Report focuses on bigger role for Māori in conservation estate

A blueprint proposing that Māori have greater control of the Conservation estate – a third of New Zealand – has alarmed some, but Conservation Minister Kiritapu Allan indicates it is not likely to translate directly into policy.

She is also critical of the debate happening around the co-governance issue, saying it was “unhelpful” and undermined the previous bipartisan approach to it.

“I am frustrated by where these discussions are taking us. I don’t think they are useful.”

Act leader David Seymour says the conservation report is a classic example of how interpretation of the Treaty of Waitangi has changed over 40 years and how Māori expectations had grown unrealistically.

“Reconciling those expectations is now a very, very delicate task and that’s why this debate needs to occur.”

Co-governance arrangements have formed part of treaty settlements but are becoming more common and controversial, including a new representation model for Rotorua District Council which has been put on hold after failing a Bill of Rights vet, a Māori Health Authority, and a governance role for iwi in the Three Waters reforms.

Allan said the conservation report, produced by a group called the Options Development Group (ODG), was an interesting think-piece and covered some “crunch areas.”

“I think it is a sound piece of work but in terms of next steps, there is quite a bit of water to go under the bridge before I formulate my views of where the next steps will be.”

The report, and another done by the Environmental Defence Society on law reform, Conserving Nature, set a foundation for the next government to take it forward.

“Nothing is set in stone. Far from it.”

She is awaiting advice from DoC on the report, which was released last month.

The report was commissioned by the Department of Conservation (DoC) after a landmark Supreme Court judgment in favour of Ngai Tai ki Tamaki on section 4 of the Conservation Act – section 4 requires its interpretation and administration to give effect to the principles of the Treaty of Waitangi.

The court rejected DoC’s previous policy which held there was no basis for preferential entitlement to concessions in favour of any party under the relevant legislation.

Some of the recommendations of the ODG report include:

• To reform the ownership model of public conservation lands and waters to reflect the enduring relationships tangata whenua have with these places and the resources and taonga within them.

• The creation of new land titles that reflect the interests of tangata whenua and the Crown;

• The return of land to tangata whenua for conservation purposes under agreements (including outside of Te Tiriti settlements), especially where the tangata whenua interest is of overwhelming significance;

• Provide for the delegation, transfer and devolution of functions and powers within the conservation system to tangata whenua, including allocation decisions and permission functions.

The ODG said its report had “centred partnership in its approach to giving effect to Te Tiriti and its principles.”

“This principle has moved on from reflecting a hierarchical power structure where the Crown has the unilateral right to govern and tangata whenua are relegated to a mere stakeholder to be consulted.

“Partnership means an ongoing relationship where power and decision-making sit more horizontally. It requires the tino rangatiratanga of tangata whenua to be given expression.”

Seymour described the report as “a perfect snapshot of the way that treaty interpretation has evolved over the last 40 years”, including the Waitangi Tribunal’s report on Maori interests in flora and fauna, known as Wai 262.

“You start with legislation saying there’s principles. Then you have the court interpreting the principles. Then you have the Waitangi Tribunal chip in with Wai 262 then you get the public service tasked with creating policy out of those precedents and before you know it, you’ve transformed New Zealand’s constitutional arrangements from equal citizens seeking to achieve goals based on the interests and expertise they have appropriate to the goal, to an empowerment of people based on ancestry, and appointment of people based on ancestry.”

He said he was worried about the high expectations of Māori which would be impossible for governments to meet.

“That’s what I’m personally and politically so worried about for New Zealand because for the last 30 years that troika of court, tribunal and public service has been cultivating irreconcilable expectations.”

He said a lot of people had now grown up with the idea that sovereignty was never ceded in the Treaty of Waitangi “and that the only just way forward is for co-governance effectively of the whole country and that anything less than that is unjust.”

Kiritapu Allan said expectations were always big when it came to Conservation estate “and who should be in the driver’s seat”.

In terms of partnership, that was best decided place by place. A lot of treaty settlements had negotiated a seat at the table on Conservation Boards.

“If we were to start making those carte blanche decisions we would have to think through the ramifications because some settlements have fought hard for those things and in other areas it has not made sense.

“I like the agility we have in the system at the moment to be able to engage and make pragmatic decisions based on what the community sees as important.”

Allan was highly critical of National in particular for questioning co-governance when it had played a leadership role when it was last in Government, and not just in treaty settlements.

The Canterbury Earthquake Recovery Authority (Cera) had involved Government, local government and Ngai Tahu working together in a pragmatic way.

“Cera was a great example where … because it made sense for that community at that time to have this co-governance structure which is exactly what it was with massive large budgets, completely outside of a settlement process,” she said.

“There’s all of a sudden confusion about what co-governance is.”

It had always been a discussion that had evolved and it had always been a pragmatic discussion.

“I miss the likes of [former National Treaty Negotiations Minister] Christopher Finlayson providing some assurances to his team about these are pragmatic discussions that need to occur and they are bespoke.

“What is happening today is nothing that didn’t happen yesterday,” she said.

“Our side didn’t make the politics of this bigger or less than what it was. There was a pragmatism, that was applied and actioned as well.”

She said she welcomed healthy debates.

“Healthy debates are informed by considered opinions and views and a genuine reflection on history with a genuine aspiration of where our country is headed.

“Let’s have that principled discussion but I am finding the hyperbolic approach by various parties at the moment to be very disingenuous and unhelpful for our country.”

CO-GOVERNANCE PROPOSALS

ROTORUA WARDS
The Rotorua District Council (Representation Arrangements) Bill would change the way councillors are elected to Rotorua District Council, although it was put on hold yesterday, pending changes.

It was a bill devised by the council itself in a bid to get stronger participation by Māori in local government.

As it stands at present, the bill provides that three councillors be elected to represent a Māori ward by voters on the Māori roll, and three to represent a general ward by voters on the general roll, plus four councillors to be elected at large by people on both rolls, and the mayor separately elected.

The three plus three plus four formula would remain the same, no matter how many people were enrolled the general or Māori rolls and how they fluctuated. At present, there are 22,000 on the Māori roll and 56,000 on the general roll.

Opponents of the bill say it subverts the principle that everybody’s vote should be worth the same and that it entrenches a voting system based on ethnicity. Supporters say that every elector would still have the same right to elect seven people to council.

The proposed system would provide equal representation because it meant whether you were Māori or Pakeha you would have the same number of representatives.

The bill has failed its vet under the Bill of Rights Act, with Attorney-General David Parker saying it discriminates against those on the general roll because of the disparity in representation.

The Local Government Act allows for councils to establish Māori wards but under a formula in which they are proportionate to the Māori electoral population. Rotorua’s proposal varies from that, which is why it asked local list MP Tamati Coffey to sponsor a local bill.

E-CAN
Environment Canterbury, or more formally the Canterbury Regional Council, has asked Parliament to pass a law that would allow Ngai Tahu to appoint two voting councillors to the district council.

Since 2020 Ngai Tahu has appointed two advisers to add a voice of the mana whenua to the table but the council does not believe that is enough.

It wants Ngai Tahu to have a say in the decision-making, giving it two of 16 seats and on a paid basis.

The MP for Te Tai Tonga, Rino Tirakatene, is sponsoring the Canterbury Regional Council (Ngāi Tahu Representation) Bill and it is currently before the Māori Affairs select committee.

The goal is to have it passed in time for Ngai Tahu to take their seats after the local body elections in October.

In its first reading, Tirakatene said E-Can could establish Māori wards some time in the future, as the law now allows, but such seats were not mana whenua seats.
Opponents say that all seats should be democratically elected.

HEALTH REFORMS
A radical change to the structure of the New Zealand health system is set to be passed this month in the Pae Ora (Healthy Futures) Bill and will take effect from July.

The 20 district health Boards throughout the country will be abolished and their work in planning, commissioning and delivering health services will be carried out by two new bodies.

Health New Zealand and the Māori Health Authority will be established to run the health system. The Ministry of Health with become a policy-focused organisation.

The bill does not use the term “veto” but it requires Health New Zealand and the Maori Health Authority”to jointly develop and implement a New Zealand Health Plan and to work together in the performance of specified functions of Health New Zealand.”

If they disagree on any matter, the Minister of Health decides.

The bill also sets up “locality networks” across the country -nine identified so far but up to 80 are planned – to let Health NZ and the Māori Health Authority know the local health needs of communities.

There will also be iwi-partnership boards across the country (the number of boards is not predetermined). Each locality plan will require the agreement of the iwi-Māori partnership board IMPBs). DHBs currently work informally with partnership boards but the bill before Parliament turns them into statutory bodies.

THREE WATERS
In the original proposal of the contentious plan to restructure water management in New Zealand, the Government described it as “a partnership-based reform”.

It proposed to establish four mega entities across the country to manage stormwater, wastewater and drinking water instead of the 67 councils now doing it, although the councils would retain ownership.

Its model provided for a significant role for Māori in partnering with councils to first set up four regional groups with mana whenua and local authority representatives on it to oversee the boards.

These groups would select a panel to appoint the boards to run the mega entities. The regional co-governance groups would also raise issues that should be considered for strategic and performance expectations and the statement of intent.

The proposal pointed to it “enabling greater strategic influence to exercise rangatiratanga over water service delivery.”

Some clarification on the model is due to be announced today by Local Government Minister Nanaia Mahuta and Finance Minister Grant Robertson.

PLANT VARIETY RIGHTS BILL
A bill before Parliament modernises the existing regime for determining intellectual property in plants.

Among other things, it also sets up a Māori Plant Varieties Committee to deal with indigenous plants.

The aim, as stated in the purpose, is to “protect kaitiaki relationships with taonga species and matauranga Maori in the plant variety rights system.”

Under the bill originally introduced, breeders would have a right of appeal to a court for decisions except for those made by the Māori Plant Varieties Committee. It was decided by the drafters that the High Court would not have the expertise to hear such appeals.

The select committee report has changed that, but said the appropriate court for appeal is not the High Court but the Māori Appellate Court- the appeal court of the Māori Land Court.

CO-GOVERNANCE – EXISTING

OKAHU BAY
The land around Takaparawhau (Bastion Point) and Okahu Bay is part of the area managed under one of the first co-governance arrangements under law.

The Ngāti Whātua Ōrākei Reserves Board comprises three representatives each from Auckland Council and Ngati Whatua Orakei Trust, with the chair appointed by the trust and the deputy chair appointed by the council.

It is responsible for co-governance of about 50ha of land known as Whenua Rangatira, on the harbour edge between Paratai Drive and Mission Bay, including Okahu Bay; and an area of bush and grassland to the east of Orakei Basin known as Pourewa Creek Recreation Reserve.

Its costs are funded by Auckland Council and its capital budget allocation in the current year is $1.2 million. The board was initially established under the Orakei Act 1991 then under the Ngati Whatua Orakei Settlement Act 2012.

TE ARAWA LAKES STRATEGY GROUP
The group comprises representatives of the Rotorua District Council, the Bay of Plenty Regional Council and the Te Arawa Lakes Trust (which replaced the Te Arawa Māori Trust Board) and was formed to oversee the improvement of the Rotorua lakes’ water quality.

The four priority lakes were listed as Rotorua, Rotoiti, Rotoehu and Okareka.

It was set up as a joint committee under the Local Government Act 2002 and was given formal status in the Te Arawa Lakes Settlement Act 2006 which vest ownership of the lakes in Te Arawa.

In 2007, the Government signed a memorandum of understanding with the strategy group and the following year, it budgeted $72 million for the four priority lakes, which was matched by the two councils.

Its meetings and minutes are posted on the Bay of Plenty Regional Council website.

Last year’s Budget outlined five-year funding by the Ministry for the Environment of $17.22 million over five years from 2020 to 2025, with $7.2 million of that remaining.

VOLCANIC CONES
Tupuna Maunga o Tamaki Makaurau Authority was established in 2014 as the co-governance body to oversee the management of 14 maunga in Auckland under the Reserves Act.

The authority was established under the Nga Mana Whenua o Tamaki Makaurau Collective Redress Act 2014.

Ownership of 14 mountain recreational reserves around Auckland was vested in a collective of 13 iwi and hapu, known as the Tamaki collective or Nga Mana Whenua o Tamaki Makaurau. They are held for the common benefit of the collective and the other people of Auckland.

The co-governance body comprises the six members appointed by the Auckland Council and six by the Tamaki Collective, with one non-voting representative of the Crown. The chair must come from the collective and the deputy chair from the council. Its work is funded by Auckland Council and it must prepare an annual report.

Operating and capital funding this year is about $10 million as set out in the council’s long-term plan, building each year to about $18 million in 10 years’ time.

The authority has sought leave of the Supreme Court to appeal a Court of Appeal ruling (Norman vs Tupuna Maunga Authority) setting aside the authority’s decision to remove 345 exotic trees on Owairaka (Mt Albert) and setting aside the council’s decision to grant resource consent without notification.

TE UREWERA
The land that used to be Te Urewera National Park ceased being owned by the Crown when Te Urewera Act was passed in 2014.

The act established Te Urewera as its own legal identity with and a governance board comprising six appointed by Tuhoe and three by the Crown. The chair must be one of those appointed by Tuhoe.

Establishing Te Urewera was a central part of the Treaty of Waitangi settlement between Tuhoe and the Government.

The board must approve a management plan and annual priorities and has the power to grant permits, make bylaws and control access to parts of Te Urewera.

The management of Te Urewera is carried out by Tuhoe and the Department of Conservation.

WAIKATO RIVER AUTHORITY
The Waikato River Authority was set up in 2010 to oversee the health and wellbeing of 11,000km of the Waikato and Waipa rivers.

The authority comprises 10 board members, five from each river iwi (Tainui, Te Arawa, Tuwharetoa, Raukawa, and Maniapoto) and five Crown-appointed members.

It has two co-chairs, one chosen by the iwi and one by the Minister for the Environment.
The authority was formed under the Waikato Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010.

The authority is the sole trustee of the Waikato RiverClean-Up Trust which funds various projects to enhance the river.

Under the Waikato River legislation, the trust is to receive settlement funds of $210 million over 27 years (17 years remaining) and under the Waipa River legislation, $10 million is to be received over 27 years (17 years remaining).

The authority has to produce an annual report which is presented to Parliament but the authority is not subject to the Official Information Act or Local Government Official Information and Meetings Act.

WHANGANUI RIVER
An act of Parliament recognises the Whanganui River in law as a legal person, Te Awa Tupua, “an indivisible and living whole, from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.”

Under the law, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, it has the rights, powers, duties and liabilities of a legal person which are exercised by two guardians, Te Pou Tupua, one appointed by iwi with interests in the Whanganui River, and the other by the Minister for the Environment.

It was part of a settlement for Whanganui iwi, which received $81 million to settle the river claim and established a $30 million contestable fund to advance the health of the river.

The law also sets up what is effectively a co-governance body, a larger group called Te Kopuka which develops the overall strategy to advance the health and well-being of the river and recommend actions.

It comprises up to 17 members including representatives of DoC, Fish and Game, Genesis, conservations interests, tourism interests, recreational interests and the primary industries sectors; plus up to five reps of iwi and up to four of the relevant local authorities (Manawatu-Wanganui Regional Council; Ruapehu District Council; Stratford District Council; Whanganui District Council).

The Government allocated $101,000 in the current financial year to support the functions of the guardians, Te Pou Tupua, intended to achieve the protection of the status, health and wellbeing of the river. Another $106,000 was allocated to Whanganui River Iwi, with annual funding commitments to 2034.

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