Ko Aotearoa Tenei. The Wai 262 (Flora & Fauna) Report, Waitangi Tribunal

Transcription

1 Ko Aotearoa Tenei The Wai 262 (Flora & Fauna) Report, Waitangi Tribunal An analysis for the Royal Forest and Bird Protection Society of the 2011 publication, Ko Aotearoa Tenei, a report into claims concerning New Zealand Law and Policy affecting Maori culture and identity. September 2012 we recommend a suite of legislative, structural, and policy reforms, designed to bring about responsible power-sharing. We think that our recommended changes should result in a new approach to conservation management, incorporating mātauranga Māori into decisionmaking and reconciling any differences between kaitiakitanga and the Western preservationist approach. Conservation outcomes will be enhanced while protecting and supporting mātauranga Māori. This would be a win-win-win result for the Crown, iwi, and the environment. 1 1 Ko Aotearoa Tenei: Te Taumata Tuarua, pp

2 Contents Introduction 4 Short Summary of Wai 262 Report 7 Summary of Wai 262 key points, key ecommendations and conclusions 9 Chapter 3: Relationship with the Environment and Matauranga Maori 9 Introduction 9 Discussion 11 Reforms recommended by Tribunal 14 Capacity building, Discussion and Recommendation 15 Greater use of national policy statements 16 Considerations for Forest and Bird 16 Chapter 4: Taonga and Conservation Estate 17 Claimants Concerns 18 i. Legislation and Guiding Policy 19 ii. Maori Involvement in Conservation Decision making 20 Maori Involvement in the Conservation Authority 22 iii. Customary Use 24 Morere Scenic Reserve 25 Ngati Wai tohora and kiore 25 Te Pataka o Te Tai Tokerau 26 Conservation Authority s report - access and harvest 26 iv. Commercial Activity on the Conservation Estate 28 Implications for Forest and Bird 24 : 27 National Parks 29 Implications for conservation 32 2

3 Recommendations for Forest and Bird 33 Katiaki Conservation 34 Chapter 2 : Rongoa Maori 35 The Genetic and Biological Resources of Taonga Species Implications for Forest and Bird 36 Patents and Bio-prospecting in the marine environment 37 Access to ex situ genetic resources and Tribunal s recommendations 39 Implications for Forest and Bird and wider conservation 39 Conclusion: bio-prospecting, rongoa, genetic resources 40 Convention on Biodiversity 41 Nga Whenua Rahui 42 Implications for Forest and Bird and wider conservation 42 Chapter 8: The Making of International Instruments 43 The Declaration of Rights of Indigenous Peoples Implications for Forest and Bird and wider conservation 43 Has it shifted the landscape for conservation? 44 Other Stakeholders 45 End Note 48 Summary Recommendations 49 Appendix 1: 2 : Further Reading 55 3

4 Introduction If ever there was an omnibus, multi-agency report on the state of Crown-Maori relations across the principles of much of their engagement then the Waitangi Tribunal s Wai 262 report, as it is commonly referred to, is it. Yet it is so much more even than that. The result of a claim filed in 1991, keenly-awaited in both New Zealand and internationally before its release 20 years later, it is perhaps the most comprehensive if not significant manifestation of the Waitangi Tribunal project since its inception. It is of considerable interest to Forest and Bird supporters not just because of the nature of its content, but also because it is very much an expression of the holism that encompasses the Maori apprehension of the natural world. At almost 800 pages, the Tribunal s long version, subtitled Te Taumata Tuarua, deals with culture and identity, flora and fauna and, put crudely, the intellectual property rights and opportunities associated with these issues for Maori. (For more general readers, there is also a more accessible 250 page, also colour-illustrated, digest, subtitled, Te Tamata Tuatahi.) In addition to issues from the natural world, this report brings together a range of issues, from te ao Maori and te ao Pakeha (the Maori and the Pakeha worlds), and the many rub points for Maori between those two worlds as seen through the lens of the Treaty of Waitangi, its principles and jurisprudence. In summary the claim set out to preserve Maori culture and identity, and the relationships that these are derived from. Some 20 government agencies are impacted by the report. The report s focus is on matauranga Maori -- the unique and unfolding world of Maori knowledge. Traditionally, this most embracing of concepts was rooted in whakapapa and in the cosmological/spiritual/natural realms they were intrinsic to. But from the time of contact it also had to accommodate significant impacts, many adjustments and great losses. Hence the report deals not so much with the issues of the past, but with those constructions of the modern world such as taonga works and intellectual property, taonga and the conservation estate and international instruments. Indeed the term from the Treaty, taonga ( a property or anything highly prized 2 ) from the Maori version of the Treaty is, together with matauranga, a touch-stone concept in these Tribunal s discussions. Typically, the report is plain-spoken. Yet the thrust of its narrative and findings is highly inclusive and generous. Its narrative is of two streams of culture discovering each other on these islands and to some extent coalescing, and of now seeking ways to serve traditional cultural concerns, tikanga and associated rights in a modern world in ways that will, in meeting Treaty demands, to a very great extent be mutually beneficial. These ways may be different to those which we know. The report is strongly proactive, indeed focuses on the past only to explicate a future it is a document rooted in problem-solving, looking to a time not far away when Maori and Pasifika numbers will dominate the population. A great deal of unique historical evidence accumulated for this hearing by some experienced researchers, does not appear. Not least among these was Dr Geoff Park, who until his untimely death was a regular contributor to Forest and Bird. It was decided that, in the interests of progress, the focus for the report should be on the issues that remained contemporary.) What such a report asks of all of us is responsive consideration rather than defensive reflexivity. There are three chapters that contain most of what is of interest to conservationists and environmentalists rongoa (traditional Maori healing), environment and conservation. In particular, the chapters on the Conservation Department and the Ministry for the 2 H W Williams, A Dictionary of Maori Language, GP Books,

5 Environment go to the heart of the relationship between Crown, iwi-maori and, by inference - - and by their involvement -- to those with an interest in these portfolios. Since the focus is on Crown-iwi relations, there are very few references to Forest and Bird though a few more show up in the bibliography. The late advocacy director Kevin Smith, never a man to mince words, is quoted twice, once on the issue of conservationists trust of Maori which led the to the following discussion, going to the very heart of the issues for Forest and Bird: Why, therefore, should there be such a lack of trust? The irony is that conservationists and kaitiaki have much more in common than either side realises. In the same 1994 discussion on Māori claims to the conservation estate from which we have quoted Kevin Smith, the Pākehā chair of both a regional Royal Forest and Bird Protection Society branch and the local conservation board took a different perspective. For him, Māori striving to protect kererū numbers so that they might one day be harvested sustainably bites around the edges but does not destroy Forest and Bird s core ecological concern for survival of the species. It also adds an additional argument in favour of Forest and Bird s concern for the survival of forest habitats. He added that there was every reason to believe that Maori, with their closer and more direct interest in things within their tribal boundaries than the Crown can ever have, can be more diligent in managing the natural environment. That took the Tribunal to three essential conclusions: The first is that the survival and recovery of species is the overwhelming priority. This is supported by court findings that DOC is bound by its legislation to put the needs of the native species first. Secondly, the Tribunal saw no sound basis for the lack of trust in Māori conservation management. Given the endangered status of many native species, conservationists and kaitiaki want the same outcomes. Thirdly there had to be provision for kaitiakitanga because customary use was critical to the survival of mana Māori and Māoritanga itself: There can today be no going back to the wilderness philosophy that sought to exclude traces of human culture from natural environments. The simple point is that Māori culture and kaitiakitanga as a fundamental aspect of that culture lives and is practised in the bush and the water where it was born. We heard from claimants that to separate kaitiakitanga from its place is to destroy it. 3 There is no doubt that the lead taken by a respected NGO and major stakeholder such as Forest and Bird can be highly influential in the positions it takes in regard to its interests as raised in this report. Already it is demonstrating leadership in seeking to address the demands of such a report. At this point the society can affect the policies of a government which has thus far given no indications on its views and formulations -- on the many of the matters raised that are long overdue for discussion and progression. 3 Te Taumata Tuarua, pp

6 New Zealand still prides itself as a progressive and fair society, not least in its Crown-Maori relations. However in some matters of keen interest to Forest and Bird members, particularly but not exclusively those concerning governance of national parks, this country is has been left far behind by several countries with not dissimilar colonial histories, including our near and frequently perceived culturally-deficient neighbour, Australia. While these issues remain unaddressed, many aspects of Maori potential denied remain unresolved. A year ago, when the report was delivered back to the claimants at Ahipara, Northland, seat of the 262 claim, Minister for Treaty Relations Chris Finlayson stated that the government would give it careful consideration. However, best information from both Ministry for the Environment and the Department of Conservation more than a year later is that Cabinet has not yet begun this task. Noted in the August 2012 issue of Forest and Bird is that the organisation s general manager, Mike Britton, is urging members to consider Maori aspirations to share management of parks and places - where Maori heritage remains strong, using a co-governance model. He mentions both Tongariro and Te Urewera national parks as presenting this opportunity. This is timely leadership. Another pressing issue at time of writing that is of considerable moment for Forest and Bird interests has been the Government s determination to press ahead with sales of State-Owned Assets, and in particular the related issues of water that supply a number of New Zealand s big hydro-electricity dams. While already addressed by a number of Waitangi Tribunal reports on waterways, and therefore not a significant item in this report, aspects of Wai 262 discussion do throw this issue into sharper relief. The Tribunal s analysis of the Resource Management Act (RMA s) shortcomings in terms of the Treaty is possibly the strongest indicator of deficiencies in legislation from a tangata whenua perspective. 6

7 Short Summary of Wai 262 Report It would be difficult to improve on the Tribunal s own summary report, which has been drawn upon but changed to fit the requirements of this report: The report s supra title is Ko Aotearoa Tenei: This is Aotearoa. It is divided into two levels, each of which is designed to be read independently: a shorter summary layer subtitled Te Taumata Tuatahi, which is accessible to a general readership, and a fuller, two-volume layer subtitled Te Taumata Tuarua. Both layers have an introduction, eight thematic chapters and a conclusion. Both of these are on-line. The first volume introduces the report and contains its first four chapters. Chapter 1 Tonga works and Intellectual property Chapter 1 considers the Māori interest in the works created by weavers, carvers, writers, musicians, artists, and others in the context of New Zealand s intellectual property law, particularly copyright and trademarks. Tonga works are those artefacts of Maori culture, traditional and contemporary, seen as expressions of matauranga Maori, invoking ancestral connections and may contain traditional narratives. They will possess mauri and hold the status of kaitiaki according to tikanga Maori. The Tribunal recommends new standards and protection for taonga works and protecting mataraunga Maori from commercial exposure and exploitation. An expert panel is proposed to advise on such matters, as well as a Commission to hear complaints and make determinations. Chapter 2 Genetic and Biological Resources of Taonga Species Chapter 2 examines the genetic and biological resources of the flora and fauna with which Māori have developed intimate and long-standing relationships, many of which continue to be of interest to researchers and scientists. In order to uphold the kaitiaki relationship, a number of recommendations are made. These include changes to stop bio-prospecting law, genetic modification and intellectual property. The latter involves recommendations regarding patent law, including those covering taonga plants. Chapters 3 & 4 Relationship with Environment & Taonga and The Conservation Estate These are on the wide-ranging aspects of the environment controlled by the Resource 7

8 Management Act (chapter 3), and then with regard to the conservation estate managed by the Department of Conservation (chapter 4). These are the two chapters of by far the greatest interest to Forest and Bird. It is these two segments of management of natural resources that consume most of the organisation s time and resources and on which this report focuses most of its attention. The second volume contains the final four chapters of the report. Chapter 5 Te Reo Māori Chapter 5 focuses on the Crown s protection of te reo Māori (the Māori language) and its dialects, and considers in depth the current health of the language. A prepublication version of this chapter was released in October Chapter 6 When the Crown Controls Mātauranga Māori Chapter 6 considers those agencies where the Crown owns, funds, or oversees mātauranga Māori (Māori knowledge and ways of knowing) and is thus effectively in the seat of kaitiaki (cultural guardian). These agencies operate in the areas of protected objects, museums, arts funding, broadcasting, archives, libraries, education, and science. Chapter 7 Rongoā Māori Chapter 7 then examines the Crown s support for rongoā Māori or traditional Māori healing. It also traverses the principal historical issue covered in the report, the passage and impact of the Tohunga Suppression Act 1907 Chapter 8 The Making of International Instruments Chapter 8 addresses the Crown s policies on including Māori in the development of New Zealand s position concerning international instruments such as the Convention on Biological Diversity and the Declaration on the Rights of Indigenous Peoples. Each chapter ends with a brief summary of the Tribunal s recommendations for reform, and a concluding chapter brings together its overall conclusions and recommendations. An appendix provides a brief procedural history of the inquiry, outlining the origins and development of the claim, the claimants, the scope of the claim issues and the two rounds of hearings. This analysis will start with the environmental matters, chapter 3, then move to chapter 4 for conservation issues, then to chapter 2 on rongoa. 8

9 Summary of Wai 262 key points, key recommendations and conclusion Chapter 3: Relationship with the Environment and Matauranga Maori Introduction The organising principle of matauranga Maori is whanaungatanga (family relationship), describing relationships between people, between people and natural resources and even between related bodies of knowledge. The Maori world is defined by kinship. Hence Maori relationships with natural landscape, waterways, flora and fauna, are always defined in terms of kinship. Hence, too, the traditional formal identifying statements that we are familiar with on marae, for example, with Maori invoking among others, their maunga and awa. Apart from anything else, this explains how elders will speak directly to the elements, embodying as they do the spiritual and physical: Indeed, the first step in understanding the Maori relationship with the landscape (for example) is to understand that descent from it is an essential Maori belief. 4 The second core value is kaitiakitanga, often translated as guardianship or stewardship, definitions that are accurate except in as much as they do not carry the core spiritual element that animates the concept. In his writings prepared for the original Resource Management Act the Rev Maori Marsden struck three principles that should guide resource management from a Maori perspective: Humans are here to maintain and enhance the life support systems of Papatuanuku People should treat Papatuanuku with love and respect in recognition of her lifesupporting function, her role in the creation of the natural world, and her place in our whakapapa We do not own papatuanuku, but are its recipients, and therefore stewards of the natural environment. The Tribunal credits the Environment Act 1987, which ushered in both the Ministry for the Environment and the Parliamentary Commissioner for the Environment, as providing a substantial shift from exploitation towards environmental protection. Furthermore, that the Ministry recognised Maori structurally through the creation of what was then the Maruwhenua unit, something of a first. The Resource Management Act followed in (Comment: Both points are quite true, but the extent to which each remains true today, after 25 years of dilution of these aims by the successive governments, it has to be noted, is now somewhat questionable.) The Tribunal identifies the original debates in the RMLR (Resource Management Law Reform) process: 4 Te Tumata Tuatahi, p.105 9

10 Early in the process, Māori raised the issue of unresolved Treaty claims to the ownership of resources that would come to be regulated under the new law minerals, geothermal energy, water, the foreshore and seabed, riverbeds, and so on all of which had been the subject of long-standing political or legal claims. In response, the Government excluded ownership of resources from the RMLR project, on the basis that it would be addressed separately, and instead declared that the Act would only regulate the use of resources. It s fair to say that Māori were generally sceptical, especially as consent access to resources such as water effectively secured their ownership. The RMLR project did, however, provide for recognition of Māori cultural interests in land, water, and other environmental resources in the principles and purpose of the new law (explained in section 3.3.2(1)). It also provided for the establishment of mechanisms to give those interests some degree of concrete expression (through influence over decision-making and, in some circumstances, delegated control). 5 Following extensive dialogue with Maori and wider interests, a series of Maori-specific issues was drafted which, says the report, had a surprising effect on the overall feel of the legislation. This effect was section 6 (e) which requires councils to recognise and provide for [Tribunal s italics] the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. This is a potentially powerful injunction, even though it is subject to the overarching sustainable management purpose. Perhaps unwittingly, the reference to Maori relationships with various taonga in the natural environment evokes the whanaungatanga [bloodline] value. 6 Section 7 requires councils, writes the Tribunal, to have particular regard to a list of 11 specific matters [again, emphasis added] among them being kaitiakitanga, defined as, the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship. Therefore, it argues, section 7 imports a core principle of matauranga Maori into the national environmental regulatory regime. 7 The Tribunal s final summary point in this section concerns S8, which requires that all those exercising functions and powers under the Act, shall take into account the principles of the Treaty of Waitangi. 8 5 Ko Aotearoa Tenei: Te Taumata Tuarua, 1, pp Te Taumata Tuatahi, p Te Taumata Tuatahi, p Te Taumata Tuatahi, p

11 Discussion Having described key points of the Act, the report then poses the question, how can the voice of matauranga Maori be heard in such a system? The report s argument is the crucial section for Forest and Bird in this part of the discussion. Its arguments may be summarised as: The environment as a whole cannot be regarded in the Treaty usage as a taonga Atua (gods),being the environment, transcend the taonga concept Taonga are the particular iconic mountains or rivers, for example, or specific species of flora and fauna having significance in matauranga Maori The Crown does not absolve itself of Treaty obligations by devolving functions to local councils While local authorities are not the Government, they must be given clear Treaty duties and be made accountable for their performance. The Tribunal summarised under the Treaty s tino rangatiratanga provision the claimants position as kaitiaki, as having the right to control and regulate their relationship with the environment. For them, either joint management or outright control as kaitiaki was the default position, compromise being required to accommodate other vested interests. Without that, the voice of matauranga could not be heard where it counted. However the Crown argued that the existing system gave Maori appropriate voice. 9 Three examples from the evidence were given. Each was from the testimony of an elder, and they concerned harvest of flax, wood from the pahautea ( New Zealand cedar) and management of kaimoana. Each involved consultation with nature, tikanga to ensure the avoidance of waste, karakia accompanying harvest and practices such as rahui to ensure replenishment. Prior to colonisation, these practical systems of kaitiakitanga controlled all environmental management, the Tribunal said. But now, they can operate only informally, because under the RMA, the statutory authority necessary to exercise formal kaitikitanga is actually vested in the Crown and local government. 10 (The Tribunal noted that the Crown s delegation of its responsibilities to local government did not absolve it of Treaty responsibilities.. 11 ) The Tribunal asserts that it does not follow that where a taonga is identified and a kaitiaki relationship is established, that the Treaty demands that Maori have exclusive control of it. It warns that many interests are often involved, and a one size fits all approach is not the way to go. Instead, it makes three recommendations: 9 Te Tumati Tuatahi, pp Te Tumati Tuatahi, p Te Taumata Tuarua, p

12 1. Control by Maori of environmental management in respect of taonga where it is found that the kaitiaki interest should be accorded priority 2. Partnership models for environmental management in respect of taonga, where it is found that kaitiaki should have a say in decision-making, but other voices should be heard 3. Effective influence and appropriate priority to the kaitiaki interests in all areas of environmental management when the decisions are made by others. The Tribunal then goes on to examine each of these possibilities. 1. It points out that under S 33, local authorities may transfer any of their functions or powers or duties to iwi authorities or other statutory authorities. Any corporate authority, under S 188, may also apply to the Minister for the Environment for permission to become an authority to protect any place. But these provisions have never been invoked in favour of any iwi, despite several attempts. The Tribunal firmly rejects any notion that after centuries, iwi are incapable of exercising their kaitiaki role in an RMA context. 12 It finds irony in the fact that several agreements under which iwi receive substantive regulatory control in their own right have been negotiated outside of the RMA process, perhaps most notably the Ngati Porou-Crown Deed of Agreement in respect of the tribe s foreshore and seabed claims. However, this in no way is a justification for the non-use of that RMA provision. 2. The partnership model became a part of the RMA statute in These agreements allow local bodies iwi authorities and hapu representatives to share in the joint performance of any of the local authority s functions, powers or duties under the RMA that relate to natural or physical resources. It was again clear that joint management bodies exercise significant RMA powers. However, despite hopes for this provision, just one example, between Ngati Tuwharetoa and the Taupo District Council, has been found by the Tribunal and this is still tentative and unproven. Discussion of the recent Waikato River settlements between the Crown and Tainui, and for other Waikato River iwi raises the point that, despite their being innovative, they are still new and unproven. They will need relationship-building between iwi and local authorities to succeed. The Tribunal s concluding remarks in this section need quoting in full: As with the control mechanisms we referred to above, it is disappointing that the RMA has almost completely failed to deliver partnership outcomes in the ordinary course of business and that Maori are being made to expend the potential of their Treaty settlement packages to achieve the results the 12 Te Tumati Tuatahi, p

13 resource management reform promised, two decades ago, would be delivered. The Crown accepted in hearings that the transfer of exclusive or shared decision-making power should not depend upon proof of customary title or historical wrongs. It follows that what must be proven is the existence of a kaitiaki relationship with the taonga in question. That ought to be enough It is point 3, the kaitiaki role, that in this section, bears most directly upon Forest and Bird and which members may wish to consider most. After all, in times past, often in the absence of a Maori voice and usually less Maori presence in campaigns and politics than today -- Forest and Bird may have felt that it was they, and they alone who occupied that place. (The reasons for that absence are the subject of many histories, a few of which are attached under Further Reading at the end of this analysis.) The tribunal has found that where relations are good and well-resourced between iwi and local body, Maori priorities stand a fair chance of being heard. If not the Maori voice is effectively silenced. The 2002 Local Government Act introduced requirements for Maori contribution to local authority decision-making. S 63 of the Act now requires local authorities to: I. Provide opportunities for Maori to contribute to its decision-making processes II. III. Consider ways to foster Maori capacity to so contribute Provide relevant information to Maori for the purpose While enhanced Maori engagement with the processes is an advance on the pre-rma era, there are obvious structural short-comings in this approach. Namely, that the system facilitates Maori reaction to agenda-setting by local councils and applicants. 14 However, S 61 (2A) requires that district and regional plans take account of any relevant planning document recognised by an iwi authority and lodged with the council, where it is relevant to the resource management issues of the region. This is the only provision by which Maori can be proactive in resource management without needing the consent of a Minister, a local authority, or an official. This opportunity, the Tribunal says, is often not taken for want of funds for the necessary technical and democratic processes that must be undertaken to achieve it. Hence the iwi management plans that have been developed often lack the technical basis to influence outcomes. Furthermore, the provision that iwi management plans only be taken into account is another deficit requiring urgent government remedy. 15 In discussing the failure of the RMA to deliver to any iwi control of their iconic taonga, this very measured Tribunal report allows itself a rare moment of mild recrimination: It is sadly ironic that those with the power to embrace iwi partnership within the rubric of RMA decision-making (but have consistently failed to do so) are the first and 13 Te Tuamata Tuatahi, pp Te Tuamata Tuatahi, pp Te Tumati Tuatahi, pp

14 loudest to complain when iwi seek to avail themselves of the only other recourse open to them. 16 The claimant suggestion that S8 be amended so that decision-makers must act consistently with the Treaty, rather than merely taking account of it, the Tribunal writes, will not be sufficient on its own. Instead, a group of reforms are needed. Reforms recommended by Tribunal 1. Enhanced iwi management plans, prepared in consultation with local authorities, to identify S33 control and S36B partnership for formal negotiation with local councils. Identify heritage protection authority opportunities for iwi and set out the iwi s general resource management priorities in respect of taonga and resources within their rohe. 2. Once an iwi has finalised its IRMP (Iwi RMA Plan), formal statutory negotiations between iwi and local authority then proceed and where there are differences, compromises are reached. 3. Where there is agreement, an IRMP should have the same status under the RMA as any district or regional plan or policy statement; where there is disagreement, the IRMP would remain relevant to decision-making, even if not binding or the matter could be referred to the Environment Court for final determination. Maori expertise on the panel would be essential and decisions would be binding. 4. Reforms are needed also on Ss 33, 36B and 188, for this is where the mechanisms for kaitiaki control will be delivered. Yet the RMA neither requires nor provides incentives for such mechanisms to be used Local authorities should be required to: explore options for kaitiaki regularly review their activities to ensure they are making appropriate use of sections 33 and 36B. The Parliamentary Commissioner for the Environment could be used to monitor this. The Ministry for the Environment should be required to explore options for kaitiaki to be designated heritage protection authorities under S188. It also needs to enhance the powers of its Maruwhenua unit so that it can become the face of the Crown and assist iwi to prepare effective IRMPs and kaitiaki to take up greater responsibility under the Act Te Tumati Tuatahi, pp Te Tumati Tuatahi, pp Te Tumati Tuatahi, pp.111,

15 Capacity building The Tribunal acknowledges that while some iwi are ready to play their part fully as it proposes under the RMA, others are not. It sees the Environmental Legal Assistance Fund as a means by which Maori participation can be enhanced in these processes. Enabling all iwi to play a part in the RMA process will have benefits for all, the Tribunal says: Apart from the obvious environmental outcomes, this is the means by which the Crown can maximise iwi investment in our system of law. Accordingly, we recommend that the Ministry for the Environment commit to building Maori capacity to participate in RMA processes and the management of taonga. 19 Discussion Inevitably, iwi-maori and Forest and Bird are not always going to see issues in the same way. However, in the main, the corollary of the Tribunal s quote above is that with iwi more fully engaged in the business of the RMA, the environment is almost always likely to benefit. It is hard to disagree with this proposition. The potential limitations with this approach are, however, three-fold. One is that if iwi over time become extensions of the business model (discussed earlier), Forest and Bird may possibly find itself as the kaitiaki on some critical issues. Two, if Forest and Bird do the restoration and trapping etc, and Maori get the harvesting benefits, will non Maori conservation continue to put in the hard yards? ( The answer is, it all depends on the relationships.) Thirdly, under current government models, the more effective the RMA is in protecting the environment, sadly, the greater the risk that whatever government is in power will be tempted to dilute it. (This situation will only change when civil society is fully informed and engaged on these matters.) Recommendation There an opportunity here for F& B to appoint a Maori liaison officer, or to train local staff, perhaps with the help of DOC s Kaupapa Atawhai team. There has got to be a place where conservationists and tangata whenua meet on these matters, as a matter not of exception but of course -- where the benefits of synergy far exceed whatever differences might exist. In many situations arising from the operations of the RMA, F&B may be able to share some of its technical/legal expertise with iwi Maori. In this way, positive environmental outcomes may also be achieved. While working cross-culturally requires more skills and energy than not, as trust is established and relationships strengthen, however, the rewards environmentally and for those involved are considerable relationship-building within well-defined and understood parameters can and will prove to be of incomparable benefit. 19 Te Tumati Tuatahi, pp

16 Greater use of national policy statements Lack of guidance from central government under the RMA has bedevilled effective engagement by local authorities with Maori as much as it has frustrated environmentalists. As conservationists well know, over some 20 years of the RMA, very few national standards or national policy statements have been issued. Until recently none has made specific reference to kaitiaki involvement in decision-making. The tribunal recommends national policy statements on Maori participation in RMA processes including: policies for achieving national consistent implementation of the IRMPs use of mechanisms for kaitiaki control and joint management These recommendations are not unreasonable indeed a reasonable person informed about the Treaty and its principles might well have considered that they were already provided for. Considerations for Forest and Bird More consultation is a good thing, but for public good agencies, the greater time commitment implicit in negotiating with a third party may be an issue, just as it is for hapu and iwi. Forest and Bird would have little issue with having more allies, Maori or otherwise, in its bid to secure more, and substantive national policy statements. However, the Environmental Legal Assistance Fund, of which there is little enough already, would need to be enlarged. In the end, the principle of greater Maori engagement and involvement in the environment sector can be seen as a positive step for society as a whole. 16

17 Chapter 4 : Taonga and The Conservation Estate Many conservationists know something of Kevin Prime s leadership of Ngati Hine when he undertook responsibility for plummeting numbers of kukupa the local name for wood pigeons in the Far North. Defying trends an estimate of a 50 per cent decline in the bird s numbers in the 14 years prior to 1993 caused by habitat loss, exotic predators and, let s face it, a view that a customary take of pigeon was for some a god-given right, Kevin Prime famously declared there would be no more such takes until the bird had become a pest. It was 1994 when DOC transferred the 350 hectares of Motatau Forest to the guardianship and management of Ngati Hine. The iwi has worked at predator trapping along with poisoning and protection measures ever since. The results have been encouraging not only for kukupa but also for a variety of other native birds. 20 Such work by tangata whenua to put right locally issues whose deepest causes lie buried in the mutual histories of the two Treaty partners attitudes to the land they came to colonise. More especially, they stem from what has been done so swiftly to its fabric and to the Maori relationship to it over what began some 200 years ago. Their action, involves a sacrifice of both customary activity and in regard to Ngati Hine s work, commitment to restoration. This, most conservationist tangata Tiriti (citizens here not as tangata whenua, but by dint of the Treaty s provision) can readily approve of. (Apart from anything else, as a species, the big kukupa/kereru are vital and prodigious distributers of native plant seed.) Not only does this particular example appear at the front of the Tribunal s chapter on Taonga and the Conservation estate, it was also prominent in the 2000 Biodiversity Strategy s section on tangata whenua. 21 However, such an example presents a two-sided coin. Just as Ngati Hine, and a number of other hapu and iwi have given up something for the greater good, those who stand as tangata Tiriti may also be called upon to give up something of their cherished loves and beliefs regarding land and customary use. If necessary, this will also befor the greater good. The Tribunal holds that the estates managed by DOC are important to Maori for two reasons. One is that these are the remaining lands from the world in which te ao Maori was created. Although it is owned by the Treaty partner, every inch of it is tribal territory. Landscapes and landforms evoke the old stories, and they in turn evoke whakapapa, the Tribunal asserts. In these ways, the Maori relationships with this land therefore remain tangible. Second, apart from those on private land, DOC is responsible for almost all remaining indigenous flora and fauna species many of which are found nowhere else in the world, and many are threatened or endangered. The department controls access yet without such relationships between tangata and whenua (ancestral land), Maori simply cannot survive. 22 (The definition of Maori here is, as always, much more than a physical one.) 20 Te Taumata Tuatahi, p The New Zealand Biodiversity Strategy, P Te Taumata Tuatahi, p

18 For these reasons -- above all other Crown-Maori relationships -- discussion of the relationship with DOC was strong throughout the hearing all Maori submissions contained discussion on it and, for their part, some DOC officials were in attendance at all hearings. Claimant Concerns The desire of claimants to exercise kaitiakitanga over taonga within their rohe (but on lands legally lost to them) has been set out in the report s appraisal of its Environment chapter. Taonga in respect of kaitiaki rights include indigenous flora and fauna and the ecosystems that support them, ranging from mountains and rivers, lakes and forests, off-shore islands and wahi tapu and pa sites. However, their rights and matauranga have been compromised severely, first by land losses and environmental changes since Cook s time and also by legal policy and restrictions. In their report the Tribunal argues that maintaining the kaitiaki relationship is essential to the preservation of matauranga Maori, and that it is their right, guaranteed by the tino rangatiratanga provision of article 2. The Crown has reserved ownership and control over indigenous wildlife and the conservation estate for itself and in practice DOC restricts access to and control over these taonga. While claimants acknowledged DOC s efforts to communicate with them, generally this rarely amounts to an opportunity to fully express kaitiaki relationships. So requirements for customary use of taonga natural items, such as for weaving and rongoa, whale bone for carving and feathers for korowai, have often meant that Maori have felt demeaned. There was, the Tribunal says, insufficient respect for their tikanga and matauranga Maori. Furthermore, claimants were concerned at the intrusion of commercial activity on the conservation estate. These range from commercial ski fields to stock grazing rights, in total returning the Crown some $13.9 million in 2009/ In the curent climate these are only lively to increase. DOC for its part argued that it is doing much good work to protect Maori values and in advancing relations between iwi and DOC. Innovative liaison using the department s Pou Kura Taiao network has assisted. The Tribunal notes this work and the warm relations between DOC and iwi leadership in conservancies. Nevertheless, there was still another step to take. Officials admitted that advancing from contact that was cordial to real power-sharing relationships presented challenges in terms of structure, policy and legislation. These concerns as raised in the report are dealt with under four headings : 1. Legislation and Guiding Policy 2. Maori Involvement in Conservation Decision making 23 Te Taumata Tuatahi, pp

19 3. Customary Use 4. Commercial Activity on the Conservation Estate I. Legislation and Guiding Policy Section 4 of the Conservation Act 1987 provides: This Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi. No other government department has such a clause in its legislation. However, the nearest thing to a definitive list of Treaty principles dates to that published by the Labour government 25 years ago in 1987, where they were given as: The principle of government (Article 2 kawanatanga principle) The principle of self-management (the rangatiratanga principle) The principle of equality (article 3) The principle of reasonable cooperation and The principle of redress. 24 Other principles, some of them much stronger, have since been established in the courts, but because the Treaty is a living document in a changing society, there can never be a finite and definitive set of them. The old Court of Appeal established the concept of the Treaty being a partnership between the Crown and iwi Maori, which through use is now considered to be the over-arching principle of the Treaty. Under this principle sit the principles of the government s right to govern, Maori s right to rangatiratanga and the Crown s duty to protect that and the obligation on the Crown to act reasonably, honourably and in good faith in dealings with Maori under the Treaty. 25 Forest and Bird members may recall the 1990s Kaikoura Whales case, in which, put simply, the Court of Appeal found that the Crown under the Treaty had a duty to actively protect Maori legal interests in taonga. It also saw the environmental interest as paramount. Cautioning DOC against taking too narrow a view of Treaty rights, the court also told the department that the principles of the Treaty required it to do much more than consult Te Taumata Tuatahi, p Te Taumata Tuatahi, p Te Taumata Tuatahi, p

20 However the engine of DOC s policy is the Conservation General Policy (CGP), finalized in This is approved by the Minister of Conservation and is the leading statement of the department s operating policies under the Acts it administers. In her evidence, DOC s then acting general manager of policy stated, that the list of Treaty principles carried in the CGP had little direct impact on other policies or on DOC operations. 27 The following comment from the Tribunal is fundamental to what is at issue here: We have no doubt that the department s interpretation of Treaty principles is influenced by the Executive, and in particular by a 2006 document, Crown-Maori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies which imposes a view of Treaty principles that is narrow and skewed to the interests of the Executive. The Tribunal continues: We acknowledge that there is a place for the Government to provide guidance to its departments, but that guidance cannot restrict those departments statutory obligations, and nor should it seek to pick and choose only those Treaty principles that suit it. 28 Tribunal Recommendations The CGP and the General Policy for National Parks must be amended to reflect the full range of relevant Treaty principles as articulated by the courts. 29 The application of these principles within national parks could be summed up by a single phrase, co-governance, or comanagement. 2. Maori Involvement in Conservation through DOC s provision for it The instruments DOC has for engaging with Maori in conservation matters are dealt with under three heads: A. Pou Kura Taiao B. Policies, including Te Kete Whakotahi C. Involvement in conservation strategy and planning. A. Pou Kura Taiao (DOC-iwi engagement driven by its Kaupapa Atawhai unit) Many Forest and Bird members will already be aware of DOC s Kaupapa Atawhai unit. When it was established, with a person in each conservancy knowledgeable in tikanga and 27 Te Taumata Tuatahi, p Te Taumata Tuatahi, p Te Taumata Tuatahi, p

21 history and fluent in Maori under a similarly qualified deputy-director general in head office, this was a first for any department and a response to the Act s special, section 4 requirements. The Tribunal quotes the evidence of the late kaumatua Ben Hippolite, himself a highly respected Kaupapa Atawhai manager, who, having laid out what he saw as his fundamental responsibilities to the wairua or spirit of each situation, described the role: My first responsibility was to be the bonding agent between the Crown and iwi Maori. My second responsibility was to try and find a win-win situation for both sides. Having acknowledged the depth and effectiveness of DOC-tangata whenua relations as expressed through this and the wider communication network,pou Kura Taiao the Tribunal commented, We therefore have no problem with what Pou Kura Taiao is doing. The problem for us is what the model is unable to do... Too often we saw expectations dashed because either Maori or DOC expected Pou Kura Taiao to be a proxy for that larger role. Something beyond Pou Kura Taiao is needed. 30 B. Policies, including Te Kete Whakotahi The Tribunal again found much in policy which is on the right track, including consultation over preparation of statutory planning documents (such as conservation management strategies) and where the specific proposal involves places or resources of spiritual or historical and cultural significance. It discusses usage of the words may and should, as opposed to the term will. It is will which makes a much stronger commitment to involvement of Maori. The latter usage applies to, for example, Maori involvement in dead/stranded marine species. The CGP is excellent insofar as consultation with iwi is concerned, and the provisions relating to the coastal marine area and wahi tapu are positive. But the report continues: Consultation is fine, but if partnership is the intellectual framework for the principles of the Treaty it must be seen in every aspect of DOC s work. Partnership should be a will obligation under the CGP; and opportunities to share power with tangata whenua should be sought at every opportunity. It therefore recommends that the Conservation General Policy be amended accordingly in this instance, as well as in regard to National Parks and to the recognition of tino rangatiratanga of hapu and iwi in conservancies. 31 C. Involvement in conservation planning Te Kete Taonga Whakotahi: A Partnership Toolbox 30 Te Taumata Tuatahi, p Te Taumata Tuatahi, p

22 In acknowledging DOC s intention with Te Kete Taonga Whakotahi: A Partnership Toolbox to move beyond consultation to forge effective and successful partnerships with tangata whenua the Tribunal notes that the existing draft document actually does this rarely. It then went to the nub of the problem: Government departments are quite seriously inhibited by the aforementioned 2006 document, Crown-Maori Relationship Instruments: Guidelines and Advice for Government and State sector Agencies 32 : Accordingly, we recommend that the guidelines be amended to allow statements of Treaty principle that reflect the full range of principles defined by the courts and the Tribunal. The Tribunal finds that the 2006 document also bans government agencies from any admission of a Treaty breach unless this breach has already been previously admitted in the same claim by another agency. While accepting the need for caution, the Tribunal finds this approach a bridge too far. Thirdly, all Crown Maori Relationship Interests (CMRI) are subject to a special officials group and a CMRI that does not comply with these guidelines stands no chance of being approved, unless a specific exception is made by Cabinet. 33 Having discussed DOC s special relationship with Maori in so much of its work, the Tribunal then identifies the problem and its solution: It is time for the Executive to take a less risk-averse approach, and to make room for organisations like DOC to chart their own Treaty path within principled limits. The CMRI guidelines are far too restrictive for an organisation with a statutory duty to build sound Treaty relationships. 34 Maori Involvement in the Conservation Authority The Tribunal outlined the nature of the legally-constituted, Government-appointed Conservation Authority and its conservation boards for each conservancy, of which there are 11. (Again such community involvement is unique to DOC among government departments, arising from the significant role given the old Park Boards under the 1952 National Parks Act. The appointment process reflects a careful balance of stakeholder interests. The Minister must consult the Minister of Maori Affairs about two appointments, the Minister of Tourism about two and the Minister of Local Government on one. Four members are appointed following public nominations. Others are appointed or recommended by Forest and Bird, together with Te Runanga o Ngai Tahu, the Royal Society and Federated Mountain Clubs. Again, the geographically-based conservation boards (of up to 12 members) are made up of a careful balance of stakeholders, with the importance of the DOC holdings to Maori reflected 32 Crown-Maori Relationship Instruments: Guidelines and Advice for Government and State sector Agencies, Te Puni Kokiri and Ministry of Justice, Te Taumata Tuatahi, pp Te Taumata Tuatahi, pp