Overarching themes

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“At the very least, to compensate for the prejudice that has been suffered from the Crown’s environmental management regime, we stated that any settlement legislation negotiated by the parties should explicitly recognise the rights of Te Rohe Pōtae Māori te tino rangatiratanga and mana whakahaere. In no other field of endeavour is this more needed than in the area of environmental management.”

“We also encourage the parties that in providing for the practical exercise of the tino rangatiratanga of Te Rohe Pōtae Māori communities, the negotiations between the parties and any settlement legislation should address how their right of mana whakahaere should be institutionalised. We return to the main recommendation we made with respect to this below.” (p 501)

“The Tribunal recommends :

• “That the Crown acts, in conjunction with Te Rohe Pōtae Māori or the mandated settling group or groups in question, to put in place means to give effect to their rangatiratanga in environmental management. For Ngāti Maniapoto or their mandated representatives, this will require the Crown to take into account and give practical effect to Te Ōhākī Tapu. How this might be achieved will be for the parties to decide in negotiations ; however, the Tribunal considers that for the Crown to relieve the prejudice suffered by Te Rohe Pōtae Māori, the following minimum conditions must be met.”
• “First, that the rangatiratanga of Te Rohe Pōtae Māori (or the settling group or groups in question) be enacted in legislation in a manner which recognises and affirms their rights of autonomy and self-determination within their rohe, and imposes a positive obligation on the Crown and all agencies acting under Crown statutory authority to give effect to those rights. For Ngāti Maniapoto or their mandated representatives, this will require legislation that recognises and affirms Te Ōhākī Tapu, and imposes an obligation on the Crown and its agencies and regional and local authorities to give effect to the right to mana whakahaere. The brief of evidence of Steven Wilson (Manahautū Whanake Taiao – Group Manager Environment for the Maniapoto Trust Board) dated 28 April 2014 could provide a sound basis for negotiations on this issue.”
• “Secondly, subject to negotiations between the parties, that the legislation makes appropriate provision for the practical exercise of rangatiratanga by Te Rohe Pōtae Māori (or the settling group or groups in question) in environmental management. For Ngāti Maniapoto or their mandated representatives, this will require legislation that gives practical effect to Te Ōhākī Tapu, and provides for the practical exercise of mana whakahaere.” (p 501)

“As a result, there has been massive environmental change in the district without Te Rohe Pōtae Māori having any meaningful control and authority over developments that have fundamentally changed the nature of their relationship with their environment. They have suffered financial loss and customary resource loss. They are no longer able to express their rangatiratanga, kaitiakitanga, their tikanga, and mātauranga Māori over sites and wetlands that they no longer own or where these have been destroyed. Even where they own them, such as the lakes (and fisheries) at Tahāroa or Maniapoto’s cave they have not been able to protect them from desecration or collapse.” (p 500)

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…”

• “A failure to require decision makers take into account and provide for the rangatiratanga, kaitiakitanga, tikanga and mātauranga Māori of Te Rohe Pōtae Māori associated with forests, land, wetlands and taonga sites until the 1980s. Rangatiratanga, kaitiakitanga and tikanga (such as rāhui) are sourced from mātauranga Māori and its definitions of the values attributed to each. Values such as whanaungatanga, manaakitanga, utu, and tapu cumulatively define appropriate behaviour, and the consequences for not complying with the norms associated with this system of law in the environmental space include a loss of mana and ultimately well-being.” (p 500)

“The flora and fauna Tribunal identified a spectrum of Māori involvement in environmental decision-making, from autonomy and control at one end, partnership and co-management in the middle, and mere influence at the other end. Without specifying which approach would be suitable in each circumstance, the Tribunal found that both the RMA and the Conservation Act 1987 fall short in providing tangata whenua the appropriate level of rangatiratanga over their taonga. Similar findings have been made in relation to the protection in cultural heritage legislation of wāhi tapu, urupā, and other significant Māori sites.” (p 322)

“Our key findings in this chapter have been…” “Rather than acknowledge Māori tino rangatiratanga and mana whakahaere, as promised in the Treaty and negotiated as part of Te Ōhākī Tapu and associated agreements, the Crown introduced discriminatory legislation to manage the environment, which allowed it to, amongst other things, take administrative control of the region.” (p 669)

“It would also require providing for the rangatiratanga or mana whakahaere of Te Rohe Pōtae Māori in local government, in planning, and in consent processes including enforcement. Engagement on issues such as sewage disposal would be premised upon a recognition that their culture, tikanga, and values have as much to offer as regional and local body politicians representing the views of the rest of the community. This different framework for management is more likely to meet the section 5 purpose of the legislation, as noted by the Environment Court in the Mōkau ki Runga decision discussed previously. As it stands, the status quo is resulting in the health of the districts waterways/bodies continuing to decline.”

“Thus, for all waters and waterways/bodies (with the exception of the Waipā River) there is a disconnect between the legislative framework for the management of environmental effects as regard water and waterways/bodies and the way that Te Rohe Pōtae Māori want their rangatiratanga and kaitiaki responsibilities exercised.” (p 590)

“It is clear from the evidence examined in this chapter that water and water bodies are of immense cultural, spiritual, and practical importance to Te Rohe Pōtae Māori. Prior to the arrival of Pākehā, Te Rohe Pōtae Māori developed numerous principles and protocols, based on tikanga, to carefully manage and protect these water bodies, which in turn provided nourishment for whānau, hapū, and iwi throughout the district.”

“In the decades following the Crown’s arrival to the district and the formalisation of a series of legislative and statutory regimes in which it progressively assumed greater control of water and water bodies, Te Rohe Pōtae Māori were stripped of the rangatiratanga that they had exercised for centuries, as well as the mana whakahaere they were entitled to.”

“The Crown’s assumption of the management of water bodies went hand in hand with their subsequent widespread degradation. As Pākehā settlement increased in the district, so too did water pollution from sedimentation due to land clearance work, pastoral production, mining, industry and human waste from settlements and towns. Despite the efforts of many Te Rohe Pōtae Māori to address this continued grievance, such as by imposing stricter controls on local and regional authorities, there has been little success.”

“Perhaps most distressing to Te Rohe Pōtae Māori today is the loss of their food basket, their ‘source of spiritual and physical sustenance’. The Crown’s assumption of authority over fisheries, combined with the marked decline of taonga species (particularly tuna) as a result of commercial fishing and habitat destruction, has led to the severe detriment of Te Rohe Pōtae Māori, who can no longer gather kaimoana as they had for generations before.”

“The cumulative prejudice of these factors, the diminishing of Te Rohe Pōtae Māori tino rangatiratanga and mana whakahaere, the destruction and degradation of their traditional water bodies, and the significant decline of taonga species have caused serious and long-lasting prejudice to Te Rohe Pōtae Māori, the legacies of which continue to this day.”

“We therefore recommend:

• That the Ngā Wai o Maniapoto (Waipā River) Act 2012 be amended to cover all the waterways and river mouths and harbours of Ngāti Maniapoto. This legislation to include co-management with DOC of customary freshwater fisheries species, particularly eels and marine species found in river mouths and harbours.”
• “That, in relation to other iwi of the district, the Crown consider special legislation to address their Treaty claims with respect to waterways, river mouths, and harbours.”
• “That a mataitai be constituted with respect to Whāingaroa Harbour.” (p 668-669)

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“Māori must themselves be RMA decision makers for their freshwater taonga, and their role in this respect needs to be enhanced to meet the Treaty guarantee of tino rangatiratanga.”

“Having heard the evidence of the claimants and interested parties in both stage 1 and stage 2 of this inquiry, our view is that the Māori Treaty right in the management of most freshwater taonga is at the co-governance / co-management part of the scale. Freshwater taonga are central to tribal identity and to the spiritual and cultural well-being of iwi and hapū, and traditionally played a crucial role in the economic life and survival of the tribe. The Crown’s guarantees to Māori in the Treaty, including the guarantee of tino rangatiratanga, require the use of partnership mechanisms for the joint governance and management of freshwater taonga.”

“For all the above reasons, we found that the participatory arrangements of the RMA are not consistent with the principle of partnership and the Treaty guarantee of tino rangatiratanga. Māori have been significantly prejudiced because they have been unable to exercise kaitiakitanga effectively in respect of their freshwater taonga, and their rights and interests have been excluded or considered ineffectively in freshwater decision-making.”

“We also noted that none of the recommendations of the Wai 262 Tribunal in respect of section 33, section 36B, and iwi management plans have been carried out since that report was issued in 2011.”

“We found that section D [of the NPS-FM 2011] is an inadequate mechanism for ensuring the Māori ‘involvement’ in freshwater decision-making required by the Treaty principle of partnership. We found that it is not Treaty compliant, and that Māori have been prejudiced in their exercise of tino rangatiratanga and kaitiakitanga in respect of their freshwater taonga as a result.”

“We also found that the NPS-FM will not be Treaty compliant until section D is reformed in such a way that it provides more effectively for the tino rangatiratanga of iwi and hapū. Our view was that this required a co-governance level of ‘involvement’ in decision-making, and national direction for councils to use partnership mechanisms in plan-making and in freshwater management more generally.”

“The Crown decided in 2013, however, to limit its enhanced ‘iwi/Māori participation’ in freshwater management to a mechanism for giving advice to councils on RMA plans. We found that the Crown’s omission to adopt and pursue reforms that would improve the governance and co-management tools in the RMA, and enable them to be actually used, was a breach of the Treaty principles of partnership and Māori autonomy. Māori were prejudiced in their ability to exercise tino rangatiratanga in freshwater management and in RMA processes more generally, and – as the evidence throughout this inquiry has shown – this prejudice was serious.”

“It was particularly concerning to the Tribunal that the RMA already had these tools to provide for the Treaty partnership in freshwater management but that the Crown had put those tools beyond the reach of tribal groups unless they could secure co-management arrangements in their Treaty settlements. Some have done so but many have not, yet the RMA theoretically made co-management available to all iwi. We found that the Crown’s omission to reform the RMA and make these RMA mechanisms genuinely effective was a breach of Treaty principles.”

“As summarised earlier (section 7.2.3), the Treaty requires co-governance and co-management in plan-making, as it does in other parts of the decision-making relating to freshwater taonga, for the RMA regime to be compliant with the principle of partnership and the Treaty guarantee of tino rangatiratanga. We agreed with the claimants that co-management must be ‘fixed at an irreducible involvement’, including ‘a leading role in developing, applying and monitoring / enforcing water quality requirements, and thereby protecting the mauri of water bodies’.”

“Those who lack co-governance and co-management arrangements in their Treaty settlements are unable to act effectively as Treaty partners in freshwater management. They are unable to exercise their tino rangatiratanga and kaitiakitanga in respect of their freshwater taonga, to the extent guaranteed and protected in the Treaty.”

“First, as already found in chapter 3, section D of the NPS-FM is relatively weak. It does not provide a co-governance approach to identifying Māori values and setting freshwater objectives. Such an approach would have required from councils a level of dialogue and cooperation in the application of Te Mana o te Wai, which was more consistent with the Treaty partnership. Secondly, the relative weakness of section AA is a serious matter. The requirement to ‘consider and recognise’ is not strong enough, and policy AA1 restricts the application of Te Mana o te Wai to freshwater plan making. Our view was that this is not sufficient to provide for tino rangatiratanga and kaitiakitanga in freshwater management.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.3.10 Te Mana o te Wai in the NPS-FM 2014 as amended in 2017)

“It seems to us that there are some commonalities in the various approaches that have been put forward so far. The stakeholders of the Land and Water Forum clearly saw that a national commission is necessary, and that it must be established on a co-governance basis (points held in common with the NZMC and the Wai 2601 claimants). The claimants and interested parties also agreed that there needs to be a role for the exercise of tino rangatiratanga at the national level, in partnership with the Crown, although they had differences on what kind of institutional arrangement would best reflect that partnership function. The Crown has said that it is open to exploring such matters but has not endorsed an institutional role for Māori at the national level. In practice, we note that it has developed most of its reforms in collaboration with the appointed representatives of a national Māori body (the ILG and IAG) and more recently with Te Kahui Wai Māori.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.6.5 Our view of the water commission proposals)

“We agreed that two of these three outcomes had the potential to make a significant difference for Māori in the exercise of authority and kaitiakitanga over their freshwater bodies. Te Mana o te Wai in the NPS-FM had the potential to alter the manner of achieving the purpose of the RMA in a way that better protected Māori interests. The Mana Whakahono a Rohe arrangements had the potential to improve iwi–council relationships and the way they work together, especially by providing a mechanism for the schedule 1 consultation process to occur. But many options that were omitted in 2016 were so crucial that, in our view, the Crown squandered a real opportunity to make the RMA and its freshwater management regime Treaty-compliant.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.3.8 The effectiveness of the ‘Next Steps’ process in developing and progressing reforms to address Māori rights and interests)

“Our view was that all of this [NPS 2017 amendments) has the potential to make the NPS-FM a more powerful instrument for the recognition of Māori values in freshwater management and the exercise of kaitiakitanga. If Māori values are to be identified and reflected in freshwater management (objective D1), then Te Mana o te Wai is a platform for achieving this (through the ‘National significance’ statement and objective AA1), and mātauranga Māori must now be used to measure its success (policy CB1). It is also a platform for the whole community’s values because it is water-centric.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.3.10 Te Mana o te Wai in the NPS-FM 2014 as amended in 2017)

“We also reject the Crown’s approach regarding its responsibility for the day-to-day affairs of local authorities on the same basis that it was rejected in Ko Aotearoa Tēnei (the Wai 262 report). That report found that the environmental management regime on its own without reform was not sufficient in Treaty terms. The Wai 262 Tribunal stated that the Crown has an obligation to protect the kaitiaki relationship of Māori with their environment and that it cannot absolve itself of this obligation by statutory devolution of its environmental management powers and functions to local government. Thus the Crown’s Treaty duties remain and must be fulfilled and it must make statutory delegates accountable for fulfilling them too The same duty to guarantee rangatiratanga, and to respect the other principles of the Treaty thus remains as an obligation on the Crown and it is not enough for the Crown to wash its hands of the matter and say that the day-to-day decision-making process is in the hands of local authorities “

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“We note further the Waitangi Tribunal has previously held in various reports that the RMA 1991 is not fully compliant with Treaty principles. In the Wai262 report, the Tribunal stated the RMA has not delivered appropriate levels of control, partnership, and influence for kaitiaki in relation to taonga in the environment. Indeed, the only mechanisms through which control and partnership appear to have been achieved are historical Treaty and customary rights settlements.”

Wai 894: Te Urewera Report Volume VII

“And by later legislation the Crown has assumed exclusive control over rivers, disregarding their tino rangatiratanga, and then has managed them badly. Their indigenous fisheries, including tuna, were sacrificed to introduced trout, and to hydroelectric development. The Resource Management regime introduced in 1991, according to the claimants, has yet to deliver effective recognition of hapu and iwi as owners and kaitiaki of their rivers.”

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2

The Crown’s efforts to secure title to navigable rivers through the Coal-Mines Amendment Act 1903 represent a very serious breach of Treaty principles. Instead of providing active protection, the Crown unilaterally removed Māori property rights. It did so without consultation – indeed, by an obscure and virtually undebated clause of a seemingly unrelated Act. This was a breach of the principles that the Crown should seek to engage with Māori in a spirit of partnership, and act in good faith.”

“Several previous Tribunals have found that the Resource Management Act as it then was did not provide for rangatiratanga. The Ngawha Geothermal Resource Report concluded in 1993 that the Act was ‘fatally flawed’ because it does not require decision-makers to act in conformity with, and apply, Treaty principles. It stressed that the language used by the Act’s provisions meant that the Crown’s Treaty obligations could not be given proper priority.”

“Though the Crown has since amended the Act, those amendments still do not address the principal concerns outlined in the Ngawha Report.”

“As stressed in the Ngawha Report, the key provisions of part 2 of the Resource Management Act use comparatively weak language. In particular, section 8 (by which persons exercising powers and functions under the Act must only ‘take into account’ the principles of the Treaty) is a weak provision. It is weaker than the language used in sections 6 and 7, where decision-makers are to respectively ‘recognise and provide for’ and ‘have particular regard to’ various matters, some of which are relevant to Māori. It is also weaker than powers. In allowing this to occur the Crown is in breach of the principle of partnership, and of its duty of active protection of Māori rangatiratanga. Previous Tribunals have found that the Act ought to be amended to address these shortcomings.

“The principle of partnership and the duty of active protection oblige the Crown to ensure that under its legislation Māori can – and do – exercise rangatiratanga over their taonga.”

“In 1992 the Te Roroa Tribunal provided a sustained analysis of the proper role of tangata whenua and the Crown in the management of Māori cultural heritage. That Tribunal found that Māori participation in what others decide to do with their taonga is not the proper partnership envisaged by the Treaty:

Wahi tapu are taonga of Maori, acknowledged as such in article 2 of the Treaty. The role of the department and Historic Places Trust in the ‘partnership’ is not a decision making role or being ‘included’ in what is not theirs. Rather, it is to assist Te Roroa by the provision of services and advice when they are sought, to enable them to protect and care for the wahi tapu.” p291

“That Tribunal further proposed that the Crown: re-affirms the traditional and Treaty rights of tangata whenua to control and protect their own wahi tapu and requires the Department of Conservation and other of its agents concerned in the management of national and cultural resources to give practical effect to this commitment.” p 292

“We endorse these findings of the Te Roroa Tribunal. The issue is whether Crown legislation and policy has since evolved to enable Tauranga Māori to exercise rangatiratanga (authority and control), and act as kaitiaki (protect and care for) over their cultural heritage.”

“Before we address this issue however, we need to make clear that the capacity of the Crown to enable Māori to exercise rangatiratanga and to act as kaitiaki will differ depending on the specific category of land at issue, for example, Crown land, public land owned by local authorities, and private land. The latter categories present particularly complex problems of how to best reconcile public rights of access and enjoyment, or the legitimate property rights of private landowners, with the equally legitimate right of tangata whenua to retain links to their significant sites within their ancestral landscape. These issues are further complicated in situations where Māori have lost their ancestral lands in ways inconsistent with the principles of the Treaty. We acknowledge the complexity of the issues involved but consider that the Crown and Māori must not resile from cooperating to find avenues for the expression of Māori rangatiratanga and the exercise of kaitiakitanga”.

“To this day neither the Historic Places Act nor the Resource Management Act provide Tauranga Māori with any straightforward mechanisms to exercise rangatiratanga and act as kaitiaki over their ancestral places on any of these categories of land. One mechanism which might come closest is the possibility, under both the Historic Places Act and Resource Management Act, that Māori groups might become heritage protection authorities, able to issue heritage protection orders. Under the Resource Management Act, an iwi authority, Māori trust, or incorporation, can in theory become heritage authorities if constituted as a body corporate, and if the Minister for Culture and Heritage accepts their application.”

“The Te Roroa Tribunal commented that there may be several issues for Māori in considering undertaking this process. First, that Tribunal felt that the requirement to be a body corporate was inappropriate, since the trustees who administer marae, the cultural foci of Māori communities, do not constitute a body corporate. We note, however, that trusts and incorporations established under Te Ture Whenua Māori Act 1993, and Māori trust boards, are body corporates. Secondly, disclosing the location of wāhi tapu and scrutiny at public hearings could pose threats to their security. Thirdly, and most significantly, substantial costs are involved in making a heritage order, including one-off costs for applying (and a high likelihood of appeal) and ongoing costs in processing resource consent applications. In particular, landowners can apply for compulsory purchase and compensation by the heritage authority if they cannot sell or use their land in a reasonable manner. Making a heritage order therefore inevitably involves significant delays, financial costs, and considerable risks ; as the Parliamentary Commissioner for the Environment noted in 1996, it is a last resort option for protection.” p 295

Wai 1200 – He Maunga Rongo: Report on Central North Island Claims Stage 1 – Te Taiao The Environment and Natural Resources

“Furthermore – and again as Ms Chen points out – there is case law that suggests that section 8 does not give rise to any obligation on a decision maker under the RMA to consider additional obligations, beyond those listed in sections 6(e) and 7(a) of the Act. Thus, principles such as the partnership principle – with its accommodation between kawanatanga and rangatiratanga, its mutual benefit, and its reciprocity – cannot be weighed in the balance. Only those matters listed in sections 6 to 8 can. We also note the tendency in the legislation to overlook the fact that the kaitiakitanga listed in section 7 can exist only where there is rangatiratanga, because they are inextricably linked."

“On the basis of our discussions in this chapter (and the other chapters of part V), we begin by rejecting the Crown’s contention that the RMA is consistent with the principles of the Treaty of Waitangi. In doing so, we accept the submissions made by Mr Bennion that, while the Act is an advance on previous legislation, it still fails to accord with Treaty principles. It fails in the following important respects…”

• “During the reforms of the 1980s, the Crown indicated that ownership issues were not to be dealt with by the RMA. But the Crown then preserved its rights to control access to natural water, which it promptly delegated to regional or district councils. It also preserved its rights conferred by the Coal-mines Act Amendment Act 1903. Thus, while the section of the Coal-mines legislation vesting ownership in the Crown of all beds of navigable rivers was repealed, as was section 21 of the Water and Soil Conservation Act 1967, section 354(1) of the RMA provides that the Crown’s rights conferred by these statutes continue. So the Crown’s position has never been diminished by the RMA.”

Wai 45: The Muriwhenua Land Claims Post 1865 

“Not only is the definition of kaitiakitanga in the Resource Management Act 1991 inadequate, but in s.7 it is listed as only one of seven other matters that ‘persons exercising functions and powers‘ under the Act ‘shall have particular regard to‘. In s.6 a number of ‘Matters of national importance‘ are listed, including ‘preservation of the natural character of the coastal environment‘ in s.6(a), and ‘maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers‘ in s.6(d). Among all these is s.6(e): ‘The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga‘.”

Wai 167: The Whanganui River Report

“The following acts by or on behalf of the Crown are in breach of the Treaty:

6) the statutes regulating control of the River, particularly the Resource Management Act and its precursors which fail to give effect to Whanganui rangatiratanga and delegate authority to the Regional Council and District Council on a basis which does not require them to act in conformity with the Crown’s obligations under the Treaty”

”Acts contrary to the principles of the Treaty of Waitangi include the Coal-mines Act Amendment Act 1903 in expropriating the riverbed. To the extent that the Resource Management Act 1991 vests authority or control in respect of the river in other than Atihaunui, without Atihaunui consent, that Act too is inconsistent with Treaty principles. The Act in fact vests control of rivers in regional authorities, with certain rights of hearing and appeal being given to the public, including Atihaunui.

‘Management’ is the word used for the powers exercised in relation to the Act, but on our analysis of the statute, the powers given to regional authorities in respect of rivers are more akin to ownership. However viewed, and no matter how often it is said that the Resource Management Act concerns management and not ownership, in reality the authority or rangatiratanga that was guaranteed to Atihaunui has been taken away. Moreover, the Act perpetuates the vesting of the Whanganui riverbed in the Crown."

Wai 212: Te Ika Whenua Rivers Report

“While there are now provisions under the Resource Management Act 1991 for consultation with tangata whenua, these could be likened to recognition of tangata whenua as a party with a special interest, not one with authority and control commensurate with tino rangatiratanga over taonga or property.” 

“While the Resource Management Act requires those administering it or in management to take into account the principles of the Treaty and Maori views and values, it does not confer tino rangatiratanga on tangata whenua or recognise any such status. It simply gives Maori the opportunity to be heard by the controlling body on matters of concern to them; albeit without any funding or assistance by way of proper legal and technical advice - a situation that seems to us to be far removed from the guarantee given under article 2 of the Treaty.” p 141

“In the Te Whanganui-a-Orotu Report 1995, the Tribunal endorsed those findings and drew attention to the absence in that Act of any provision giving priority to the protection of taonga and confirming Treaty rights in the exercise of rangatiratanga and kaitiakitanga.”

“We agree with those observations and with the view that the Resource Management Act cannot be said to provide compliance by the Crown with the principles of the Treaty relative to those issues.”

Wai 55: Te Whanganui-a-Orotu report 

“As in the Ngawha claim, we have found in the present claim that the claimants have been or are likely to be prejudicially affected by the foregoing omission and, in particular, by the absence of any provision in the Act giving priority to the protection of their taonga (Te Whanganui-a-Orotu) and confirming their Treaty rights in the exercise of their rangatiratanga and kaitiakitanga to manage and control it as they wish.”

Wai 304: Ngawha Geothermal Resources

“We reiterate here that the Treaty was between Maori and the Crown. The Crown obligation under article 2 to protect Maori rangatiratanga is a continuing one. It cannot be avoided or modified by the Crown delegating its powers or Treaty obligations to the discretion of local or regional authorities. If the Crown chooses to so delegate, it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”

“At the time of the signing of the Treaty in 1840 Maori were almost totally dependent for their sustenance and livelihood on the natural resources of Aotearoa. Maori nurtured and protected those resources. Kaitiakitanga was an essential element of rangatiratanga. It is inconceivable that Maori would have signed the Treaty had they not been assured that the Crown would protect their rangatiratanga over their valued resources for as long as they wished. In return they exchanged the power of governance. The Ngawha springs are of immense value not only to the claimant hapu of Ngawha but to all of Ngapuhi. The Crown is under a clear duty under the Treaty to ensure that the claimants’ taonga is protected. The partnership which the Treaty embodies and represents requires no less.”

Wai 38: Te Roroa Report

“To fulfil its obligations under the Treaty, we do not consider that the procedure under the Resource Management Act for the creation of heritage protection authorities is an option to be adopted by the Department of Conservation. We accept the claimants’ submission that it would be a violation of their rangatiratanga.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…”

• “A failure to provide for Te Rohe Pōtae iwi mana whakahaere and full participation as partners in environmental decision-making and taonga site protection under the Environment Act 1986, the Conservation Act 1987, the RMA and the Historic Places Trust Act 1993 other than for the Waipā River and through other treaty settlement arrangements.” (p 500)

“The final issue, and the continuing one, is that ultimately Māori lack power under the RMA system. Māori cannot have veto over environmental decision making as that would be inconsistent with the principle of partnership. However, more than consultation under the RMA is needed to discharge the Crown’s Treaty of Waitangi obligations. Iwi should be full participants as self-governing entities working in partnership with local and regional councils both in terms of planning and resource consents, including the appointment of hearing committees. The Crown has an obligation to make sure this is happening in all areas of land use decision making and heritage protection included under the RMA, and this must be done by legislative amendment and the allocation of resources for iwi and hapū. Numerous panels of the Waitangi Tribunal have recommended that the Crown must start with an amendment to section 8 of the RMA. The flora and fauna Tribunal focused upon what was needed in terms of planning as well.” (p 497)

While the Town and Country Planning Act 1977 (section 3(1)(g)), the reforms heralded by the Environment Act 1986, the Conservation Act 1987 and the RMA 1991 had led to improvement, the experience of Ngāti Maniapoto indicates that further reforms are needed. This is consistent with findings made in previous Tribunal reports. Current environmental statutes and policies do not adequately meet appropriate Treaty standards and must be amended and the continued failure by the Crown to address these matters is a breach of the principle of good government. Ultimately, the Crown is responsible for the policy and legislation that was not put in place in partnership with Te Rohe Pōtae Māori, nor in adequate consultation with them.” (p 396)

“Our key findings in this chapter have been…” “Rather than acknowledge Māori tino rangatiratanga and mana whakahaere, as promised in the Treaty and negotiated as part of Te Ōhākī Tapu and associated agreements, the Crown introduced discriminatory legislation to manage the environment, which allowed it to, amongst other things, take administrative control of the region.” p 503)

“Our key findings in this chapter have been…” “The Crown has by omission, in legislation, and by its actions, failed to act in a manner consistent with the principles of the Treaty of Waitangi with respect to the traditional forests and lands of those iwi and hapū who have not achieved settlement of the Treaty claims in Te Rohe Pōtae, namely under article 2 – the principle of partnership, the principle of reciprocity underpinned by the exchange of kāwanatanga for the guarantee of rangatiratanga, the principle of mutual benefit, and the duty of active protection of their rangatiratanga and of their taonga. In part, this is a problem with the legislation and the fact that it provides no guidance to DOC, other than section 4, on how it must administer and interpret the legislation consistently with Treaty principles. What is needed is an amendment to section 6 as we have noted above.” (p 503)

“Therefore, we find that the Crown has acted in a manner contrary to the principles of the Treaty of Waitangi. It has used its authority to regulate water and waterways/bodies contrary to the principle of partnership, the principle of reciprocity underpinned by the essential exchange of kāwanatanga for rangatiratanga and the principle of mutual benefit. It has done so by failing until 2012 to provide for Māori mana whakahaere and possession with respect to their water taonga. In doing so it has failed to actively protect the rangatiratanga of Te Rohe Pōtae Māori over the water and waterways/bodies that they consider taonga. A treaty consistent approach would have been to develop the detail of how the mana whakahaere of Te Rohe Pōtae Māori could be recognised and provided for. An extension of the Ngā Wai o Maniapoto (Waipā River) Act 2012 to include all taonga waters, waterways/bodies of Ngāti Maniapoto is the obvious solution to the issue. Similar legislation will be needed for other iwi of Te Rohe Pōtae or Rohe Mana Whakahono agreements will need to be negotiated.” (p 557)

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims 

“The exception to co-governance and co-management is that, in some cases, the strength of the Māori interest in a particular freshwater taonga may be such that it requires Māori governance of that taonga. Our view was that the presence of other interests in New Zealand’s water bodies will more often require a co-governance/co-management partnership between Māori and councils for the control and management of freshwater taonga; that is the Treaty standard for freshwater management.”

“For all the above reasons, we found that the participatory arrangements of the RMA are not consistent with the principle of partnership and the Treaty guarantee of tino rangatiratanga. Māori have been significantly prejudiced because they have been unable to exercise kaitiakitanga effectively in respect of their freshwater taonga, and their rights and interests have been excluded or considered ineffectively in freshwater decision-making.” (7.2.3.2 The RMA’s participation mechanisms)

“For all those reasons, we found that the RMA and its allocation regime are not consistent with the principles of the Treaty of Waitangi. Māori have been prejudiced by:

• the ongoing omission to recognise their proprietary rights ;
• barriers that have prevented their participation in the first-in, first-served allocation system in the past ; and
• the lack of partnership in allocation decision-making.” (7.2.4 Proprietary rights, economic benefits, and the RMA allocation regime)

“Nonetheless, our view was that the joint work of officials and the IAG, the work of the IAG with other stakeholders in the LAWF, and the high-level meetings between Ministers and the ILG, all contributed to a degree of Crown–Māori cooperation in the development of freshwater reforms. We hesitated to characterise this as a partnership model in the period up to 2014, because there was no co-design of the version of the NPS-FM that was issued in 2011, and only limited co-design of the 2014 version. The real co-design phase came later in 2015–17.” (7.3.3 Collaboration: 2009–14)

“We found that section D [of the NPS-FM] is an inadequate mechanism for ensuring the Māori ‘involvement’ in freshwater decision-making required by the Treaty principle of partnership.” (7.3.4 Section D of the NPS-FM 2011)

“The Crown decided in 2013, however, to limit its enhanced ‘iwi/Māori participation’ in freshwater management to a mechanism for giving advice to councils on RMA plans. We found that the Crown’s omission to adopt and pursue reforms that would improve the governance and co-management tools in the RMA, and enable them to be actually used, was a breach of the Treaty principles of partnership and Māori autonomy. Māori were prejudiced in their ability to exercise tino rangatiratanga in freshwater management and in RMA processes more generally, and – as the evidence throughout this inquiry has shown – this prejudice was serious.”

“It was particularly concerning to the Tribunal that the RMA already had these tools to provide for the Treaty partnership in freshwater management but that the Crown had put those tools beyond the reach of tribal groups unless they could secure co-management arrangements in their Treaty settlements. Some have done so but many have not, yet the RMA theoretically made co‑management available to all iwi. We found that the Crown’s omission to reform the RMA and make these RMA mechanisms genuinely effective was a breach of Treaty principles.”

“As summarised earlier (section 7.2.3), the Treaty requires co-governance and co-management in plan-making, as it does in other parts of the decision-making relating to freshwater taonga, for the RMA regime to be compliant with the principle of partnership and the Treaty guarantee of tino rangatiratanga. We agreed with the claimants that co-management must be ‘fixed at an irreducible involvement’, including ‘a leading role in developing, applying and monitoring / enforcing water quality requirements, and thereby protecting the mauri of water bodies’.” (7.3.6 RMA reforms: the Crown’s decisions on enhancing participation prior to Next Steps)

“First, as already found in chapter 3, section D of the NPS-FM is relatively weak. It does not provide a co-governance approach to identifying Māori values and setting freshwater objectives. Such an approach would have required from councils a level of dialogue and cooperation in the application of Te Mana o te Wai, which was more consistent with the Treaty partnership.” (7.3.10 Te Mana o te Wai in the NPS-FM 2014 as amended in 2017).

“We also noted that the funding had assisted kaitiaki in projects to begin restoring water quality in some freshwater taonga, and had led to some capacity building and partnerships in the various projects. But our finding was that the Crown’s funding efforts were not yet sufficient to deal with the sheer scale of the damage done prior to the first NPS-FM in 2011. Nor were those funds sufficient to counterbalance the nutrients and contaminants still being released into soils, wetlands, streams, rivers, and lakes. We also found that, although some iwi and hapū had applied for, received, and matched funds, many more do not have the funding to carry out the clean-up of degraded freshwater taonga. We agreed with the claimants that there remains a need for committed, long‑term funding to address water quality issues on a local and national scale, and that the Treaty standard of active protection will not be met until such larger-scale, longer-term funding has been dedicated to restoration of these highly vulnerable taonga.” (7.4.7 Funding of restoration for degraded freshwater bodies)

“In the course of our inquiry, there have been a number of proposals for Māori to have an institutional role in water policy at the national level. There seems to be broad agreement among the claimants and many interested parties that such a role should take the form of a Crown–Māori partnership, although the scope and nature of the partnership differed in the various proposals.” (7.6 Proposals for a Water Commission, 7.6.1 Introduction)

“It seems to us that there are some commonalities in the various approaches that have been put forward so far. The stakeholders of the Land and Water Forum clearly saw that a national commission is necessary, and that it must be established on a co-governance basis (points held in common with the NZMC and the Wai 2601 claimants). The claimants and interested parties also agreed that there needs to be a role for the exercise of tino rangatiratanga at the national level, in partnership with the Crown, although they had differences on what kind of institutional arrangement would best reflect that partnership function. The Crown has said that it is open to exploring such matters but has not endorsed an institutional role for Māori at the national level. In practice, we note that it has developed most of its reforms in collaboration with the appointed representatives of a national Māori body (the ILG and IAG) and more recently with Te Kahui Wai Māori.”

“In our view, another point of agreement between the forum and the claimants is that there is a significant gap in the freshwater policy and management structure (following the dissolution of the National Water and Soil Conservation Authority); there is no independent national body to oversee the system, monitor performance, develop policy, and conduct research on a national scale. We agree that this is a significant gap. For example, the need to conduct research and to develop and populate the NOF underlines the need for this gap to be filled.”

“We agree with the forum and the claimants that there should be an independent national body established on a co-governance basis with Māori. At a minimum, its role should be to act in partnership to ensure that Treaty principles and Māori values, rights, and interests are fully incorporated in freshwater policy and management.”

“We also agree with the ILG that the Crown could, and in some cases should, develop policy on a co‑design basis with an existing national Māori body or bodies, with the choice to be made according to the nature of the issues and the Māori constituency most involved with those issues. Either model could work so long as it is institutionalised, but the value of the co‑governance model proposed by the NZMC is that it is a decision-making body. One of the flaws in the co-design process carried out for freshwater reforms in 2015–16 was that the decisions were not made in partnership but by the Crown alone. The results were disappointing given the options supposedly on the table, the sustained effort put in on both sides, and the actual outcomes for Māori. In terms of the scope and possible functions of a co‑governance partnership body, our view is that that is a matter to be negotiated and decided by the Treaty partners, but we have recommended that the Crown include some particular functions where that seemed necessary.” (7.6.5 Our view of the water commission proposals)

“We recommend that the Crown recognise Māori proprietary rights and economic interests through the provision of what the NZMC has called ‘proprietary redress’.”

“In conjunction with this, we make the following recommendations concerning the RMA’s allocation regime: [including]

• The Crown should devise a new allocation regime in partnership with Māori, including through the national co-governance body."

“If the co-governance body is not established, then the Crown should carry out these recommendations in partnership (and on a co-design basis) with the Freshwater ILG, the NZMC, and Te Kahui Wai Māori.” (7.7.7 Māori proprietary rights and economic interests vis-à-vis the allocation regime)

“We recommend that the national co-governance body should devise an appropriate water supply and infrastructure scheme for marae and papakāinga, which may need to be developed and implemented with or alongside a scheme for safe, clean rural water supplies. If the national co‑governance body is not established, the Crown should develop and implement a scheme in partnership with Māori on a co-design basis and with co-governance of the scheme.” (7.7.9 Clean, safe drinking water for marae and papakāinga)

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“While the ‘He Hokioi Rerenga Tahi/The Lake Horowhenua Accord’ (2013) has created opportunities to work in partnership with local bodies, and that is to be applauded, under the RMA 1991 and the local government legislation Muaūpoko have no lawful rights to control or to enforce the commitments made in that accord In other words, Muaūpoko mana whakahaere (control and management) over their taonga is not fully provided for under the current legislative regime Such a situation can be compared to the rights that the Waikato-Tainui river tribes have in terms of the Waikato River under the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. The 2010 legislation states that the ‘RMA 1991 gave regional and local authorities substantial functions and powers over natural resources, including the power to grant resource consents for river use’. It is further recorded that the RMA does not provide for the protection of the mana of the river or the mana whakahaere (ability to exercise control, access to, and management of the river) of Waikato. It notes the number of resource consent proceedings that the tribe had been involved in, and then the Crown acknowledges, among other things, that it ‘failed to respect, provide for, and protect the special relationship of Waikato-Tainui’ with the river.”

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010

“The Resource Management Act 1991 gave regional and local authorities substantial functions and powers over natural resources, including the power to grant resource consents for River use. The Act did not, however, provide for protection of te mana o te Awa and te mana whakahaere of Waikato-Tainui. Since the Act came into effect, Waikato-Tainui have been involved as respondents in many consent hearings, seeking conditions which would protect the River”

“From the 1860s to the present, Waikato-Tainui have continually sought justice for their Raupatu claim and protection for the River. The principles of te mana o te awa and mana whakahaere have long sustained the Waikato River claim together with the principles described in the Kiingitanga Accord, and those principles underlie the new regime to be implemented by this settlement.”

Wai 796: The Report on the Management of the Petroleum Resource

[Under ‘ Systemic problems in the current regime’] We consider that there are fundamental flaws in the operation of the current regime for managing the petroleum resource which arise from the combined effect of the following features…” “the Crown’s failure, despite its Treaty responsibility to protect Māori interests, to provide local authorities with clear policy guidance and to require them to adopt processes that ensure appropriate Māori involvement in key decisions;"

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2

“In the Ngawha Geothermal Resource Report, the Tribunal examined in some detail the implications for the Crown of its duty of active protection of Māori resource-use. It identified several important elements of the duty, including:

• that Māori are not unnecessarily inhibited by legislative or administrative constraint from using their resources according to their cultural preferences;
• that Māori are protected from the actions of others which impinge upon their rangatiratanga by adversely affecting the continued use or enjoyment of their resources whether in spiritual or physical terms;
• that the degree of protection to be given to Māori resources will depend upon the nature and value of the resource. In the case of a very highly valued rare and irreplaceable taonga of great physical and spiritual importance to Māori, the Crown is under an obligation to ensure its protection (save in very exceptional circumstances), for so long as Māori wish it to be protected; and
• that the Crown cannot avoid its Treaty duty of active protection by delegation to local authorities or other bodies (whether under legislative provisions or otherwise) of responsibility for the control of natural resources in terms which do not require such authorities or bodies to afford the same degree of protection as is required by the Treaty to be afforded by the Crown. If the Crown chooses to so delegate it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”

“We agree with these views about the nature and extent of the Crown’s duty of active protection over Māori possession of their lands, waters, and other taonga.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…”

• “The continued subjection of the claimants to the decision making of regional and local authorities who are not required by legislation to give effect to the principles of the Treaty of Waitangi in the administration of their powers and functions under the legislation and in planning and consenting procedures.” (p 500)

“Our key findings in this chapter have been :

• Te Rohe Pōtae Māori were subject to the authority of central, local and regional authorities who did not have to consider Treaty principles, provide for Māori co-management, engage and consult Māori, enable their participation in management or have regard to their customary values outside of possible granting of authorisations or permits for gathering, taking or catching species or for the protection of their archaeological sites. As a result, they were further separated from many of their important taonga sites and species and there was a corresponding loss of mātauranga Māori.”
• “The Town and Country Planning Act 1977 was the first statute to recognise that Māori continued to have a relationship with certain areas even where they no longer owned land. It would not be until the introduction of the Conservation Act 1987 and the Resource Management Act 1991 that the principles of the Treaty were considered to be relevant to environmental management, though these Acts still fail to fully address Te Rohe Pōtae Māori environmental concerns. The RMA, in particular, needs to be amended to ensure that the Crown’s Treaty obligations are met.” (p 669)

“Having taken possession of or authority over water and waterways/bodies, the Crown also delegated management responsibility to regional and local authorities without including or making provision for Te Rohe Pōtae Māori tino rangatiratanga or mana whakahaere. This is contrary to the principles of the Treaty, namely the principles of good governance in article 1 and rangatiratanga in article 2, and we find that the Crown’s actions and omissions from 1840 to the passing of the RMA 1991 are inconsistent with their Treaty obligations.” (p 670)\

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“We consider that, as the Crown was and remains responsible for the legislative regime under which local government operates, it is time for it to recognise that the multi-layered management regime that exists under the RMA 1991 and the Local Government Act 2002 and the role played by Muaūpoko on the Horowhenua Lake Domain Board are not sufficient in Treaty terms. The present regime does not ensure that Muaūpoko rangatiratanga and kaitiakitanga in terms of Lake Horowhenua and the Hōkio Stream are sufficiently provided for.”

Wai 1130: Te Kāhui Maunga – The National Park District Inquiry Report

“The implication of the Treaty of Waitangi Act 1975 is that the Crown is expected to act consistently with the principles of the Treaty, in that, where any Act, proposed legislation, regulation, Order in Council, policy, or practice is inconsistent with the principles of the Treaty, Māori may bring a claim about the matter to the Tribunal.”

“The Crown has delegated most of its authority to carry out the duties of the RMA to local authorities. Along with that delegation is the requirement for the local authority to ‘take into account the principles of the Treaty of Waitangi’ when making decisions. However, as the Ngāwha Tribunal noted: Implicit in the requirement to ‘take into account’ Treaty principles is the requirement that the decision-maker should weigh such principles along with other matters required to be considered, such as the efficient use and development of geothermal resources. In short, whereas the Crown itself is required to act consistently with the principles of the Treaty, that responsibility was significantly watered down under the Crown’s delegation of authority to regional councils. Essentially, local authorities were not obliged to be Treaty-compliant in their decisions. The Ngāwha Tribunal found that this aspect of the legislation was ‘fatally flawed’. The Ngāwha and CNI Tribunals recommended that the RMA be amended so that Crown delegates are required to ‘act in a manner that is consistent with the principles of the Treaty of Waitangi’."

Wai 27: The Ngai Tahu Ancillary Claims Report

“As a result of its inquiry into the Ngawha geothermal claim, the Tribunal has recommended that an appropriate amendment be made to the Resource Management Act 1991 to require that all persons exercising functions under the Act shall act in a manner consistent with the principles of the Treaty of Waitangi. We must now await and see how the Government responds to the Tribunal’s recommendations.

‘We caution, however, that in devolving power to local authorities the Crown’s responsibility to uphold the principles of the Treaty is in no way lessened.’

Wai 304: Ngawha Geothermal Resources

“The omission of any such statutory provision [giving priority to the protection of their taonga and confirming their Treaty rights in the exercise of their rangatiratanga and kaitiakitanga to manage and control it as they wish] is inconsistent with the Treaty duty of the Crown, when delegating powers of governance to local and regional authorities, to ensure that it does so in terms which will guarantee that the rangatiratanga of the claimants in and over their taonga is recognised and protected as required by the Treaty. In the absence of such a provision, a development such as that proposed by the joint venture to exploit the underlying Ngawha geothermal resource may be permitted and may result in interference with or damage to the claimants’ hot springs at Ngawha.”

“We reiterate here that the Treaty was between Maori and the Crown. The Crown obligation under article 2 to protect Maori rangatiratanga is a continuing one. It cannot be avoided or modified by the Crown delegating its powers or Treaty obligations to the discretion of local or regional authorities. If the Crown chooses to so delegate, it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”

“Our consideration of the provisions of the Resource Management and in particular Part II, which sets out the purpose and principles of the Act, leaves us with no option but to conclude that the Crown has not, in delegating extensive powers to local and regional authorities under the Act, ensured that its Treaty duty of protection of Maori interests will be implemented.”

Wai 153: Te Arawa Geothermal Resources 

“The Crown, through the medium of the Resource Management Act, has delegated to regional councils the power to make regional plans without the full interest of the claimants in the geothermal resource, and the extent of the Crown’s Treaty obligations to protect such interests, being first ascertained.”

Wai 119: The Mohaka River Report

“Under the Resource Management Act, local authorities are responsible for the management of river and associated resources and for approving consents for uses in these areas. As noted above, these authorities are required to take into account the Treaty when exercising any functions or powers under the Act. We think that this is appropriate. The Crown is entitled to devolve its duties under the Treaty, through carefully worded legislation, to another authority. Nonetheless, it cannot divest itself of its Treaty obligation actively to protect rangatiratanga over taonga.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“In the Ngai Tahu (1991) and Te Whanganui a Tara (2003) reports, the Tribunal considered the question of whether direct correlations could be established between Crown actions or inactions and a particular environmental modification. Both concluded that, although the loss of mahinga kai and other taonga due to the effects of European settlement was seriously detrimental to the claimants, it could not be solely attributed to the Crown, given the multi-causal nature of environmental change.”

“On the other hand, the Mohaka ki Ahuriri (2004), Hauraki (2006), Te Tau Ihu (2008), and Tauranga Moana (2010) reports considered a different and broader question : whether the Crown had recognised and acted on evidence of the need for environmental controls with sufficient priority. Reports for these inquiries agreed that the Crown cannot be held solely responsible for the broad sweep of environmental change, they also found that from the early twentieth century the Crown was aware of many of the negative cumulative impacts of settlement on the environment. In Tauranga Moana, for example, the Tribunal identified :

• widespread public and official concerns about the possible effects of deforestation on timber supplies, climate, and soil erosion ;”
• “links between forest clearance and swamp drainage and a decline in fish populations, including advice in the 1930s that īnanga spawning grounds should be fenced off ; and"
• “problems with the pollution of Tauranga Harbour and other waterways, especially the effects of sewage disposal, prompting consistent protest by Tauranga Māori from 1928 onwards.”

“Ultimately all four of the latter Tribunals were able to make findings of Treaty breach, concluding, in the words of the Mohaka ki Ahuriri Tribunal, that ‘the Crown was simply late in adopting appropriate controls, rather than totally neglectful of its Treaty responsibility’, at least in that district. The Tauranga Tribunal expressed its findings for its district as follows:

the Crown did not place proper priority on the interests of its Treaty partner. The Crown breached the Treaty principle of reciprocity and its duty of active protection by failing to safeguard the legitimate Treaty interests of Tauranga Māori. Crown control over natural resources, and the destruction of forests and fisheries permitted by the Crown, left Tauranga Māori unable to sustain their traditional way of life, and unable to utilise natural resources as a base for economic development.” (p 322-323)

“These co-management bodies, and the relationship they reflect, should be established on the basis that the environment is a taonga of Te Rohe Pōtae Māori. The Crown, as part of this recognition and the development of these co-management regimes, should proactively look to restore taonga sites where practicable. These sites should be identified in conjunction with Te Rohe Pōtae Māori and may include wetlands, forests, wāhi tapu, or any other sites of environmental or heritage value.” (p 501)

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“Ultimately, however, we found that the RMA had significant flaws in Treaty terms at the time the reform programme began, and that the reforms the Crown has completed are not sufficient to make the RMA and the freshwater management regime Treaty compliant. We also found that the NPS-FM is not yet Treaty compliant, for the reasons summarised in the following sections. We found that Māori have been prejudiced by these breaches, including the failure to set adequate controls and standards for the active protection of their freshwater taonga.” (Summary of Findings and Recommendations, 7.1 Introduction)

“The claimants and interested parties, on the other hand, argued that the Crown had failed to provide a regime that actively protected their taonga, and that this was a breach of Treaty principles.”

“We agreed with the claimants that systemic problems with the RMA regime had allowed the situation to develop and worsen, with apparent disregard for the fundamental purpose of the RMA. Councils could not manage the effects of land use on water, or the clash of commercial and environmental imperatives, without a better management framework and strong national direction from the Crown.”

“The Crown has attempted to rectify those problems, however, so our view was that any Treaty findings should await consideration of the Crown’s reforms, and the question of how rapidly and effectively the Crown addressed the acknowledged problems.”

“We also noted the link between this issue and the earlier breaches found in respect of the RMA. We had already found that section 8 of the RMA was too weak to protect Māori interests, and that the RMA did not empower Māori in freshwater management and decision-making. The systemic failure of the RMA to deliver sustainable management of freshwater taonga was due in part to that fact and to those breaches.” (7.2.5 Environmental outcomes and the need for reform: why has the RMA failed to deliver sustainable management of freshwater resources?)

Wai 796: The Report on the Management of the Petroleum Resource

“Recommendation: The Crown produce National Policy Statements and National Environmental Standards to provide guidance to territorial authorities on enhancing and protecting taonga and wāhi tapu.”

Wai 1200 – He Maunga Rongo: Report on Central North Island Claims Stage 1 – Te Taiao The Environment and Natural Resources

“So the Crown’s position has never been diminished by the RMA. Conversely, the Maori position has been diminished. Their rights and interests have not progressed much further than where they were pre-1991. We take this view because section 6 simply indicates that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga is a matter of national importance.”

Wai 212: Te Ika Whenua Rivers Report

“In the Te Whanganui-a-Orotu Report 1995, the Tribunal endorsed those findings and drew attention to the absence in that Act of any provision giving priority to the protection of taonga and confirming Treaty rights in the exercise of rangatiratanga and kaitiakitanga.”

“We agree with those observations and with the view that the Resource Management Act cannot be said to provide compliance by the Crown with the principles of the Treaty relative to those issues.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“For these reasons, we find…” “That the Crown has acted inconsistently with the principles of partnership, reciprocity and mutual benefit derived from article 2, by breaching the principles of equality and the principle of redress for failure to properly compensate for Te Rohe Pōtae loss of mahinga kai, both principles being derived from article 3.”(p 479)

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…” “A failure to address the loss of mahinga kai (particularly wetlands) and a failure to require full compensation for the loss of such places.” (p 500)

Wai 55: Te Whanganui-a-Orotu report

“In the present climate, we think that the resource management and conservation management structures are themselves impediments to Treaty principles and utmost good faith. The way in which they operate in the claim area reflects what Sir Kenneth Keith, president of the New Zealand Law Commission, described to the New Zealand Institute of Advanced Legal Studies Conference in February 1995 as ‘a top down view of law and administration’, rather than ‘a bottom up view’.

He went on to suggest that:

‘We should draw on the extensive experience of individuals, families, tribes, and many of other groups organising themselves within a State or indeed across several States.’

The Tribunal commends this suggestion to the local authorities and the Department of Conservation, which are managing the resources of Te Whanganui-a-Orotu and conserving the Ahuriri Estuary essentially from ‘a top down view’. They should seek to act as a catalyst for ‘a bottom up view’.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“The iwi concerned should have a real mandate to represent hapū, and whānau. They should also reflect this through constituting representative structures that elevate the voices of hapū and whānau in the decision-making process." (p 501)

Wai 785: Te Tau Ihu o Te Waka a Maui: Report on Northern South Island Claims

“We find the Crown in breach of the Treaty principles of partnership and active protection. It has failed to ensure that the Resource Management Act 1991 is implemented in accordance with its stated intention to protect Maori interests and to provide for their values, custom law, and authority in resource management decisions. It has failed to ensure that Te Tau Ihu iwi have adequate capacity to participate in a fair and effective manner. These are significant breaches. As a result, iwi are faced with insufficient regard to, or even understanding of, their values and interests, and an inability to participate on a level playing field with consent applicants and authorities. Although the Crown says that it has devoted ‘significant resources’ to improving this situation, we were provided with almost no evidence of it, despite the importance of this legislation and the compelling claimant evidence about the problems with it. Clearly, the claimants have been prejudiced by these breaches of Treaty principle.”

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“Our view was that all of this has the potential to make the NPS-FM a more powerful instrument for the recognition of Māori values in freshwater management and the exercise of kaitiakitanga. If Māori values are to be identified and reflected in freshwater management (objective D1), then Te Mana o te Wai is a platform for achieving this (through the ‘National significance’ statement and objective AA1), and mātauranga Māori must now be used to measure its success (policy CB1). It is also a platform for the whole community’s values because it is water-centric.” 

“We also noted the link between this issue and the earlier breaches found in respect of the RMA. We had already found that section 8 of the RMA was too weak to protect Māori interests, and that the RMA did not empower Māori in freshwater management and decision‑making. The systemic failure of the RMA to deliver sustainable management of freshwater taonga was due in part to that fact and to those breaches.”

Wai 796: The Report on the Management of the Petroleum Resource

“But in fact all New Zealanders lose out, for Māori interests often coincide with other environmental interests, and the preservation of Māori culture is truly a matter of national importance.”