July 2018 Māori Law Review

Incorporating Māori approaches to ecosystem management in marine management

This article was written by Toni Love and was drawn from a report written for the Sustainable Seas National Science Challenge.

The Challenge's objective is to enhance utilisation of New Zealand's marine resources within environmental and biological constraints.

Toni's report canvasses incorporating Māori approaches to risk, caution and cumulative impacts in Ecosystem Based Management in the marine management regime. The report also considers incorporation of Treaty of Waitangi principles and specific Māori cultural concepts, discussing their effectiveness in light of important recent cases. Finally, the report identifies challenges associated with statutory incorporation of Māori concepts.

Introduction

Māori approaches to risk, caution and cumulative impacts in Ecosystem Based Management (EBM) can be understood in the context of the Māori worldview.  This view encompasses key concepts that guide the relationship that Māori have with their natural environment.  Although these concepts do not explicitly refer to risk, caution or cumulative impacts, they do reflect these sentiments and therefore align with the ecological EBM approach.  The current legislative framework attempts to incorporate this world view generally, through the inclusion of Treaty principle provisions, and specifically, through the need to consider specific Māori concepts such as kaitiakitanga. However, whether this incorporation is effective is up for debate.  The reason being that statutory Treaty references are insufficient to incorporate the Māori environmental ethic because it requires those exercising functions under the governing legislation to have a thorough understanding of this ethic.  Substantive incorporation requires something more robust.

This article will demonstrate that the current incorporation is lacking and offer suggestions for better incorporation moving forward.  Section two will discuss the Māori worldview.  Section three will discuss the current key legislative and policy instruments that form part of the marine management regime and the ways in which they incorporate the Māori worldview, with some discussion on the incorporations effectiveness.  Section four will discuss the effectiveness of the incorporation by canvassing some key case law.  Finally, section five will discuss necessary considerations where statutory incorporation of Māori cultural concepts is proposed.  Importantly, this article does not intend to be exhaustive, it simply aims to introduce the statutory incorporation of the Māori worldview in the marine space, briefly illustrate the impact this incorporation has had in practice, and discuss some considerations where statutory incorporation is intended.[1]

Māori Worldview

[T]he wellbeing of Te Ao Turoa is inextricably linked with Mana Māori and is an essential element in the identity and integrity of the people. Without the natural environment, the people cease to exist as Māori.[2]

For Māori, Tu Ao Turoa (the environment) is intimately linked with the people.  Nature and the environment cannot be isolated from the people that inhabit it.  In the language of EBM, management must be inherently “place-based” and must consider the ecosystem as a whole in all its complexities and connectedness, which necessarily acknowledges humans as a component of that ecosystem, rather than distinct or separate.  In order to understand the connection of Māori with Te Ao Turoa it is essential to understand the key concepts of whakapapa, whanaungatanga, and kaitiakitanga, which are underpinned by the concepts of mauri, mana, and tapu.

Mauri is often translated as the life essence, being the essential quality and vitality of a being or entity.[3]  Every being or entity has its own mauri, including the natural environment.  Mauri is essential for the flow of mana.  Mana is a metaphysical concept often translated as spiritual power or prestige.[4]  Mana and mauri are intimately connected; mauri is the energy which binds and animates all things in the physical world, which enables the necessary flow of mana into a person or object.[5]  All things have mana and mauri at varying levels and all activities impact on mana and mauri, whether positive or negative.[6]   Therefore when mauri is reduced, so too is mana.[7]

For Māori, the physical desecration of a place reduces its mauri and therefore its mana.[8]  For example, through the removal of water from a river, or the allowance of a discharge into a water body.[9]  In order for mana to be expressed and preserved, mauri must be preserved and tapu must be respected.[10]  Tapu is something sacred, holy, or prohibited, and refers to spiritual restrictions.[11]  The more tapu a place, the more restrictions there will be.[12]  Tapu is a way to control how people behave towards each other and the environment, placing restrictions upon society to ensure it flourishes.[13]  Mana, mauri, and tapu underpin the concepts of kaitiakitanga, whanaungtanga, and whakapapa.

Kaitiakitanga is the most important concept for environmental management.[14]  The concept is often translated as guardianship, and in the context of the environment it is a way of managing the environment, based on the traditional Māori worldview.[15]  The kaitiaki (guardians) are those that exercise kaitiakitanga.[16]  The concept encompasses ideas of obligation and responsibility that are inherent in the term guardianship.[17]  The kaitiaki must manage the environment for the benefit of future generations.  This obligation is considered mandatory, and an inability to fulfil this obligation results in a diminution of mana.[18]

Kaitiakitanga is connected to the concept of whanaungatanga, which is often described as kinship.[19]  Whanaungatanga refers to being part of a larger whole of the collective.[20]  As Māori consider themselves related to all living things, they express whanaungatanga with their surroundings in the form of relationships.[21]  These relationships to people and land are bound and connected through the concept of whakapapa.[22]  Whakapapa creates an intimate link between relations, a link that extends to the mana of a person or a place.[23]  Any diminution in the mana of a place, will result in a diminution of an individual’s mana through shared whakapapa.[24]

Kaitiakitanga entails rights and obligations that are obligatory according to tikanga.[25]  If one cannot exercise kaitiakitanga, then one is not fulfilling their legal duty to the wider collective according to tikanga.[26]  This is reflected in the EBM principles of long-term sustainability and maintenance of environmental value for future generations; the coupling of social-ecological systems, with decisions accommodating cultural and societal values; and an emphasis on accountability.  Kaitiakitanga in this sense is more than simply guardianship, it entails a positive duty to act in a way that benefits the wider collective, which includes the sustainable management of the environment.

Importantly, rights to use a resource come through the exercise of kaitiakitanga because without sufficiently protecting the environment we risk diminishing the resources available for future generations.  This understanding of rights differs to the understanding of rights within the Pākehā system where legal rights are largely uninhibited except where the exercise of them may impact on another’s rights.  This difference is because of the fundamental concept of whakapapa that considers the environment a whanaunga or relation.  This intimate link is captured in Dr Henare Tuwhangai's words:

That Māori people did not just own whenua or Te Ao Turoa, but that they, the people, were also the possession and the land and Te Ao Turoa were the possessors.[27]

Legislative Framework

Introduction

In respect of the marine environment there are a number of key pieces of legislation and policy that include references to the Treaty principles, and in some cases, specific references to Māori concepts.  However, a reference to the Treaty principles is an indolent way of “incorporating” Māori approaches to EBM.  Even more so given that knowledge and understanding of Māori approaches to EBM are limited by those tasked with applying and interpreting them.  Additionally, although Treaty provisions have become common inclusions in environmental legislative and policy instruments, these provisions are of varying strength, such that in practical terms they can have little to no effect (something that will be discussed in section three).

This section will discuss the key pieces of marine legislation and policy and their particular incorporation of Māori approaches to EBM.

Treaty Principles provisions and Māori cultural concepts

The Conservation Act states that the Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.[28]  This is mandatory in that interpretation and administration of the Act must give effect to the Treaty principles.[29]  The Resource Management Act (RMA) is also mandatory, and uses similar language, albeit weaker. Persons exercising functions and powers under the Act, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).[30]  Irrespective of the strength of varying Treaty principles provisions, their application has been underwhelming and of little impact.  This lack of impact is due to the difficulty determining what giving effect to, or taking into account the, Treaty principles is meant to entail in practice.

The Conservation Act has no purpose section. However, the function of the Act is conservation broadly and this includes promoting the benefits to present and future generations of the conservation of natural and historic resources generally, and the natural and historic resources of New Zealand in particular.[31]  If we connect this to the Treaty principles it could be argued that this triggers a forward looking Māori approach to EBM that is encompassed in kaitiakitanga and all that concept entails.  Or alternatively, in recognising tino rangatiratanga, it empowers Māori to approach EBM in a Māori way.

The problem with both these approaches to interpretation is that it depends on decision-makers drawing inferences, which is unlikely given that many decision-makers have little to no understanding of, or connection with, tikanga.  Further, Māori are not always empowered to act in such a way and in many cases are given little opportunity, if any, to influence EBM in a meaningful way. This lack of opportunity is because Māori are not the decision-makers under the legislation and in cases where Māori are able to provide input, that input is often procedural, meaning that they may have little influence over the substantive outcome of how something will be managed.

Unlike the Conservation Act, the RMA does not require us to draw a spurious conclusion that the presence of a Treaty principles provision adequately incorporates Māori approaches to EBM because the Act also makes explicit reference to kaitiakitanga, the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga, and the protection of protected customary rights.[32]  These references incorporate more specific Māori approaches to environmental management, such as kaitikitanga, as well as reference to the Māori worldview.  This explicit reference to Māori concepts also suggests that a Treaty principles provision is referring to something separate to Māori concepts of environmental management.

The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act), regulates mineral extraction and other seabed activities in the exclusive economic zone.  This Act is even more explicit in its direction of what is required in order to “give effect” to the principles.  In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi, the Act[33] sets up the Māori Advisory Committee to advise the Environmental Protection Authority (EPA) so that decisions made under this Act may be informed by a Māori perspective.[34]  It requires:[35]

  • the Minister to establish and use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations;
  • the Minister and the EPA to take into account the effects of activities on existing interests; and
  • the EPA to notify iwi authorities, customary marine title groups, and protected customary rights groups directly of consent applications that may affect them.

The Marine and Coastal Area (Takutai Moana) Act (MACA) manages Māori customary fishing.  This Act contains a specific reference to the Treaty as opposed to its principles.[36] In order to take account of the Treaty this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing for:[37]

  1. the participation of affected iwi, hapū, and whānau in the specified conservation processes relating to the common marine and coastal area;
  2. customary rights to be recognised and protected; and
  3. customary marine title to be recognised and exercised.

The Fisheries Act 1996 regulates commercial, customary, and recreational fishing in New Zealand.  The purpose of the Act is to provide for the utilisation of fisheries resources while ensuring sustainability.[38]  Sustainability is defined to include avoiding, remedying, or mitigating any adverse effects of aquatic fishing on the environment.[39]  The Act contains no Treaty principles provision and a protected right under MACA expressly excludes rights regulated under the Fisheries Act.[40]  However, the Fisheries Act does include Māori forms of environmental management in the form of Mataitai and Taiapure reserves.[41]

Mataitai and taiapure reserves are two key management tools that recognise different forms of participation for Māori in relation to specific areas.  These provide ability for Māori groups to apply to have specific areas set aside as a mataitai or taiapure.  Taiapure still allow for commercial fishing, while mataitai are for customary fishing only.  Both reserves have management committees to make recommendations for particular bylaws to be made for the areas.  The committee can include representatives from local Māori groups in particular areas.  In relation to the incorporation of Māori approaches to environmental management this is particularly significant as it is a process whereby tangata whenua can apply to have areas set aside under these specific management forms, which can result in direct Māori influence in the management of these areas.[42]

The Amateur Fishing Regulations 2013 also provides further recognition to Māori approaches to environmental management.[43]  Regulations 50 and 51 provide for customary take irrespective of whether there is a specific protected area.  The take is limited for special events such as a tangi, which in accordance with tikanga requires a group to fulfil manaakitanga, which is achieved through the provision of seafood for the occasion.  These methods reflect the rāhui approach in order to sustain the fishing resources as well as an attempt to give effect to tikanga Māori.[44]  The point being to incorporate Māori approaches to environmental management by providing for input into management in accordance with traditional approaches to management according to tikanga, while also acknowledging Māori approaches to resource management.

Marine Protected Areas (MPAs) are another management tool used in New Zealand to manage the marine environment.[45]  There are three types of MPAs.  Marine reserves are a type one MPA, which is the highest level of marine protection established under the Marine Reserves Act 1971. DOC is responsible for the implementation, management and monitoring of New Zealand's 44 marine reserves.  Although the Marine Reserves Act does not contain a Treaty principles provision (probably a reflection of the age of the legislation), MACA creates a right for iwi, hapū, or whānau that exercise kaitiakitanga in a part of the common marine and coastal area to be involved in a conservation process being considered.[46]  This applies to applications made for the purpose of declaring or extending a marine reserve,[47] and for proposals to define and declare or extend a marine mammal sanctuary.[48]  However, the obligation on the decision maker in relation to marine reserves only requires them to have particular regard to the views of those affected iwi, hapū, or whānau in considering the application or proposal.[49]

Type two MPAs are protected areas established outside of the Marine Reserves Act.  Although there is no set process for creating MPAs outside of the Marine Reserves Act, there are two policies that provide guidance.  These are the Marine Protection Areas Classification, Protection standard and implementation guidelines (2008) and Marine Protection Areas Policy and Implementation Plan (2005).  Both of these documents include reference to Māori concepts.[50]  For example a key principle includes providing for the special relationship between the Crown and Māori, including kaitiakitanga, and customary use.[51]

The New Zealand Coastal Policy Statement (NZCPS) guides local authorities in their day to day management of the coastal environment.[52]  The reference to the Treaty of Waitangi, tangata whenua, and Māori is the most comprehensive in the marine management framework.  In order to take account of the principles of the Treaty of Waitangi, and kaitiakitanga, in relation to the coastal environment, it provides a number of measures.  These include:[53]

  • recognising that tangata whenua have traditional and continuing cultural relationships with areas of the coastal environment, including places where they have lived and fished for generations;
  • provision of opportunities in appropriate circumstances for Māori involvement in decision making, for example when a consent application or notice of requirement is dealing with cultural localities or issues of cultural significance, and Māori experts, including pūkenga, may have knowledge not otherwise available;
  • provision for opportunities for tangata whenua to exercise kaitiakitanga over waters, forests, lands, and fisheries in the coastal environment through such measures as bringing cultural understanding to monitoring of natural resources; providing appropriate methods for the management, maintenance and protection of the taonga of tangata whenua; and having regard to regulations, rules or bylaws relating to ensuring sustainability of fisheries resources such as taiāpure, mahinga mātaitai or other non commercial Māori customary fishing;
  • consultation and collaboration with tangata whenua, working as far as practicable in accordance with tikanga Māori, and recognising that tangata whenua have the right to choose not to identify places or values of historic, cultural or spiritual significance or special value.

Effectiveness of statutory incorporation

Introduction

Incorporation of Māori approaches to environmental management varies across the legislative and policy framework that manages the marine environment.  Despite this incorporation, the effectiveness of Māori approaches to environmental management has been limited.  There are a number of explanations for this ineffectiveness, including weak statutory provisions, a lack of specificity, a general lack of understanding of the Māori worldview and therefore the Māori approach to environmental management, a hierarchical approach to environmental and resource management, a lack of recognition of tikanga as law, and inconsistent approaches to interpretation.   These explanations can be illustrated in key environmental cases tackling Māori concepts.

For the purposes of this article, one case is discussed in detail to illustrate the limitations of incorporation of Māori cultural concepts.  A case that, despite its age, still has continuing relevance as exemplifying inadequate understanding and application of the Māori worldview.  A further few selected cases will also be discussed, albeit briefly, to demonstrate these limitations.  This section will not consider issues of planning documentation but simply the consideration of Māori cultural concepts by decision-makers and the judiciary, and more specifically how Māori relationships with natural resources (and broader cultural interests) have been dealt with in the courts.

Wakatu Inc v Tasman District Council (Wakatu)[54]

The case of Wakatu is useful because its discussion of Māori concepts is relatively comprehensive in comparison to other environmental cases.  However, a considered reading of that case demonstrate the challenges faced by a Court when met with Māori concepts and the associated limitations where there is a lack of knowledge concerning the Māori worldview.

The case concerned an appeal against a resource consent that would allow Tasman District Council to take ground water from an aquifer connected to the Motueka River in order to provide for a domestic water supply.  The tangata whenua appellants argued that the mauri of the river would be desecrated by the transport of water outside of their rohe (territory) and thus would impact the ability of tangata whenua to exercise kaitiakitanga (guardianship exercised within their rohe) over their resources.[55]

The Court upheld the resource consent.  They held that impacts on the mauri of the Motueka River did not require that water extraction be prevented.  Further, because the biophysical effects of the proposed activity were imperceptible the Court held that the metaphysical effects, and the ability of tangata whenua to exercise kaitiakitanga, could be remedied by appropriate conditions of consent.[56]

In order to clarify the legal position for assessing metaphysical concepts such as mauri the Court underwent an examination of the relevant case law.  The Court began by stating that their starting point is to consider the evidential basis and burden for propositions advanced.[57]  They further noted that cases involving concepts such as mauri requires the court to be mindful of processes such as hearsay opinion evidence, and the extent to which a witness is qualified in matters of fact and/or expert opinion.[58]

The Court reiterated that questions of fact in relation to claims of tikanga Maori required material of probative value that is tendered logically to show the evidence of facts consistent with the finding.[59]  The evidence must satisfy the Court on the balance of probabilities.[60]  Issues concerning beliefs about values and traditions can be assessed by examining among other things:[61]

  • the values’ correlation with physical features of the world;
  • people's explanations of their values and their traditions;
  • external evidence corroborating information about the values;
  • the internal consistency of people's explanations;
  • the coherence of those values with others; and
  • how widely the beliefs are expressed and held.

The difficulty with such propositions is that metaphysical concepts do not fit well within this objective framework, which depends on the presence of physical facts that can be quantified by science in order to render them more or less probative.  This difficulty is exemplified in the authority relied on by the Court, which emphasise physical facts when assessing metaphysical concepts.  In particular they refer to Sea-Tow Ltd v Auckland Regional Council, which held that metaphysical beliefs would not be taken into account where there was no evidence of direct physical effects.[62] As such, beliefs of effects of a proposal not supported by traditionally accepted evidence could not equate to adverse effects on the environment, and should not influence the Court's judgement of whether or not the activity represents sustainable management of natural and physical resources.[63]  That decision was subsequently upheld in the High Court.[64]

The Court stated that it did not consider linking likelihood of effects on metaphysical values to perceived physical effects to be the only test.[65]  However, the outcome of Wakatu suggests that this was exactly what the Court did.  Particularly after they stated that in most cases the presence of physical effects have provided the most tangible evidence, or provided the greatest assistance, in determining whether there is an impact on the metaphysical.[66]

The Court also discussed the case of Waihi Gold Co v Waikato Regional Council, which is another case that emphasises the presence and evidence of physical effects.[67]  However, that decision cited the High Court decision of Zdrahal v Wellington City Council.[68]  Zdrahal held that environment is more than the physical surroundings of a vicinity, but involves people and communities inclusive of social, economic, aesthetic and cultural conditions which affect people.[69]  This suggests that effects on the environment are not delimited to physical effects but are far broader.  Such an observation is consistent with the purpose of the RMA, which states that sustainable management of physical and natural resources includes enabling people and communities to provide for their social, economic, and cultural well-being.[70]  This observation is also aligned with the Māori cultural worldview.  However, the Court did not cite this observation in its analysis.

The emphasis on physical facts is inconsistent with the recognition of Māori cultural values under the RMA.[71]  Māori metaphysical concepts are not delimited to their physical components and such a narrow reading would make the recognition under the RMA particularly hollow.[72]  As raised by Counsel:[73]

No more than minor (or negligible) "physical" effects do not equate to no more than minor metaphysical effects.  To do so would dismiss the legitimate weight to be placed on the relationship of the Tangata Whenua appellants and their ancestral waters and lands.

However, the Court’s treatment of mauri and the focus on the presence and evidence of physical facts did exactly that.  The Court did not conclude that there was an impact on mauri, and the overall result and absence of a more nuanced discussion of the potential impact on the metaphysical concept demonstrates that mauri was reduced to its physical characteristics.  Therefore, in reality the concept of mauri was not assessed at all because the Court only considered the physical aspect presented.  Such an approach renders an assessment of Māori cultural values redundant, despite their recognition and incorporation into legislation, and the requirement that they are adequately (and accurately) considered.[74]

The purpose of the RMA is to promote the sustainable management of natural and physical resources.[75]  Sustainable management includes sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and avoiding, remedying, or mitigating any adverse effects of activities on the environment.[76]  These considerations are not set on a hierarchy of importance; however, considerable weight is often placed on the absence of adverse effects. This need for adverse effects was considered in Wakatu in relation to mauri; however, the Court’s analysis was disappointedly brief.

Although the Court did not conclude whether there was in fact an impact on mauri, any perceived effect would arguably not meet the Court’s standard of adverse effects on the environment.  For example, the tohunga stated that for Māori, the effect on mauri is as much about the impact on the beliefs of tangata whenua in the presence and manifestation of the mauri as it is about the health of the resource.[77]  However, the Court dismissed this point as they did not consider it to be an adverse effect on the environment.[78]  Cultural impacts on tangata whenua is not an effect on the environment and so is not to be considered in assessing whether granting the resource consent would promote the sustainable management of natural and physical resources under the RMA.

In order to assess mauri the Court also weighed mauri against the perceived positive effects.[79]  Here the Court considered the positive effects of the proposed take to be future growth in new rural zone 3.[80]  Population growth in the area was one of the highest in New Zealand and the availability of water was considered a significant factor in this growth.[81]  Those living in the area had to source water via alternative means before the consent was granted.  Interestingly, the Court noted that there were no known complaints from owners in the area about an absence of a water supply.[82]  However, despite questioning whether the proposed take was in fact needed to support development in rural zone 3, the Court granted the consent., and mauri failed to compete with the developmental value of the proposed take.

Although mauri was discussed at length, the Court’s treatment of other key concepts was relatively brief.  In particular, their consideration of kaitiakitanga was inadequate.  As discussed earlier, kaitiakitanga entails rights and obligations that are obligatory according to tikanga.[83]  If one cannot exercise kaitiakitanga, then one is not fulfilling their legal duty to the wider collective according to tikanga.[84]  However, kaitiakitanga is not considered as “law” despite the requirement that decision-makers under the RMA are required to have particular regard to kaitiakitanga.[85]  Instead kaitiakitanga is subordinated to Western “real” law. Therefore, despite its legislative acknowledgment, kaitiakitanga has been largely ineffective in influencing substantive outcomes.[86]

The Court’s consideration of the concepts of mauri, mana and kaitiakitanga were inadequate.  The inadequacy demonstrates a lack of understanding of the Māori worldview as well as a subordination of tikanga to Western law.  Interestingly, although the Court highlighted that it would be too simplistic to assume that their judgment of inconsequential effects on the mauri would entail inconsequential effects on other tangata whenua values, their decision demonstrates such an assumption.[87]  The Court concluding that the biophysical effects were insignificant and as such metaphysical effects could be dealt with by appropriate conditions of consent.[88]

Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council (Ngāti Tama)[89]

A more recent decision involving a resource consent demonstrates the challenge faced by decision-makers when dealing with the application of Māori cultural concepts and in particular mandatory considerations.  It also demonstrates that we need to be constantly vigilant in relation to the consideration of Māori cultural concepts and not become complacent where statutory incorporation exists by assuming that incorporation entails adequate decision-making.

Ngāti Tama sought judicial review of a decision (the Decision) of the Tasman District Council (the Council) to grant an extension of the lapse date of a water take consent granted to Kahurangi Virgin Waters Ltd.  The consent authorised the taking of groundwater from the Tākaka Confined Marble Aquifer at Bore WWD 6001 in Golden Bay, Nelson.  Ngāti Tama claimed that the Council’s decision was reviewable for illegality, principally for making errors of law, failing to take into account mandatory considerations, and taking into account irrelevant considerations.[90] The case is complex and the only claim that will be discussed here concerns the failure of the Council to take into account the mandatory consideration of analysing Ngāti Tama’s position to the extent to which it was an affected party.

The Council’s position was that it reached the Decision because it concluded Ngāti Tama was not adversely affected by the extension.  In coming to this decision it considered a lack of physical connection between the point of take and Te Waikoropupū Springs effectively entitled the Council to disregard any spiritual or cultural effects there might have been as a consequence of the extension.  This focus on the absence of a physical connection had the effect of removing the physical nexus considered necessary to enable consideration of the cultural and spiritual effects as well as the changed cultural and social circumstances.  The Court accepted that this was an error and that this incorrect analysis precluded the necessary consequential assessment as to the ways in which Ngāti Tama was potentially affected by the extension.

Although the decision of the Court is positive, the Court was careful to couch its conclusion with the caveat that the decision may well remain, even after considering the potential impact on Ngāti Tama.  Irrespective of this, the take home point here is that the Council’s error exemplifies a general lack of understanding of the cultural landscape on behalf of decision-makers, even after two and half decades of legislative recognition of Māori cultural concepts and the requirement that decision-makers consider these concepts.

The Council’s (incorrect) conclusion that the lack of a physical link meant it was able to disregard any spiritual or cultural effects demonstrates a complete lack of understanding of the Māori cultural worldview.  As seen in Wakatu, the metaphysical is being ignored and any cultural considerations are reduced to the physical.

Hokio Trusts v Manawatu-Wanganui Regional Council (Hokio Trusts)

The Hokio Trusts decision exemplifies the weakness of s 8 of the RMA.[91]  This was an appeal against an Environment Court decision dismissing an appeal from Independent Commissioners for the Manawatu-Wanganui Regional Council granting resource consents for restoration activities at Lake Horowhenua.  The appeal concerned the treatment of evidence by the Environment Court, which was claimed to breach s 8 of the Act (taking into account the principles of the Treaty), which in turn gave rise to a breach of the Treaty of Waitangi (the Treaty).

The appeal was dismissed with the High Court finding that the Environment Court had appropriately "not only acknowledged but [given] weight to"  Hokio Trusts' evidence, particularly in regard to the risk created by weed harvesting (one of the proposed activities) to whānau kaitiakitanga values and wāhi tapu.[92]  Evidence in favour of the proposal had been given by parties representing other Māori interests in the area, as well as non-Māori parties.

The High Court found that the Environment Court had taken the correct approach in giving equal priority to all the parties' evidence, and in directing its evaluation of the proposal to determining whether the aim to improve the ecological and cultural health of the ecosystem of the Lake was achieved in line with the sustainable management purpose of the Act.[93]

The Environment Court had held that the weight of expert evidence supported a conclusion that the proposed activities would have no adverse effects that were more than minor.[94]  In applying the correct legal test the Environment Court had fulfilled its procedural obligations under s 8.[95]  The High Court summarised the correct approach to be taken to s 8 as follows: "the Environment Court is not properly concerned with giving effect to the Treaty, but taking into account the principles of the Treaty".[96] 

The High Court therefore held that the Environment Court did not improperly disregard the Crown’s Treaty obligations.  It considered those obligations within the limits of the legislative framework under which it operates.  With respect to s 8 and taking into account the principles of the Treaty, the Environment Court properly dealt with and considered the evidence of the parties and their expert witnesses.  It properly directed itself when considering the law and the evidence, and there was no error of law.[97]

The decision is of note as it signifies the impact of a legislative regime that focuses on adverse effects as well as the impact of weak statutory language.  As a result the Courts have poorly dealt with environmental impacts because the need to show adverse effects renders any potential protection unattainable.  Further, although s 8 should provide an avenue with which to counter the other weaknesses in the RMA, such as the need for adverse effects, it has not.  And even though we might expect more from the "take into account" test, it has not delivered much in the context of this statute, rendering it particularly weak.

Evidential threshold and adverse effects

The case law involving consideration of Māori cultural concepts demonstrates two key themes.  These are the requisite evidential threshold and the requirement for adverse effects.  Overall the case law raises some interesting questions.  In particular, can Māori cultural concepts ever meet the requisite evidential standard and, if they do, can they ever trump the competing consideration of economic development?  The case law demonstrates that the answer to this question is only in rare cases do Māori cultural concepts meet the requisite standard, and trump developmental considerations.[98]  Further, in some cases, it could be argued that it is not the Māori cultural concepts that drive the decision but some other factor such as the nature of the environmental feature being protected, such that viewing these cases as a triumph for Māori cultural concepts is misguided.

The subordination of Māori cultural concepts is a reflection of two main factors.  The first is a lack of understanding of the Māori worldview by decision-makers.  Second, it reflects something more fundamental about the nature of the Western environmental management model.  This fundamental aspect concerns the priority given to economic development and how this priority often results in a subordination of other factors to be considered in deciding whether resource use is allowed or not, and the extent of that allowance.  This second factor is also related to the need for adverse effects on the environment before the protection mechanisms within the legislation are triggered.

However, this need for adverse effects is entirely inconsistent with the precautionary principle and the Māori worldview, and explains why the state of New Zealand’s environment falls far below what would be considered healthy according to conventional bio-indicators.

Evidential thresholds feature prominently in the case law considering Māori cultural concepts.[99]  The Friends and Community of Ngawha Inc case related to the building of Ngawha Prison on land said by some of the hapū of the area to be the domain of a taniwha named Takauere.[100]  The Māori position was divided with some believing that building the prison would adversely affect the taniwha, while others disagreed.  The courts grappled with the discussion of Māori cultural concepts and in particular the spiritual beliefs and cultural entities at issue in the case and the appeal was subsequently dismissed.

The Environment Court concluded that disputes over taniwha were not justiciable and that the prison development did not affect the taniwha or belief in it. This is not surprising.  Judges were being asked to weigh spiritual concerns regarding taniwha alongside tangible (physical) environmental effects. Essentially they were being asked to consider cultural considerations they had no understanding of, or, experience with.  However, all Judges accepted that s 6(e) of the RMA requires the court to take into account metaphysical and intangible matters and therefore to take into account Māori belief in the existence of the taniwha and the allegation of effects on it.[101]

Despite this, the decision suggests the metaphysical and intangible matters were not given much weight, if any, and the division within the community effectively allowed the Court to avoid considering and determining the issue.  Disappointingly, even after two decades of jurisprudence since the enactment of the RMA, the courts illustrate a limited understanding of Māori customary approaches to assessing the accuracy of conflicting evidence on spiritual matters, and even less of the measures used to determine effects on spiritual interests.[102]

The courts have used resource consent conditions to deal with the issue of insufficient evidence and a lack of adverse effects in relation to Māori cultural concepts in order to provide for the relationship of Māori with natural resources, as required by the RMA.[103]  Although this approach is unsurprising, it highlights the limitations of the courts in assessing Māori cultural concepts and essentially, as seen in Wakatu, it bypasses the need to assess these concepts at all.  Instead the court simply uses a mechanism to satisfy the RMA requirement to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga, without undertaking an inquiry that would properly provide for that relationship in a culturally consistent way.

This approach is problematic because it is being used to overcome the limitations of the courts in assessing these concepts, which as discussed, comes from a lack of understanding of the Māori worldview.  Despite this lack of understanding, the court then makes a judgement that any issues raised in opposition to consent on Māori cultural grounds, can be mitigated by resource consent conditions.  If you have a limited understanding of the culture you are assessing, how can you then assert that any cultural issues can be mitigated or addressed through consent conditions?

Conclusion

The impact of decisions such as Wakatu on Māori cultural concepts should not be downplayed and it is this impact that underpins opposition, or in the very least, a critical view of the legislative incorporation of Māori concepts.

As shown, this decision is not the exception but instead forms part of a series of decisions that have dealt with Māori concepts poorly.  And the unfortunate reality of the nature of precedent is that the impact of these decisions persist with increasing strength.  Therefore a change requires something more decisive.

Ironically, the strongest form of change comes in the form of statute.  Therefore what seems to require change is the approach to incorporation and drafting, focusing on the strength of the provisions, as well as the approach to interpretation.

The next section discusses some key considerations for statutory incorporation of Māori cultural concepts and touches on some solutions to these issues.

Considerations

The nature of tikanga is such that to codify it is to kill it.[104]

Introduction

Solutions to the incorporation of Māori approaches to environmental management are multifaceted.  First, they require better incorporation through better legislative and policy drafting.  This could be through greater specificity, as can be seen in the EEZ Act, rather than depending on more general Treaty principle provisions that leave too much discretion in the hands of decision-makers not well versed in tikanga and Māori environmental management.  Second, as incorporation is inadequate where interpretation of Māori concepts renders them ineffective and thus meaningless, legislative provisions need to be stronger and approaches to interpretation need to change or adapt to more appropriately deal with the metaphysical.

Although a large scale shift will be necessary to bring about significant change, there are a number of measures that can be implemented in the interim.  This includes a reconsideration of the incorporation of Māori terms and in particular how they are defined; and the requirement for experts in tikanga and te reo Māori to be involved where legislative provisions concerning Māori concepts are at issue.

However, in order to ensure the solutions achieve the desired outcome (of better and more culturally sensitive incorporation and therefore better and more culturally sensitive outcomes) it is essential to understand the concerns with legislative incorporation of Māori terms and concepts.

Legislative incorporation

Legislative incorporation of Māori concepts, particularly in the environmental management framework, is relatively common.  However, despite its initial (and valid) celebration, little has been asked about the relative merits and disadvantages of that incorporation.  The consideration of the case law demonstrates, however, that despite good intentions, incorporation comes with its own suite of problems.  What follows is a brief introduction of some of the considerations (and concerns) about the statutory incorporation of Māori concepts.

Incorporation of Māori concepts has been considered a relinquishment of the claim to tino rangatiratanga because recognition of tikanga is occurring within the framework of Crown sovereignty.[105]  In a similar vein, incorporation “captures, redefines, and uses Māori concepts to freeze Māori cultural and political expression within parameters acceptable to the state” and thereby confines customary law to a perception of worth that is externally determined.[106]

However, there is an alternative view that incorporation may act as a catalyst for broader change and that statutory recognition validates Māori customary law.[107]  This validation is particularly so in the case of statutory incorporation, which effectively elevates customary law in the hierarchy of sources of law.  However, the concern with this is that statutes are still subject to judicial discretion and interpretation, which can have the impact of both advancing Māori customary law as well as changing, overriding and restricting the operation of Māori customary law.[108]  This can be seen in the case of Wakatu whereby the concept of mauri was reduced to the physical.

The reason statutory incorporation can have the effect of changing, overriding and restricting the operation of Māori customary law is because legislation is often enforced, interpreted, and applied by non-Māori decision-makers.  This is problematic because many of these decision-makers have little to no understanding of tikanga Māori, leaving open the possibility of misinterpretation.[109] These misinterpretations may then become codified in judicial precedent. The problem with this is that we risk reducing the language to an interpretation that is so far removed from its cultural meaning it is unrecognisable.  This has already been seen in the reduction of kaitiakitanga to environmental stewardship, when in fact its meaning is far broader.

Further, tikanga is not static but a system that is both dynamic and adaptive to changing circumstances.  However, the nature of judicial precedent has the impact of creating stasis, which is another key concern when choosing to codify Māori concepts and terms.  Given the fragility of the language, a more nuanced approach seems appropriate.  One that ensures the language as well as the cultural concepts are safeguarded from being hijacked to fit the Western legal system of which it forms part.  One such nuanced approach considers the approaches to interpretation specifically.

Incorporation of Māori terms into substantive provisions is increasingly common.  This incorporation provides a greater opportunity to influence substantive outcomes and suggests that the terms are meant to have a determinative legal effect.[110]

However, their interpretation is characterised by a considerable amount of legal uncertainty due to an inconsistent approach to their incorporation.[111]  This means that despite incorporation into substantive provisions, whether they have a substantive legal impact depends on the particular approach to incorporation and subsequently their interpretation.[112]  In particular, it depends on whether the terms require an interpretation consistent with tikanga or an interpretation according to general rules of statutory interpretation.  This uncertainty hinders the ability of Māori words to influence or determine legal outcomes in a substantive way.

Tikanga consistent interpretation requires evidence of custom, while general statutory interpretation is interpreted by the judge according to their general linguistic knowledge.[113]  The conventional approach where no definition is provided, is to treat Māori terms as matters of statutory construction, which is interpreted by the Court at its own discretion.  However, without an express statutory requirement to interpret Māori words according to, or consistently with, tikanga Māori, the courts tend to adopt general meanings that distort the meaning of the word from a tikanga Māori perspective.  Therefore, without a clear indication of Parliamentary intent, Māori words risk being misinterpreted and divorced from their cultural base.

According to Tai Ahu, if te reo Māori is to develop as a functional language of substantive law, it must retain its cultural worldview as much as possible.[114]  In order to achieve this, he proposes that except where a Māori word requires a technical definition for the purposes of a statute, definitions should be abandoned and the Interpretation Act 1999 should be amended to require all words to be interpreted according to tikanga Māori.[115]  This approach would require experts in tikanga and te reo to be involved in the interpretation process.

In the meantime, the concerns raised by key Māori scholars remind us to be constantly vigilant about what we consider to be solutions.  In this case, although there are positive aspects to the incorporation of Māori cultural concepts, its potential shortfalls require us to be critical of using this as a solution to ensuring the better inclusion of Māori approaches to EBM because if it does not result in substantive change, it is essentially hollow and risks causing more harm in the long run.  This is particularly so where the revival of te reo Māori continues to face considerable challenges.[116]

The Crown’s duty of active protection requires a more nuanced approach to language revitalisation and in particular an understanding that law and legal process is a key part in the language’s revitalisation.[117]

Conclusion

Māori approaches to risk, caution and cumulative impacts in Ecosystem Based Management (EBM) can be understood in the context of the Māori worldview and approach to environmental management.  This view encompasses key concepts that guide the relationship that Māori have with their environment.  The current legislative framework governing the marine environment attempts to incorporate this world view generally, through the inclusion of Treaty principle provisions, and specifically, through the need to consider specific Māori concepts such as kaitiakitanga. However, this incorporation has been largely ineffective, despite over two and half decades since their incorporation in the RMA.

As identified, the ineffectiveness stems from a lack of understanding of the Māori worldview by decision-makers; the subordination of cultural considerations to other competing interests such as economic development; the need for material of probative value that is tendered logically to show the evidence of facts, which favours the presence of physical facts; and inconsistent approaches to interpretation.  Statutory incorporation also has a host of problems that may present potential barriers to reform in this area, particularly where statutory incorporation is intended.

The solution to the problems associated with statutory incorporation are multifaceted and may require a significant cultural shift in the long term.  However, in the short term, some potential changes that may create more tikanga consistent outcomes include reconsidering the way Māori terms are incorporated.  For example terms defined in Māori, rather than English, would require experts in tikanga and te reo to be involved in their interpretation.

Overall, it requires interpretation to be tikanga consistent, which should be driven by Māori.  This approach was articulated in the decision of Ngati Hokopu Ki Hokowhitu v Whakatane District Council with the Court stating that “the meaning and sense of a Māori value should primarily be given by Māori”, with the Court concluding overall that assessments should be made within the Māori world from where they came.[118]  In considering the requirement to consider the relationships Māori have with their natural environment, coupled with the need to consider evidence in the form of facts, it stated somewhat enlighteningly that:

Since section 6(e) does refer to Maori culture and traditions we have to be careful not to impose inappropriate 'Western' concepts. The appellants expressed concerns about that in various ways. Implicit in much of the appellants' evidence is the idea that each culture can only be explained in its own terms. This depends on the relativistic notion that classifications in any one language or culture: are not determined by how the world is, but are convenient ways in which to represent it. They maintain that the world does not come quietly wrapped up in facts. Facts are the consequences of ways in which we represent the world.

The Court’s observation regarding cultural relativism reminds us that our own cultural understanding limits how we view others and that if Māori cultural concepts are to be adequately considered in the decision-making process, it will take more than statutory incorporation.

Acknowledgement

I would like to thank Catherine Iorns, Reader at the School of Law within the Faculty of Law at Victoria University of Wellington, for involving me in the Sustainable Seas challenge.

Bibliography

Legislation

Conservation Act 1987.

Crown Minerals Act 1991.

Environmental Protection Authority Act 2011.

Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

Fisheries Act 1996.

Mammals Protection Act 1978.

Marine and Coastal Area (Takutai Moana) Act 2011.

Marine Reserves Act 1971.

Marine Protection Areas Classification, Protection standard and implementation guidelines (2008).

Marine Protection Areas Policy and Implementation Plan (2005).

New Zealand Coastal Policy Statement (2010).

Resource management Act 1991.

Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.

Cases

Friends and Community of Ngawha Inc v Ministry of Corrections [2002] NZRMA 401 (HC).

Hamilton (for Te Uri Karaka Hapu) v Far North District Council [2015] NZEnvC 12.

Heybridge Developments v Bay of Plenty Regional Council [2013] NZEnvC 269.

Hokio Trusts v Manawatu-Wanganui Regional Council High Court [2017] NZHC 1355.

KPF Investments Ltd v Marlborough District Council [2014] NZEnvC 152.

Mahanga E Tu Incorporated v Hawkes Bay Regional Council [2014] NZEnvC 83.

McGuire v Hastings District Council [2002] 2 NZLR 577, [2001] NZRMA 557 (PC).

McIntyre v Christchurch City Council [1996] NZRMA 289.

Maungaharuru-Tangitū Trust v Hawke's Bay Regional Council [2016] NZEnvC 232.

Ngā Hapū o Poutama v Taranaki Regional Council & Anor [2013] NZEnvC 254.

Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169.

Ngati Hokopu ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC).

Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A67/2004, 18 May 2004.

Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2017] NZHC 1081.

Pirirakau Inc Society v Bay of Plenty Regional Council (appeal against Heybridge Developments) [2014] NZHC 2544.

Re Erebus Royal Commission Air New Zealand v Mahon [1983] NZLR 662.

Re Waiheke Marinas Ltd [2015] NZEnvC 218.

Sea-Tow Ltd v Auckland Regional Council EnvC Auckland A66/06, 30 May 2006.

Sustainable Matatā v Bay of Plenty Regional Council [2015] NZEnvC 90.

Te Runanga O Ngai te Rangi Iwi Trust v Bay of Plenty Regional Council [2011] NZEnvC 402.

Verstraete v Far North District Council [2013] NZEnvC 108.

Wakatu Inc v Tasman District Council [2012] NZRMA 363.

Waihi Gold Co v Waikato Regional Council EnvC Auckland A146/98, 15 December 1998.

Winstone Aggregates Ltd v Franklin District Council EnvC Auckland A80/2002, 17 April 2002.

Whangaroa Maritime Recreational Park Steering Group v Northland Regional Council [2014] NZEnvC 92.

Zdrahal v Wellington City Council [1995] 1 NZLR 700, [1995] NZRMA 289 (HC).

Reports

Manuka Henare “Ngā Tikanga me ngā Ritenga o Te Ao Māori” (Report of the Royal Commission on Social Policy, Wellington, 1988).

Waitangi Tribunal Ko Aotearoa Tēnei – A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 2 at [xxv] [Ko Aotearoa Tēnei].

Books

Durie, E T "Justice, Biculturalism and the Politics of Law" in Margaret Wilson and Anna Yeatman (eds), Justice and Identity: Antipodean Practices (Bridget Williams Books, 1995) 33, 36.

Richard Boast and others Maori Land Law (Butterworths, Wellington, 1999).

Journal Articles

Ani Mikaere "How will the future generations judge us? Some thoughts on the relationship between Crown law and tikanga Māori" (Paper presented at the Ma te Rango te Waka ka Rere: Exploring a Kaupapa Māori Organisational Framework, Te Wānanga o Raukawa, Otaki, 2006).

Ani Mikaere "The Treaty of Waitangi and Recognition of Tikanga Māori" in Michael Belgrave, Merata Kawharu and David Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, 2005).

Anna Brenstrum, Annie O'Connor and Dave Randal Māori interests in natural resource management: 2017 in review (2018) March Māori LR.

Annie O'Connor, Dave Randal and Alanna Garland Duignan Māori interests in natural resource management: 2016 in review (2017) April Māori LR.

Annie O'Connor and Dave Randal Māori interests in natural resource management: 2015 in review (2016) April Māori LR.

Catherine Iorns Magallanes “The Use of ‘Tangata Whenua’ and ‘Mana Whenua’ in NZ Legislation: Attempts at Cultural Recognition,” 42 VUWLR 259-76 (2011).

David Randal and Julia White Māori interests in natural resource management: 2013 in review (2014) March Māori LR.

Garth R. Harmsworth and Shaun Awatere “Indigenous Maori Knowledge and Perspectives of Ecosystems” (2013) Dymond JR ed. Ecosystem services in New Zealand – conditions and trends. Manaaki Whenua Press, Lincoln, New Zealand.

Gail Tipa “Exploring Indigenous Understandings of River Dynamics and River Flows: A Case from New Zealand” (2009) 3 Environmental Communication 1.

Geoff Park “New Zealand as ecosystems: The ecosystem concept as a tool for environmental management and conservation” (2000) Department of Conservation.

Jim Williams “Resource management and Maori attitudes to water in Southern New Zealand” (2006) 62 New Zealand Geographer 73.

Joseph Williams J “Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” (2013) 21 WLR 1.

Kirsten Hagan and Julia White Māori interests in natural resource management: 2012 in review (2013) March Māori LR 9-13.

Merata Kawharu “Kaitikitanga: A Maori Anthropological perspective of the Maori Socio-environmental ethic of resource management” (2000) 109 The Journal of Polynesian Society 4.

Moana Jackson "Justice and Political Power: Reasserting Māori Legal Processes" in Kayleen M Hazelhurst (ed), Legal Pluralism and the Colonial Legacy (Ashbury Publishing Ltd, 1995).

Moana Jackson "The Treaty and the Word: The Colonization of Māori Philosophy" in Graham Oddie and Roy Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, 1992).

Natalie Coates “The Recognition of Tikanga in the Common law of New Zealand” (2015) 1 NZLR 1.

Ngaroma Williams and Mary-Elizabeth Broadley “Ngā Taonga Whakaako – Underlying Theoretical  Principles of Tikanga” (Ako Aotearoa, Open Polytechnic Kuratini Tuwhera and Te Tari Puna Ora o Aotearoa, 2012).

Thaddeus Ryan and Annie O'Connor Māori interests in natural resource management: 2014 in review (2015) March Māori LR.

Viktoria Kahui and Amanda C. Richards “Lessons from resource management by indigenous Maori in New Zealand: Governing the ecosystems as a commons” (2014) 102 Ecological Economics 1.

Williams, J The Māori Land Court: A Separate Legal System? (New Zealand Centre for Public Law, 2001) 4.

Dissertations

Carwyn Hamlyn Jones “Tino Rangatiratanga and Sustainable Development: Principles for Developing a Just and Effective Resource Management Regime in Aotearoa/New Zealand” (Masters Dissertation, York University, Toronto, Ontario, 2003).

Natalie Coates “Me mau ngā ringa Māori i ngā rākau a te Pākehā? Should Māori customary law be incorporated into legislation? (LLB (Hons) Dissertation, University of Otago, 2009).

Tai Ahu “Te Reo Maori as a language of New Zealand Law: the attainment of civic status” (LLM Dissertation, Victoria University, 2012).

Internet Materials and Newspaper Articles

Department of Conservation “Marine Protected Areas: Policy and Implementation Plan” (2005) <http://www.doc.govt.nz/about-us/science-publications/conservation-publications/marine-and-coastal/marine-protected-areas/marine-protected-areas-policy-and-implementation-plan/>.

Jacinta Ruru “Law from a Maori perspective” (Radio New Zealand, 20 August 2016) <http://www.radionz.co.nz/national/programmes/saturday/audio/201812948/jacinta-ruru-law-from-a-maori-perspective>.

Kei Merito “The Life of a River: A Maori Cultural View of Rivers” Sea Keepers <www.seakeepers-nz.com>.

Māori Dictionary <www.maoridictionary.co.nz>.

Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <http://www.converge.org.nz/pma/mjtipuna.htm>.

Te Ahukaramū Charles Royal “Kaitiakitanga – guardianship and conservation - Understanding kaitiakitanga” (22 September 2012) Te Ara – The Encyclopedia of New Zealand <www.teara.govt.nz>.

Te Ahukaramū Charles Royal, 'Te Ao Mārama – the natural world – Mana, tapu and mauri', Te Ara – the Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/te-ao-marama-the-natural-world/page-5>.

Notes

[1] For this reason I have not discussed all the relevant case law, nor have I discussed various planning instruments, such as regional policy plans and co-management arrangements.

[2] Manuka Henare “Ngā Tikanga me ngā Ritenga o Te Ao Māori” (Report of the Royal Commission on Social Policy, Wellington, 1988) at 28.

[3] “mauri” Māori Dictionary <www.maoridictionary.co.nz>.

[4] “mana” and “kaitiakitanga” Māori Dictionary <www.maoridictionary.co.nz>.

[5] Te Ahukaramū Charles Royal, 'Te Ao Mārama – the natural world – Mana, tapu and mauri', Te Ara – the   Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/te-ao-marama-the-natural-world/page-5>.

[6] Royal, above n 5.

[7] Royal, above n 5.

[8] Royal, above n 5.

[9] Kei Merito “The Life of a River: A Maori Cultural View of Rivers” Sea Keepers <www.seakeepers-nz.com>.

[10] Royal, above n 5.

[11] Royal, above n 5.

[12] Royal, above n 5.

[13] “Tapu” Māori Dictionary <www.maoridictionary.co.nz>.

[14] Te Ahukaramū Charles Royal “Kaitiakitanga – guardianship and conservation - Understanding kaitiakitanga” (22 September 2012) Te Ara – The Encyclopedia of New Zealand <www.teara.govt.nz>.

[15] Royal, above n 14.

[16] Royal, above n 14.

[17] Carwyn Hamlyn Jones “Tino Rangatiratanga and Sustainable Development: Principles for Developing a Just and Effective Resource Management Regime in Aotearoa/New Zealand” (Masters Dissertation, York University, Toronto, Ontario, 2003) at 42 and 44.

[18] Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <http://www.converge.org.nz/pma/mjtipuna.htm>; Henare, above n 2, at 18.

[19] “Whanaungatanga” Māori Dictionary <www.maoridictionary.co.nz>.

[20] Ngaroma Williams and Mary-Elizabeth Broadley “Ngā Taonga Whakaako – Underlying Theoretical     Principles of Tikanga” (Ako Aotearoa, Open Polytechnic Kuratini Tuwhera and Te Tari Puna Ora o Aotearoa, 2012).

[21] Williams and Broadley, above n 20, at 20.

[22] Jones, above n 17, at 41 and 42.

[23] Royal, above n 5.

[24] Royal, above n 5.

[25] Jackson, above n 18; Henare, above n 2, at 18.

[26] Jackson, above n 18; Henare, above n 2, at 18.

[27] Henare, above n 2, at 28.

[28] Conservation Act 1987, s 4.

[29] Emphasis added.

[30] Emphasis added. Resource Management Act 1991 (RMA), s 8.

[31] Conservation Act 1987, s 6(c).

[32] RMA, s 6 and 7.

[33] Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act), s 12.

[34] EEZ Act, s 18; Environmental Protection Authority Act 2011, s 19 and 20.

[35] EEZ Act, ss 32, 33, 45 and 59.

[36] EEZ Act, s 7.

[37] The Marine and Coastal Area (Takutai Moana) Act (MACA) 2011, subpart 1 of Part 3.

[38] MACA, s 8.

[39] MACA, s 8.

[40] MACA, s 51(2).

[41] Fisheries Act, Part 9, s 186.

[42] Fisheries Act, Part 9; Kaimoana Customary Fishing regulations 1998.

[43] Amateur Fishing Regulations 2013.

[44] Rāhui is a temporary ritual prohibition, closed season, ban, reserve and have been placed over natural resources as a conservation measure.

[45] Marine Reserves Act 1971; Department of Conservation “Marine Protection” <www.doc.govt.nz/nature/habitats/marine/>.

[46] MACA, s 47.

[47] Marine Reserves Act 1971, s 5.

[48] Mammals Protection Act 1978, s 22.

[49] Section 49.

[50] Department of Conservation “Marine Protected Areas: Policy and Implementation Plan” (2005) <http://www.doc.govt.nz/about-us/science-publications/conservation-publications/marine-and-coastal/marine-protected-areas/marine-protected-areas-policy-and-implementation-plan/>.

[51] At [86 – 94].

[52] New Zealand Coastal Policy Statement (NZCPS) (2010) <http://www.doc.govt.nz/about-us/science-publications/conservation-publications/marine-and-coastal/new-zealand-coastal-policy-statement/new-zealand-coastal-policy-statement-2010/policy-2-the-treaty-of-waitangi-tangata-whenua-and-maori/>.

[53] NZCPS, above n 56.

[54] Wakatu Inc v Tasman District Council [2012] NZRMA 363 (ENC).

[55] Wakatu Inc, above n 54; Kirsten Hagan and Julia White Māori interests in natural resource management: 2012 in review (2013) March Māori LR 9-13.

[56] Wakatu Inc, above n 54, at [70], [75], [83], [85], [112], [113], [114], [116], [118], and [119].

[57] Winstone Aggregates Ltd v Franklin District Council  EnvC Auckland A80/2002, 17 April 2002 at [248]  and [249]; McIntyre v Christchurch City Council [1996] NZRMA 289 at 307.

[58] Wakatu Inc, above n 54, at [25].

[59] Re Erebus Royal Commission Air New Zealand v Mahon [1983] NZLR 662 at 671.

[60] At 671.

[61] Wakatu Inc, above n 54, at [24]; Ngati Hokopu ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC) at [53].

[62] Wakatu Inc, above n 54, at [29] (emphasis added).

[63] At [29].

[64] Sea-Tow Ltd v Auckland Regional Council EnvC Auckland A66/06, 30 May 2006 (emphasis added).

[65] Wakatu Inc, above n 54, at [32].

[66] At [32].

[67] Wakatu Inc, above n 54, at [33].

[68] Zdrahal v Wellington City Council [1995] 1 NZLR 700, [1995] NZRMA 289 (HC) at [298].

[69] At [298].

[70] RMA, s 5.

[71] RMA, s 6.

[72] Wakatu Inc, above n 54, at [19].

[73] At [19].

[74] Emphasis added.

[75] RMA, s 5.

[76] RMA, s 5 (emphasis added).

[77] Wakatu Inc, above n 54, at [67].

[78] At [67].

[79] Waihi Gold Co v Waikato Regional Council EnvC Auckland A146/98, 15 December 1998.

[80] Wakatu Inc, above n 54, at [46].

[81] Wakatu Inc, above n 54, at [47].

[82] Wakatu Inc, above n 54, at [47].

[83] Moana Jackson, above n 18; Henare, above n 2, at 18 and 28.

[84] Moana Jackson, above n 18; Henare, above n 2, at 18 and 28.

[85] RMA, s 7.

[86] Joseph Williams J “Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” (2013) 21 WLR 1.

[87] Wakatu Inc, above n 54, at [71].

[88] Wakatu Inc, above n 54, at [75].

[89] Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2017] NZHC 1081.

[90] At [3].

[91] Hokio Trusts v Manawatu-Wanganui Regional Council High Court [2017] NZHC 1355.

[92] At [54].

[93] Hokio Trusts at [59].

[94] At [74].

[95] At [63].

[96] At [75] and [76].

[97] At [76].

[98] See: KPF Investments Ltd v Marlborough District Council [2014] NZEnvC 152; Pirirakau Inc Society v Bay of Plenty Regional Council (appeal against Heybridge Developments) [2014] NZHC 2544; Re Waiheke Marinas Ltd [2015] NZEnvC 218; Sustainable Matatā v Bay of Plenty Regional Council [2015] NZEnvC 90.

[99] Thaddeus Ryan and Annie O'Connor Māori interests in natural resource management: 2014 in review (2015) March Māori LR.

[100] Friends and Community of Ngawha Inc v Minister of Corrections (2002) 9 ELRNZ 67, [2003] NZRMA 272 (CA).

[101] At [21].

[102] At [21].

[103] Ryan and O'Connor, above n 98.

[104] Williams, J The Māori Land Court: A Separate Legal System? (New Zealand Centre for Public Law, 2001) 4.

[105] Ani Mikaere "How will the future generations judge us? Some thoughts on the relationship between Crown law and tikanga Māori" (Paper presented at the Ma te Rango te Waka ka Rere: Exploring a Kaupapa Māori Organisational Framework, Te Wānanga o Raukawa, Otaki, 2006); Ani Mikaere "The Treaty of Waitangi and Recognition of Tikanga Māori" in Michael Belgrave, Merata Kawharu and David Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, 2005) at 331.

[106] Moana Jackson "Justice and Political Power: Reasserting Māori Legal Processes" in Kayleen M Hazelhurst (ed), Legal Pluralism and the Colonial Legacy (Ashbury Publishing Ltd, 1995) at 254; Moana Jackson "The Treaty and the Word: The Colonization of Māori Philosophy" in Graham Oddie and Roy Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, 1992) at 8.

[107] Natalie Coates “Me mau ngā ringa Māori i ngā rākau a te Pākehā? Should Māori customary law be incorporated into legislation? (LLB (Hons) Dissertation, University of Otago, 2009) at 21; Natalie Coates “The Recognition of Tikanga in the Common law of New Zealand” (2015) 1 NZLR 1; Catherine Iorns Magallanes “The Use of ‘Tangata Whenua’ and ‘Mana Whenua’ in NZ Legislation: Attempts at Cultural Recognition,” 42 VUWLR 259-76 (2011) at 272 – 275.

[108] Natalie Coates, above n 106, at 21; Magallanes, above n 106, at 272 – 275.

[109] See Williams, J, above n 103; Durie, E T "Justice, Biculturalism and the Politics of Law" in Margaret Wilson and Anna Yeatman (eds), Justice and Identity: Antipodean Practices (Bridget Williams Books, 1995) 33, 36.

[110] Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM  Dissertation, University of Victoria, 2012) at 87; Catherine Iorns Magallanes, above n 103, at 272 – 275.

[111] Tai Ahu, above n 109, at 87; Magallanes, above n 106, at 272 – 275.

[112] Tai Ahu, above n 109, at 87.

[113] Richard Boast and others Maori Land Law (Butterworths, Wellington, 1999) at 36.

[114] Tai Ahu, above n 109, at 94.

[115] Tai Ahu, above n 109, at 94.

[116] Waitangi Tribunal Ko Aotearoa Tēnei – A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 2 at [xxv] [Ko Aotearoa Tēnei].

[117] Tai Ahu, above n 109, at 96.

[118] Ngati Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (NZEnvC) at [46] and [53].