In the “Stewart Island/Rakiura Conservation Management Strategy and Rakiura National Park Management Plan 2011-2021”
PROTOCOLS issued by the CROWN through the MINISTER OF CONSERVATION regarding THE DEPARTMENT OF CONSERVATION’S INTERACTION WITH NGĀI TAHU ON SPECIFIED ISSUES
1.1 The purpose of the Conservation Act 1987 is to manage natural and historic resources under that Act and the Acts in the First Schedule of the Conservation Act. Section 4 of the Conservation Act requires that the Act be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi.
1.2 The Director-General has certain management responsibilities in terms of legislation and can only delegate or share responsibility for decisions s/he makes within the limits of his/her legislation. However, in making such decisions, the Director-General will provide Te Rūnanga the opportunity for input, consistent with section 4, in its policy, planning and decision-making processes on the matters set out in these Protocols.
1.3 These Protocols apply across the Ngāi Tahu Takiwā, which spans five conservancies, and the Southern and Central Regional Offices of the Department.
1.4 Both the Department and Te Rūnanga are seeking a relationship consistent with the Treaty principle of partnership that achieves, over time, the conservation policies, actions and outcomes sought by both Te Rūnanga and the Department, as set out in this document.
2 Purpose of protcols
2.1 These protocols are issued pursuant to section 282 of the Ngāi Tahu Claims Settlement Act 1998 and clause 12.12 of the 1997 Deed of Settlement between the Crown and Ngāi Tahu, which specifies the following:
Protocol means a statement in writing, issued by the Crown through the Minister of Conservation to Te Rünanga, which sets out:
- How the Department of Conservation will exercise its functions, powers, and duties in relation to specified matters within the Ngāi Tahu Claim Area; and
- How the Department of Conservation will, on a continuing basis, interact with Te Rūnanga and provide for Te Rūnanga’s input into its decision-making process.
2.1.2 Authority to Issue, Amend or Cancel Protocols
Pursuant to section 282 of the Ngāi Tahu Claims Settlement Act 1998, the Minister of Conservation may, from time to time, issue, amend, and cancel Protocols.
2.1.3 Issue of Protocols
On Settlement Date (as defined in section 8 of the Ngāi Tahu Claims Settlement Act1998) the Crown has agreed through the Minister of Conservation to issue Protocols in this form on the following matters:
- Cultural materials;
- Freshwater fisheries;
- Culling of species of interest to Ngāi Tahu;
- Historic resources;
- Resource Management Act 1991 involvement; and
- Visitor and public information.
2.1.4 Protocols subject to Crown Obligations
Pursuant to Section 283 of the Ngāi Tahu Claims Settlement Act 1998, the Protocols are issued and amended, subject to, and without restriction upon:
- The obligations of the Minister of Conservation and the Department of Conservation to discharge their respective functions, powers, and duties in accordance with existing law and government policy from time to time; and
- The Crown’s powers to amend policy, and introduce legislation amending existing law.
This clause is not intended to indicate, and should not be interpreted as indicating, any agreement by Te Rūnanga to any amendment to policy which would adversely affect the redress provided by the Crown pursuant to the Settlement Deed or the ability of either party to fulfil its obligations expressed in the Settlement Deed.
2.1.5 Noting of Protocols on CMS
Pursuant to section 284 of the Ngāi Tahu Claims Settlement Act 1998:
- The existence of Protocols, once issued, and as amended from time to time, including a definition of Protocols as set out in section 281 of the Ngāi Tahu Claims Settlement Act 1998 and a summary of the terms of issue of Protocols, must be noted in conservation management strategies, conservation management plans and national park management plans affecting the Ngāi Tahu Claim Area; and
- Noting of Protocols pursuant to section 284(1) of the Ngāi Tahu Claims Settlement Act 1998 is for the purpose of public notice only and is not an amendment to the relevant strategies or plans for the purposes of section 17I of the Conservation Act 1987 or section 46 of the National Parks Act 1980.
2.1.6 Enforceability of Protocols
Pursuant to section 285 of the Ngāi Tahu Claims Settlement Act 1998:
- The Minister of Conservation must comply with a Protocol as long as it remains in force;
- If the Minister of Conservation fails unreasonably to comply with a Protocol, Te Rūnanga may, subject to the Crown Proceedings Act 1950, enforce the Protocol by way of public law action against the Minister of Conservation;
- Notwithstanding paragraph (b), damages are not available as a remedy for a failure to comply with a Protocol; and
- This clause does not apply to any guidelines which are developed pursuant to a Protocol.
2.1.7 Limitation of Rights
Pursuant to section 286 of the Ngāi Tahu Claims Settlement Act 1998, except as expressly provided in the Deed of Settlement, the Ngāi Tahu Claims Settlement Act 1998, or in a Protocol, a Protocol does not, of itself, have the effect of granting, creating, or providing evidence of any estate or interest in, or any rights of any kind whatsoever relating to, land held, managed, or administered under the Conservation Act 1987 or a statute listed in the First Schedule of that Act.
3 Implementation and communication
3.1 The Department will seek to establish and maintain communication with Te Rūnanga and its papatipu rūnanga on a continuing basis by:
- Maintaining at the conservancy level, with the assistance of Te Rūnanga, information provided on papatipu rūnanga, their office holders and addresses; and
- Providing reasonable opportunities for Te Rūnanga and papatipu rūnanga to meet with Department managers and staff.
3.2 The protocols provide for ongoing implementation of a range of matters, as well as Specific Projects which will require resourcing. It is not intended that all of the Specific Projects listed in these Protocols will be implemented in any one year. Implementation will be over time. Where these Protocols refer to Specific Projects that require resourcing, their implementation will be subject to provision being made in the relevant conservancy business plan. The process for the Department implementing any particular Specific Project in a business year will be as follows:
- The Department will meet with Te Rūnanga in each conservancy and at regional level annually to identify priorities for undertaking Specific Projects as listed in these protocols for the upcoming business year;
- The identified priorities will be taken forward by the Department into its business planning process at the conservancy and regional levels and considered along with other priorities;
- The decision on whether any Specific Projects will be funded in any business year will be made by the Conservator and the Regional General Manager;
- The Department will advise Te Rūnanga of the outcome of this process; and
- Te Rūnanga and the Department will then meet again, if required, to finalise a work plan for implementation of the Specific Projects in that business year, in accordance with the resources which have been allocated in the business plan. The Department will apply the allocated resources to give effect to that work plan, subject to unforeseen management requirements which may arise from time to time, such as emergencies, adverse weather, staff shortages or reallocation of resources directed by the Minister.
3.3 The Department will:
- Meet with Te Rūnanga to review implementation of these Protocols and to deal with the matters in clause 3.2; four times per annum, unless otherwise agreed, in each conservancy, twice per annum at regional level, and at least once per annum at Chief Executive level;
- As far as reasonably practicable, train relevant staff on these Protocols and provide ongoing training as required; and
- As far as reasonably practicable, brief Conservation Board and NZCA members on these Protocols and the Ngāi Tahu Settlement, and provide ongoing information as required.
4 Cultural materials
4.1 For the purpose of these Protocols, cultural materials are defined as:
- Plants, plant materials; and
- Materials derived from animals, marine mammals or birds, to the extent to which the Department holds and is responsible for them, and which are important to Ngāi Tahu in maintaining their culture.
4.2 Current legislation means that generally some form of concession or permit is required for any gathering of cultural materials.
4.3 The Department will:
- Have particular regard to Te Rūnanga’s cultural use policy (Kawa Hua Taiao) as it relates to the Department’s activities, and other relevant Te Rūnanga statements of policy produced from time to time.
- Consider requests from members of Ngāi Tahu Whānui for the customary use of cultural materials in accordance with the appropriate legislation.
- Agree, where reasonably practicable, for Ngāī Tahu to have access to cultural materials which become available as a result of Departmental operations such as track maintenance or clearance or culling of species.
- Consult with Te Rūnanga in circumstances where there are competing requests from non-Ngāi Tahu persons or entities for the use of cultural materials, for example for scientific research purposes, to see if the cultural and scientific or other needs can be reconciled before the Department makes a decision in respect of those requests.
4.4 Specific projects
The Department will, subject to clause 3.2, work with Te Rūnanga to:
- Develop and implement guidelines for each conservancy within the Ngāī Tahu Takiwā that help define levels of customary use of cultural materials, and set conditions, after consideration of tikanga, to be met for gathering;
- Identify local sources of plants and provide advice to Te Rūnanga with respect to the establishment by Te Rūnanga of cultivation sites; and
- Establish Departmental cultural materials banks for cultural materials which have come into the Department’s possession, and guidelines for their use.
5 Freshwater fisheries
5.1 The Department has a statutory role in advocating the conservation of aquatic life and freshwater fisheries generally. Its advocacy for freshwater biota, aquatic habitats and fish passage in all areas is primarily taken via statutory planning processes provided by the Resource Management Act 1991.
5.2 Section 48B of the Conservation Act 1987 (inserted by section 305 of the Ngāi Tahu Claims Settlement Act 1998) provides the power to promulgate regulations providing for customary Māori fishing rights with respect to freshwater fisheries within South Island Fisheries Waters. Pursuant to clause 12.14.11(e) of the Deed of Settlement such regulations are to be promulgated as soon as practicable, and in any event no later than two years after Settlement Date. Besides generally consulting with Te Rūnanga and providing for its participation in the conservation and management of customary freshwater fisheries and freshwater fish habitats, the Department will consult with, and have particular regard to the advice of, Te Rūnanga in its capacity as an Advisory Committee appointed under section 56 of the Conservation Act in all matters concerning the management and conservation by the Department of Conservation of Taonga Fish Species (as defined in section 297 of the Ngāi Tahu Claims Settlement Act 1998) within the Ngāi Tahu Claim Area. This obligation does not derogate from the obligations of the Department under section 4 of the Conservation Act 1998 to give effect to the Treaty of Waitangi.
5.3 Advisory Committee
The Department will, in relation to the Taonga Fish Species and as far as reasonably practicable, provide the Advisory Committee with all relevant information to enable it to give informed advice, and will meet with the Advisory Committee at conservancy level as necessary to give effect to the Deed of Settlement and the Ngāi Tahu Claims Settlement Act 1998.
5.4 Customary freshwater fisheries regulations
The Department will work with Te Rūnanga at regional and conservancy levels to:
- Provide for Te Rūnanga participation in the development and promulgation of customary freshwater fishing regulations by:
- Establishing a joint working group;
- Setting terms of reference for that working group;
- Setting timelines for progress; and
- Providing information to Te Rūnanga in a timely manner and allowing Te Rūnanga an opportunity to comment.
The Department will, subject to clause 3.2, work with Te Rūnanga to:
- Develop and implement guidelines for the Department with respect to the promotion of compliance with customary freshwater fisheries regulations;
- Develop and implement guidelines for the Department with respect to monitoring the efficacy of the customary freshwater fisheries regulations at regular intervals; and
- Develop and implement guidelines for the Department with respect to sharing accumulated management information and research data on customary freshwater fisheries with Te Rūnanga.
5.6 Other Matters
The Department will work with Te Rūnanga at regional and conservancy levels to provide for active participation by Te Rūnanga in the conservation, management and research of customary freshwater fisheries and freshwater fish habitats by:
- Seeking to identify areas for co-operation in advocacy, consistent with clause 9, focussing on fish passage, minimum flows, protection of riparian vegetation and habitats, water quality improvement and in the restoration, rehabilitation or enhancement of customary freshwater fisheries and their freshwater habitats; and
- Consulting with Te Rūnanga in developing or contributing to research programmes that aim to improve the understanding of the biology of customary freshwater fisheries and their environmental and habitat requirements. The Department confirms that it regards Te Rūnanga as a possible science provider or collaborator for research projects funded or promoted by the Department in the same manner as other potential providers or collaborators.
5.7 Specific Projects
The Department will, subject to clause 3.2, work with Te Rūnanga to:
- Conduct research to establish and address ecosystem threats to specified customary freshwater fisheries including barriers to migration, habitat loss and exotic species interaction;
- Contribute to the resolution of eel management issues, in particular, the administration of the fish passage regulations in the Freshwater Fisheries Regulations, the promotion of the installation of effective fish passages where necessary and monitoring of their effects, by participating in discussions with Te Rūnanga and Te Waka a Māui me ona Toka Mahi Tuna; and
- Identify the need for, and where necessary prepare, management plans for freshwater fisheries management.
6 Culling of species of interest to Ngāi Tahu
6.1 As part of an integrated management regime, or because a species population has risen to become an ecological pest, it may from time to time be necessary for the Department to carry out a cull of a protected species under the Wildlife Act 1953. The Department recognises that Te Rūnanga is interested in such operations in the following ways:
- The carrying out of such a cull where the species to be culled is causing or is likely to cause ecological damage to species or habitats of particular significance to Ngāi Tahu;
- The methods to be used in such culls; and
- Cultural materials arising from the cull.
6.2 The Department will:
- Have regard to any requests initiated by Te Rūnanga for the carrying out of culling operations;
- Consult with, and have particular regard to the views of, Te Rūnanga before deciding to carry out a cull of protected species on land administered by the Department, in respect of the reasons for the cull and the method proposed to be used; and
- In situations where either a Fish and Game Council or a Regional Council intend to carry out a cull of protected species or a game bird and the Department has a statutory role in the process, request the relevant body to consult with Te Rūnanga before carrying out any such cull.
7 Historic resources
7.1 The Minister acknowledges the importance to Ngāi Tahu of their wāhi tapu, wāhi taonga and other places of historic significance to them. Liaison with Te Rūnanga is important in the management of those places containing sites of historic and cultural significance to Ngāi Tahu, including places of settlement, horticulture, natural resource harvesting, warfare, communication, and places of cultural and spiritual connection.
7.2 The Department notes that non-disclosure of locations of places known to Ngāi Tahu is a practice used by Ngāi Tahu to preserve the sanctity of a place. Respecting the principle of confidentiality brings management difficulties of a particular kind. Where information is not available, management practices which (unintentionally) contravene the cultural value associated with a specific site, may be put in place. Where reasonably practicable, the Department will respect the principle of confidentiality that applies to wāhi tapu, wāhi taonga and places of historic significance to Ngāi Tahu. The primary responsibility for identifying and assessing Ngāi Tahu heritage values rests with Te Rūnanga.
7.3 The Department will work with Te Rūnanga at regional and conservancy levels to:
- Ensure, as far as reasonably practicable, that Ngāi Tahu values attaching to identified wāhi tapu, wāhi taonga and places of historic significance to Ngāī Tahu managed by the Department are respected by the Department, for example, by the Department giving consideration to impacts from visitor numbers, facilities and services;
- Manage, as far as reasonably practicable, wāhi tapu, wāhi taonga and places of historic significance to Ngāi Tahu according to the standards of conservation practice outlined in the ICOMOS New Zealand Charter 1993;
- Ensure, as far as is reasonably practicable that, when issuing concessions giving authority for other groups to manage land administered by the Department, those groups manage the land according to the standards of conservation practice outlined in the ICOMOS New Zealand Charter 1993;
- Have particular regard to relevant Te Rūnanga policies, including those relating to Koiwi Tāngata (unidentified human remains) and Archaeological and Rock Art Sites;
- Ensure, as far as is reasonably practicable, that it uses Ngāi Tahu’s cultural information only with the consent of Te Rūnanga; and
- When issuing concessions to carry out activities on the land administered by the Department, request that the concessionaire consult with Te Rūnanga before using Ngāi Tahu’s cultural information.
7.4 Specific Projects
The Department will, subject to clause 3.2, work with Te Rūnanga at regional and conservancy levels to:
- Develop and implement guidelines for the identification, inventory and management by the Department of wāhi tapu, wāhi taonga and other places of historic significance to Ngāi Tahu that take into consideration the traditional uses and practices of Ngāi Tahu and are, where reasonably practicable, consistent with Ngāi Tahu tikanga;
- Identify and actively protect specified wāhi tapu, wāhi taonga and other places of historic significance to Ngāi Tahu on land administered by the Department;
- Develop and implement guidelines for the active protection of wāhi tapu, wāhi taonga and other places of historic significance to Ngāi Tahu;
- Identify co-operative projects covering a range of options for the protection and management of wāhi tapu, wāhi taonga and other places of historic significance to Ngāi Tahu;
- Consult with and seek participation from Te Rūnanga with respect to research, survey or inventory projects that relate specifically to wāhi tapu, wāhi taonga and other places of historic significance to them.
8 Visitor and public information
8.1 In providing public information and interpretation services and facilities for visitors on the land it manages, the Department recognises the importance to Ngāi Tahu of their cultural, spiritual, traditional and historic values.
8.2 The Department will work with Te Rūnanga at regional and conservancy levels to encourage respect for Ngāi Tahu values by:
- As far as is reasonably practicable, seeking to raise public awareness of the positive conservation partnerships developed between Te Rūnanga, the Department and other stakeholders, for example, by way of publications, presentations and seminars;
- Consulting on the provision of interpretation and visitor facilities (if any) at wāhi tapu, wāhi taonga and other places of historic or cultural significance to Ngāi Tahu;
- Ensuring, as far as is reasonably practicable, that Department information on new panels, signs, and visitor publications includes Te Rūnanga perspectives and references to the significance of the sites to Ngāi Tahu, where appropriate, including the use of traditional Ngāi Tahu place names; and
- Encouraging Te Rūnanga participation in the Department’s volunteer and conservation events programmes.
8.3 Specific Projects
The Department will, subject to clause 3.2, work with Te Rūnanga to:
- Develop and implement guidelines on the provision of information and interpretation facilities and services for visitors, so as to identify and consider issues of concern to Te Rūnanga;
- Consider possibilities for Te Rūnanga to contribute to visitor appreciation of the cultural values of sites of cultural and historic significance to Ngāi Tahu managed by the Department; and
- Provide information to education providers, including kohanga reo and kura kaupapa Māori, for the development of educational resources on conservation issues and associated Ngāi Tahu values.
9 Resource Management Act
9.1 Te Rūnanga and the Department both have concerns with the effects of activities controlled and managed under the Resource Management Act. These include effects on:
- Riparian management;
- Effects on freshwater fish habitat;
- Water quality management
- Protection of historic resources; and
- Protection of indigenous vegetation and habitats.
9.2 From time to time, Te Rūnanga and the Department will seek to identify further issues of mutual interest for discussion. It is recognised that their concerns in relation to any particular resource management issue may diverge and that each of them will continue to make separate submissions.
9.3 The Department will work with Te Rūnanga at regional and conservancy levels to discuss the general approach that will be taken by each of Te Rūnanga and the Department in respect of advocacy under the Resource Management Act, and seek to identify their respective priorities and issues of mutual concern.
9.4 The Department will:
- Have regard to the priorities and issues of mutual concern identified in clause 9.3 in making decisions in respect of advocacy under the Resource Management Act.
- Make non-confidential resource information available to Te Rūnanga to assist in improving the effectiveness of Resource Management Act advocacy work at the Papatipu Rūnanga level.
10 Amendment and review provisions from the Deed
10.1 Pursuant to section 282 of the Ngāi Tahu Claims Settlement Act 1998
- Protocols may be amended or cancelled by the Minister of Conservation, from time to time at the initiative of either the Crown or Te Rūnanga;
- The Minister of Conservation may amend or cancel Protocols only after consulting Te Rūnanga and having regard to its views; and
- As soon as is reasonably practicable after the amendment, or cancellation of a Protocol, the Minister of Conservation must notify such amendment, or cancellation in the Gazette.