New Zealand Law Students Journal
Last Updated: 12 November 2012
NO-TAKE MARINE RESERVES AND THE TREATY OF WAITANGI: A CRITICAL ANALYSIS
This article is intended as a case study on the potential impact of the
Treaty of Waitangi on the protection and governance of
environment. It focuses on the modern promotion of a no-take marine reserve
network by the Crown and the
issues, obligations and
opportunities that this presents in terms of the Treaty of Waitangi. The key
tension is between the
Article I authority of the Crown to legislate for
effective environmental protection and the Article II guarantee of
over natural resources.
The no-take marine reserve has been chosen as an example of a management tool
bearing some comparison to concepts within tikanga Mäori,
wholly Pakeha-driven historical development, and of a statutory concept
underpinned by a groundbreaking and proactive
“Treaty clause” in the
Conservation Act 1987.1 Having situated marine reserves in their
historical and political context, the article introduces and discusses the
in which Treaty principles could be said to be engaged by the
promotion of marine reserves by the Crown. Marine reserves are,
their unique attributes, only one of the “marine protected
area” mechanisms envisaged by the New
Strategy.2 Accordingly, the current review of the Marine
Reserves Act 1971 to, among other things, better reflect the Crown’s
obligations is outlined and then critiqued in the context of the
statutory mechanisms specifically available for protecting
implementing Mäori customary fisheries management interests.
* LLB, Victoria University of Wellington.
1 Conservation Act 1987 section 4. See below III A The Conservation Act and Treaty Principles; see generally Te Ohu Kai Moana, ‘Submission to The Local Government and Environment Select Committee on the Marine Reserve Amendment Bill 2003’ 15 (‘Submission on the Marine Reserve Amendment Bill’).
2 New Zealand Government, The New Zealand Biodiversity
Strategy (Wellington, 2000) Theme 3: Coastal and Marine
58 The New Zealand Law Students’ Journal (2006) 1
remain, it is suggested, significant – but not insuperable –
obstacles to successfully integrating the implementation
of these mechanisms
with a functioning marine reserve network. The article concludes
by identifying an ongoing divide
between policy and reality in relation to some
specific aspects of marine reserve establishment and management. Recent
between local tangata whenua and other stakeholders in
particular marine areas provide illustrations of the complex issues facing
responsible government departments, if implementation of the principles of the
Treaty in this context is to be seriously attempted.
A: Marine Reserves
1. The Crown and Marine Reserves
The approach of the Crown Treaty partner to the marine environment was traditionally exploitative, managing activities in a piecemeal, reactive fashion. The environmental “ethic” was one that saw marine resources as inexhaustible and of purely instrumental value. A 1989
Law Commission paper provides a good example of this in the
background to New Zealand’s fisheries regime.3
However, there has been a gradual move in the last 40 years, influenced by
international developments, towards an anticipatory approach
to planning in
recognition of the irreversible effects of human interference with natural
systems.4 The Crown’s focus is now, according to the New
Zealand Biodiversity Strategy (developed in partial implementation of our
commitments under the Convention on Biological Diversity5), on
precaution, sustainable use and the conservation of indigenous
3 New Zealand Law Commission, The Treaty of Waitangi and Maori Fisheries: A Background
Paper, NZLC PP9 (1989), p. 19 (The Treaty and Maori Fisheries).
4 See generally New Zealand Biodiversity Strategy, ‘Biodiversity Protection: An
International Issue’, www.biodiversity.govt.nz/picture/doing/international, at 14 August
2006; Ministry for the Environment, ‘Multilateral Environmental Agreements’,
www.mfe.govt.nz/aws/meas, at 14 August 2006; Rio Declaration on Environment and
Development (12 August 1992) A/CONF.151/26 (Vol I).
5 (5 June 1992) 1760 UNTS 79, p. 143; see New Zealand Government, The New Zealand
Biodiversity Strategy, supra n. 2, p. 135.
No-Take Marine Reserves and the Treaty of Waitangi 59
biodiversity.6 Marine reserves were conceptualised during
the early stages of this evolution in thinking and statutorily enabled
by the Marine Reserves Act 1971 (MRA).
A marine reserve was originally defined for New Zealand as an area managed for the purpose of preserving it in a natural state as the habitat of marine life for scientific study.7 What distinguishes it from all other marine management tools is a “no-take” approach that enables the protection and study of entire ecosystems. Ideally, marine reserves are free from all extractive activity but open to scientific research and to well-managed, non-consumptive use and enjoyment.8 As the understanding of, and impetus for, marine reserves has evolved, they are now considered a “core tool” in the effort to preserve and protect our indigenous marine biodiversity.9 They cannot perform this role as isolated entities; as such, the Department of Conservation (DoC) is now promoting the creation of a network of marine reserves and other protected areas to protect representative and unique marine habitats.10
Although marine reserve proposals can be initiated by non-
governmental groups (including Mäori groups),11 and the
establishment process involves overlapping jurisdictions in relation to the
functions of the Ministers of Conservation
DoC has overall
6 New Zealand Government, The New Zealand Biodiversity Strategy, supra n. 2, Theme 3: Coastal and Marine Biodiversity; Department of Conservation (Marine Conservation Unit), Protecting Our Seas: Tiakina a Tangaroa (Wellington, 2005), p. 6 (Protecting Our Seas).
7 Marine Reserves Act 1971 section 3.
8 See generally Bill Ballantine, ‘Networks of ‘No-Take’ Marine Reserves are Practical and
Necessary’ in Nancy L Shackell and J H Martin Willison (eds), Marine Protected Areas and Sustainable Fisheries (Science and Management of Protected Areas Association, Wolfville (Canada), 1995).
9 Department of Conservation and Ministry of Fisheries, Marine Protected Areas: Policy and
Implementation Plan (Wellington, 2005), p. 12 (Marine Protected Areas); Department of
Conservation (Marine Conservation Unit), Protecting Our Seas, supra n. 6, p. 6.
10 See Department of Conservation (Marine Conservation Unit), Protecting Our Seas, supra n. 6; Department of Conservation and Ministry of Fisheries, Marine Protected Areas, supra n. 9; Ballantine, ‘Networks of ‘No-Take’ Marine Reserves are Practical and Necessary’, supra n. 8.
11 Marine Reserves Act 1971 section 5(1)(a); but see the Crown’s intention to bring all future applications “into the Government’s planning process”, described at Department of Conservation and Ministry of Fisheries, Marine Protected Areas, supra n. 9, p. 11.
12 Janet Mason, The Relationship between Maori Non-Commercial Customary Fishing and the
Establishment of Marine Reserves (LLM Research Paper, Victoria University of Wellington,
2002), p. 39 (Maori Customary Fishing and Marine
responsibility for approving their creation and (currently) for their day-
It is important to note that the practical achievements that have given New
Zealand a reputation as a world leader in marine protected
areas began with a
few determined scientists (especially in the 1970s), who were committed to
local and tangata whenua
involvement in the protective process and
who recognised interests in the marine environment extending beyond
science and exploitation.13
2. Tikanga and Marine Reserves
The traditional Mäori view of the environment is holistic,14
and rests on the “close interconnection between the physical
(resources, species, landforms and processes) and the intrinsic
mana, wairua and whakapapa)”.15 Fisheries and other marine
resources are gifts from Tangaroa. Complex management systems (tikanga) were
developed to prevent over-exploitation
of these taonga through practical
management rules, ritual and protocol.16 As the original kaitiaki
of the local environment, tangata whenua have the right and responsibility to
make decisions related to
natural resources within their
DoC considers that “there is little, if any, variance or tension
between the indigenous code and conservation legislation.
Both promote care
and protection, and allow for sustainable management, to ensure
13 See generally W J Ballantine, Marine Reserves for New Zealand (25, University of Auckland
Leigh Laboratory Marine Science Series, Auckland, 1991).
14 Office of the Parliamentary Commissioner for the Environment, Environmental
Management and the Principles of the Treaty of Waitangi: Report on Crown Response to the Recommendations of the Waitangi Tribunal 1983-1988 (Wellington, 1988) 23 (Environmental Management and the Principles of the Treaty); New Zealand Government, The New Zealand Biodiversity Strategy, supra n. 2, p. 2.
15 Office of the Parliamentary Commissioner for the Environment, Kaitiakitanga and Local Government: Tangata Whenua Participation in Environmental Management (Wellington, 1998) ix (Kaitiakitanga and Local Government).
16 Office of the Parliamentary Commissioner for the Environment, Setting Course for a
Sustainable Future; The Management of New Zealand’s Marine Environment (Wellington, 1999), p. 13.
17 For a discussion of aspects of, and common uncertainties of
Pakeha decision-makers relating to, kaitiakitanga, see supra n. 15.
survival of species.”18 Indeed, a theme that emerged from
discussions with Mäori prior to a 1988 Parliamentary Commissioner for the
was “respect and protect what is there, restore
what is lost”.19 A comprehensive, restorative management
approach and inherent respect for ecological limits on human
therefore consonant with tikanga. However, there are two
aspects of marine reserves that may be more problematic. The
is the imposition of marine reserves by the Crown over an area where
kaitiakitanga is actively exercised. Secondly,
as DoC has noted,
traditional management focuses on the “conservation and enhancement of
indigenous species permitting cultural use”.20 Excluding
all fishing from an area is not alien to Mäori: rähui, which
are imposed to exclude access or harvest
in a defined area, closely parallel
marine reserves in their comprehensive scope. However, rähui are
temporary.21 Te Ohu Kai Moana has stated that “permanent
preservation without utilisation was not and is still not a feature of
3. The Lessons of the Past
History has contributed much to current aversion among some Mäori to
the establishment of marine reserves. Since the signing
of the Treaty, Crown
actions have consistently denied Mäori access to natural marine resources
and authorised their degradation.23 The Waitangi Tribunal has
made it clear, for example, that the historical assumption of
18 Department of Conservation, Customary Use of Natural Resources Consistent with
Kaitiakitanga, Wise Conservation and Conservation Legislation: Draft Policy (Wellington, 2003), p.
2 (Customary Use of Natural Resources).
19 Office of the Parliamentary Commissioner for the Environment, Environmental
Management and the Principles of the Treaty, supra n. 14.
20 Department of Conservation, Customary Use of Natural Resources, supra n. 18, p. 5
21 Office of the Parliamentary Commissioner for the Environment, Kaitiakitanga and Local
Government, supra n. 15.
22 Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment Bill’, supra n. 1,
23 New Zealand Law Commission, The Treaty and Maori Fisheries,
supra n. 3, p. 23.
over fisheries without prior negotiation was contrary to the Treaty.24
As a result:25
“There is currently deep distrust among Mäori people about the way
natural and physical resources have been managed by
the Crown for the last 
years. It will be deeds, not mere talk, which demonstrate whether the
Crown/Pakeha side should
now be trusted and respected.”
The reconciliation of marine reserves with tikanga Mäori can depend on
how they are presented to tangata whenua. For
example, Ngati Konohi,
who built strong relationships with DoC in the course of a joint application
that culminated in the establishment
of Te Tapuwae o Rongokako Marine Reserve
at Whangara in 1999, have described “their” marine reserve as
that will replenish the surrounding area and support future
customary management initiatives.26 Ngatiwai, by contrast,
witnessed the imposition of a marine reserve over the culturally
precious Poor Knights Islands
very early in the life of the MRA. Tensions
between the iwi Trust Board and DoC, which inherited the management of the
from the Ministry of Fisheries (MFish), continued eight years after
a High Court decision that ordered the parties to
discussions regarding the future of the area.27
It is of course important to recognise a distinction between the policies of
the Crown Treaty partner and the views of non-Mäori
New Zealand citizens;
some, for example, hold strong holistic views on the marine
24 Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim: Wai 22
(Wellington, 1988) (Muriwhenua Report).
25 Office of the Parliamentary Commissioner for the Environment, Environmental
Management and the Principles of the Treaty, supra n. 14, p. 23.
26 See Ngati Konohi, Department of Conservation and Ministry for the Environment,
Maori methods and indicators for marine protection: Ngati Konohi interests and expectations for the rohe moana (2005) (Ngati Konohi interests and expectations); Nga Maunga ki te Moana Conservation Trust, How-To Kit for Community Marine Reserve Applicants (Whangarei, 2003) (How-To Kit); Vincent Kerr, Marine Conservation Consultant, to Northland Iwi Mäori, ‘Brief on Customary Use Regulations and Issues and Opportunities for Marine Conservation’ (5
February 2001) Advice Paper.
27 See Ngatiwai Trust Board & Another v Smith (22 December 1998) HC AK CP 39-98
Smellie J; Vincent Kerr, Marine Conservation Consultant, to Ngatiwai Trust Board and
Department of Conservation (Northland Conservancy), ‘Brief on Setting up a
Management Committee for Marine Reserves’ (20 May 2003) Advice
environment, while others consider most regulatory conservation
measures to be threatening and unnecessary. This divergence
of views becomes
apparent in the course of any marine reserve application.28
B: The Treaty of Waitangi
1. The Conservation Act and Treaty Principles
Section 4 of the Conservation Act 1987 states that the Act “shall so be
interpreted and administered to give effect to
the principles of the
Treaty of Waitangi”. Although the MRA was enacted 16 years prior to the
passing of the Conservation
Act, it is now listed in the main Act’s First
Schedule. Consequently, it too is now governed by section 4, albeit
only to the extent that its provisions are not clearly inconsistent with the
principles of the Treaty.29 DoC derives its powers and
obligations from the Conservation Act and is therefore also governed by
More than a decade ago, a full bench of the Court of Appeal examined the
operation of the Treaty relationship when section
4 of the
Conservation Act is engaged, and emphasised several important
elements.30 Statutory provisions for giving effect to the principles
of the Treaty of Waitangi in matters of interpretation and
should not be narrowly construed.31 Further, the
positive or active components of the Crown’s Treaty obligations may have
more weight when reinforced by a statutory
requirement, like section 4, that is
itself positively framed.32 The Court of Appeal has also noted
generally that a breach of a provision of the Treaty will, of
a breach of its principles.33
28 A common objection to marine reserves from commercial fishers, for example, is that the Quota Management System under the Fisheries Act 1996 effectively ensures sustainability and that any further “interference” with fishing is unwarranted. For an example of sustained opposition to marine reserve establishment by recreational fishers, premised on a ‘right to fish’, see the Option4 website: www.option4.co.nz at 23 August
29 Department of Conservation, Customary Use of Natural Resources, supra n. 18.
30 Ngai Tahu Maori Trust Board v Director-General of Conservation  3 NZLR 553 (CA).
31 Ibid., p. 558 Cooke P for the Court.
32 Ibid., p. 561 Cooke P for the Court.
33 New Zealand Maori Council v Attorney-General  1 NZLR
641, p. 693 Somers J.
DoC, in accordance with its section 4 obligations, in 2003 prepared a draft
policy paper on “giving effect to”
Treaty principles in
its conservation initiatives.34 Eight guiding principles were named
and discussed: governance, citizenship, informed decisions, redress,
active protection and tino rangatiratanga. The last
three have been described as “central” in New
In general terms, the Court of Appeal has emphasised that the duty of the
Crown cannot be merely passive but extends to active protection
in the use of their lands and other guaranteed taonga to the fullest
extent practicable.36 Another DoC draft policy, directed broadly to
achieving consistency between customary resource use and both kaitiakitanga and
legislation, aspires “to partnerships with tangata whenua
which are durable and founded on good faith, reasonable
co-operation and fairness”.37 Yet the legal import of
the term “partnership” in this context is not self-evident: the
Waitangi Tribunal, for example,
has emphasised the equal status of the Treaty
partners, but the Courts have been generally more cautious, describing a
“akin to partnership”.38 The Law
Commission has pointed out in the fisheries context that the concept of
partnership is “valid and fruitful but insufficient”.39
The DoC draft policy specifically concerned with “giving
effect” to Treaty principles in its work, as mandated
Conservation Act, contains a more tangible promise to “determine and
implement a reasonable and practicable degree
of tangata whenua involvement
in any particular case, covering a range of options from a right to be consulted
to the exercise of
tangata whenua control”.40
34 Department of Conservation, Giving Effect to the Principles of the Treaty of Waitangi in the work of the Department of Conservation: Draft Policy (Wellington, 2003) (Giving Effect to Treaty Principles).
35 Office of the Parliamentary Commissioner for the Environment, Environmental
Management and the Principles of the Treaty, supra n. 14, p. 27.
36 New Zealand Maori Council v Attorney-General  1 NZLR 641, p. 664, Cooke P.
37 Department of Conservation, Customary Use of Natural Resources, supra n. 18, p. 2.
38 See generally Te Puni Kokiri, He Tirohanga o Kawa ki Te Tiriti o Waitangi: A Guide to the
Principles of the Treaty of Waitangi as Expressed by the Courts and the Waitangi Tribunal
(Wellington, 2002), p. 77 (A Guide to the Principles of the Treaty).
39 New Zealand Law Commission, The Treaty and Maori Fisheries, supra n. 3, p. 51.
40 Department of Conservation, Giving Effect to Treaty
Principles, supra n. 34, p. 5.
2. The “Spirit of the Treaty” for Marine Reserves: Articles I
The following quote from Ngai Tahu Maori Trust Board v Director-General of
Conservation helps to locate the promotion of marine reserves within the
text of the Treaty:41
“Clearly, whatever version or rendering is preferred, the first article
[of the Treaty] must cover power in the Queen in Parliament
comprehensive legislation for the protection and conservation of the
environment and natural resources. The rights
and interests of everyone
in New Zealand, Mäori and Pakeha and all others alike, must be
subject to that overriding
Te Ohu Kai Moana, in describing this right to make laws for environmental sustainability under Article I, has emphasised that the objective of sustainability must have “the highest possible priority” accorded to it when situations involving conflict over limited resources arise.42 This said, an acknowledgement of the responsibility of rangatira and kaitiaki for the state of the environment within their rohe moana reveals that it parallels that of the Crown under Article I; it is a necessary corollary of authority and cannot be abandoned. Accordingly, the Crown’s responsibility to preserve the marine environment can also be seen as sourced in the principle of active protection, because degradation “adversely affecting the continued use or enjoyment of
...resources whether in spiritual or physical terms” is in itself an
infringement of rangatiratanga and leads to the erosion of
The Crown’s authority and obligation to legislate effectively for the
protection of the marine environment is therefore
not in question. Even
so, the Waitangi Tribunal notes that this “is not an authority to
disregard or diminish the principles
in article the second, or the
authority of the tribes to exercise a control”.44 In other
words, there is
41 Ngai Tahu Maori Trust Board v Director-General of Conservation  3 NZLR 553, p. 558 (CA) Cooke P for the Court.
42 Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment Bill’, supra n. 1, p. 9.
43 Te Puni Kokiri, A Guide to the Principles of the Treaty, supra n. 38, p. 98.
44 Waitangi Tribunal, Muriwhenua Report, supra n. 24, p.
reciprocity between Articles II and I that needs to be resolved.45 Te Ohu Kai Moana has asserted that “the options chosen to conserve resources must have the least possible impact on Article II Treaty rights
...while achieving the objective of
There is an obvious argument that the imposition of marine reserves by
the Crown is not acceptable because it makes no concession to what the
Waitangi Tribunal has termed a “duty
to protect the Mäori duty to
protect”.47 However, assuming that marine reserves are
not irreconcilable with tikanga Mäori the key to promoting
them consistently with the Treaty must be able to be found.
Several submissions during the MRA review process requested
full provision in
the Act for Mäori as a Treaty partner as the only legitimate
way forward.48 DoC’s response, through the Marine Reserves
Bill 2002 (MR Bill) and in practice, is discussed throughout this
3. Overview of the Legislative Position in New Zealand
The MRA was enacted 16 years before the Conservation Act 1987, and is silent
on Treaty rights and interests. The recent review of
the MRA was prompted by
this and by a need to update both the purpose of the Act and the creation
process in light of
general international developments and the New
Zealand experience.49 The MR Bill, as it currently stands
(reinstated in the 48th Parliament, awaiting a select committee
report and further readings in the House), is in many respects a
of the MRA. As it addresses Treaty issues specifically,
it operates as an indication of the Crown’s evolving attitude towards
place of the Treaty in marine reserve work.
The updated general purpose of the MR Bill is to protect and preserve
New Zealand’s indigenous marine biodiversity. With this in mind,
45 See New Zealand Law Commission, The Treaty and Maori Fisheries, supra n. 3, p. 51.
46 Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment Bill’, supra n. 1,
47 Waitangi Tribunal, Te Whanau o Waipareira Report: Wai 414 (GP Publishing, Wellington,
1998), p. 84.
48 Boffa Miskell Ltd, Tapui Taimoana: Reviewing the Marine Reserves Act 1971. Summary of
Submissions (prepared for the Department of Conservation, 2001), p. 41 (Reviewing the
Marine Reserves Act).
49 Department of Conservation, Marine Reserves Bill: Policy Background and Key Features
(Wellington, 2002), p. 1 (Policy Background and Key
of the Bill’s stated specific aims is to “recognise and
reflect the [existing] statutory obligations to
Most submitters in the MRA review process supported the inclusion of
some form of Treaty clause, with one stressing that “the
forms a basis for the protection of the marine environment”.51
The drafters’ chosen solution was to repeat section 4 of the
Conservation Act verbatim in clause 11. It is hard to see what
this achieves in
practice, since the Bill would be governed by section 4 in any event. The MR
Bill does, however, also attempt to
give more specific recognition to tangata
whenua and iwi or hapu who have customary access to the proposed marine reserve
the marine reserve application process. To this end, it
(a) Specific consultation with them from an early stage
(clauses 48 and 53(3));
(b) The Minister to consider whether there is an undue adverse effect on their ability to undertake customary food gathering, or on their relationship with the area (clause
67(2)(c)). However, an adverse effect is not “undue” if the
Minister is satisfied that the benefit to the public interest outweighs
(c) Once a reserve has been established, tangata whenua to be included on
any management board or advisory reserve committee that
may be appointed
(clause 27), and to be consulted on any management plan (clause 40).
It is interesting that Te Ohu Kai Moana, in its capacity as a
Mäori representative group, expressed the view in its
submission on the
MR Bill that any purpose beyond the strictly ecological is not appropriately
included in marine reserves legislation.53 This stands in marked
contrast to the many submitters who applauded the educational and
50 Ibid., p. 2.
51 Boffa Miskell Ltd, Reviewing the Marine Reserves Act, supra n. 48, p. 43.
52 As to the interpretation of the word “undue” (or, more accurately, “unduly”) as it
appeared in section 5(6) of the Marine Reserves Act 1971 (albeit not in relation to Mäori interests), see CRA3 Industry Association Inc v Minister of Fisheries  NZCA 103;  2 NZLR 345 (CA).
53 See Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment Bill’, supra n.
1, p. 21.
values of existing marine reserves.54 Arguably, if a
marine reserve increased awareness of the natural environment and encouraged a
local conservation ethic, this
could only facilitate the exercise of
C: A Specific Treaty Nexus: Marine Reserves and Customary Fishing
1. The Fisheries (Customary Fishing) Regulations
The MRA review process cannot be considered in isolation from other marine
management legislation that engages Treaty principles,
legislation that gives Mäori a direct avenue for exercising
kaitiakitanga over defined marine areas. This
section considers the
current status of Mäori customary fishing rights and whether the MRA is
more likely, in either its
current or proposed form, to help or hinder their
Following the well-known “Sealords” deal, most aspects of Mäori customary fishing rights were explicitly extinguished under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (TOWFCS Act).55
Section 10(d) of the TOWFCS Act extinguishes any rights or interests Mäori may have had in non-commercial customary fishing except to the extent they are provided for in regulations made under what is now section 186 of the Fisheries Act 1996. The Fisheries (Customary Fishing) Regulations were made for the North and South Islands in
1998 and 1999 respectively. They contemplate fisheries management undertaken
by MFish or Mäori that “will not intrude on
or overlap but will
co-exist with the management of marine life in marine reserves established
under the MRA”.56 Specifically, the Regulations have no
force within marine reserves.57
Two principal customary management mechanisms are specified in the
Regulations, both of which are within the range of “marine
areas” broadly contemplated by the New Zealand
54 The author’s father, Vincent Kerr, and the author were among the latter group.
55 Mason, Maori Customary Fishing and Marine Reserves, supra n. 12, p. 39.
56 Ibid., p. 21.
57 Ngatiwai Trust Board & Another v Smith (22 December 1998) HC AK CP 39-98, p. 4
Strategy.58 Taiäpure are local fishery areas of special
significance to iwi or hapu, managed by a committee that advises the
Minister of Fisheries on appropriate regulations for the sustainable management
of fish resources. Mätaitai reserves are
discrete areas, which may exist
within taiäpure, where tangata tiaki/kaitiaki are authorised to
manage and control
the non-commercial harvest of kaimoana. Any
Mäori committee, marae committee or any kaitiaki may
bylaws restricting or prohibiting the taking of kaimoana, which apply
to everyone. However all bylaws remain
subject to the Minister’s approval.
DoC and MFish have recently clarified the Crown’s understanding
“Neither [mätaitai nor taiäpure] can be proposed primarily
for biodiversity protection. Nevertheless, sustainable
utilisation of fisheries
resources and protection of marine biodiversity are not mutually
exclusive. If tangata whenua
so wish, it is possible that these tools
could be applied in such a way that they can contribute to the MPA
2. Customary Fishing and Marine Reserves
There is longstanding concern that the establishment of marine
reserves can operate as a de facto extinguishment of
rights.60 In fact, customary fishing is, at present, possible within
marine reserves if authorised by the Minister of Conservation by notice
Gazette or if an authorising condition is imposed under the Order in Council
creating the marine reserve.61 In accordance with the
TOWFCS Act, this cannot give rise to legal rights to require the Minister
to permit customary fishing.62 However, if requested the Minister
must consider preserving customary fishing rights within a proposed
58 New Zealand Government, The New Zealand Biodiversity Strategy, supra n. 2, p. 63 and 67
Other marine protection mechanisms, such as marine parks and partial fisheries closures, are outside the scope of this article.
59 Department of Conservation and Ministry of Fisheries, Marine Protected Areas, supra n.
9, p. 14.
60 Mason, Maori Customary Fishing and Marine Reserves, supra n. 12, p. 23.
61 Ngatiwai Trust Board & Another v Smith (22 December 1998) HC AK CP 39-98, p. 4
62 Mason, Maori Customary Fishing and Marine Reserves, supra n.
12, p. 30.
reserve, notwithstanding that the MRA does not specifically address
The MR Bill will prohibit all fishing in marine reserves, with no
exceptions, in clause 13(1). This is because:64
“[E]xperience internationally and in NZ is that
‘no-take’ provides significantly better protection for
life and is important to achieving a natural state in reserves. Allowing
fishing would also make it far more difficult
and expensive to manage and
enforce marine reserves.”
Some Mäori submitters during the MRA review argued that this “one
out, all out” rule would constitute a breach
of Article II (albeit
not section 4 of the Conservation Act, which such a clearly-worded rule
would impliedly override
if necessary).65 A
“flexible” marine reserve system, where conservation
purposes and low-impact customary extractive use
was commonly proposed as an “alternative” option.66
The difficulty with this view is that it does not recognise the special
need for no-take areas that exists regardless of how
much progress is
made in implementing other forms of marine protection.67
Further, planning the establishment of no-take areas to avoid
customary fishing grounds will not always be possible, the special
separating customary fishing from other extractive interests notwithstanding,
because the network design concept requires
a comprehensive range of
unique and representative areas to be
63 Ngatiwai Trust Board & Another v Smith (22 December 1998) HC AK CP 39-98 Smellie J.
64 Department of Conservation, Policy Background and Key Features, supra n. 49, p. 4.
65 Boffa Miskell Ltd, Reviewing the Marine Reserves Act, supra n. 48, pp. 26 and 39.
67 See C M Denny and R C Babcock ‘Do partial marine reserves protect reef fish
assemblages?’ (2004) 116 Biological Conservation 119.
68 See Bill Ballantine, ‘Networks of ‘No-Take’ Marine Reserves are Practical and
Necessary’, supra n. 8; Department of Conservation and Ministry of Fisheries, Marine
Protected Areas, supra n. 9, p. 12.
3. Marine Reserves and the Customary Management Mechanisms
Many Mäori submitters in the MRA review, unsurprisingly, raised
integration with tangata whenua-based management tools as
a critical means
of recognising Treaty principles.69 There is clearly a need for the
MRA to avoid compromising the effectiveness of the Customary Fishing
the statutory expression of the Crown’s
continuing obligation under Article II to allow for “customary
gathering by Mäori and the special relationship between
tangata whenua and places of importance for
gathering”,70 these Regulations should arguably be
accorded some precedence in marine conservation planning. This holds
that rights flowing from the Regulations may not formally
hamper the Crown’s ability to create marine
One immediate difficulty is that the Regulations and the MRA are administered
by different government agencies. It is notable
in this regard that
while DoC and MFish’s latest joint policy document stresses the need for a
“good level of integration
of legislative tools”,72 the
MR Bill removes the existing formal concurrence role of the Minister of
Fisheries in marine reserve applications. It
will be interesting to see
whether this has an effect on the degree to which customary
weigh in the Minister of Conservation’s
final deliberations on marine reserve establishment.
It would seem obvious that mätaitai reserve and marine
reserve initiatives should be integrated as early as possible
conservation objectives and the active protection of rangatiratanga
are to be achieved. However, the Crown
has generally chosen to focus
on supporting the establishment of mätaitai near existing marine
reserves to benefit from “spill-over” of fish and other marine
life, and it appears that Mäori support for
marine reserve proposals has
often been given
69 Boffa Miskell Ltd, Reviewing the Marine Reserves Act, supra n. 48, p. 41.
70 See Fisheries Act 1996 section 186.
71 Email from Vincent Kerr, Marine Conservation Consultant to the author, 10 April
2004. Compare in this respect Marine Reserves Act 1971 section 5(6) and Marine
Reserves Bill 2002, cl. 67(2)(c).
72 Department of Conservation and Ministry of Fisheries, Marine Protected Areas, supra n.
9, p. 11.
on this basis.73 The problem with this approach is that, as Mason
points out, the “cumulative effect of proposing to establish a
adjacent to or in close proximity to a marine reserve could
possibly result in the mätaitai application failing to meet the
conditions [of] the Customary Fishing Regulations in relation to existing
commercial fishing”.74 If Mäori are not made aware
of this interplay during a marine reserve proposal, bad faith on the part
of the Crown
could well be asserted once the situation becomes clear, and
marine reserves may come to be seen as a threat to future customary
opportunities. Furthermore, the statutory mätaitai establishment process
has been criticised as time-consuming,
arduous and fraught with
difficulty.75 If Mäori feel effectively backed into an
“either/or” position with respect to supporting a local marine
it is no wonder that they may approach it with mixed
feelings. An irreconcilable tension may be perceived between the need to
protection of the rohe moana and the potential for exercising any
effective control over the process of protection.
Mason has argued that customary fishing should be allowed as an interim measure in defined sections of new marine reserves, to allay concerns about long-term opportunities for customary management.76
Such areas would be reserved for future mätaitai applications,
which would automatically have passed preliminary hurdles
such as having no
unduly adverse impact on commercial fishing (one of the criteria for marine
reserve establishment in section
5(6) of the MRA). This would be a
practical and open step towards partnership and would demonstrate
that DoC takes
the active protection of customary fishing interests seriously.
It could also contribute to willingness on the part of Mäori
to work with
the Crown on future initiatives and to co-operation between DoC and MFish.
Having said this, the concern of scientists
would be to ensure that the
ecological core of the marine reserve is not compromised. There is a
minimum viable size for
each particular reserve; this would need to be
calculated with regard to the real size of the permanent no-take area. Such a
would also need to be carefully articulated and publicised to avoid
allegations of “special treatment”
73 Mason, Maori Customary Fishing and Marine Reserves, supra n. 12, p. 39.
74 Ibid., p. 28.
75 Ibid., p. 34.
76 Mason, Maori Customary Fishing and Marine Reserves, supra n.
12, p. 38.
from non-Mäori and of interference with the Customary Fishing
Regulations from Mäori.
The potential interaction between marine reserve and taiäpure/mätaitai establishment has been manifested in different ways, with differently perceived results, throughout the country. In the Akaroa Harbour, in a process that has been ongoing since the early 1990s, a significant taiäpure application has recently been approved on the condition that 8 per cent of its area be excluded to enable a longstanding marine reserve application to progress (in effect, the converse of the Mason proposal discussed above).77 This approval is consistent with a 1999 agreement, negotiated by the Minister of Conservation with tangata whenua, marine reserve applicants and other stakeholders, that the marine reserve process would be put on hold until the taiäpure was established.78 A national recreational fishing lobby group is now, somewhat ironically, relying heavily on the importance of kaitiakitanga in its opposition to the revived marine reserve application. Emphasising that the proposed reserve would be carved out of the area over which customary management rights have been asserted, Option 4 claims that its establishment would necessarily deny tangata whenua “their right and obligation to exercise kaitiakitanga (guardianship) within their rohe”, in breach of the Crown’s obligations as Treaty partner.79 This bold claim is, in the author’s submission, neither accurate (consider the Ngati Konohi experience discussed below) nor particularly constructive. To take just one example, it assumes that the taiäpure application could and would have gained Crown approval in the absence of the compromise with other stakeholders evidenced by the
1999 agreement. From another perspective, that agreement and its aftermath,
while undoubtedly controversial, can be seen as
potential for prioritisation of meaningful tangata whenua involvement in
regional marine planning.
77 See Fisheries (Akaroa Harbour Taiapure) Order 2006; Department of Conservation,
‘Akaroa Harbour (Dan Rogers) Marine Reserve proposal’, www.doc.govt.nz at 23 August
78 See Option 4, ‘Akaroa Harbour (Dan Rogers) Marine Reserve Application’ (submission
to the Department of Conservation, 13 June 2006) Appendix One: Pohatu Agreement.
79 Ibid., p. 3.
To take a different illustration, many iwi are aware of the strong
partnership between East Coast/Hawke’s Bay Conservancy
and Ngati Konohi
to form Te Tapuwae o Rongokako Marine Reserve, described earlier in this
article.80 That application arose in response to demands by
tangata whenua for effective protection of the rohe moana, and the DoC staff
have stressed the need to be educated about rähui, taiäpure
and mätaitai to fit marine reserves into the bigger picture.81
As the process began before the enactment of the Customary Fishing
Regulations, Ngati Konohi – which has majority representation
marine reserve’s advisory committee – is now planning
mätaitai and taiäpure to flank the reserve.82 Hone
Taumaunu, a local kaumätua, has emphasised that “unless you have a
marine reserve as a reservoir, with a taiäpure
you’re just protecting a barren area”.83
Finally, in the South Island, according to the Biodiversity Strategy
website, Ngäi Tahu and DoC “have made
positive progress on
a strategy for developing marine protected areas for much of the South Island
(including marine reserves,
taiäpure and mätaitai)”.84
This bore some legislative fruit in 2005 with the establishment of the
Fiordland (Te Moana o Atawhenua) Marine Area, which to
date includes eight
no-take marine reserves. The empowering Act had, among its aims, both
the acknowledgement of the importance
of kaitiakitanga and the facilitation
of co-operation between management agencies and the newly-established
Marine Guardians body (which includes Ngäi Tahu
representation) to assist in achieving the “integrated management”
of the area.85
Some may see any imposition of marine reserves within their rohe as a
breach of the Treaty. However, it is arguable that the creation of
80 At B 2 The Lessons of the Past.
81 Nga Maunga ki Te Moana Conservation Trust, How-To Kit, supra n. 27.
82 See Ngati Konohi, Department of Conservation and Ministry for the Environment,
Ngati Konohi interests and expectations, supra n. 26; Department of Conservation, Te Tapuwae o Rongokako Marine Reserve Operational Plan (2003).
83 Nga Maunga ki Te Moana Conservation Trust, How-To Kit, supra n. 25.
84 http://www.biodiversity.govt.nz/seas/biodiversity/protected/reserves.html at 16 May
85 Fiordland (Te Moana o Atawhenua) Marine Management Act 2005 section
take reserves over or near customary fishing areas can, if
carefully managed, be seen as an example of the reciprocity
between Articles I
and II in action. The establishment of a particular no-take marine
reserve may be demonstrably legitimate
as necessary for the creation of a
functioning marine reserve network. However, in return, it is
submitted that the
Crown (through its responsible Ministers) may need to
guarantee to tangata whenua an even higher level of involvement than
normal in the marine reserve process, combined with meaningful support
for customary management initiatives in other parts of the rohe moana.
This, if translated into law, would be a step beyond the MR Bill, where
customary interests still effectively “lose” the
outweighed by the public interest in reserve establishment during the
application process. It would recognise
that active protection of
rangatiratanga is non-derogable and that compromise has to be mutual and
meaningful. It would also
require genuine co-operation between the
responsible government departments.
D: The Divide between Policy and Reality
The final section of this article describes some ongoing difficulties in
translating section 4 of the Conservation Act into
in the marine reserve establishment process and in the position of local
tangata whenua with respect to
their rohe moana.
1. Involvement in Marine Reserve Applications
A significant aspect of the MR Bill is the formalised obligation
to consult with local tangata whenua in the preparation
of a marine
reserve proposal.86 Although this was flagged as one method of
giving practical effect to section 4,87 history has shown that
86 In this respect the author notes that on 18 May 2006 a Member’s Bill, the Marine Reserves (Consultation with Stakeholders) Amendment Bill, passed its first reading in Parliament. This Bill has been introduced to compensate for a perceived failure of the MR Bill to ensure consultation with existing users and broader community groups early in the application process.
87 Department of Conservation, Policy Background and Key
Features, supra n. 49, p. 5.
only a means to the end of giving effect to central Treaty principles such
as active protection.88
Mäori views on consultation vary in part according to
previous experience with Crown agents.89 The Whangarei
Harbour marine reserve application is an example of a groundbreaking
proposal by a local high school with
a serious focus on opportunities
for tangata whenua involvement.90 It also provides an example
of issues arising when there are many groups claiming mana whenua, mana
moana status, and
of how key people in applicant groups and iwi authorities can
change over time and points of contact can get lost. The difficulties
disagreements within both Mäori communities and DoC as to who to consult
over a particular area have been well documented.91 This can be a
significant obstacle to integrating DoC and Mäori aspirations for the
local marine environment.
Further, iwi authorities have sometimes not responded to consultation
initiatives until an application is publicly notified; this
frustrations for DoC staff and external applicants who may perceive a lack of
willingness to engage.92 It needs however to be emphasised that
reasons for silence can include “inadequate resources to
participate given multiple
and conflicting demands ...and the view that response
in the past had consumed scarce tribal resources with little or no benefit
return”.93 Ngatiwai, for example, now refuse to engage unless
consultation is seen as a step towards the recognition of
88 See Ngai Tahu Maori Trust Board v Director-General of Conservation  3 NZLR 553, p.
560 (CA). On the facts it was held that “a reasonable Treaty partner would not restrict consideration of Ngäi Tahu interests to mere matters of procedure”, although the Court was careful to say that the decision’s precedent value was likely to be very limited in different factual situations. See also Te Puni Kokiri, A Guide to the Principles of the Treaty, supra n. 38, p. 86.
89 Office of the Parliamentary Commissioner for the Environment, Proposed Guidelines for
Local Authority Consultation with Tangata Whenua: Background Information (Wellington, 1992), p. 16 (Local Authority Consultation with Tangata Whenua).
90 See the formal application document at
http://www.forest-bird.org.nz/Marine/reserves.asp at 16 May 2006.
91 See Mason, Maori Customary Fishing and Marine Reserves, supra n. 12, p. 34.
92 The author was a member of the Whangarei Harbour marine reserve applicant group
and worked for the Department of Conservation’s Marine Policy Unit as a consultant in
93 Office of the Parliamentary Commissioner for the Environment, Local Authority
Consultation with Tangata Whenua, supra n. 89, p.
rangatiratanga; they are “sceptical about the ability of the Crown
...to accept their values and to actively protect their
Environment Court Judge Kenderdine has commented that the “issue of consultation must be viewed in the light of ...the inability of iwi to respond and keep responding in any meaningful way without support structures in place”.95 Ngatiwai have stated that they “cannot spare resources to develop a definite long-term strategy for environmental planning ...and require assistance with resources in order to articulate and communicate their views on issues of importance to the tribe”.96
Many tangata whenua agree that environmental efforts can be
constrained by always being in “react mode”.97
2. Management of Marine Reserves
The MRA makes no positive provision for tangata whenua involvement in
management of marine reserves once established. However, tangata
generally been represented on advisory committees or Conservation Board
sub-committees established under the
Conservation Act to represent the
local community’s interest in the management of a particular
reserve.98 While DoC cannot delegate its overall management
responsibility, such committees, if they exist, can develop the reserve
management plan (if required under the Conservation Act) or a
less formal operational plan. The obvious problem
with an advisory
committee approach is that the Crown Treaty partner retains all real power; it
rests on a premise similar to
that of consultation during the application
process. Most submissions from Mäori during the MRA review urged greater
autonomy of reserve management bodies; there were also calls for the
management of marine reserves and of mätaitai
and taiäpure to be
94 Ibid., p. 15.
95 Director-General of Conservation v Marlborough District Council (22 September 1997) EC W89/97, 19 Judge Kenderdine.
96 Office of the Parliamentary Commissioner for the Environment, Local Authority
Consultation with Tangata Whenua, supra n. 89, p. 20.
97 Office of the Parliamentary Commissioner for the Environment, Kaitiakitanga and Local
Government, supra n. 15, p. 76.
98 Conservation Act 1987, sections 6N and 56.
99 Boffa Miskell Ltd, Reviewing the Marine Reserves Act, supra
n. 48, p. 76.
Clause 20 of the MR Bill enables the Minister of Conservation to
appoint a “management body” (a flexible term
that could encompass
most existing iwi organisations) to take over the entire day-to-day management
of a reserve. However, the Minister
must first be satisfied that the proposed
body would have the resources to do so. This is an example of the limitations of
statutory “opportunities” for the exercise of
rangatiratanga. An important step is taken in recognising
institutions are unlikely to empower the expression of Mäori
management aspirations.100 But genuine recognition of the
principle of active protection would have required practical assistance to
enable tangata whenua
to take this step towards tino rangatiratanga. An
argument that the MRA is not concerned with social or economic assistance is
simply not viable in the context of a proactive Treaty clause like section 4.
The MR Bill, arguably, needed to be backed by legislation
or policy that could
ensure the existence of the necessary means to carry its provisions into
Marine reserves are a fascinating way to examine the potential of
environmental management in New Zealand. They can be viewed
an evolving environmental ethic on the part of the Crown that is increasingly
consonant with tikanga Mäori
in relation to the marine environment.
Arguably, the creation and management of marine reserves provides an ideal
for giving some real weight to section 4 of the Conservation Act.
This is because marine reserves are initiated (generally),
enforced locally and their conceptual basis is consistent with the exercise
The Treaty implications of marine reserve creation, especially
in relation to tangible rights like customary fisheries,
are now seriously and
consistently considered by the Department of Conservation at the policy
formation level.101 However, because the MRA was passed
before section 4 was even envisaged, attempts to reconcile its operation with
of the Treaty have of necessity been
100 Office of the Parliamentary Commissioner for the Environment, Environmental
Management and the Principles of the Treaty, supra n. 14, pp. 20-21.
101 See Department of Conservation, Giving Effect to
Treaty Principles, supra n. 34; Department of Conservation, Policy
Background and Key Features, supra n. 49.
superficial. The much-improved MR Bill is promising but
insufficient.102 It does not address some of the key issues
preventing tangata whenua from engaging effectively with DoC, which include
distrust of the Department’s marine initiatives and
inadequate resourcing of iwi organisations.103 Consequently, it
misses a genuine opportunity to support a measure of rangatiratanga. Further,
the Bill does not propose integrating
the establishment of marine
reserves with the kaitiaki responsibilities engaged in relation to the vast
majority of our coastline.
While encouraging progress has been made on the ground in several regions,
no-take marine reserves have not been universally recognised
as an appropriate
vehicle through which to explore the strengthening of the connection between
tangata whenua and their resources.104 This perception may stem from
the view that marine reserves are essentially a “scientific”
exercise in the realm of the
Crown’s Article I authority. It indicates,
arguably, that either the nature of the Department’s
to actively protect rangatiratanga is not yet fully understood or
that there is not yet genuine commitment to their inevitable
implications. To aim for true compliance with section 4 requires, as
Nganeko Minhinnick put it some years after the Manukau
claim, the ability to
trust that Mäori will act as effective guardians of marine areas within
their rohe. Marine reserves provide
one of our strongest chances to develop this
trust and to reap its
102 See Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment Bill’, supra n. 1, p. 15.
103 See Vincent Kerr, ‘Submission to the Local Government and Environment Select
Committee on the Marine Reserve Amendment Bill 2003’ p. 2.
104 See generally Te Ohu Kai Moana, ‘Submission on the Marine Reserve Amendment
Bill’, supra n. 1.
80 The New Zealand Law Students’ Journal (2006) 1 NZLSJ