Many pieces of legislation, which apply to the marine area, have general provisions of relevance to the exercise of kaitiakitanga.
The EEZ Act does not contain legislative recognition of kaitiakitanga. The Act states that its provision for a Māori Advisory Committee, iwi feedback on regulations, consideration of existing interests, and notification of consent applications to iwi ensures the legislation gives effect to the principles of the Treaty of Waitangi. 4791
The Māori Advisory Committee provides advice to the EPA on matters relating to policy, process and decisions of the EPA. The advice and assistance is given from a Māori perspective. Iwi authorities (as well as the public, regional councils and persons whose existing interests are likely to be affected) are notified of proposed regulations and given adequate time and opportunity to comment on the proposed regulations.
Iwi authorities, customary marine title groups 4792 and protected customary rights groups 4793 are to be notified of a marine consent application if the EPA considers they may be affected. Full rights of participation (along with everyone else) allow kaitiakitanga to be addressed in submissions and at hearings.
Iwi authorities, customary marine title groups and protected customary rights groups are to be notified of a marine consent application which is for a non-notified activity. Ministers, Maritime NZ, persons with existing interests that may be affected, and affected regional councils may also be notified. Unless EEZ decision-makers specifically require information from groups notified (under s44) there is limited opportunity for
these Māori groups to give feedback, potentially inhibiting the ability for Māori to undertake their kaitiakitanga responsibilities.
When considering an application for a marine consent, the EPA must take into account any effects on existing interests of allowing the activity. This is particularly relevant to iwi fishing interests. The EPA must also have regard to any advice received from the Māori Advisory Committee.
Resource Management Act 1991
The RMA includes a requirement for decision-makers to have particular regard to kaitiakitanga 4794 and this provides a tool to assist with providing for “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga” under section 6(e).
Section 6 Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
Section 7 Other matters
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—(a) kaitiakitanga.
Section 8 Treaty of Waitangi
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
The legislative recognition of kaitiakitanga in the RMA provides, in principle, an opportunity for the implementation of traditional practices as well as for greater public appreciation of their nature. Many tangata whenua resource management/kaitiaki units have been established since the RMA came into force in 1991, and most public agencies now recognise that they have obligations to respond to them. Developers and their advisors also now have a greater appreciation of the nature of kaitiakitanga. In addition, the open public processes of the RMA have enabled public debate on the issues.
However, the extent to which kaitiakitanga is actively understood and implemented by the non-Māori environmental management community is often limited. Few mainstream environmental managers are able to describe kaitiakitanga and its broader implications, and most can only quote the statutory definition. Because Māori organisations have frequently entered into RMA processes to defend their values in opposition to development or planning initiatives, kaitiakitanga has been characterised principally as a mechanism for conservation or protection. The utilisation aspect of kaitiakitanga is generally overlooked.
The Waitangi Tribunal finding led to the 1989 interim settlement of commercial claims legislated in the Māori Fisheries Act 1989, which provided for 10 per cent of all existing quota to be provided to Māori by the Crown as well as a cash settlement. A further report by the Tribunal on claims by Ngāi Tahu found a more extensive “development interest” was inherent in the Treaty provisions and history of Māori fishing. This led to further negotiations between Māori and the Crown, culminating in the full and final settlement of commercial claims to fisheries in 1992. 2610 The settlement, referred to as the ‘Sealord Deal’, granted Māori a 50 per cent share in Sealord Products, which at that time was New Zealand’s largest fishing company. In addition, 20 per cent of any new quota being brought into the system was to be allocated to Māori. The result of these settlements is that Māori customary commercial fishing rights are managed under the QMS in the same way as other commercial fishing interests. 2611
Provision for Māori customary non-commercial fishing rights has been less well defined. The Waitangi Tribunal reports contain useful information on traditional fishing practices and associated rights. However there has as yet been no systematic investigation into the nature and extent of non-commercial customary fishing rights. It is important to note that indigenous knowledge systems relating to this topic are a systematic body in their own right.
The legislation providing for the Sealords Deal also addressed non-commercial rights and interests to some extent. It provided that:
- Māori non-commercial fishing claims would continue to give rise to Treaty obligations on the Crown
- The Minister would “develop policies to help recognise use and management practices of Māori in the exercise of non-commercial fishing rights”
- The Minister should recommend the making of regulations “to recognise and provide for customary food gathering by Māori and the special relationship between tangata whenua and those places which are of customary food gathering importance (including tauranga ika and mahinga mataitai), to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade”
The Sealord legislation also provided that “the rights or interests of Māori in non-commercial fishing” shall have no legal effect except to the extent that they are provided for in regulations made under the Fisheries Act. As a result, Māori rights to customary non-commercial harvest are now limited by regulatory provisions.
“Maori customary non-commercial fishing interests” are allowed for under the Fisheries Act 1996 when setting the total allowable commercial catch. 2613 But the main mechanism for providing for such interests is through the provisions of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 and the Fisheries (South Island Customary Fishing) Regulations 1999. These provide for Māori to manage “customary food gathering” through the appointment of kaitiaki (guardians) who can issue permits to authorise the harvest of fish in their area. Implementation of these regulations is still incomplete around the country and much of the current Māori non-commercial fishing activity is undertaken under the recreational fishing regulations. The fisheries regulations also provide for the establishment of mātaitai reserves which are discussed below.
In 2003, the Court of Appeal found that Māori customary rights in the foreshore and seabed had not been extinguished and that the Māori Land Court had jurisdiction to conduct investigations into the title of the foreshore and seabed.
The Crown’s response was the enactment of the Foreshore and Seabed Act 2004. This reflected Government concerns that the great majority of New Zealanders understood that the foreshore and seabed was owned by the Crown on behalf of all New Zealanders. The Act vested ownership of the foreshore and seabed, except for those areas already in freehold title, in the Crown, while providing limited recognition of customary title through customary rights orders and territorial customary rights orders.
In its report on the Crown’s Foreshore and Seabed Policy (known as Wai 1071), the Waitangi Tribunal found that the policy underpinning the legislation was in breach of the Treaty of Waitangi. It also failed in terms of wider norms of domestic and international law, including the rule of law, and the principles of fairness and non-discrimination against a particular group of people. Criticism was also voiced by the United Nations Commission on Human Rights which recommended that the Foreshore and Seabed Act be repealed.
In response to the on-going debate a review was conducted which led to the enactment of the Marine and Coastal Area (Takutai Moana) Act 2011. The new legislation defines a “common marine and coastal area” which includes the marine and coastal area, excluding existing freehold title and areas owned by the Crown as conservation areas, national parks or reserves. It states that the common marine and coastal area has a “special status” and that neither the Crown nor any other person owns, or is capable of owning it. 2615 Every person has the right to enter, pass over, and engage in recreational activities in the common marine and coastal area. 2616
Under the Marine and Coastal Area (Takutai Moana) Act “marine and coastal area”:
“(a) means the area that is bounded,—
(i) on the landward side, by the line of mean high-water springs; and
(ii) on the seaward side, by the outer limits of the territorial sea; and
(b) includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and
(c) includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
(d) includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b)”
Any claims to the common marine and coastal area, made before the commencement of the Act, are to be transferred to the High Court whose jurisdiction to consider such claims is codified in the legislation. The Act also provides for recognition of customary rights through:
- Protected customary rights – a right that has been exercised since 1840 and continues to be exercised in accordance with tikanga by the applicant group and is not extinguished as a matter of law.
- Customary marine title – where the applicant group holds the specific area in accordance with tikanga, and has exclusively used and occupied it from 1840 to the present day without substantial interruption, or received it after 1840 through a customary transfer.
The implications of these rights for coastal management include:
- The holders of customary marine title have greater rights of participation in plan-making and the protection of protected customary rights is a matter of national importance that must be recognised and provided for in all plan-making.
- There are additional rights associated with notification. Local authorities are required to assess whether protected customary rights groups or customary marine title groups will be affected by a resource consent application, and give limited notification to groups where they are affected.
- There are financial implications as no coastal occupation charge may be imposed on a protected customary rights group or customary marine title group.
- The local authority is required to monitor the exercise of protected customary rights in its region.
- There are limitations on other activities occurring in protected customary rights or customary marine title areas.
The Conservation Act 1987 does not refer to kaitiakitanga, but in section 4 requires that the “Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”. While in principle this can empower kaitiakitanga, it has also led to conflict. For example, the Department of Conservation often works constructively with iwi on management of threatened species. But conflict has arisen over some marine reserve proposals, where the protectionist approach of excluding all harvest, is seen as being inconsistent with tangata whenua perspectives of customary fisheries rights. The permanence of marine reserves differs significantly from traditional marine management mechanisms such as rāhui. Under a rāhui, closure of harvest could be imposed, but rarely with permanence.
Heritage New Zealand Pouhere Taonga Act
The Heritage New Zealand Pouhere Taonga Act 2014 does not specifically include reference to kaitiakitanga, but its Purposes in section 3 and Principles in section 4 include “recognising the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tupuna, wāhi tapu, and other taonga”. In practice much of the work of iwi resource management units is with heritage management, under both the RMA and the Heritage New Zealand Pouhere Taonga Act.
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
Meredith P, 2012, 'Te hī ika – Māori fishing - fisheries management and practice', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/te-hi-ika-maori-fishing/page-6
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 section 10
Fisheries Act 1996 section 21(1)
Attorney-General v Ngati Apa  3 NZLR
Section 11, Marine and Coastal Area (Takutai Moana) Act 2011
Section 26, Marine and Coastal Area (Takutai Moana) Act 2011
Marine and Coastal Area (Takutai Moana) Act 2011, section 51
Section 12, EEZ Act 2012
Section 9, Marine and Coastal Area (Takutai Moana) Act 2011 - a customary marine title group is a group to which a customary marine title order applies. A customary marine title order means an order of the Court granted in recognition of a customary marine title of a customary marine title group, customary marine title exists in a specified area if the applicant group holds the specified area in accordance with tikanga and has exclusively used and occupied the area from 1840 to the present day without substantial interruption or received the area after 1840 through a customary transfer.
Section 9, Marine and Coastal Area (Takutai Moana) Act 2011 - a protected customary rights group is a group to which a protected customary rights order applies. A protected customary rights order means an order of the Court granted in recognition of the protected customary rights of a protected customary rights group, a protected customary right is a right that has been exercised since 1840, which continues to be exercised in a particular area in accordance with tikanga by the applicant group (the way it is exercised may evolve over time), and is not extinguished as a matter of law.
Section 7(a), RMA
Lucy Brake and Raewyn Peart (2015) Sustainable Seas: Managing the marine environment at 82.
Lucy Brake and Raewyn Peart (2015) Sustainable Seas: Managing the marine environment at 83.
Last updated at 6:18PM on February 8, 2018