In the “Conservation General Policy”
The Conservation Act 1987, and all the Acts listed in its First Schedule, must be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi (section 4, Conservation Act 1987). Where, however, there is clearly an inconsistency between the provisions of any of these Acts and the principles of the Treaty, the provisions of the relevant Act will apply. There has been considerable jurisprudence on the Treaty of Waitangi and its principles, and the scope of the duties the Treaty imposes on the Crown. Interpretations continue to evolve.
Effective partnerships with tangata whenua can achieve enhanced conservation of natural resources and historical and cultural heritage. Tangata whenua responsibilities to this heritage are embodied in the ethic of kaitiakitanga. Kaitiakitanga is a spiritual and environmental ethos that governs tangata whenua responsibilities for the care and protection of mauri, the dynamic life principle that underpins all heritage. Kaitiakitanga includes components of protection, guardianship, stewardship and customary use. It is exercised by tangata whenua in relation to ancestral lands, water, sites, resources and other taonga. The focus of kaitiakitanga is manaaki (care) and rahui (protection).
In 1989 the Government published “Principles for Crown Action on the Treaty of Waitangi”. The principles are:
- The principle of government
- The principle of self management
- The principle of equality
- The principle of reasonable cooperation
- The principle of redress.
The way these principles are applied will depend on the particular circumstances of each case, including the statutory conservation framework and the significance to tangata whenua of the land, resource or taonga in question.
Customary use of traditional materials and indigenous species may be authorised under a variety of different statutory provisions, such as section 17Q and section 30 of the Conservation Act 1987, depending on the nature of the use. Other consents may be required.
2 Treaty of Waitangi Responsibilities
2 (a) Relationships will be sought and maintained with tangata whenua to enhance conservation. These relationships should be based on mutual good faith, cooperation and respect.
2 (b) Partnerships to enhance conservation and to recognise mana should be encouraged and may be sought and maintained with tangata whenua whose rohe covers any place or resource administered by the Department. Such partnerships will be appropriate to local circumstances.
2 (c) Protocols and agreements may be negotiated and implemented to support relationships and partnerships, by mutual consent between tangata whenua and the Department.
2 (d) Tangata whenua will be consulted when statutory planning documents are being developed. Information will be made available to facilitate their contributions.
2 (e) Tangata whenua will be consulted on specific proposals that involve places or resources of spiritual or historical and cultural significance to them.
2 (f) Tangata whenua involvement and participation in conservation on public conservation lands and waters will be encouraged and may be supported with information and technical advice.
2 (g) Customary use of traditional materials and indigenous species may be authorised on a case by case basis where:
i. it is consistent with all relevant Acts and regulations (including fisheries legislation), conservation management strategies and plans;
ii. it is consistent with the purposes for which the land is held;
iii. there is an established tradition of such customary use at the place; and
iv. the preservation of the indigenous species at the place is not affected.
The views of tangata whenua should be sought and had regard to.
2 (h) Public information and interpretation, where it refers to places or resources of significance to tangata whenua, should be developed with them, and should include Māori place and species names, make appropriate use of te reo Māori, and draw attention to tangata whenua values.
2 (i) The Department will seek to avoid actions which would be a breach of the Treaty of Waitangi.
2 (j) The Department will participate in and implement relevant Treaty claims settlements consistent with its statutory functions.
Note: At a June 2007 meeting of the New Zealand Conservation Authority (NZCA) a minor change was made to the wording of the section on the General Policy for National Parks relating to the use of traditional materials and indigenous species.
The Chairperson of the NZCA, Kerry Marshall, said that "Following representations from and consultation with Ngai Tahu, and having also received advice from the Department of Conservation and considered the views of the Minister, the Authority has decided that it is appropriate to include all customary use of traditional materials and indigenous species under one policy."
Customary use is defined in the policy as “Gathering and use of natural resources by tangata whenua according to tikanga.”
The Minister of Conservation, Hon Chris Carter, decided to make a similar change to the Conservation General Policy, sections 2(g) and 4.1(e).