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Iwi’s Gulf Island rights to be tested

The Supreme Court has been asked to decide if an iwi's manaakitanga over an area gives it the right to effectively veto commercial operations there. 

A University of Auckland legal expert who specialises in indigenous cases, Associate Professor Claire Charters, says this will be an important decision that all iwi will be keeping an eye on. 

The case it will look at involves Auckland iwi Ngāi Tai, which recently lost a Court of Appeal case over the Department of Conservation’s issuing of five-year tourism concessions to Fullers and the Motutapu Island Restoration Trust on Rangitoto and Motutapu Islands.

The concession period was just half the 10 years both asked for, in recognition of Ngāi Tai’s pending Treaty settlement, and the fact that a new conservation management plan is in development. The concessions contain conditions aimed at protecting the cultural interests of iwi.

But the Ngāi Tai ki Tāmaki Tribal Trust argued it should have exclusive rights to conduct guided tours. The High Court ruled otherwise and the Court of Appeal backed that decision.

The iwi has now been granted leave to appeal that decision to the Supreme Court.

Rangitoto and Motutapu are Ngāi Tai ancestral lands and it has the roles of manaakitanga (authority and responsibility to host and care for visitors) and kaitiaki (guardianship). 

The tribe argues that those roles give it more than just the right of objection to anything planned in the area. In its appeal, Ngāi Tai said it should be allowed to reap the benefits of the commercial return generated from such visitors.

The Hauraki Gulf Marine Park Act includes the recognition of tangata whenua within the Hauraki Gulf, but says decision-making must also balance the interests (“including social, environmental and recreational”) of all persons. The Court of Appeal said terms in the Act reinforced general rights of access. 

It sided with the Crown that Ngāi Tai’s proposition would fundamentally alter that balancing exercise.

Adding weight to the decision was the resource both concession-holders have put into the two islands. Fullers pays hefty wharf fees, co-funded a boardwalk on Rangitoto and maintains roads there.  MRT says its contribution through conservation projects prepared by DOC has been worth more than $70 million since it began its work in 1993.

Ngāi Tai has relied heavily on a decision involving South Island iwi Ngāi Tahu over whale watching enterprises off the Kaikōura coast from 1992. The Court of Appeal ruled it to be of little relevance, and pointed out that while Ngai Tahu won the right to be consulted, its claim to a veto was rejected. 

Ngāi Tai however says it's time to have another look at the issue. 

Ngāi Tai ki Tāmaki Tribal Trust Chair, James Brown, says: “The Supreme Court hasn’t dealt with this issue of preferential entitlement for iwi, with regards to conservation decisions, in a meaningful way, since the Ngāi Tahu Whales Case. We think it is an appropriate time to look at this issue afresh and in the current climate where iwi are engaged in Treaty settlement negotiations with the Crown involving conservation land.” 

Claire Charters says the Supreme Court will be looking at the decision-making process and whether Ngāi Tai's rights were properly considered. While the Court of Appeal saw little parallel, she says the Hauraki Gulf and the Whales cases both involved modern day activities that hadn't been envisioned when the Treaty of Waitangi was drawn up, and a claim by an iwi that it should have preference. She says Ngāi Tai is likely to look at refuting the Court of Appeal's stance here. Charters also suggests the Supreme Court will ask if the Minister of Conservation downplayed significant Treaty principles when the concessions were allocated. 

"This is a problem for Māori with the Resource Management Act, and arguably here as well, that the Treaty of Waitangi principles are just one of the factors that must be taken into account in a host of other factors," she says. "The issue is one of primacy."

Charters says another interesting aspect of the case is the extent to which the judiciary now takes into account of manaakitanga. It is unclear if the thinking on that has moved at all in the last 25 years.

"I think it's overdue for another look," she says.

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