Introduction

Investment to support Te Papa Atawhai to give better effect to the principles of the Treaty of Waitangi in response to the Ngāi Tai ki Tāmaki Supreme Court judgment.

Date:  20 May 2020

Budget 2020 provides an additional $7.9m over 4 years to support Te Papa Atawhai to make necessary changes following the Ngāi Tai ki Tāmaki Supreme Court judgment.

The new money includes:

  • $1.1m over the next 3 years to fund partial reviews of the Conservation General Policy and General Policy for National Parks
  • $4.3m to amend statutory management plans
  • $2.5m to develop and implement improvements to statutory decision-making
  • An additional $8.6m between years 24/25 and 26/27 has also been funded to ensure implementation and ongoing support of statutory plan changes and decision-making.

The Ngāi Tai ki Tāmaki case highlights the importance of giving effect to the principles of the Treaty of Waitangi as referenced in section 4 of the Conservation Act 1987. Although it dealt specifically with concessions, it has wider implications for all levels of Te Papa Atawhai’s work.

The funding will allow Te Papa Atawhai to undertake necessary statutory policy and statutory plan changes as well as embed improvements to its statutory decision-making function. This will ensure future decisions are in line with case law and become best practice.

What was the Ngāi Tai ki Tāmaki decision?

The case concerned DOC’s consideration of the principles the Treaty of Waitangi when it granted two commercial concessions on Rangitoto and Motutapu Islands to Fullers Group Limited and the Motutapu Island Restoration Trust.

The Ngāi Tai ki Tāmaki Tribal Trust opposed the granting of concessions to parties other than tangata whenua on the basis that economic opportunities should be preserved for iwi/hapū because of their claim to mana whenua over the Islands. The Trust also argued that DOC did not properly give effect to section 4 of the Conservation Act 1987, which relates to giving effect to the principles of the Treaty of Waitangi, when granting the concessions.

In December 2018, the Supreme Court found that section 4 was not properly applied in the challenged decisions.

The Court said that in some circumstances, giving effect to the Treaty principle of ‘active protection’ requires decision-makers to consider extending a degree of preference to iwi as well as looking at the potential economic benefit of doing so.

The judgment also stated that section 4 does not create a power of veto for iwi or hapū over the granting of concessions, or any exclusive right to concessions.

The Court did not find that the decisions were necessarily incorrect. It simply directed DOC to reconsider the two commercial concessions at the centre of this case in light of these points.

Going forward, all applications must still be considered in their own context and on a case-by-case basis. Although there isn’t a blanket rule about how the principles of the Treaty – including active protection – are given effect, this funding will be used to ensure that the principles inform DOC’s statutory decision-making, within the broader suite of statutory considerations.

What is the significance of the Ngāi Tai ki Tāmaki decision?

The Ngāi Tai ki Tāmaki decision underscores the strength of section 4 of the Conservation Act 1987 requirement give effect to the principles of the Treaty of Waitangi. Although the case dealt specifically with concessions decision-making, at its heart it is really about the principles of the Treaty in action and Treaty partnership.

In April 2019 the Minister of Conservation asked DOC to consider ways it can improve delivery of its section 4 responsibilities across all levels of its work.

What has DOC done to respond to the Supreme Court decision since it was issued in December 2018?

DOC has been working to ensure all future concession (and similar) decisions comply with the law as articulated by the Supreme Court. This has involved:

  • identifying processes across permissions and management planning that require a different approach or outcome as a result of the Supreme Court judgment.
  • building the capability of decision-makers and those supporting them to ensure that due consideration of DOC’s Treaty of Waitangi obligations is part of all future statutory decisions.

The new funding received in Budget 2020 will enhance DOC’s ability to advance the application of these changes into the future.

As part of DOC’s strategic response, in August 2019 the Minister of Conservation and New Zealand Conservation Authority initiated partial reviews of the Conservation General Policy and General Policy for National Parks and concurrently undertook a minor technical amendment of the general policies to address an error of law identified by the Supreme Court.

Budget 2020 includes $186,000 to support the resourcing of a collaborative working group to develop recommendations for improving the general policies. DOC is asking Treaty partners to nominate people to participate on the collaborative working group to ensure perspectives from te ao Māori are brought to the work. Conservation Board Chairs will also be asked to nominate members for the collaborative group to work in partnership.

What are general policies and statutory plans and how do they fit together?

The general policies provide nationally consistent high-level expectations and ambitions for DOC’s priorities and activities on public conservation lands and waters and in national parks.

Diagram of how general policies and statutory plans fits together.

Strategies and plans help us make decisions about how we prioritise and deliver conservation work. They also help us make decisions about the activities, including commercial activities, that can occur in a given place. Strategies and plans are developed with whānau, hapū and iwi, stakeholders and the wider community, Conservation Boards and the New Zealand Conservation Authority.

What will the partial reviews of the general policies achieve?

The partial reviews will focus exclusively on improving the way section 4 of the Conservation Act is reflected in the general policies.

The improvements to the general policies will create a cascade of changes that need to be made at various levels, including to statutory management plans and across the organisation.

What will the reviews of statutory plans achieve?

Following the partial reviews of the general policies, the reviews of statutory plans will ensure consistency between the general polices and more local plans, removing confusion.

How will Treaty partners and the public be able to participate in the policy and plan review processes?

The partial review process will involve collaboration with Treaty Partners and Conservation Boards as well as hui with iwi, hapū and whānau. There will be a public notification and submissions process, and opportunities for stakeholders and the wider public to provide input.

The statutory plan review processes also provide opportunities for Treaty Partners, stakeholders and the wider public to participate through statutory public consultation processes.

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