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Ruru, Jacinta --- "Legislative provision for Tino Rangatiratanga: A National park case study" [2005] NZYbkNZJur 24; (2005) 8.2 Yearbook of New Zealand Jurisprudence 316

Last Updated: 19 April 2015

LEGISLATIVE PROVISION FOR TINO RANGATIRATANGA: A
NATIONAL PARK CASE STUDY

Jacinth. Ruru*'

For more than a century, national parks have existed in New Zealand as a conservation tool to protect many of our natural landmarks. Historically, Maori have been consistently excluded from exercising control over this estate. The exclusive right to establish and manage national parks has sat firmly with the Crown. That right needs to be reconsidered. To this end the Waitangi Tribunal has recently clarified the respective rights of the Crown and Maori to manage taonga within the conservation estate. This paper attempts to apply that assessment to what many describe as the jewels'² of the conservation estate, national parks.

Jacinta Ruru (BA (VUW), LLM (Otago)) is a lecturer in law at the University of Otago. At Otago she teaches Maori land law, law and indigenous peoples, and the land transfer components of property law. She has published several articles and book chapters exploring indigenous peoples' rights in the environment, land tenure and family law realm.

1. Ngati Raukawa ki Waikato, Ngai te Rangi. BA (VUW), LLM (Otago). Lecturer, Faculty of Law, University of Otago. Thanks to Professor John Dawson, Nicola Wheen and Linda Gilbert for their comments on earlier drafts. This paper was written in 2002, and is based on my LLM thesis: "Te Tiriti o Waitangi and the Management of National Parks" 2001, University of Otago. Postscript 2005: since writing this paper, I would like to draw the reader's attention to some more recent work which touches on issues explored here: Rum, J, "Managing Our Treasured Home: The Conservation Estate and the Principles of the Treaty of Waitangi" (2004) 8 New Zealand Journal of Environmental Law (in press); Rum, J, "Indigenous Peoples' Ownership and Management of Mountains: the Aotearoa/ New Zealand Experience" (2004) 3 Indigenous Law Journal 111-137; and Wheen, N and Rum, J "Chapter 8: The Environmental Reports", in The Waitangi Tribunal. Te Roopu Whakamana i te Tiriti o Waitangi. edited by Janine Hayward and Nicola Wheen, Wellington, Bridget Williams Books, 2004, pp 97-112 plus notes pp 254-257.
2. This expression has been used numerous times in reference to national parks. For example: see Ken Peddington, "The National Parks of Aotearoa/New Zealand: The Crown Jewels or Jewels of the Crown?" in Centenary Seminar: 100 Years of National Parks in New Zealand Proceedings 24-28 August 1987. (1987) North Canterbury National Parks and Reserves Boards. For a more recent example: see Government Press Release, 1 May 2001, "Rakiura National Park - a jewel in the conservation estate".

The paper begins with an explanation of national parks. It then outlines how national parks should be managed using Waitangi Tribunal jurisprudence as a benchmark. How national parks are actually managed is then discussed. The difference between "how national parks are managed" and "how national parks should be managed" is then examined. Finally, based on the conclusion that there is little alignment between the "how are" and the "how should", several options are suggested that would enable the Crown, in exercising its power to enact legislation, to better provide for Maori and their right to exercise tino rangatiratanga.

I. THE NATIONAL PARK ESTATE

National parks encompass the most scenically spectacular "... mountains, forests, sounds, seacoasts, lakes, and rivers ...”³ in New Zealand. Fourteen national parks exist: four in the North Island,⁴ and ten in the South Island.⁵

The specialised device of reserving land as a 'national park' was first implemented by legislation in New Zealand in 1894.⁶ The device is entirely premised on a Western concept of conservation: preservation and protection. For instance, the National Parks Act 1980 (NPA 1980) describes national parks as being areas that "... contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest....", and therefore must be protected in perpetuity "... for their intrinsic worth and for the benefit, use and enjoyment of the public ...".⁷ To the Crown, and to many New Zealanders, national parks represent the jewels of the conservation estate, an estate that is held and managed by the Crown on behalf of the people of New Zealand.

3 Section 4(2)(e) of the National Parks Act 1980.
4 Egmont, Tongariro, Urewera and the Whanganui National Park.

5. Abel Tasman, Arthur's Pass, Fiordland, Kahurangi, Mt Aspiring, Mt Cook/ Aoraki, Nelson Lakes, Paparoa, Westland and the Steward Island/Rakiura National Park.

6 See Tongariro National Park Act 1894.
7 Section 4(1) of the NPA 1980.
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Yet, two centuries ago the national park device for protecting land was unheard of,⁸ as was Crown control of land in New Zealand. Two centuries ago Maori were the undisputed managers of the spectacular wonders of New Zealand. The "... mountains, forests, sounds, seacoasts, lakes, and rivers ..."⁹ were considered taonga',10° and were managed according to tikanga Maori. For instance, Aoraki, the mountain integral to the Aoraki/Mount Cook National Park is a tupuna (ancestor) of Ngai Tahu; and Taranaki, the mountain integral to the Egmont National Park is a tupuna of the Taranaki iwi. Or, as described by a Tuhoe descendent in regard to the land within the Urewera National Park:"

Te Urewera is our home, our church, our cathedral, it is our sacred shine in order to restore our mental, physiological and physical recreation sustenance.... It is our identity, it is OUR body, it is our mother.... The congregation of mountainous peaks and ridges, rivers, creeks, that stretches the boundaries of our tribe include our fisheries areas, hunting grounds, papa kainga, marae, cultivation areas, ancient battle fields, burial places. And there is not a hill or gully, or ridge or creek, ... a stone or mighty rimu tree or small seedling that does not have a name and has been consecrated into a haka, waiata tawhito, patere, kOrero taunahanaha which draws its sources from the philosophical, historical contemporary oral narratives of Tuhoe.

Both peoples clearly have a special affinity for national park land. One commonly describes the land as their 'jewels', the other as their `taonga'. The estate lies as a sanctuary for our flora and fauna. It is an estate that represents a time gone by, a glimpse of the natural state of how New Zealand once was. The contention concerning the national park estate lies, not with the fact that the land should be protected, but rather with the question of who should be charged with protecting it.

8. The first country to establish a national park was the United States of America in 1872: the Yellowstone National Park.

9 An expression used in section 3 of the NPA 1980.

10. Taonga, translated in a simple form, means 'property' or 'resource'. A more accurate translation may be "... any material or non-material thing having cultural or spiritual significance for a given tribal group ..." Waitangi Tribunal, Ngawha Geothermal Resource Report. (Wai 304, 1993) at 20.
11. Taiarahia Black, "Tuhoe and the Conservation Estate" a paper presented at the Environmental Conference, University of Otago, 1996, at 1 (copy obtained personally, Maori Studies Department, Massey University).

II. HOW NATIONAL PARKS SHOULD BE MANAGED

Te Tiriti o Waitangi / the Treaty of Waitangi,1² the founding document between Maori and the Crown, signed in 1840, guaranteed to Maori "... te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa....";" or as the English version reads:1⁴

... full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession ...

Te Tiriti was our first national environmental policy statement," and provides us with a model for how our environment should be managed, including the national park estate. Te Tiriti remains relevant for the Conservation Act 1987, the companion to the NPA 1980. The Conservation Act is to be "interpreted and administered as to give effect to the principles of the Treaty of Waitangi...."." Judicial reasoning can be applied to support the expression that "This Act" means, not simply the Conservation Act, but also those statutes listed in its schedule, such as the NPA 1980.1⁷ This section of the paper provides an interpretation and application of te Tiriti to the management of national parks.

12. Hereinafter this document is referred to as te Tiriti o Waitangi, or simply te Tiriti. This reference is intended to be a reference to both the Maori and English texts of this document.
13. Ko te Tuarua. Translated by Professor Sir Hugh Kawharu to read: "... chieftainship over their lands, villages and all their treasures ...".

14 Article II.

15. As argued by Hirini Matunga in "Decolonising Planning: The Tiriti o Waitangi, the Environment and a Dual Planning Tradition" in Memon and Perkins (eds), Environmental Planning & Management in New Zealand (2000), Dunmore Press Ltd, Palmerston North, ch. 3 at 38.

16 Section 4.

17. See Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553. The NPA 1980 is of a like nature to the statute considered in this case, the Marine Mammals Protection Act 1978 in that both statutes are listed in the First Schedule of the Conservation Act, and both contain no internal references to te Tiriti or Maori.

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A. The Waitangi Tribunal benchmark

The Waitangi Tribunal has had a number of opportunities to interpret and apply the principles of te Tiriti o Waitangi to the management of natural resources.1⁸ It is also the one specialist body that has exclusive authority to investigate and apply the principles of te Tiriti.¹⁹ The jurisprudence of the Waitangi Tribunal is therefore adopted as the appropriate benchmark for assessing how the national park estate should be managed.²°

The Tribunal has stated that while te Tiriti is to be regarded as "... a living document to be interpreted in a contemporary setting....",²¹ one principle has emerged as the "... general overarching principle ...'^,22 "... the Maori gift of governance to the Crown was in exchange for the Crown's protection of Maori rangatiratanga...".²³ Implicit in this paramount principle are those which state that:²⁴

• te Tiriti implies a partnership, exercised with the utmost good faith;
• tino rangatiratanga includes management of resources and other taonga according to Maori cultural preferences;

18. Section 2 "Treaty" of the Treaty of Waitangi Act 1975 means "... the Treaty of Waitangi as set out in the English and in Maori in the First Schedule to this Act....".
19. See the Long Title, Preamble and section 5(2) of the Treaty of Waitangi Act 1975. A useful secondary source on the Tribunal's jurisdiction: see E Durie 'Background Paper' (1995) 25 VUWLR 91.
20. In addition, the Tribunal has a bi-cultural membership and procedure, which is itself consistent with the principles of te Tiriti.
21. Dr Janine Hayward, "Appendix 'The Principles of the Treaty of Waitangi"' in Rangahau Whanui Series National Overview. Vol II (1997) Waitangi Tribunal, at 475. See also New Zealand Mdori Council v Attorney-General [1987] 1 NZLR 641
22. A number of Waitangi Tribunal reports use this expression: see, for example, Waitangi Tribunal, Te Whanganui-a-Orotu Report. (Wai 55, 1995), at 201; Waitangi Tribunal, Ngai Tahu Sea Fisheries Report. (Wai 27, 1992), at 269; and Ngawha Geothermal Resource Report supra n 10 at 99.

23 Waitangi Tribunal, The Whanganui River Report. (Wai 167, 1999), at 265.

24. These principles have been taken from Hayward supra n 21 (a study based on Waitangi Tribunal reports, judicial decisions and political party interpretations of te Tiriti).
    • taonga includes all valued resources and intangible cultural assets;
    • the exchange of the right to make laws for the obligation to protect Maori interests;
    • the Crown obligation actively to protect Maori Tiriti rights; and
    • a duty to consult.

In addition, the Tribunal has established that if the taonga in question is "... highly valued, rare and irreplaceable ... ",²⁵ and "... of great spiritual and physical importance ...",²⁶ then the Crown is under an "... affirmative obligation ..."²⁷ to ensure its protection "... to the fullest extent reasonably practicable....".²⁸ Many of the natural landmarks and resources within the national park estate must surely meet this threshold - in many instances the resources are, after all, considered tupuna.

Hence, the Tribunal accepts that the Crown has the right and duty to make laws for the conservation of natural resources, such as establishing and managing national parks, but that this is a qualified right:²⁹

... the Crown does have a power and a duty to manage natural resources in the interest of conservation but ... these rights are qualified by the tribe's to tino rangatiratanga

Rangatiratanga, according to the Waitangi Tribunal, "... denotes the mana of Maori not only to possess, but to control and manage ... [taonga] ... in accordance with their own cultural preferences ..."." It has explained:³1

25. Waitangi Tribunal, Preliminary Report on the Te Arawa Representative Geothermal Resource Claims. (Wai 153,1993), at 34.

26 Ibid.

27. Waitangi Tribunal, Mohaka River Report. (Wai 119, 1992), at 75. A number of other reports have also stated this: see for example ibid; W hanganui River Report

supra n 23; and Ngawha Geothermal Resource Report supra n 10 at 136.

28 Mohaka River Report , ibid.

29 Ibid at 63 and 65.

30. Ngawha Geothermal Resource Report supra n 10 at 136. See also W hanganui River Report supra n 23 at 64.

31 Ibid.
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While the cession of sovereignty or kawanatanga enables the Crown to make laws for conservation control and resource protection, that right is to be exercised in the light of article 2 of the Treaty. It should not diminish the principles of article 2 or the authority of the tribes to exercise control. In short, the tribal right of self-regulation or self-management is an inherent element of tino rangatiratanga.

Moreover, the Tribunal has wholly rejected the Crown's recent argument that to Tiriti deprives Maori of authority over natural resources. The Crown had based this on the premise that natural resources fall outside the Article II protection of tino rangatiratanga, because the management of natural resources is solely an Article I issue of kawanatanga. Rather, the Tribunal held that such an argument is "... inconsistent with the Treaty language and contemporary understanding of it ..."."

However, the Tribunal has accepted that in "... exceptional circumstances ..." the Crown may be able to override the fundamental right of rangatiratanga, but it must be as a "... last resort ..." and be "... in the national interest...."." In the recent Whanganui River Report the Tribunal clarified this 'national interest' justification by stating emphatically that "... the national interest in conservation is not a reason for negating Maori rights of property....".³⁴

In cases of natural resource disputes which lie within the conservation estate and have met the `taonga threshold test', inclusive management roles have been recommended by the Waitangi Tribunal. For example, shared management of the Waipoua Forest, a taonga to Te Roroa people, was recommended: "

The claimants must appreciate that the Crown has the right to manage the land it owns. In keeping with 'the meaning and effect' of the Treaty, we believe that tangata whenua should share in the control and management of natural and cultural resources on Crown land and their traditional resource areas.

32 Whanganui River Report supra n 23 at 329.
33 Waitangi Tribunal, Turangi Township Report. (Wai 84, 1995), at 15.2.1 (3).
34 Whanganui River Report supra n 23 at 330.
35 Waitangi Tribunal, Te Roroa Report (Wai 38, 1992), at 183.

This recommendation typifies the Tribunal's approach, being that tangata whenua continue to have rights and should be able to exercise these rights in regard to their taonga even if the land is now held by the Crown as part of the conservation estate.

Te Tiriti should be guiding the management of our national parks. This being so, what does it mean? What would a Tiriti o Waitangi model look like for national park management?

B. A TIRITI MANAGEMENT MODEL

Based on the Waitangi Tribunal's interpretation of the principles of te Tiriti o Waitangi, a Tiriti management model would, firstly, endorse both the Crown's right to govern, and the Maori right to exercise tino rangatiratanga. Secondly, iwi would be recognised as the tangata whenua of national park land. They would be recognised as having a spiritual, historical and cultural link with the land. It would be recognised that this land is a taonga to the tangata whenua. Likewise, it would also be recognised that national park land is special to Pakeha, and that it represents to them the jewel of the conservation estate. Thirdly, the Maori conservation ethic would be accorded equal status to the Pakeha conservation ethic. Both ethics would, for example, influence the classification of permitted activities within the national park estate. Both the Crown and Maori would have similar rights to be involved in national park management. Fourthly, both would have a right to direct the development of national park policies. Such rights would not be confined to Maori simply being regarded as a special interest group. Nor would this right to manage simply mean that Maori must be consulted whenever particular national park management issues arise. Such measures do not equate to tino rangatiratanga. However, the matter of what measures tino rangatiratanga would require could well be different for the tangata whenua of each national park. This in itself must also be recognised.

In short, a Tiriti management model would require the Crown and Maori to be respectful of one another's values. This would mean that the Tiriti rights of both parties would be recognised and provided for in the management of national parks. If national park legislation is being guided by the principles of te Tiriti, recognition and provision for these values and rights would be evident.
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Tania Rum has adapted Arnstein's 'ladder of public participation' model and conceptualised the different ways that rights to representation could be expressed in resource management legislation.³⁶ Her continuum model consists of nine expressions of representation. It is presented in a progressive manner with each expression representing a more inclusive stance towards the right of Maori to be included in the management of natural resources. In adapting the model here for the national park estate," it can be stated as:

Level Three: Discretionary Consultation/Consideration

At the third level legislation would suggest that regard be had to considering consultation with Maori in respect of activities which would affect their interests. Their viewpoint, however, would have no binding effect on decision-makers, but would be one element to be considered.

36. Tania Ruru, The Resource Management Act 1991 and Nga Iwi Maori. LLM Thesis, University of Otago, 1997 at 28-31.
37. Because this model is management focused (rather than ownership focused) it provides a suitable way to view national park provisions within the confined management-oriented framework of this paper.

Level Seven: Equal Status to national park management bodies At the seventh level the legislation would prescribe that appointed iwi organisations be given the same status as existing national park management bodies and administer the national park estate in partnership with these bodies, in joint documents or in separate but parallel documents.

Level Eight: Maori Veto subject to Judicial Review

At the eighth level the legislation would prescribe a Maori veto on all national park management decisions affecting their interests. This veto could be subject to judicial review in the ordinary courts. This veto would operate with respect to both administrative and management functions.
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At a slightly elevated level, say level 8.5, this veto could be subject to judicial review by only the Waitangi Tribunal.

Level Nine: Maori Veto subject to Maori Review

Lastly, at the ninth level, this veto would be the same as that prescribed at level eight, but would be subject to review by only iwi.

If national park legislation was being guided by to Tiriti o Waitangi, surely legislative measures today to provide Maori with representation would fall nearer to the end-realm ofthis continuum model. Recognising both governance and tino rangatiratanga rights, must mean, if we are to use the Waitangi Tribunal's interpretation as the benchmark, more than consultation and single rights to representation: mid-realm aspirations. A right to be consulted, after all, is not the same as a right to have one's views actioned. Perhaps the end-realm expressions would better reflect partnership aspirations. Level seven, for instance, would provide iwi with a right to be recognised and represented in the management of national parks to a standard that would clearly identify them as a Tiriti partner. However, a departure from level seven to the higher realm of veto power may prove contrary to the Waitangi Tribunal benchmark - for the Tribunal holds that the Crown has the right to govern and, although this is qualified by a right of rangatiratanga, the Crown still has the overriding power, albeit only in exceptional circumstances.

How does our current legislation provide for tino rangatiratanga in the management of national parks? And, if it does, how does it align with this espoused Tiriti model?

III. HOW NATIONAL PARKS ARE MANAGED

Today, the national park estate is exclusively owned and managed by the Department of Conservation, supposedly on behalf of all the people of New Zealand. The Department and its regional conservancies assume the day-to-day administration and management responsibilities for the conservation estate, including national parks. The Department is aided by independent advice from the statutorily created national New Zealand Conservation Authority (NZCA) and regional

conservation boards. The Department has recently committed itself to promoting effective partnerships with tangata whenua and is currently working towards a long term goal whereby tangata whenua will be able "... to maintain their cultural relationships with their natural and historic heritage ...". The Department has justified this inclusive approach on the basis that partnership:"

... helps to protect and enhance the environment by providing Maori with opportunities to become involved in conservation management. It strengthens national identity by involving Maori more in the conservation of natural and historic heritage ...[and] helps to uphold the principles of the Treaty of Waitangi. It also helps to grow an inclusive, innovative society for the benefit of all. It improves New Zealanders' skills by providing for transfer of knowledge about conservation management.

The Department's ability to realise these goals may, however, be undermined. For instance, the Department's mandate, given to it by the Conservation Act, is one of conservation through the means of:³⁹

... preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.

This mandate has little regard for the Maori conservation ethic of kinship: "... humans and nature are not separate entities but related parts of a unified whole...."⁴⁰ ; and sustainable use: "... use is not a sacrilege but ... an honouring of wildlife ...^I,.41

Nonetheless, several legislative provisions do exist which attempt to include Maori in the management of national parks. The sum total of these measures are depicted below. They tend to take two forms:

38. Department of Conservation, Statement of Intent 2001-2004. (June 2001) Department of Conservation, Wellington at 27.

39 Section 2 'Conservation'.

40. Roberts et al, "Kaitiakitanga; Maori perspectives on conservation" (1995) 2 Pacific Conservation Biology 7, at 16.
41. Todd Taiepa et al, "Co-management of New Zealand's conservation estate by Maori and Pakeha: a review" 24 Environmental Conservation (3) 1997, 236 at 239.

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providing Maori with rights of representation, and providing recognition of Maori association and values.

A. OF GENERAL APPLICATION
Recognition measures

• national parks are to be administered and managed according to the principles of the Treaty of Waitangi (so long as the principles of the NPA 1980 are not clearly inconsistent with the principles of the Treaty of Waitangi).⁴²

Representation measures

• two of the thirteen positions on the NZCA are to be filled by Maori;⁴³ and
• the Minister of Conservation in appointing members to conservation boards must have regard to a number of interests including the interests of tangata whenua of the area."

B. MEASURES APPLICABLE TO PARTICULAR IWI Recognition measures

• the Minister of Conservation must have particular regard to the advice given by Te Runanga o Ngai Tahu when he/she is considering national park management plans, other conservation management plans, and when formulating written recommendations to the NZCA;⁴⁵
• the NZCA and conservation boards must consult, and have particular regard to, Ngai Tahu values of a Topuni,⁴⁶ and any specific principles agreed to between Te Runanga o Ngai Tahu and the Crown;⁴⁷

42 Section 4 of the Conservation Act, and supra n 17.
43 Section 6D(1)(a), ibid.
44 Section 6P(2)(b), ibid.
45 Section 233 of the Ngai Tahu Claims Settlement Act 1998.

46. A Topuni is an area of land, which can include land administered under the NPA 1980, has Ngai Tahu values, and has been declared a Topuni under the Ngai Tahu Claims Settlement Act 1998.

47 Sections 241 and 242, ibid.

• the Minister of Conservation must have particular regard to the views of Te Runanga o Ngai Tahu if a deed of recognition has been entered into in regard to a Statutory Acknowledgement area within a national park;⁴⁸
• Te Runanga o Ngai Tahu have the right to amend or cancel `Department of Conservation protocols' ;⁴⁹ and
• Te Runanga o Ngai Tahu have a right, when the Minister of Conservation makes policy decisions concerning the protection, management or conservation of certain taonga species, to be advised, consulted with, and to have the Minister take particular regard of their views.⁵°

REPRESENTATION MEASURES

• Te Runanga o Ngai Tahu have a right to nominate one person as a member to the NZCA;⁵1
• a lineal descendant of Te Heuheu Tukino must be appointed to the conservation board responsible for managing the Tongariro National Park;⁵²
• the Taranaki Maori Trust Board have a right to recommend one person to be appointed to the conservation board responsible for managing the Egmont National Park;⁵³
• the Whanganui River Maori Trust Board have a right to recommend one person to be appointed to the conservation board responsible for managing the Whanganui National Park; and⁵⁴

48 See sections 212, 213, 215 and 216, ibid.

49. Department of Conservation protocols are statements in writing, issued by the Crown through the Minister of Conservation to Te Runanga o Ngai Tahu which set out how the Department of Conservation will exercise its functions, powers, and duties in relation to specified matters within the Ngai Tahu claim area, and how the Department will, on a continuing basis, interact with Te Runanga o Ngai Tahu and provide for Te Runanga o Ngai Tahu's input into its decision-making process. See sections 281 and 282, ibid.
50. Section 293, ibid. "Taonga species" means species of birds, plants and animals described in Schedule 97 and found within the Ngai Tahu claim area: see section 287, ibid.

51 Section 6D(1)(ca), ibid.
52 Section 6P(5)(b), ibid.
53 Section 6P(6)(b), ibid.
54 Section 6P(7)(b), ibid.
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• Te Runanga o Ngai Tahu have a right to nominate two persons to become members of conservation boards that are responsible for managing a national park that is wholly within their takiwa," and one person to those conservation boards that are responsible for managing a national park that is partly within their takiwa."

Further rights for Maori to be included in the management of national parks can be ascertained from companion documents, including the statements of general policy and national park management plans (NPMPs): the NPA 1980 stipulates that the Department must administrate and manage national parks in accordance with such documents.⁵⁷ Only two statements of general policy are relevant. The first requires that "... consultative procedures with local Maori groups which have historical or spiritual ties to land in national parks
will be fostered The second states that NPMPs should provide
for the: "Traditional uses of indigenous plants or animals by the Maori people for food or cultural purposes ... where such plant or animals are not protected under other legislation and demands are not excessive...."."

The provision for recognising Maori in NPMPs has been haphazard. For instance, as at 2002, only five of the twelve operative NPMPs expressly mention the Treaty of Waitangi. Despite the general policy statement requiring provision for traditional use, some make no mention of it, and many of those that do merely reproduce the general policy statement without further elaboration. Most operative NPMPs recognise, to some extent, the historical association Maori have had with land that is now included in the national park estate, but few recognise the spiritual association.

55 Section 6P(7B)(a), ibid.

56. Section 6P(7C)(a), ibid. "Takiwa" means 'tribal area'; for a definition of the takiwa of Ngai Tahu see section 5 of Te Runanga o Ngai Tahu Act 1996.

57 Section 43 of the NPA 1980.

58. General Policy Statement 2.2: see National Parks and Reserves Authority New Zealand, General Policy for National Parks. (1983) Department of Lands and Survey, Wellington, at 8.

59 General Policy Statement 8.11, ibid at 21.

In comparison, quite a different picture is presented in the study of the current draft NPMPs.⁶° All five of the current draft NPMPs acknowledge, albeit to varying degrees, the importance of "the Treaty" in the management of national parks (one even directly refers in te reo Maori to "te Tiriti o Waitangi"), and all have formulated policy on traditional use and the need to consult with tangata whenua.

The major indicator that is conveyed in this assessment of legislative provisions, including companion documents, is the inconsistency of approach to including Maori in the management of national parks. The analysis also conveys a tendency to limit such inclusion to rights to be consulted, and rights to single-member representation.

I now turn to assess whether there is a gap between how national parks should be managed, using Waitangi Tribunal jurisprudence as a benchmark, as opposed to how they are in fact managed.

IV. DOES THE "HOW ARE" ALIGN WITH THE "HOW SHOULD"?

As discussed above, Tania Ruru has presented a continuum model consisting ofnine levels reflecting ways in which legislation could provide for the participation of Maori in the management of natural resources:

One: General Interest Group only

Two: Special Interest Group

Three: Discretionary Consultation/Consideration

Four: Mandatory Consultation/Consideration

Five: One Maori Vote

Six: Fifty Percent Representation

Seven: Equal Status to National Park Management Bodies

Eight: Maori Veto subject to Judicial Review

Nine: Maori Vote subject to Maori Review

National park legislation currently provides for Maori participation in the realm of the first five levels of this model. For instance, at level

60 NPMPs have a life span of ten years; part of the process of introducing a new

NPMP requires the publication of a draft plan to engender discussion and feedback on the proposed management direction of the respective park.
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one is section 4 of the NPA 1980 which merely regards Maori as a general interest group. This section articulates the importance of national parks, stressing both preservation and public use principles in a manner that fails to expressly mention Maori interests, including the fact that many of the landmarks within the national park estate are tupuna of the tangata whenua.

Further along the continuum model, at level four, are provisions such as the Topuni device with its requirement that particular regard be had to Ngai Tahu values, and provisions relating to the Whanganui National Park requiring that the Whanganui River Maori Trust Board's advice be sought, and had regard to, in certain circumstances. Many of the provisions contained in the NPMPs are also indicative of level four characteristics. The General Policy requirement to foster and fully consider the views of local Maori groups in formulating management policies is also typical of level four attributes. Section 4 of the Conservation Act possibly falls within this level too, as consultation is an important Treaty principle.

Representative provisions concerning some conservation boards provide apt examples of level five: the 'One Maori Vote' formula. Tangata whenua have a right to one of twelve seats on the Conservation Boards whose areas of jurisdiction include: the Tongariro National Park, the Egmont National Park, the Whanganui National Park. This also applies to those Boards that have part jurisdiction over a national park in the Ngai Tahu takiwa. The representative provisions concerning the NZCA, and those conservation boards whose whole jurisdiction covers one or more of the national parks in the Ngai Tahu takiwa, are better classified as falling midway between the fifth and sixth level. Their representative provisions amount to more than one seat, but less than fifty percent.

This analysis reveals numerous inconsistencies. While several provisions designed to include tangata whenua in the management of national parks exist, other provisions undermine the potential for progress (for example, section 4 of the NPA 1980). Overall, the model reinforces this paper's principal argument that the current management of national parks falls short of the Waitangi Tribunal interpretation of te Tiriti, which is that te Tiriti o Waitangi promised to Maori "te tino rangatiratanga
o ratou taonga katoa" for so long as it was their desire to retain them.

Many natural features which lie within the boundaries of the national park estate continue to be regarded as taonga by tangata whenua. Similarly, tangata whenua continue to express their desire to retain tino rangatiratanga over such taonga. Tino rangatiratanga must mean something more than consultation and rights to single-seat representation. Level seven aspirations align best with the common yardstick that should be aimed for: respecting and providing for one another as Tiriti partners.

Bearing this analysis in mind, I now turn to discuss possible legislative provisions for future implementation. Three action plans are proposed. The first plan relies on making better use of current national park legislation. The second plan requires several legislative amendments to the current legislation. The third plan suggests a complete overhaul of the current legislative regime.

V. HOW COULD TINO RANGATIRATANGA BE BETTER PROVIDED FOR IN NATIONAL PARK LEGISLATION?

A. Access Existing Provisions

The following are examples of how the current legislative regime could be utilised and developed to create a more inclusive national park management regime. If the Department of Conservation was truly committed to co-management, as its missions and visions suggest, then one would expect to see these suggestions outlined below actioned in the very near future.⁶'

• Introduce new statements of General Policy

Section 44(1) of the NPA 1980 allows the NZCA to adapt statements of general policy for national parks to changing circumstances or in accordance with increased knowledge. The NZCA could thus introduce a new statement that recognises the right for Maori to be accorded special status in the management process. Additionally, present policy statements could be amended to better reflect Maori aspirations. After all, providing for better inclusion of tangata whenua is supposed to be a key goal of the Departments, and supported by the NZCA.

61 See supra n 38.
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• Encourage a more consistent NPIVIP approach

This might be achieved by publishing all measures relating to Maori as exist in current and draft NPMPs. By making the comparative information readily available, conservation boards could be encouraged to adopt inclusive provisions practised in other conservancies. Section 46 of the NPA 1980 allows amendments or reviews of management plans to take place so that account can be taken of "... increased knowledge or changing circumstances...". Hence, streamlining inclusive provisions is possible under existing legislation. There would be no need for conservation boards to wait until respective NPMPs became due for replacement (a ten year cycle).

• Support the appointment of Maori onto national park management bodies

The Minister of Conservation has an unfettered right to appoint four persons onto the NZCA; the Minister could be encouraged to favour Maori in that selection process. A similar practice could be encouraged in making appointments to conservation boards, although this may not be as successful as the Minister has less discretion - a number of interests have to be considered. Tangata whenua interests are stipulated as one of many interests.

• Provide adequate resources and encourage further education For Maori to be successful partners in managing the national park estate they should be adequately resourced. The Department of Conservation should provide such resourcing. This could be by way of finances, access to training schemes and further education, and access to Department resources such as meeting rooms, libraries, and equipment. The Department of Conservation and the NZCA could strengthen their commitment to providing education seminars, workshops, hui and retreats which focus on understanding Tiriti o Waitangi responsibilities.

To summarise this first plan: while the implementation ofthese measures would result in little movement along the nine-step continuum model, it would strengthen the current position of Maori to participate in national park management as a Tiriti partner. The implementation of these provisions would, at least, give some practical substance to the mission and vision statements endorsed by national park managers: the Department of Conservation, NZCA and conservation boards.

B. AMEND CURRENT LEGISLATION

The following measures are examples of how the NPA 1980 and the Conservation Act should be amended to encourage a real progression towards the co-management of our national park estate.

1. The NPA 1980

• Amend section 4 to reflect the importance of protecting national parks as a taonga to Maori.

Section 4 of the NPA 1980 currently explains the use of the national park device in terms of being able to provide people the opportunity to experience land and resources in their natural state. This section could be amended to reflect the importance of preserving land to provide for the historic, traditional, cultural, and spiritual relationship tangata whenua have with this land.

If tangata whenua interests were recognised in section 4, further opportunities could arise for tangata whenua to be included in national park management.⁶² For instance, it would be more difficult for the Minister of Conservation, the NZCA and the conservation boards to deviate from giving effect to the principles of the Treaty of Waitangi on the basis that the outcome would be inconsistent with the principles of the NPA 1980. By amending section 4, tangata whenua interests would become integral to the Act. Another example concerns the Governor-General's ability to set aside any part of a national park as a specially protected area. The Governor can only do this if it can be shown to enhance the purpose of the NPA 1980.⁶³ Once an area has special protection no person can enter the area unless they have a permit issued by the Minister of the Conservation. The device could therefore

62. In addition, it could make tangata whenua feel more content with the use of the national park label. For instance, in the mid 1980s members of the Tuhoe tribe rejected the idea of their traditional lands in the Urewera region being turned into a national park. Although there was no conflict between the Maori of Te Urewera and the Pakeha conservationists about preservation of the indigenous forests, Maori saw the forest as a place for them to live and hunt in, and they viewed "Pakeha laws" and regulations as unwarranted restrictions on their life style and traditions: see Roy Perrett, "Indigenous Rights and Environmental Justice" Environmental Ethics 20 (1998) 377 at 381.

63 Section 12( I).
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be introduced to ensure the protection of special sites to Maori. It could also be used to implement tikanga Maori concepts such as rahui.

The effect of this amendment would not make the NPA 1980 comparatively unusual. Other statutes including the Hauraki Marine Gulf Park Act 2000,⁶⁴ and the Historic Places Act 1993⁶⁵ expressly recognise the importance of Maori interests as fundamental to achieving their respective purposes.

• Insert a new section that requires adherence to the principles of the Treaty of Waitangi

A new section could be inserted that requires the Department of Conservation, the NZCA and conservation boards to give effect to the principles of te Tiriti o Waitangi when interpreting and administering the NPA 1980 - a reflection of section 4 of the Conservation Act. It would be advantageous to have a direct reference to te Tiriti in the NPA 1980 in order to clarify and encourage the application of this duty in the management of national parks. It would also encourage the development of our understanding of the meaning of the phrase 'the principles of the (te Tiriti o Waitangi) Treaty of Waitangi' in relation to national parks specifically. It would create an impetus to overcome the inconsistency that pervades current NPMP references to te Tiriti. Moreover, the insertion would follow the current trend for conservation related statutes to incorporate a Tiriti reference.⁶⁶

• Insert a new subsection requiring all Boards to seek and

have regard to the advice of tangata whenua
Section 30 could be amended by adding this subsection:

Every Board whose area of jurisdiction includes a national park must seek
and have regard to the advice of the tangata whenua of the area on any

64 See sections 7(2)(a)(i) and 8(c).
65 See section 4(2)(c).

66. See Department of Conservation, Tapui Taimoana: Reviewing the Marine Reserves Act 1971. Discussion Document - Have your say. (2000) Department of Conservation, Wellington at 33 and 57 (it suggests the inclusion of a Treaty of Waitangi direction in the Marine Reserves Act 1971).

matter that involves the spiritual, historical, and cultural significance of the park to the tangata whenua of the area.

This wording adopts the expression currently in place for the Conservation Board that has jurisdiction in respect of the Whanganui National Park (section 30(2)(b)). This is the only Board that is currently obliged under statute to consult with the tangata whenua. Ngai Tahu have a similar right, but it is restricted to specific areas within national parks - it does not go to national parks per se. This insertion would emphasise the standing that tangata whenua should have in regard to national park management. It would create a minimum consistent right for all tangata whenua who have a national park within their rohe. It would not affect the requirement for respective conservation boards to "have regard to" the spiritual, historical, and cultural significance of the Whanganui River to the Whanganui iwi or to "have particular regard to" Topuni and Statutorily Acknowledged areas in South Island national parks. These are site specific and require a different standard of consultation. Section 30(2)(b), however, would become redundant.

2. THE CONSERVATION ACT

• Amend section 2 "Conservation" to reflect a bicultural approach.

The definition of conservation in the Conservation Act should be amended to reflect both Tiriti partners' conservation values.

Alternatively, a conservation definition unique to national parks could be inserted into the NPA 1980. The Historic Places Act 1993 is an example of where this has been done.⁶⁷ Some conservation boards are already investigating ways in which Maori conservation values can be introduced into national park management practices (as the study of NPMPs illustrated).

An amendment to either the Conservation Act or the NPA 1980 would encourage a consistent approach between all national park managing

67 Prior to 2000 the Department of Conservation was responsible for administering

the Historic Places Act 1993: since 2000 the Ministry for Culture and Heritage has been responsible for administering this Act.
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bodies. It would also better place Maori as partners to the Department of Conservation.

• Amend section 6P to reflect compulsory nga iwi Maori

representation on conservation boards
A new subsection could be inserted following section 6P(1):

(2) The Minister must appoint at least one person to every Board whose area of jurisdiction includes a national park on the recommendation of the tangata whenua of the area.

Even if this insertion was made, the current statutory rights should not be affected. That is:

• the Minister must still have regard to tangata whenua interests (along with several other interests) in making all other appointments to boards;
• a person of lineal descent of Te Heuheu Tukino must still have a right to sit on the Board whose area of jurisdiction includes the Tongariro National Park; and
• the Taranaki Maori Trust Board, the Whanganui River Maori Trust Board, and Te Runanga o Ngai Tahu must still have a right to recommend the appointment of one/two person/s to Boards whose jurisdictions include the Egmont National Park, Whanganui National Park and national parks in the Ngai Tahu takiwa.

These rights should be retained because they reflect special agreements between tangata whenua and the Crown - a fundamental expression of partnership. The amendment, if made, would mean that tangata whenua would have at least one, and up to three, statutorily-protected opportunities to sit on respective boards. This would be a marked improvement on the current inconsistent legislative approach to representation.⁶⁸

If these amendments were made a marked progression towards including tangata whenua in national park management would occur. Measured

68 The proposition would link with movements to secure Maori representation on

health boards and regional councils.

against the continuum model, management would fall consistently within its mid-realm. Although these measures may not meet the full aspirations of tangata whenua as Tiriti partners, they would at least create a consolidated management regime that respected and included those tangata whenua who have had their taonga deemed national park land.

C. REPLACE THE CURRENT LEGISLATION

Integral to any overhaul of the current legislative regime could be the creation of a new management structure. Several management options exist including:⁶⁹

• the placing of iwi Authorities, where they exist, alongside the Department of Conservation;
• establishing a Maori body to mirror the functions of the NZCA;
• establishing tangata whenua bodies to sit alongside conservation boards; and/or,
• creating a neutral Tribunal endowed with the responsibility to resolve specific conservation issues brought to it by either Maori or the Crown.

Many options are available for changing the currently monoculturally structured management regime. Which option, or combination of options, each national park management body should adopt is dependent on which model would best suit the tangata whenua of each park. Different needs and aspirations obviously concern different iwi. For instance, not all would wish to be exposed to the operational matters of managing a national park such as gorse clearing, fence erecting and stoat killing. And not all have the resources, including people, to constitute the creation of separate but equal conservation boards.

69 Similar suggestions were made by Mark Gray and Mike Burns in respect of

resource management:: see Ministry for the Environment, Resource Management Law Reform Working Paper no 28 Part C.' Maori Participation in Resource Management. (1989) Ministry for the Environment, Wellington; Ministry for the Environment, Resource Management Law Reform Working Paper no 27: A Treaty Based Model - The Principle ofActive Protection. (1989) Ministry for the Environment, Wellington. See also A Freeman, Partnership in Parks. A Framework for Kai Tahu Participation in National Park Policy and Planning. MSc Thesis, University of Canterbury, 1989 (Freeman applies Gray's and Burn's models to national parks).
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Perhaps a similar model proposed some years ago by Te Runanganui o Ngati Kahungunu could be adopted. This model, which is reproduced below, conceptualises a structure with to Tiriti o Waitangi as its foundation:

Kahungunu Mode/⁷⁰

Alternatively, or in addition, replicating the NZCA (but not conservation boards) could suffice as meeting the co-management benchmark. It would avoid the re-creation of a plethora of management bodies at the regional level at least. It would also give tangata whenua discernible power to influence the management of individual parks. For instance, a Maori body which mirrored the NZCA would be responsible for: approving NPMPs and statements of general policy; advising the

70 W Hodges, Maori Conservation Ethic. A Ngati Kahungunu Perspective.

(1994) Conservation Advisory Science Notes, No 93, Department of Conservation, Wellington at 28. Note that this model is directed towards the conservation estate generally, not national parks specifically, because there are no national parks within the rohe of Ngati Kahangunu.

Minister of Conservation or the Director-General on the priorities for the expenditure of money; reviewing and reporting to the Minister or the Director-General on the effectiveness of the administration of the general policies for national parks; and considering and making proposals for the addition of lands to national parks and the establishment of new national parks. It could also adopt an advocacy role by 'encouraging and participating in educational and publicity activities for the purposes of bringing about a better understanding of Maori conservation values. In addition, such a body could have the power to make direct recommendations to conservation boards. The recommendations could concern appropriate ways in which to: "seek and have regard to" tangata whenua interests; "give effect to" the principles of to Tiriti o Waitangi; and incorporate Maori conservation values into national park management practices. As to membership, selection and appointment would be for tangata whenua to decide. To be successful in fulfilling its functions, government would have to adequately fund this national body.

The options for structural reform, however, are for tangata whenua to assess for themselves. Ngai Tahu in particular may be perfectly happy with their placement in the management of national parks and, therefore, have no desire for an overhaul of the current management structures. Te Runanga o Ngai Tahu and the Crown have already reached agreement as to how the conservation estate should be managed, which is recorded in the Ngai Tahu Claims Settlement Act 1998. Yet tangata whenua such as Ngai Tahu, may still find value in the creation of a Maori oriented national body. Just as Ngai Tahu argued pre 1998: "The only area that Ngai Tahu has consistently sought control over in national parks is that of interpretation of our own unique heritage in myth and history in the southern parks...."?1 This same view is no doubt shared by many other tangata whenua. The creation of a national body would at least give tangata whenua a starting point to end this struggle.

If a national restructuring was to eventuate it would also be of value to implement a regime that consistently reflected the importance of "giving

71 Tipene O'Regan, "A Great Sadness" (Feb, 1994) Forest & Bird 18, at 19.
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effect to" Maori views and values. This would create a single standard against which the activities of management bodies could be measured. No longer would there be the inconstant obligation to either "have regard to", "have particular regard to", or "give effect to" depending on the circumstance. A single standard would create a consistent and consolidated approach to including tangata whenua and would make them better able to be regarded as viable partners to the Department of Conservation at all levels of management. The consequence would be to fundamentally change the purpose of protecting land as a national park. For instance, the ideals of preservation and public access currently associated with national parks would need to be adjusted to incorporate preservation for spiritual, historical, and cultural rationales.

Recognising and providing for the Maori conservation ethic must also be viewed as integral to any structural management changes. The model above conveys this point well, giving both Maori and Pakeha values and policies equal status. Perhaps some of the principles developed by the Whanganui River Maori Trust Board in respect to the Whanganui River could be adopted in such a process.⁷² After all, the basis of their Charter is tino rangatiratanga. It incorporates notions of providing for kaitiakitanga and intergenerational responsibility, and recognising interdependency and the mauri of all taonga.

An overhaul of national park legislation, including a restructuring of management bodies and recognition measures, would mark a clear progression along the continuum model to reflect the level seven characteristic of equal status. If the overhaul was coupled with the suggested amendments to the NPA 1980 and the Conservation Act, then a real sense of partnership between the two Tiriti partners might result. Better still, the partnership would equate to the Waitangi Tribunal benchmark of how te Tiriti o Waitangi should be guiding national park management.

72 Reproduced in Mason Durie, Te Mana, te Kawanatanga: the Politics of Maori

Self-determination. (1988) Oxford University Press, Auckland at 40-41.

VI. CONCLUSION

The right to express tino rangatiratanga must be given effect to in the management of national parks. Several options are available to the Crown if it wishes to bring about better provision for the co-management of national parks. The end result of any change to conservation legislation should, at the very least, lead to consistent representation and recognition of Maori in the management of national parks. While some of the suggested steps for better recognition of tino rangatiratanga may, in Hirini Matunga's words equate to little more than "idle chatter",⁷³ attention to this legislation is urgently required.

73 Hirini Matunga has recently argued that a "... shift in power and

recognition that iwi have the right to make decisions about their taonga...." is required, and: "Anything less is idle chatter...." - see Hirini Matunga, "Decolonising Planning: The Tiriti o Waitangi, the Environment and a Dual Planning Tradition" in Memon, Ali and Harvey Perkins, Environmental Planning & Management in New Zealand. (2000) Dunmore Press Ltd, Palmerston North at 46.