December 17, 2018
Ngāi Tai ki Tāmaki Supreme Court Decision
Media Release
Date Monday 17 December 2018
Issued By Ngāi Tai ki Tāmaki Tribal Trust
Ngāi Tai ki Tāmaki Supreme Court Decision
Members of Auckland iwi Ngāi Tai ki Tāmaki have been given an early Christmas present with a majority decision in their favour from the Supreme Court.
Ngāi Tai ki Tāmaki Trust has mana whenua on Motutapu and Rangitoto, and exercises manaakitanga and kaitiakitanga over these islands. In 2015 the Department of Conservation granted separate concessions to Fullers Group Limited and Motutapu Island Restoration Trust for their respective commercial tour operations on Rangitoto and Motutapu. The Department made its decision under the Conservation Act 1987 and Reserves Act 1977. Section 4 of the Conservation Act requires the Conservation Act to be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.
As mana whenua, Ngāi Tai ki Tāmaki argued that Treaty principles of partnership, active protection, right to development and redress meant that it was not appropriate or in accordance with tikanga for other groups to provide guided tours on the islands.
The contentious point before the Court was that the Department granted the concession on the basis that no preferential entitlement should be given in favour of Ngāi Tai ki Tāmaki, and economic benefit that could potentially be accrued as a result of a concession is not something to take into account.
The High Court originally found that the Minister of Conservation had made an error in law in making the decisions to grant the concessions. However when the Court turned to the question of whether the decisions should be referred back to the Minister because of this, the High Court ultimately found this was not necessary and dismissed the Ngāi Tai ki Tāmaki application for judicial review.
That decision was upheld by the Court of Appeal in a decision earlier this year.
The Supreme Court majority strongly disagreed, saying that the decision maker was required to give a degree of preference to Māori and the Māori economic interest. The Court said that, “section 4 is of fundamental importance in exercise by Department of Conservation of its powers and responsibilities.”
The Supreme Court found that if factors of mana whenua had been considered, the Department of Conservation may have reached a different decision.
Ngāi Tai ki Tāmaki Tribal Trust Chair, James Brown, says this is a big win for Ngāi Tai ki Tāmaki as it confirms their mana whenua status over the islands.
“The comments from the Court give good grounding for other hapū and iwi across the country to realise a true Treaty partnership. It holds the Crown to account on its obligation to uphold Treaty principles.” says Mr Brown.
The Court was critical of Department of Conservation’s general policy stating it does not put enough emphasis on the importance of the Treaty relationship. Section 4 should be a primary consideration and other statutory provisions or plans, such as regional plans, should be applied consistently with section 4. The Court acknowledged that other considerations like public access and enjoyment of reserve land, are relevant considerations but they do not trump Treaty principles.
“The Court has affirmed that Treaty principles are a real, and important consideration when dealing with reserve land.” Mr Brown notes that, “While it may not ultimately overturn the decision to have commercial guiding on our motu, this decision highlights the fact a process needs to be set up so that future decisionmakers can act consistently with section 4.”
“We’re excited about the precedent this case sets for the due consideration of tangata whenua rights and interests.”
ENDS
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