crown forest land and certain lands previously owned by SOEs, over which the Tribunal may make binding recommendations.

The Treaty has always been the subject of debate. Factors include: 

  • differences between the English language and Māori language versions
  • uncertainty around precisely what is meant by three key Māori concepts – kāwanatanga (governorship), rangatiratanga (chieftainship) and taonga (treasures) 
  • natural difficulties applying an agreement dating back to 1840 in the modern world – e.g. application to radio spectrum
  • competing claims among different iwi, and
  • an evolving jurisprudence regarding how elements of the Treaty should be interpreted.

But probably the greatest recurring source of tension is perceived shabby, high-handed or manipulative behaviour by successive governments. 

Parallels have been drawn between the National Government’s Kermadec fumble and the Clark Labour Government’s even more disastrous handling of the foreshore and seabed issue.

This entered the political arena in 2003 when the Court of Appeal overturned a 1963 decision (Re the Ninety-Mile Beach) to find that the sovereign title to New Zealand vested in the Crown had not extinguished pre-existing Māori property rights and that the Māori Court had jurisdiction to hear a claim by local iwi over the Marlborough Sounds.

This decision was immediately whipped up by talk show hosts and the National Party Opposition as a threat to public access to the beaches, provoking the government to try to circumvent the risk by intervening legislatively to prevent the claim being heard.

The result was the Foreshore and Seabed Act 2004. This Act vested ownership of the foreshore and seabed in the Crown (except for those parcels which were already privately owned) with provision for local iwi to pursue territorial customary rights where they could demonstrate a continuous association going back to 1840 and owned the adjoining dry land.

This caused a rupture in Labour’s traditionally close relationship with Māori and triggered the formation of the Māori Party. National repealed the Act in 2011 and replaced it with the Marine and Coastal Area (Takutai Moana) Act which created a “no ownership” regime in which iwi can apply for customary title over a particular area, provided this does not disturb existing rights, such as fishing, aquaculture, or public access.

But Government Ministers are keen to be seen to be acting decisively and are also often ignorant of Māori history and culture so, despite the lessons of the past, the clumsiness continues.

National, for example, was forced recently to re-open consultations on the Te Ture Whenua Māori Amendment Bill, covering collectively-owned Māori land, after the Waitangi Tribunal found that there had been insufficient empirical research behind the proposed reforms and a lack of adequate consultation.

There are many, many more examples we could use. 

The obligations within the Treaty bind the Crown as a Treaty signatory, central government and its agencies as agents of the Crown and local government through statutes including the Local Government Act and the Resource Management Act. 

But New Zealand’s commitment to bi-culturalism and to partnership with Māori means that all potential investors in New Zealand need to be aware of Māori interests and Māori culture, particularly as New Zealand Courts will (and should) protect Māori interests in appropriate circumstances. 

That is particularly true where the Crown makes decisions in a Treaty settlement context, in which case the Crown could well owe a range of enforceable obligations to iwi.

Nick Wells is Chapman Tripp’s executive partner and Te Aopare Dewes is a senior associate. Both are members of the firm’s Māori Legal Group, Te Waka Ture.

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