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Fowler, Samantha --- "Achieving co-goverance: a new horizon for Treaty incorporation" [2022] UOtaLawTD 17

Last Updated: 25 September 2023

ACHIEVING CO-GOVERNANCE: A NEW HORIZON FOR TREATY INCORPORATION

Samantha Fowler

A dissertation submitted in partial fulfillment of the degree of Bachelor of Laws (Honours) Faculty of Law

1

University of Otago – Te Whare Wānanga o Ōtago 2022

ACKNOWLEDGEMENTS

To my tīpuna, especially my tipuna tāne, Peter Fowler, who encouraged my taha Māori.

To Professor John Dawson, for your constant wisdom, guidance, and patience throughout the year.

To Professor Nicola Wheen, for taking me under your wing and pushing me onwards.

To my whānau, especially Mum and Dad, for your willingness to endlessly debate with me and extend my thinking.

To William, for being by my side.

To my friends – we got through this together.

Table of Contents

• 4.2.1 Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board 38

Glossary

hauora Māori holistic view of health and wellbeing

kāwanatanga (Karauna) Governance (Crown governance)

mana motuhake self-government, self-determination

mātauranga Māori Māori knowledge

mauri life force, life principle

motu island, country, land, nation

pou pillar, pole, metaphoric post

pūrākau genealogical story, historical narrative

rohe boundary, district, region, territory, area

tangata whenua local people, indigenous people

Te Aka Whai Ora Māori Health Authority.

Te Pāti Māori The Māori Party

Te Oranga o te Taiao The wellbeing of the natural environment

tikanga Māori Māori custom and practice, the right way

tino rangatiratanga sovereignty, self-determination

Abbreviations

Part One: Co-Governance in Aotearoa New Zealand’s Legal System Chapter One: Introduction

Nāu te rourou, nāku te rourou, ka ora ai te iwi

With your food basket and my food basket the people will thrive

1.1 Aims

More than 180 years after the Treaty of Waitangi/te Tiriti o Waitangi (‘the Treaty’) was signed, we might finally begin to see a satisfactory balance of kāwanatanga and tino rangatiratanga, enacted through co-governance regimes. Tino rangatiratanga, under article two of the Treaty, guarantees Māori autonomy and self-government, while kāwanatanga Karauna, under article one, guarantees state governance.¹ The aim of this dissertation is to examine how a balance between these contrasting guarantees under articles one and two of the Treaty might be achieved in mainstream legislation through co-governance. Mainstream legislation can be defined for these purposes as legislation which is of general application throughout Aotearoa, thus excluding Treaty Settlement Acts which apply to limited areas only, resulting from negotiations between the Crown² and specific parties concerning specific rohe. This dissertation examines the incorporation of the Treaty into such legislation of general impact and how it has succeeded or failed to strike an appropriate balance between the requirements of articles one and two.

1.2 Treaty Incorporation in Mainstream Legislation

Treaty principles have been incorporated into legislation since 1975.³ However, such incorporation has longed lacked the efficacy and specificity needed to bring about a proper balance of kāwanatanga and tino rangatiratanga. Treaty incorporation into legislation can be conceptualized as having occurred, over time, in three stages. The first stage provided broad

¹ Claire Charters and others He Puapua: Report Of The Working Group On A Plan To Realise The Un Declaration On The Rights Of Indigenous Peoples In Aotearoa/New Zealand (Te Puni Kōkiri, October 2020) at iii, 27; and see Waitangi Tribunal Te Paparahi o te Raki (Northland) Stage 1 Report (Wai 1040 2014) at 349-50.

² The Governor-General acts as the representative of the Crown and also acts on the advice of the Prime Minister. Therefore, when discussing co-governance between the Crown and Māori, the Executive government can be considered an extension or agent of the Crown.

³ Treaty of Waitangi Act 1975.

Treaty clauses, often limiting Crown action. However, their precise meaning and effect was often uncertain. This deferred much of the decision-making power on the key constitutional issues to the courts. Issues of uncertainty were especially apparent in the NZCA’s application of section 9 of the State-Owned Enterprises Act 1986 in the Lands case, as well as the NZCA’s application of section 4 of the Conservation Act in the Whales case.⁴

A second stage of more directive and specific Treaty clauses rose to popularity at the turn of the century to combat much of the backlash at the vagueness of first stage Treaty clauses. However, while a surface reading would suppose Parliament had taken back the reins, such specificity and direction might have hampered rather than helped any article one and two balance. The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) is an example of directive and specific legislation that solves some issues of certainty but, I will argue, does not strike a satisfactory balance between articles one and two.⁵ My analysis of this area will be an important component of this dissertation, largely due to the recent Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board case, which provides discussion on the application of the EEZ Act at the levels of the High Court, Court of Appeal, and Supreme Court.⁶ The application of the EEZ Act by the NZSC is a primary example of how greater specificity in second stage legislation does not necessarily lead to greater effect.

Aotearoa is currently on the threshold of a potential third stage of incorporating Treaty clauses into mainstream legislation, which would in practice explicitly provide for co-governance, and thus provide a better balance of kāwanatanga and tino rangatiratanga. Co-governance regimes have long been enacted via Treaty of Waitangi Settlement Acts.⁷ However, co-governance in mainstream legislation is currently sparking public debate in relation to Te Aka Whai Ora/ Māori Health Authority, the Three Waters Reforms, and the Natural and Built Environments Bill.⁸

⁴ New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 [Lands case]; Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA) [Whales case].

⁵ Section 12.

⁶ Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2021] NZSC 127.

⁷ See for example, Te Urewera Act 2014.

⁸ Pae Ora (Healthy Futures) Act 2022; Water Services Entities Bill 2022 (126-1); Ministry for the Environment

Draft for Consultation: Natural and Built Environments Bill (2021).

1.3 Co-governance in the Joint Sphere

This dissertation aims to analyze a possible progression in mainstream legislation towards greater co-governance that is increasingly establishing a joint sphere of power between rangatiratanga and kāwanatanga.⁹ Although co-governance can take many different forms, the test for progression I employ will be Treaty consistency through the striking of a proper balance between article one, concerning kāwanatanga of the Crown, and article 2, guaranteeing tino rangatiratanga of Māori.

This dissertation does not attempt to analyze the solely rangatiratanga sphere where Māori exercise sovereignty over specific Māori people and places, but rather the joint sphere of rangatiratanga and kāwanatanga. As framed in He Puapua, this dissertation will focus on the possibilities of growing this relational joint sphere in mainstream legislation, “in which Māori and the Crown share governance over issues of mutual concern”.¹⁰

Rangatiratanga/ Joint/ Kāwanatanga Spheres¹¹

Co-governance might itself entail two general types of structures. Firstly, a joint governance structure might involve a single decision-making body made of both Māori and non-Māori participants.¹² Secondly, dual governance entities can enact co-governance, where there are two decision-making bodies or spheres, one of which is Māori and the other non-Māori. These bodies will ultimately come together to make decisions, or both be required to approve them.¹³

⁹ Claire Charters and others He Puapua: Report Of The Working Group On A Plan To Realise The Un Declaration On The Rights Of Indigenous Peoples In Aotearoa/New Zealand (Te Puni Kōkiri, October 2020) at vi.

¹⁰ At vi.

¹¹ At vi.

¹² For example, see the Te Urewera Board established under Te Urewera Act 2014, section 16.

¹³ Above n 9, at 11, 29.

Relevant to whether an appropriate balance has been struck between articles one and two is how much decision-making power Māori have in either a joint or dual body. Generally, there are three major kinds of decisions likely to be made by such bodies. Firstly, decisions regarding policy. Secondly, delegated law making. Thirdly, specific decisions, such as granting concessions, licences, consents, contracting, permissions, expenditures, budget-setting and appointments. Furthermore, power sharing arrangements may vary regarding the different kinds of decisions made by such bodies. For example, one party could be more dominant regarding the making of delegated legislation or granting concessions, and less dominant regarding the setting of policy. Thus, co-governance is multi-dimensional with no one-size- fits-all approach and can best be conceptualized as the joint exercise of a cluster of powers.

Chapter Two: Examining Co-governance

Ki te kāpuia e kore e whati We succeed together

2.1 Defining Co-governance

Co-governance is the embodiment of partnership, in which Māori and the Crown share decision-making power in the relational joint sphere as equals. Co-governance has its foundations in the Treaty, which requires equal partnership with the Crown in management and governance of natural resources.¹⁴ The term co-governance is often used in company with co-management, especially in the realm of conservation, however the two terms must be distinguished.¹⁵ While co-management confers operational responsibilities, co-governance describes decision-making powers.¹⁶ Generally, co-governance arrangements are where “decision-making authority resides with a collaborative body exercising devolved power – where power and responsibility are shared between government and local stakeholders”.¹⁷ Co- governance refers to a spectrum of potential power-sharing arrangements between the government and local community, such as mana whenua. While co-management refers to sharing responsibility over the management of a specified resource, co-governance is stronger in that it provides for joint authority in relation to one or more of the three major kinds of decision: that is, decision-making power over policy, delegated legislation, or more specific decisions.¹⁸ By delegating some decision-making powers to Māori, co-governance regimes have the potential to strengthen tino rangatiratanga and mana motuhake through amplifying the “voice of Māori in the political process”.¹⁹ The case for Māori as co-governors is especially convincing in the Conservation and Environment sphere given the role of Māori as kaitiaki and their whakapapa to the whenua itself.

¹⁴ Robert Joseph Waking the taniwha: Māori governance in the 21st century (1^st ed, Thomas Reuters, Wellington, 2021) at 304.

¹⁵ The Options Development Group Partial reviews of the Conservation General Policy and General Policy for National Parks regarding Te Tiriti o Waitangi / the Treaty of Waitangi (Department of Conservation, March 2022) at 29.

¹⁶ Above n 14, at 306.

¹⁷ Auditor-General Principles for effectively co-governing natural resources (Controller and Auditor General, February 2016) at 8.

¹⁸ Samuel George Wevers “Recognising Rangatiratanga: Sharing Power with Māori Through Co-Management” (LLB (Hons) Dissertation University of Otago, 2011) at 16.

¹⁹ Samuel George Wevers “Recognising Rangatiratanga through Co-management: The Waikato River

Settlement” [2013] 4 NZ L Rev 689 at 710.

As co-governance exists on a spectrum, ranging from “informing the community of decisions made” to “working in partnership as equals”, it would be inappropriate to have a single constrained definition.²⁰ Definitions which simply account for two or more social actors negotiating, defining, and guaranteeing a fair share of management functions and responsibilities for any given resource or territory are very broad. Even so, the majority of definitions for co-governance envisage “intensive user participation” and not merely “ad hoc public participation and consultation”.²¹ Samuel Wevers describes the relevant “basket of power-sharing provisions” and “cluster of power-sharing arrangements” as existing on a spectrum, which can “be considered in their totality against a Treaty framework”.²² The spectrum for co-governance regimes might therefore be “full government decision-making power over resources”, involving all three types of decision-making, on the strong end, to only limited input into the decision-making, regarding some of these types of decisions, on the weaker end.²³ Importantly, even the weaker end of co-governance is more than mere participation or consultation. However, there is no bright line between where co-management ends and co-governance begins, as regimes may involve a mixture of management and governing functions. For the purposes of this dissertation, the concept of co-governance describes arrangements at the strong end of the power-sharing spectrum, which provide equality of decision-making authority between the parties through legal arrangements.

The recent Matike Mai report on constitutional transformation discussed the Māori concept and site of power, stating “governing, and the right to make our own decisions, was an inherent part of who and what we were” as Māori.²⁴ Furthermore, the concept of mana in a political and constitutional sense denotes independence and authority “not tampered with by any other polity”.²⁵ The report also warns of legislation which co-opts the terminology of rangatiratanga as “a co-governance thing where the Crown nearly always ends up having the final say”.²⁶ The operation of co-governance regimes in mainstream legislation must therefore not merely co- opt te reo Māori, or use Māori concepts, but rather allow for rangatiratanga over important sites of power according to tikanga.

²⁰Above n 14, at 304.

²¹ At 304.

²² Above n 19, at 694, 697.

²³ At 694.

²⁴ Matike Mai He Whakaaro Here Whakaumu Mō Aotearoa: The Report Of Matike Mai Aotearoa - The Independent Working Group On Constitutional Transformation. (The Working Group on Constitutional Transformation) 2016 at 33.

²⁵ At 34.

²⁶ At 86.

2.2 Co-governance in Comparison with Participatory or Advisory Roles

Legal arrangements for participation of Māori have often taken the form of engagement and consultation processes without authority over the ultimate decisions made. Participation might only involve the opportunity for Māori to make submissions, be informed of relevant matters, or draft policy amendments to be considered. Moreover, even when Māori are appointed to decision-making bodies, as long as they are in a minority position, this may lead them to having only a participatory or advisory role rather than balanced decision-making power.²⁷ By contrast, a successful co-governance regime should strike a proper balance between kāwanatanga and tino rangatiratanga. This goes far beyond advisory, participatory, and even a managerial role. For example, the Resource Management Act 1991 (RMA) provides for iwi participation arrangements and some consultation requirements but affords mana whenua no decision-making powers.²⁸ It cannot therefore be described as a co-management regime.

As stated in He Puapua, even though Aotearoa New Zealand has made progress through enabling Māori participation in kāwanatanga Karauna, “there is much room for improvement”.²⁹ Giles Dodson argues that while participatory processes can be effective at achieving positive social outcomes, unless the legislative framework creates credible forms of co-governance, merely participatory activities are unlikely to deliver substantial social gains.³⁰ This weakness is highlighted in He Puapua, as it means “Māori remain a minority with their rights vulnerable to majority will, and instrumentally, as socio-economic disparities make brutally clear”.³¹

The Department of Conservation (DoC) acknowledged that “tangata whenua input is often limited to advisory committees or conservation board subcommittees, unless otherwise provided for in Te Tiriti settlement legislation”.³² In their 2022 report, however, DoC acknowledged the need for increased participation in the co-governance and co-management of conservation land.³³ While Treaty Settlement Acts have created co-governance structures,

²⁷ See later discussion on the Māori Advisory Committee under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, the Local Government Commission under the Local Government Act 2002, and the Climate Change Commission under the Climate Change Response Act 2002.

²⁸ Sections 34A, 58R, Subpart 2.

²⁹ Above n 9, at 11.

³⁰ Giles Dodson “Co-Governance and Local Empowerment? Conservation Partnership Frameworks and Marine Protection at Mimiwhangata, New Zealand” (2014) 27 Society & Natural Resources 521 at 522.

³¹ Above n 9, at 11.

³² Above n 15, at 83.

³³ At 27.

forms of co-governance in mainstream legislation are “ad-hoc and few and far between”.³⁴ As this dissertation will discuss, mainstream legislation to date has largely placed Māori engagement on a spectrum ranging from a ‘tick-box’ exercise, to participation or advisory roles which fall shy of co-governance or joint power in decision-making. While participation is important and should itself be strengthened, co-governance in decision-making presents greater potential for realizing a proper balance between tino rangatiratanga and kāwanatanga.³⁵

Robert Joseph and Richard Benton note that “Māori governance has been a prominent feature of New Zealand’s political, cultural and legal landscape” since before 1840 and up to the present day.³⁶ They note Government policy shifted from recognising Māori self-governance, “to assimilation, suppression and undermining of governance by Māori”, followed in the past three decades by some devolution of authority which has slowly reversed that trend, leading to “post-Treaty settlement governance, Māori corporate governance and co-governance of natural, economic, social and human resources”.³⁷ A third stage of Treaty incorporation could see the extension of this devolution of authority in mainstream legislation, through providing a proper balance of kāwanatanga and tino rangatiratanga through co-governance.

Samuel Wevers has identified a trend in which co-management regimes are being used in Treaty Settlements, rather than mainstream legislation, as a means of according partnership and providing the foundation for a “developing social contract”.³⁸ In the context of Treaty Settlements, Wevers explains how a co-management arrangement “develops the place of tangata whenua and indigenous authority in our constitutional order and fits with broadening notions of the rule of law”.³⁹ Rather than weakening the current Westminster Parliamentary system, Wevers argues co-management is the key to meeting the Crown’s Treaty obligations in the post-settlement era and in turn strengthens our Parliamentary system by providing “baskets” of “power-sharing provisions”, under clear legislative authority.⁴⁰ The Treaty justifies the presence of the Westminster system in Aotearoa New Zealand, and thus honouring the Treaty through power-sharing regimes legitimates its presence.⁴¹ The case for co-

³⁴ At 83.

³⁵ Above n 9, at 42.

³⁶ Above n 14, at xxiii.

³⁷ At xxiii.

³⁸ Above n 19, at 693.

³⁹ At 689.

⁴⁰ At 694.

⁴¹ At 692.

management, and by extension co-governance, in the context of natural and cultural resources was made strongly in the WAI 262 report, which states co-management regimes are a “means of recognising rangatiratanga” in a manner appropriately balanced with the sovereign power of the Crown.⁴²

Steven Kent argues that definitions of “Māori” and “governance” must come from within mātauranga Māori and will challenge a “non-Māori understanding of the conceptual domain”.⁴³ Robert Joseph acknowledges that governance is practically and conceptually complex, but that “ideally, the legal, political, and social system of Aotearoa New Zealand can and should accommodate for the best and most appropriate governance values, concepts, laws and institutions”, drawn from both the Māori and Pākehā founding cultures.⁴⁴ This involves exploring governance systems which can co-exist and co-develop to create “a third Aotearoa hybrid governance space that is greater than the sum of its parts”.⁴⁵

As discussed by Dominic O’Sullivan, rangatiratanga means Māori authority over their own spheres of power and affairs, which is not subject or subservient to the control of others.⁴⁶ O’Sullivan presents Māori as a “shareholder in the decision-making power of the state” where the alternative of “cultural homogeneity” prevents “Māori from being Māori when participating in public decision-making”.⁴⁷ Although claims are often volleyed, especially in relation to the new Te Aka Whai Ora/ Māori Health Authority, that involving Māori in co- governance decision-making is “racial segregation” or a “two-tier system”, the opposite would be to enforce cultural homogeneity and actively suppress tino rangatiratanga.⁴⁸

2.3 Current Examples of Co-governance in Action

While co-governance is largely absent from mainstream legislation, Treaty Settlement Acts, such as the Te Urewera Act 2014, provide examples of how co-governance over resources can

⁴² At 713; and Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 1 at 372.

⁴³ Above n 14, at 179.

⁴⁴ At 5.

⁴⁵ At 5.

⁴⁶ Dominic O’Sullivan Rangatiratanga, Citizenship and a Crown that is ‘Māori too’: Boldness and the Future of Local Government (Department of Internal Affairs, 2022) at 1.

⁴⁷ At 2.

⁴⁸ See Jason Walls “Reckless' health shake-up could create two-tier health system – says the National Party” The New Zealand Herald (New Zealand, 21 April 2021); and Michael Neilson “Judith Collins calls Māori Health Authority 'segregation' from last century” The New Zealand Herald (New Zealand, 28 April 2021).

be successfully enacted. Additionally, the new Te Aka Whai Ora/ Māori Health Authority illustrates a foray into co-governance over the motu, rather than a discrete rohe.

2.3.1 Te Urewera Act 2014

The whakapapa of Te Urewera is intimately tied with pūrākau which connects Ngāi Tūhoe, Ngāti Ruapani and Ngāti Kahungunu to the lake itself.⁴⁹ However, the story surrounding these northern coastal lands and Lake Waikaremōana is one of confiscation and dispossession, roughly beginning when the Crown betrayed their settlement with Tūhoe between 1915 and 1925.⁵⁰ The Crown “stripped the lake from the people and the people from the lake” leading to the longest legal proceedings in New Zealand’s history.⁵¹ This represents a long history of the Crown prioritizing commercial interests over the ownership rights and rangatiratanga of Māori. The Waitangi Tribunal noted: ⁵²

“various Government departments and Ministers never once seemed to consider what would benefit Māori or what was in their best interests. Indeed, they had actively sought to defeat the rights claimed by Māori”.

Under such a regime, traditional Māori practices of hunting, trapping and fishing were classed as poaching, thereby inflicting “severe economic repercussions”.⁵³ A fear that persists today is the idea that Māori tino rangatiratanga will exclude non-Māori. John Salmond, Solicitor- General of 1918, even voiced the fear that Māori freehold title of the area was “out of the question” as it would “enable the Natives to exclude the whole European population”.⁵⁴

Te Urewera Act 2014 was thus a landmark statute, as it made clear that Te Urewera ceased to be vested in the Crown as national park land and is instead freehold land managed, not by DoC, but by a new Board.⁵⁵ The composition of the Board shows the flexibility and potential of co- governance arrangements, as the Board had equal Tūhoe and Crown appointed persons for the first three years, and thereafter the Board has increased by one and the ratio has shifted to six

⁴⁹ Kennedy Warne “Deep History” The New Zealand Geographic (New Zealand, Mar-April 2019) a 3. ⁵⁰ Steven Webster A Separate Authority (He Mana Motuhake), Volume I, Establishing the Tūhoe Māori Sanctuary in New Zealand 1894-1915 (Palgrave Macmillan, Auckland, 2020) at [1].

⁵¹ Above n 49, at 6.

⁵² Waitangi Tribunal Te Urewera Pre-publication Part V, (Wai 894, 2017) at 125.

⁵³ Above n 49, at 8-9.

⁵⁴ At 10; and Waitangi Tribunal Te Urewera Pre-publication Part V (Wai 894, 2017) at 70.

⁵⁵ Jacinta Ruru “Te Urewera Act 2014” (2014) 4 Māori LR 16; see also ss 12 and 13.

Tūhoe appointed persons and three Crown appointed persons.⁵⁶ The Act says the Board “must consider and provide appropriately for the relationship of iwi and hapū and their culture and traditions with Te Urewera when making decisions” with the purpose of recognising and reflecting Tūhoetanga and the Crown’s responsibilities under the Treaty.⁵⁷ This Act marks a significant shift from management of land in a “mono-cultural statute premising Western values” to “a new bi-cultural way” of balancing the scientific and the cultural.⁵⁸

Restoring the ecological balance of the lake is a “part of restoring its mana”, as Tūhoe are not merely managing a resource, but rather maintaining a relationship as kaitiaki.⁵⁹ Despite the history of Crown-inflicted damage to the lake, some today seek to discredit co-governance by claiming Tūhoe has been reluctant to engage with the Department of Conservation and that the “relationship with the Crown post-settlement had failed”.⁶⁰ These claims are reminiscent of the fears expressed by John Salmond in 1918.

Among others, the functions of the Board include to prepare and approve the Te Urewera management plan, to advise the persons managing Te Urewera on the implementation of the management plan, to initiate proposals and make recommendations, make bylaws, authorise activities, and to prepare or commission reports, advice, or recommendations.⁶¹ Generally, the Board has the full capacity and powers reasonably necessary to achieve its purposes and perform its functions.⁶² The Board may also grant concessions, activity permits, and receive fines.⁶³ The Board, now composed of a majority of Tūhoe, therefore has decision-making powers over all three main areas of decision-making: policy, delegated legislation, and specific decisions, and is thus an example of a strong co-governance regime. While the Te Urewera Act 2014 is not mainstream legislation and deals with resource management issues, it nevertheless provides an example of co-governance that could be carried into the mainstream sphere.

⁵⁶ Te Urewera Act 2014, s 21.

⁵⁷ Section 20.

⁵⁸ Above n 55.

⁵⁹ Above n 49, at 16.

⁶⁰ Tony Wall “How huts and bridges in Te Urewera fell into a state of disrepair” Stuff (New Zealand, 20 February 2022) at 1, 4.

⁶¹ Section 18.

⁶² Section 19.

⁶³ Sections 62, 58, 87.

2.3.2 Te Aka Whai Ora/ Māori Health Authority

A contemporary example of co-governance in action is the establishment of the independent Māori Health Authority, Te Aka Whai Ora. In a report addressing health service structures, the Waitangi Tribunal has acknowledged that the health system “has not addressed Māori health inequities in a Treaty-compliant way, and this failure is in part why Māori health inequities have persisted”.⁶⁴ In these proceedings, the National Hauora Coalition claimants suggested an autonomous or independent Māori health authority should be established, with similar legal status to a Crown Entity under the Crown Entities Act 2004, such as the Accident Compensation Corporation or Pharmac.⁶⁵ Such a body would have power to “carry out a variety of functions, including providing services, procuring services from providers, commissioning for outcomes, and developing and providing policy advice”.⁶⁶ Such power would recognise “tino rangatiratanga and mana motuhake in the design, delivery, resourcing, and control of Māori primary health”.⁶⁷ Throughout the report, the Tribunal repeatedly stressed the importance of co-governance in social service design and delivery as a means of upholding the Treaty relationship and improving Māori socio-economic status. The Tribunal was very clear in its recommendation that the Crown should make policy decisions with a view to fulfilling its obligations as a Treaty partner and to recognise tino rangatiratanga.⁶⁸ While the Tribunal did acknowledge Māori Advisory Groups had a part to play in the partnership process, it considered these Groups did not fully reflect the joint obligations of the principle of partnership.⁶⁹ Co-design and co-governance are therefore necessary for “more robust engagement between Treaty partners”.⁷⁰

The government largely took on these recommendations, establishing a Māori Health Authority (MHA) to work alongside Health New Zealand (HNZ) under the Pae Ora (Healthy Futures) Act 2022. The members of the MHA Board, of which there are five to eight, are appointed by the Minister, who must be satisfied the board collectively has knowledge, experience, and expertise relating to te Tiriti o Waitangi, kaupapa Māori services, and cultural safety, among

⁶⁴ Waitangi Tribunal Hauora Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2019) at 164.

⁶⁵ At 164 – 165.

⁶⁶ At 165.

⁶⁷ At 164.

⁶⁸ At 165.

⁶⁹ At 165.

⁷⁰ At 165.

other factors.⁷¹ The Act therefore stops short of explicitly requiring a certain number of tangata whenua members, but instead focuses on the knowledge and experience of the collective. Section 6 of the Act, which establishes the Māori Health Authority, sets out strong requirements of joint development and implementation of policy, which goes beyond merely participatory or advisory roles. Section 19 of the Act sets out the functions of the Māori Health Authority (MHA), which include “jointly developing and implementing a New Zealand Health Plan with Health New Zealand”, owning and operating services, reviewing locality plans, providing policy and strategy advice, monitoring delivery of hauora Māori services, and designing and delivering programmes.⁷² This new regime therefore effectively places some significant decision-making areas under joint control, shared between the MHA and HNZ, and other areas under Māori control through the MHA’s function. These mechanisms can be described as a strong co-governance regime. However, a significant portion of decision-making power remains with the Minister, rather than MHA (or with the MHA and HNZ jointly), such as approving the jointly developed health strategies and plans.⁷³ Hon Andrew Little claimed at the Bill’s Third reading that all this would:⁷⁴

“provide Māori with the opportunity to make decisions that are important to them. That's nothing less than the commitment that was made by the British Crown under Te Tiriti o Waitangi... It will allow Māori to make their decisions to exercise their rangatiratanga on this very important matter of the health of their people.”

Therefore, Te Aka Whai Ora proves it is possible to build co-governing structures into legislation and aim for a proper balance between kāwanatanga and tino rangatiratanga, especially in a space in which Māori outcomes are so inequitable.

What this chapter has shown therefore is that co-governance structures enacted through legislation can work to strike the right balance between kāwanatanga and tino rangatiratanga. As illustrated with the Board established under Te Urewera Act 2014 and Te Aka Whai Ora/ Māori Health authority, such co-governance arrangements exist on a spectrum of decision- making powers shared between Māori and non-Māori. Even though these arrangements differ in terms of their strength and distribution of powers, they foreshadow the capacity for

⁷¹ Pae Ora (Healthy Futures) Act 2022, section 22.

⁷² Section 19.

⁷³ Section 10

⁷⁴ (7 June 2022) 760 NZPD (Pae Ora (Healthy Futures) Bill — Third Reading, Hon Andrew Little).

mainstream legislation to provide for or create such structures. The next chapters will consider how mainstream legislation, spanning from the 1980s to the present day, has incorporated the Treaty, focusing on three stages of incorporation. The first two stages of Treaty incorporation fail to set up specific co-governance arrangements and are therefore unable to fulfill their Treaty sections. Importantly, it is not until the potential third stage of Treaty incorporation that co-governance arrangements are explicitly established in mainstream legislation.

Part Two: The Three Stages of Treaty Incorporation into Mainstream Legislation
Chapter Three: First Stage Treaty Incorporation

Ka mua, ka muri Walking backwards into the future

3.1 The First Stage of Treaty Incorporation

Matthew Palmer has stated that the Treaty “exists in a shadowland: half in and half out of law”, where Treaty references in statute are “the primary way in which the Treaty has legal effect”.⁷⁵ This first stage of Treaty incorporation into mainstream legislation, spanning approximately from 1985 to 2000, includes broad and vague stand-alone statements such as the requirement to “give effect to”, “have regard to”, or “take account of”, the principles of the Treaty of Waitangi. Mathew Palmer has remarked that “there do not appear to be clear distinctions in the force of these provisions”.⁷⁶ Jane Kelsey has stated that the period of 1984 to 1987 saw statutory references to the Treaty become commonplace.⁷⁷ A key example of first stage Treaty incorporation is found in the State-Owned Enterprises Act 1986 (SOE Act), section 9. This section acts as a prohibition on Crown action under the Act inconsistent with Treaty principles, and no more. First stage Treaty incorporation sections also reference ‘Treaty principles’, without defining these, deferring the power of interpretation to the courts. Nor do first stage clauses always specify their precise effect within the relevant statutory context, but rather act as a blanket over all exercises of powers and duties under the Act. For example, section 8 of the RMA states “all persons exercising functions and powers” under the Act shall take Treaty principles into account. Another example is section 4 of the Conservation Act 1987 which simply states the entire Act shall be so interpreted and administered as to give effect to Treaty principles. The Treaty clause in the State Owned Enterprises Act 1986 also canvases the entire Act, stating nothing in the Act shall permit the Crown to act in a manner inconsistent with Treaty principles. First stage Treaty incorporation into mainstream legislation therefore provided broad overarching Treaty clauses. However, none of these Acts explicitly set up

⁷⁵ Matthew Palmer The Treaty of Waitangi in New Zealand’s law and constitution (1^st ed, Victoria University Press, Wellington, 2008) at 207.

⁷⁶ At 208.

⁷⁷ Jane Kelsey Rolling Back the State: Privatisation of Power in Aotearoa/New Zealand (1^st ebook ed, Bridget Williams Books, Wellington,1993) at 235.

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appropriate systems of co-governance through which to meaningfully give effect to Treaty principles.

First stage sections were ripe ground for uncertainty in the courts and prey to the legislative efforts of Winston Peters to delete them totally through such measures as the Principles of the Treaty of Waitangi Deletion Bill 2005.⁷⁸ Matthew Palmer has stated that when the Treaty is “expressed too generally to have a clear implication” it leaves the legal and policy implications unclear, and confers discretion on the judiciary.⁷⁹ Even though the broad nature of these first stage Treaty clauses might appear to open the door for a generous balancing of kāwanatanga and tino rangatiratanga, through robust interpretation in the courts, such interpretations are inevitably constrained by the wider context of the legislation within which the clauses are set.

3.2 Conservation Act 1987, section 4

Section 4 of the Conservation Act 1987 is an example of mainstream legislation which has yet to provide for a proper balance of kāwanatanga and tino rangatiratanga. Section 4 states “this Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”.⁸⁰ Section 4 therefore requires Treaty principles to be given effect within the framework provided by the Act. This might allow for some iwi involvement, and for iwi perspectives to be taken into account, in the administration of the Act, and therefore of the conservation estate. Nevertheless, as it stands, section 4 would not seem to permit the creation of co-governance bodies inconsistent with the administrative structures created by the rest of the Act. It would not therefore seem to permit the conferral of decision-making powers on Māori that the Act instead specifically confers on the Minister or the Department of Conservation (DoC), because that would contradict other provisions of the Act, such as the Minister’s power to grant concessions under Part 3B.

The Waitangi Tribunal has been critical of what the apparently broad section 4 delivers in practice. In its WAI 262 report, the Waitangi Tribunal stated section 4 “is the most powerful Treaty clause currently on the statute books. It creates positive obligations to find ways to give effect to the Treaty in all of DoC’s activities.”⁸¹ But the Tribunal was not advised as to “how

⁷⁸ Principles of the Treaty of Waitangi Deletion Bill 2005 (247-1).

⁷⁹ Above n 75, at 210.

⁸⁰ The Conservation Act 1987, section 4.

⁸¹ Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 1 at 129.

these provisions work in practice”.⁸² Thus, while section 4 makes recognition of kaitiaki interests and mātauranga Māori possible, the Tribunal said “it remains to be seen whether that possibility bears fruit”.⁸³ Ultimately, the Tribunal found that, while section 4 itself is strong, the principles are not adequately reflected in DoC’s guiding policies and practices, making the substantive impact of the section weak.⁸⁴ The Tribunal recommended Māori should have an expanded role, meaning a shift from an advisory role to one of joint decision-making, which would require legislative amendment to the Act.⁸⁵ Thus, while section 4 did show a “significant shift” in legislative incorporation of the Treaty, the Tribunal is correct in stating we are “ready to go to the next stage” via further legislative reform.⁸⁶

3.2.1 Ngāi Tahu Māori Trust Board v Director-General of Conservation87

Famously, in the Whales case (1995) concerning the application of section 4 of the Conservation Act 1987, the NZCA held that it was not permissible for the Crown to try to limit the principles of the Treaty to mere consultation, when its obligation included the principle of active protection.⁸⁸ Consultation alone cannot satisfy the Crown’s obligation to actively protect the interests of Māori.⁸⁹ The Whales case is well covered ground, but as an example it illustrates how early Treaty clauses sought to impose certain limits on Crown action rather than enable any appropriate balance of kāwantanga with tino rangatiratanga through co-governance, thus exposing the shortfalls of this model of Treaty incorporation.

The NZCA held that the principles of the Treaty “are not to be approached narrowly” in their assessment of what a “reasonable Treaty partner” would do in this situation.⁹⁰ The NZCA ruled that more than mere consultation was required, and that the iwi were entitled to a “reasonable degree of preference” in the grant of whale-watching permits. ⁹¹ Nevertheless, even conferring a degree of preference confers no substantive decision-making powers on the iwi, and thus falls short of even the weaker end of the co-governance spectrum.

⁸² At 73.

⁸³ At 85.

⁸⁴ At 96.

⁸⁵ At 130.

⁸⁶ At 146.

⁸⁷ Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA) [Whales case].

⁸⁸ At 560.

⁸⁹ Te Puni Kōkiri He Tirohanga Ō Kawa Ki Te Tiriti O Waitangi: A Guide to the Principles of the Treaty Of Waitangi as Expressed by the Courts & the Waitangi Tribunal (Te Puni Kōkiri: Wellington, 2002) at 87.

⁹⁰ Above n 87, at 560.

⁹¹ At 562.

In response, the Waitangi Tribunal clarified that the Whales case did not mean “Māori should always receive preference in every concession application” under the current legislation, stressing that the extent to which “Māori preference arises” depends on te ao Māori, mātauranga Māori, or taonga Māori aspects of the context.⁹² The Tribunal highlighted a downfall of section 4 in that it did not ensure applications by Māori were “properly considered and prioritised”.⁹³ Thus, the current statute does not give sufficient weight to tino rangatiratanga, or grant Māori a sufficient share of the basket of decision-making powers.⁹⁴

3.2.2 Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation95

While the outcome of the 1995 Whales case could be considered positive for its time, roughly the same conclusion was reached by the NZSC in the Ngāi Tai Ki Tāmaki judgment in 2018. Here again, Ngāi Tai concerned a judicial review of the Minister of Conservation’s decision to grant commercial tour concessions, in this case on Rangitoto and Motutapu islands in the Hauraki Gulf.⁹⁶ The Trust was concerned about the negative impacts of the concessions on their culture and whakapapa.⁹⁷ They claimed “as mana whenua, with rangatiratanga, they were entitled to preference”, and opposed the rollover of the other party’s concession while Treaty settlement negotiations were underway.⁹⁸ The Trust argued that guided tour activities fell within the scope of their customary rights and responsibilities, as their iwi had mana whenua and rangatiratanga over the motu.⁹⁹

The court concluded section 4 had not been properly applied as the decision maker had not “grappled with” matters of preferential treatment in light of the principle of active protection.¹⁰⁰ The NZSC applied the reasoning in the Whales case, finding statutory provisions for giving effect to the Treaty were not to be narrowly construed, the principle of active protection

⁹² Deidre Koolen-Bourke and Raewyn Peart Conserving Nature: Conservation Reform Issues Paper

(Environmental Defence Society, Auckland, July 2021) at 22; and above n 81 at 362.

⁹³ Above n 81, at 362.

⁹⁴ At 362; above n 92, at 22.

⁹⁵ Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122.

⁹⁶ At [1].

⁹⁷ At [20].

⁹⁸ At [79]; and above n 92 at 24-25.

⁹⁹ At [61].

¹⁰⁰ At 26.

required more than mere consultation, and that Māori interests extended to more than mere procedural matters.¹⁰¹

In their consideration of how section 4 applied to the granting of concessions, the NZSC considered the larger statutory and non-statutory framework.¹⁰² Relevant legislation included the Hauraki Gulf Marine Park Act 2000 and two key Treaty settlements affecting the islands.¹⁰³ Additionally, the NZSC considered how non-statutory factors, such as the Conservation Management Plan which is “prepared in consultation with relevant iwi”, should interact with section 4.¹⁰⁴ Importantly, the Auckland Conservation Management Strategy makes express reference for the Tāmaki Collective (which includes Ngāi Tai) “to have a role in the co- governance of the islands” (emphasis added).¹⁰⁵ Furthermore, the Ngāi Tai ki Tāmaki Deed of Settlement, which is given effect through the Ngāi Tai ki Tāmaki Claims Settlement Act 2018, “provides for a conservation agreement to be negotiated between DoC and the iwi”, with the iwi aiming to “meaningfully influence policies”.¹⁰⁶ These arrangements therefore provide “statutory acknowledgements of Ngāi Tai ki Tāmaki’s relationship with Motutapu and the surrounding coastal marine area”, giving weight to the idea that Ngāi Tai should hold some weight in the decision-making processes when concessions are granted.¹⁰⁷

The court acknowledged “s 4 does not exist in a vacuum” but sits amongst other statutory and non-statutory factors that must be taken into account.¹⁰⁸ The NZSC stressed the need for a context dependent approach where section 4 is not trumped by these other considerations, such as the Conservation Management Plan, nor is it part of a balancing exercise.¹⁰⁹ Rather, decision makers must attempt to meet other statutory and non-statutory objectives “in a way that best gives effect to the relevant Treaty principles”, to be consistent with section 4 to the extent possible.¹¹⁰ This is akin to the presumption of consistency approach under the New Zealand Bill of Rights Act 1990 (NZBORA), that might possibly realise some of the potential strength

¹⁰¹ At [50]; and above n 92 at 26.

¹⁰² At [32].

¹⁰³ At [36].

¹⁰⁴ At [42]; and above n 92, at 25.

¹⁰⁵ At [42]; above n 92, at 25; and Department of Conservation Auckland Conservation Management Strategy 2014-2024, Volume 1 (November 2014).

¹⁰⁶ Above n 92, at 25.

¹⁰⁷ Above n 95, at [9].

¹⁰⁸ At [54].

¹⁰⁹ At [54], [77].

¹¹⁰ At [54].

of section 4.¹¹¹ The Hansen test as set out by the NZSC established a five stage test wherein, if Parliament’s intended meaning prima facie breaches NZBORA, the courts search for any alternative meanings that are more consistent, thereby presuming Parliament did not intend to breach NZBORA unless it is explicitly clear.¹¹² Although not explicit, it appears the NZSC is searching for a way to ensure the Conservation Act is applied consistently with section 4, and thus with Treaty principles, wherever possible.

The court’s explicit rejection of a balancing exercise seems to be in direct conversation with the Waitangi Tribunal’s criticism of a similar Treaty provision in the Resource Management Act 1991, where other interests, such as economic interests, are at risk of “balancing-out” Māori interests.¹¹³ Rhianna Morar suggests that to genuinely move beyond “mere balancing” would be to move beyond the strictures of Western constitutional traditions and frameworks, wherein tikanga as a legal system is recognised by and within the common law, and thus should not be “balanced” against other interests, and where preference be given to those who exercise rangatiratanga.¹¹⁴

The court concluded that, had a degree of preference been given to Ngāi Tai, and their economic interests been taken into account, the decision-maker may well have reached the same conclusion on the application of section 4.¹¹⁵ The error of law was that “Ngāi Tai Trust’s claim for preference as an iwi or hapū holding mana whenua was not evaluated properly, that is, in accordance with the law”.¹¹⁶ But the court does not suggest the iwi should be accorded significant authority over the concession decision. The NZSC in Ngāi Tai acknowledged Ngāi Tai exercised rangatiratanga over the land as mana whenua, and that a reasonable Treaty party was obliged to recognize this meant Ngāi Tai had a stronger interest than others who did not have mana whenua status.¹¹⁷ However, the court’s decision still explicitly quells fears that the iwi have a veto-power over the granting of concessions.¹¹⁸ Rangatiratanga remains a consideration to be weighed up, but ultimately it has no binding effect on the decision maker,

¹¹¹ Above n 92, at 26.

¹¹² Paul Rodney Hansen v The Queen [2007] NZSC 7 at [92].

¹¹³ Waitangi Tribunal The Stage 2 Report on The National Freshwater And Geothermal Resources Claims (Wai 2358, 2019) at 55.

¹¹⁴ Rhianna Morar “Sir Edward Taihakurei Durie student essay competition 2019 – Ngāi Tai ki Tāmaki Tribal Trust and beyond the balancing exercise” (2020) February Māori LR 1.

¹¹⁵ Above n 95, at [94].

¹¹⁶ At [93].

¹¹⁷ At [79].

¹¹⁸ At [95].

who can still grant a concession to another party over the iwi’s objection, provided certain other considerations are sufficiently strong.¹¹⁹ The Cabinet claimed the Ngāi Tai case “emphasises the fundamental importance of Treaty of Waitangi principles in the statutory scheme of the Conservation Act 1987”, however the court’s decision still leaves the role of Māori largely participatory, through consultation mechanisms, and their views merely one strong factor among others.¹²⁰ Māori are to be consulted, and their views and mana whenua status are to be considered, but the decision-making process still lacks a significant counterweight to kāwanatanga Karauna.¹²¹

Thus, although section 4 appears powerful, the NZSC held it does not create a power of veto for an iwi or hapū over the granting of concessions, nor any exclusive right to concessions in their rohe.¹²² Even if a “broad and generous” interpretation of the section is taken, it is still insufficient to give effect to tino rangatiratanga.¹²³ As a further example of this, in The Taranaki-Whanganui Conservation Board, and other Appellants v The Environmental Protection Authority, the High Court held that to give effect to Treaty principles beyond these prescriptive requirements would be to “overstate” the Crown’s obligations.¹²⁴ Other commentators have suggested the Ngāi Tai case “sought to re-define the practical application of Treaty principles” as the court held section 4 required consideration of manaakitanga, kaitiakitanga, and tikanga relationships with the land intrinsic to mana whenua status.¹²⁵ However, given the startingly similar decision to that made in the Whales case, it is more convincing to conclude that, as Cabinet suggests, Ngai Tai represents no real “ground shift” in the law but rather “confirms and builds on previous jurisprudence”.¹²⁶

Overall, first stage statutory incorporation of the Treaty into legislation has not therefore significantly shifted Māori from a participatory or advisory role to a co-governing role. While DoC acknowledges many Treaty settlement statutes in the conservation area have made

¹¹⁹ At [95] per O’Regan J “We accept that s 4 does not create a power of veto by an iwi or hapū over the granting of concessions in an area in which the iwi or hapū has mana whenua.”

¹²⁰ Office of the Minister of Conservation and NZ Conservation Authority “Responding to the Ngāi Tai Ki Tāmaki Supreme Court Decision and Giving Effect to Treaty Principles In Conservation” (6 August 2019) at 2. ¹²¹ At 2.

¹²² Above n 95, at [92].

¹²³ See this approach in Tainui Maori Trust Board v Attorney-General [1989] NZCA 175; [1989] 2 NZLR 513 (CA) [Coals case] at 518; and above n 95, at [48]–[54].

¹²⁴ The Taranaki-Whanganui Conservation Board, and other Appellants v The Environmental Protection Authority [2018] NZHC 2217 at [215]; and above n 114.

¹²⁵ Above n 95, at [62], [91]; and above n 114.

¹²⁶ Above n 120, at 1.

“special provision for iwi and hapū to have greater input and control over the land, rivers, fisheries, flora and fauna in their rohe”, this change is yet to be mirrored in the Conservation Act itself.¹²⁷ Seemingly resulting from the Ngāi Tai judgment, DoC has now established a Treaty Partner Engagement System to better meet its section 4 requirements within the constraints of the Act.¹²⁸ However, this would still only put Māori in an “extensive discussion and negotiation role” which would fall short of co-governance.¹²⁹

3.3 The Limitations of the Conservation Act

The Whales and Ngāi Tai cases, decided 23 years apart, indicate it is perhaps time to move beyond first stage Treaty clauses and reform the Conservation Act to better allow for the conferral of decision-making powers on Māori. While section 4 on its own may not be preclusive of co-governance, the rest of the Act may be. Even if the courts were to expansively and fulsomely interpret section 4, its application would still be constrained by the rest of the Act, limiting the potential for DoC to create co-governance regimes. Ngāi Tai has influenced DoC to make policy changes.¹³⁰ However, without legislative change which allows for decision-making powers to be exercised by an established co-governance body, the Conservation Act cannot effectively strike the right balance between kāwanatanga and tino rangatiratanga and thus truly give effect to the principles of the Treaty of Waitangi.

While Mathew Palmer suggests “the most important reason to refer to the Treaty of Waitangi in legislation” is to “reinforce the symbolic value of the Treaty”, I suggest Treaty incorporation can enable substantially more than symbolism and more in the realm of “instrumental value”.¹³¹ Beyond section 4, if the Conservation Act allowed for the conferral of decision-making powers on iwi and the construction of power-sharing arrangements, this would elevate the Treaty clause from merely symbolic to truly instrumental. Palmer points out that Parliament “can no longer afford to avoid the hard issues of detail by passing generic provisions”.¹³² Policy change on the Executive level, such as is currently occurring within DoC, could go some way towards striking the right balance between kāwanatanga and tino rangatiratanga under a broad Treaty

¹²⁷ Above n 92, at 24.

¹²⁸ Above n 120, at 7.

¹²⁹ Above n 92, at 27.

¹³⁰ Above n 15 at 21, 83; and Department of Conservation “Report recommends changes to DOC Treaty implementation” (press release, 8 April 2022).

¹³¹ Matthew Palmer “The Treaty of Waitangi in Legislation” [2001] NZLJ 207 at 209.

¹³² At 212-3.

section. However, legislative reform to the wider Act is needed to allow section 4 to realize its full potential.

Chapter Four: Second Stage Treaty Incorporation

He rau ringa e oti ai Many hands make light work

4.1 The Second Stage of Treaty Incorporation

Matthew Palmer refers to second stage Treaty clauses as “elaborated Treaty clauses”.¹³³ Second stage incorporation, spanning from roughly the late 20th century to the late 2010s, involves more specificity and direction as to how compliance with Treaty principles might be achieved. However, second stage legislation still falls far short of placing Māori in co- governance roles as it fails to establish legal arrangements for the exercise of the relevant decision-making powers. Although greater specificity in these clauses escape concerns about Parliament obfuscating its responsibility and deferring too much power to the courts, this greater specificity fails to establish legal arrangements that sufficiently honour tino rangatiratanga. Just as first stage sections, such as section 9 SOE Act and section 4 Conservation Act, provide broad guidance constrained by the larger context of the Act, greater specificity in legislation may also limit the effect of a Treaty clause. The authors of Burrows and Carter Statute Law in New Zealand have noted a shift in the statutes of this era towards more precise consideration by Parliament of how it “wants particular legislative schemes to provide for and protect Māori interests in the light of the Crown’s responsibility under the Treaty”.¹³⁴ However, rather than recognising that the Treaty itself indicates the right balance to be struck between kāwanatanga and tino rangatiratanga, this shift towards more precision in the legislation has had the effect of constraining and limiting the power and reach of these second stage Treaty clauses by reducing the scope of their application within the Act.

Second stage Treaty incorporation clauses often exist within a statutory framework which confers certain decision-making powers on lower levels of government, rather than the national Executive government (or Crown). Within this framework, the clauses are often more specific and directive, but still pose Treaty principles as one consideration among others for decision- makers to take into account. There are a number of Acts which reflect this approach, such as the Local Government Act 2002 (LGA) and the Climate Change Response Act 2002 (CCRA).

¹³³ Above n 75, at 102.

¹³⁴ Ross Carter Burrows and Carter Statute Law in New Zealand (6^th ed, LexisNexis, Wellington, 2021) at 697; and above n 6, at [150].

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4.1.1 Local Government Act 2002

The purpose of the LGA is to provide for democratic and effective local government that recognises diversity of New Zealand communities.¹³⁵ The LGA requires that local authority decision-makers, acting under Parts 2 and 6 of the Act, must not only “take appropriate account” of Treaty principles, but also “maintain and improve opportunities for Māori to contribute to local government decision-making.¹³⁶ This formulation initially seems more specific and directive as to how Māori are to contribute to such decisions. However, Part 2 then broadly states the status and powers of local authorities with only minimal further reference to Māori, with section 14(d) merely reiterating the obligation for local authorities to “provide opportunities for Māori to contribute to its decision-making processes”.¹³⁷ Similarly, section 17(3A) allows (without requiring) local authorities to transfer some of their responsibilities to a regional council, and only states such a transfer must ensure effective provision for existing co-governance or co-management arrangements with iwi or Māori organisations. The LGA does establish a Commission, of between one and three members, where, if there are two or three members, one must have knowledge of tikanga Māori and be appointed after consultation with the Minister for Māori Development.¹³⁸ This Commission exists for the purpose of providing information about local government, promoting good practice relating to local government generally, and reporting to the Minister on relevant matters.¹³⁹ But, even though the Act provides in this respect for input from someone with knowledge of tikanga, it does not specifically provide for Māori representation within local government decision-making processes in general. This Commission, for instance, is largely advisory and has no substantial decision-making powers, and thus falls far short of co-governance. The LGA is therefore an example of how second stage Treaty sections provide greater specificity and direction in some respects, but still under-deliver on a proper balance of kāwanatanga and tino rangatiratanga.

¹³⁵ Local Government Act 2002, section 3

¹³⁶ Section 4.

¹³⁷ See sections 11, 12, s14(d).

¹³⁸ Section 33.

4.1.2 Climate Change Response Act 2002

The stated purpose of the CCRA is to “provide a framework by which New Zealand can develop and implement clear and stable climate change policies” which contribute to the effort under the Paris Agreement, and also to prepare for and adapt to the effects of climate change.¹⁴⁰ Section 3A of the CCRA states, “in order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi”, a number of arrangements are established, with respect to such matters as: the nominations for membership of the Climate Change Commission, considering the impacts of emissions on Māori, and taking into account the economic, social, health, environmental, ecological, and cultural effects of climate change on iwi and Māori.¹⁴¹ Nevertheless, even though these arrangements require, for example, consultation with iwi and Māori representative organisations as to expressions of interests concerning the appointment of members of the Climate Change Commission, there is no requirement for any Māori representation on the Commission itself.¹⁴² Like the committee established under the LGA, there is no explicit provision for Māori membership on the Climate Change Commission. However, section 5H does state that in appointing members to the Commission the Minister must have regard to the need for knowledge of the Treaty of Waitangi and te ao Māori. Again, this illustrates a reluctance on the part of Parliament to explicitly establish co-governance or co-management arrangements outside of Treaty Settlement legislation. Additionally, the Commission is only advisory.¹⁴³ Established under section 5A, it has the purpose of providing independent, expert advice to the government on mitigating climate change, as well as monitoring and reviewing the government’s progress towards emissions reduction and adaption goals.¹⁴⁴ Section 5J lists the Commission’s functions, which largely cover providing recommendations and advice. Therefore, not only does the CCRA not explicitly set up any joint power sharing arrangements between the Crown and Māori, but none of the three major areas of decision-making power discussed earlier are conferred on the Commission.

The draft advice for consultation on the CCRA stated “care should be taken to make sure climate change related policies do not further compound historic grievances for Māori” and

¹⁴⁰ Climate Change Response Act 2002, section 3.

¹⁴¹ Section 3A.

¹⁴² Sections 5G, 5D.

¹⁴³ Section 5B.

that central and local government both need to acknowledge Māori rights in order for Māori to exercise rangatiratanga and kaitiakitanga in a “joint plan to reduce emissions” (emphasis added).¹⁴⁵ However, much like the LGA, the CCRA does not provide for truly joint partnership in the form of any co-governance regime, but rather opportunities for Maori participation in advisory roles.

The CCRA and LGA are therefore two similar examples of second stage mainstream legislation which provide greater specificity and direction, but whose very specificity reduces the scope for achieving a proper balance between kāwanatanga and tino rangatiratanga. Anne- Marie Skellern points out section 3A of the CCRA broadly requires “consultation with, and opportunities for participation from Māori in specified areas of the climate change legislation”, with no decision-making power granted to Māori beyond this.¹⁴⁶ Even on the merely participatory level, Te Pāti Māori/the Māori Party objected that “this clause must provide more than simple procedural participation and deliver substantive outcomes that accommodate the full breadth of Treaty rights and interests".¹⁴⁷ It should be acknowledged that this shift towards explicitly requiring participation goes beyond some first stage legislation which merely restricts Crown action (for example, SOE Act, s 9). However, merely participatory or advisory roles offer Māori no decision-making power and do not achieve the right balance between kāwanatanga and tino rangatiratanga. The EEZ Act, as discussed below, is a further detailed example of how second stage legislation seeks to mystify through greater specificity and direction, while purposefully failing to create power sharing arrangements.

4.2 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

The stated purpose of the EEZ Act is to promote the sustainable management of the natural resources of the exclusive economic zone and continental shelf, as well as to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and dumping or incineration of natural resources.¹⁴⁸ Sustainable management of these areas through regulating and prohibiting harmful actions aims to protect the environment for future generations and avoid, remedy, or mitigate adverse effects of activities on the environment.¹⁴⁹

¹⁴⁵ Climate Change Commission He Pou a Rangi 2021 Draft Advice for Consultation (January 2021) at 11. ¹⁴⁶ Anne-Marie Skellern “The Climate Change Response Act 2002: The Origin and Evolution of s3A – The Treaty clause” (2012) 10 NZJPIL 167 at 168.

¹⁴⁷ At 181; and Māori Party “Election Policy 2008” (2008) Māori Party <www.maoriparty.co.nz>.

¹⁴⁸ Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, sections 10(1)(a)-(b).

¹⁴⁹ Section 10(2).

The main Treaty clause found in the Act, section 12, provides an example of the shift away from broad, vague, and potentially generous first stage Treaty sections, to a more specific and directive approach:

Section 12 Treaty of Waitangi

In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi for the purposes of this Act,—

(a) section 18 (which relates to the function of the Māori Advisory Committee) provides for the Māori Advisory Committee to advise marine consent authorities so that decisions made under this Act may be informed by a Māori perspective; and

(b) section 32 requires the Minister to establish and use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations; and

(c) sections 33 and 59, respectively, require the Minister and a marine consent authority to take into account the effects of activities on existing interests; and

(d) section 46 requires the Environmental Protection Authority to notify iwi authorities, customary marine title groups, and protected customary rights groups directly of consent applications that may affect them.

The way in which this section is drafted appears to limit its effect. Firstly, no powers are exercised under section 12 itself, but rather it seems to deem certain other provisions of the Act to give effect to the Crown’s obligations to comply with Treaty principles. The provisions mentioned in section 12’s list have a range of different effects, although all are of a limited kind: section 18 refers to an advisory committee, section 32 refers to consultation, sections 33 and 59 involve the decision-maker taking into account the effects of activities on existing interests, and section 46 refers to notification. Thus, while section 12 refers to specific duties imposed on decision-makers under these sections, each is of limited effect as they mainly concern consultation, notification, and advice, not reaching the extent of establishing co- governance in any of the three main areas of decision-making discussed: policy-making, delegated law making, and more specific decisions. The sections referred to in section 12 require conduct that is to some degree Treaty consistent, even if they do not mention the Treaty explicitly, but use other notions, like taking into account “existing interests” or “a Māori perspective”.¹⁵⁰ “Existing interest” is exhaustively defined in the Act and includes historical Treaty settlement, any contemporary Treaty claim, and any protected customary right or

¹⁵⁰ Section 4.

customary marine title as recognised under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).¹⁵¹ It is therefore clear Parliament has established a complex legal framework which attempts to dictate which interests and effects decision makers will be required to take into account.

Therefore, the suggestion seems to be that compliance with these specific requirements would meet the Crown’s Treaty obligations to give effect to Treaty principles in this area in full, and no additional obligations of this kind would be imposed on decision-makers under the Act (though this is not said explicitly either). This does not amount to full Treaty-compliance, particularly because it does not specify that all powers exercised under the Act need to be exercised consistently with Treaty principles. It appears Parliament has attempted to limit the application of Treaty principles in the EEZ Act to the four areas listed. Furthermore, the Act requires many other factors to be taken into account by decision-makers, and these may outweigh the “Māori perspective” and “existing interests” in the final decision. Thus, reference to advice, consultation, and information under section 12, does not amount to full decision- making authority or even joint authority.

Some decisions under other sections of the Act do not seem to be constrained by Treaty principles at all. For example, decisions on review of consent conditions under section 81 are not governed by section 12, nor does section 81 include any reference to the Treaty.¹⁵² Another example is section 76 concerning the Environmental Protection Authority’s (EPA) power to review duration and conditions of consents, which is also not governed by section 12. Conversely, there are some sections in the EEZ Act, not referred to in section 12, that do require some Treaty-consistent actions without explicitly referring to the Treaty. One example is the requirement to notify the proposed EEZ policy statement to iwi authorities prior to publication under section 37B, which is emblematic of Treaty partners in consultation, despite there being no explicit reference to Treaty principles in the section. Differing approaches are therefore taken to Treaty incorporation even within the EEZ Act itself.

The EEZ Act gives the EPA the role of deciding applications for marine consents, monitoring compliance, enforcing requirements, approving forms, promoting public awareness, and

¹⁵¹ Section 2.

¹⁵² See also sections 82-83 concerning further EPA decision-making regarding reviews of consents.

providing advice.¹⁵³ However, neither section 13, which sets out the functions of the EPA under the statute, nor section 15, which sets out its powers, makes any explicit reference to the Treaty. This appears to be a purposeful omission. Furthermore, section 75A grants the EPA all the functions, duties, and powers relevant to the granting of marine consents, with no mention of the Treaty. However, the EPA is deemed by the Act to be a marine consent authority, that is bound by section 12.¹⁵⁴ Therefore, although the main sections regarding the EPA (ss 13, 15) make no reference to the Treaty, when acting as a marine consent authority the EPA does need to “take into account” “existing interests” under sections 33 and 59, which could include Māori interests. This goes some way towards Treaty compliance.

Furthermore, under the Environmental Protection Authority Act 2011 (EPA Act), the parent legislation that establishes the EPA,¹⁵⁵ section 13, which specifies the EPA’s general functions, makes no reference to Treaty requirements. The EPA Act does have a Treaty section. This states:¹⁵⁶

“in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi... the EPA and any person acting on behalf of the EPA must comply with the requirements of an environmental Act in relation to the Treaty, when exercising powers or functions under that Act.”

The EPA Act therefore fails to impose any general obligation on the EPA to exercise all its powers and functions consistently with the Treaty, or even to take into account the principles of the Treaty in all its functions.

The EEZ Act also fails to enact any general overarching Treaty section, therefore specifying and limiting the power of Treaty principles. Section 12 of the EEZ Act, even though it seems more specific, pales in comparison even with section 8 of the RMA, which is a general overarching Treaty section applying to “all persons exercising functions and powers” under that Act.¹⁵⁷ There was also a suggestion during Parliamentary debate that section 12 should parallel the more overarching section 8 of the RMA, which would require the relationship of

¹⁵³ Section 13.

¹⁵⁴ Section 2.

¹⁵⁵ Section 7.

¹⁵⁶ Section 4(b).

¹⁵⁷ Note that the RMA may be considered a first stage statute.

iwi to the resource to be recognised and provided for.¹⁵⁸ Both the Labour and the Green Parties raised concerns about the “limited” terms of clause 14 (now section 12) as it did “not impose a general obligation on the Crown to give effect to the principles of the Treaty”.¹⁵⁹ Therefore, despite the specific inclusion of particular sections directing decision-makers when to consider Treaty principles (or similar considerations) in both the EPA Act and the EEZ Act, the actual requirement of Treaty compliance is limited, in that the decision-making powers and duties of the EPA are not significantly bound by Treaty principles beyond consultation, notification, and taking “existing interests” into account.

The total scheme of the EEZ Act is therefore highly ambivalent regarding Treaty compliance overall: section 12 may be specific and directive as to when Treaty principles are deemed to apply, but it is also very limited in its reach and seems purposefully evasive as to when Treaty principles might apply outside the processes referred to in section 12. Thus, while first stage Treaty sections were broad but precluded the conferral of decision-making powers inconsistent with the rest of the statute, the preclusion of broader effect appears even more purposeful and direct in second stage statutes.

The provisions concerning Māori representation on decision-making bodies are particularly weak. For example, section 12 of the EEZ Act provides for a “Māori Advisory Committee to advise marine consent authorities” so that decisions are informed by a Māori perspective.¹⁶⁰ Section 18 states the function of this Māori Advisory Committee (MAC) is to provide advice to the EPA on matters of policy, process, and decisions, as well as regarding marine consents.¹⁶¹ The MAC is established under section 18 of the EPA Act. It consists of between 4 and 8 persons, none of whom are to be EPA members. However, there is no requirement for Māori representation on either the EPA or the MAC, seemingly shying away from establishing co- governance or even co-management structures.¹⁶² Likewise, the Minister holds the power to appoint a board of inquiry for publicly notifiable section 20 activities (regarding discharges and dumpings), but is only required to “consider” that such a Board, of 3 to 5 people, must include people with some knowledge, skill, or experience relating to tikanga Māori.¹⁶³ While

¹⁵⁸ Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill 2011 (321-3), at 14; and (28

August 2021) 683 NZPD 4779.

¹⁵⁹ (18 July 2012) 681 NZPD 3689.

¹⁶⁰ Section 12(a).

¹⁶¹ See also section 19.

¹⁶² Environmental Protection Authority Act 2011, sections 9 and 18.

¹⁶³ Above n 148, section 52(5)(c).

it is obvious that Māori would have the most knowledge, skill, and experience with their own customs, Parliament has shied away from specifying explicit Māori representation on these bodies.

Overall, the EEZ Act is therefore more specific and directive as to how Treaty principles apply to Ministerial and EPA actions, compared to merely restricting Crown activity inconsistent with those principles, as was the case with section 9 of the SOE Act. However, this is still a far cry from enabling co-governance structures. Advisory committees are merely advisory. Currently, the EPA and the Minister retain decision-making powers over the three main areas discussed: policy-making, delegated law making, and more specific decisions, such as consents for dumping, while Māori only have a limited consultation and advisory role.¹⁶⁴ For example, the Minister retains the powers to prepare, review, change, revoke, and issue the EEZ policy statement.¹⁶⁵ Even though this process requires the Minister to consider “any other matter” they consider relevant, as well as notify and consult with iwi authorities, this does not bind the Minister to compliance with Treaty principles. Section 12 of the EEZ Act, in particular, makes no reference to the issuing of EEZ policy statements, seemingly avoiding imposing a duty of Treaty compliance in this area, while relying on ‘in-built’ phraseology such as “any other relevant matter” to do the heavy lifting. Parliament had the opportunity to explicitly refer to Treaty principles throughout these sections which confer decision-making powers, but did not do so.

4.2.1 Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board 166

The recent Trans-Tasman case reveals, however, that the NZSC supports the adoption of a broad and generous approach to the interpretation of the EEZ Act in relation to Māori interests, which seems to go beyond the apparent constraints imposed by section 12. The decision- making committee (DMC), of the EPA, whose decision was challenged in the litigation, had granted Trans-Tasman Resources (TTR) marine extraction and discharge consents under section 59 of the EEZ Act, permitting TTR to extract millions of tonnes of seabed material just offshore of South Taranaki and to discharge de-ored sediment into the seabed.¹⁶⁷ In making its

¹⁶⁴ For example, see section 38 of EEZ Act.

¹⁶⁵ Sections 37A-37E.

¹⁶⁶ Above n 6.

¹⁶⁷ Above n 6, at [14-17].

decision, the DMC briefly noted concerns and heard evidence from iwi regarding the mauri of the ocean and the impact on kaitiakitanga, as “existing interests”, as per sections 12 and 59, but considered that conditions placed on the consents would allow iwi to continue exercising kaitiakitanga.¹⁶⁸

The Trans-Tasman case in the NZSC concerned an appeal by the mining company, TTR, against the decision of the NZCA, which had upheld the High Court’s decision (on other grounds) to quash the decision of the DMC and refer the matter back for reconsideration.¹⁶⁹ Among other relevant issues, “how the Act gives effect to the Treaty of Waitangi and customary interests”, and “the place of tikanga” in sections 12 and 59 of the EEZ Act, was central to the NZSC’s decision.¹⁷⁰

The case concerned the factors that had to be taken into account by the marine consent authority, when considering an application for a marine consent under section 59 of the EEZ Act. That section requires the EPA to be guided, in such matters, largely by the purposes of sustainable management and protecting the ocean from pollution, by regulating and prohibiting the discharge and dumping of harmful substances.¹⁷¹ While section 12(c) deems the marine consent authority to be giving effect to the principles of the Treaty of Waitangi, section 59 in fact makes no explicit reference to the Treaty or its principles. Instead, both sections 12(c) and 59 refer to “existing interests” that need to be taken into account. So, in this manner, Treaty interests are indirectly addressed. Furthermore, section 59 lists “any other applicable law”, and “any other matter”, as factors that the marine consent authority “must take into account”.¹⁷² These phrases were the gateways used by the respondents and NZSC to extend the role of Treaty principles in the EEZ regime beyond what is readily apparent on the face of the Act.

At first instance, the NZHC quashed the decision because it found the consents adopted an “adaptive management approach” which was not permitted under the EEZ Act.¹⁷³ Unlike the NZSC and NZCA, the NZHC held the DMC had satisfied its obligation in relation to existing interests and the interests of iwi under the Treaty, in accordance with sections 12 and 59, and

¹⁶⁸ Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2020] NZCA 86 at [134-49].

¹⁶⁹ Above n 6, at [1].

¹⁷⁰ At [22].

¹⁷¹ At [4]; also see sections 10(1)(a)-(b).

¹⁷² Section 59(2)(a), (l), (m).

¹⁷³ The Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217 at [421].

that “the DMC did not make an error of law in not directly incorporating the principles of the Treaty into their decision separately”.¹⁷⁴ The NZCA later dismissed TTR’s appeal on different grounds, holding that giving effect to section 12 meant that references to “existing interests” in section 59 “must be read as including the interests of Māori in relation to all the taonga referred to in the Treaty”, whether or not those interests were referred to in specific Treaty settlement legislation.¹⁷⁵ The NZCA held the DMC did not “squarely engage with the full range of customary rights, interests and activities identified by Māori as affected by the TTR proposal, and to consider the effect of the proposal on those existing interests”.¹⁷⁶ Specifically, the NZCA found the DMC should have addressed the impact of the TTR proposal on the kaitiakitanga relationship between the relevant iwi and the marine environment, as kaitiakitanga is an “integral component of the customary rights and interests of Māori in relation to the taonga referred to in the Treaty”.¹⁷⁷ While the DMC decision references concepts of kaitiakitanga, there was no analysis of the nature and significance of the kaitiakitanga relationship or the extent of the effects of TTR’s proposal on existing interests of iwi as kaitiaki.¹⁷⁸ Furthermore, the NZCA held that the express statement in section 12 means that principles of the Treaty, such as partnership and active protection, are relevant in the DMC’s function under s 59 in assessing the effects of the TTR proposal on existing interests.¹⁷⁹ The NZSC unanimously dismissed TTR’s appeal, upholding the decision of the NZCA, clarifying in the process the correct interpretation of the EEZ Act.¹⁸⁰

a) Appellant’s arguments

TTR and the Attorney-General sought to use the greater specificity of section 12 to limit the effect of Treaty principles narrowly to the four processes explicitly mentioned in section 12.¹⁸¹ TTR supported the advice given to the DMC, which stated:¹⁸²

“... section 12 sets out specific means by which the Crown’s responsibility to give effect to the principles of the Treaty is achieved, rather than enacting a direct requirement on the EPA or a DMC to take into account the principles of the Treaty in

¹⁷⁴ At [243].

¹⁷⁵ Above n 168, at [163-7].

¹⁷⁶ At [170].

¹⁷⁷ At [170].

¹⁷⁸ At [175].

¹⁷⁹ At [171].

¹⁸⁰ Above n 6, at [2],[12].

¹⁸¹ At [146-8].

¹⁸² Above n 168, at [141].

its decisions. This approach can be contrasted with the means by which the principles of the Treaty are addressed in the RMA.”

They also compared section 12 of the EEZ Act with section 4 of the Conservation Act, where the latter requires the entire Act to be interpreted and administered to give effect to Treaty principles, while the former has a “deliberate absence” of any general direction requiring the DMC to give effect to Treaty principles.¹⁸³ Furthermore, TTR and the Attorney-General claimed the NZCA had gone too far in “treating all customary interest in this context as existing interests”.¹⁸⁴

b) Respondent’s arguments

The iwi parties argued that “section 12 cannot possibly be read as exhaustive”, however neither the NZCA or NZSC resolved that issue in the present case.¹⁸⁵ The iwi parties submitted that giving appropriate recognition to Treaty principles under section 12 meant that the NZCA was correct to conclude that “tikanga-based customary rights and interests are existing interests under s 59(2)(a)”.¹⁸⁶ The respondents agreed with the NZCA’s reasoning that “existing interests” under s 59(2)(a) include “interests of Māori in respect of all the taonga referred to in the Treaty” as well as all customary rights and interests relating to the natural environment (whether or not referred to or recognised in a Treaty settlement), plus claims under the MACA Act.¹⁸⁷ In the present case, the iwi parties submitted that the “existing interests” that the DMC had not taken into account was the impact of the TTR proposal on the kaitiakitanga of iwi of their rohe, rights recognised by the MACA Act, and interests under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.¹⁸⁸

c) NZSC’s Judgment

All members of the NZSC agreed that a broad and generous construction of Treaty clauses, such as section 12, was required.¹⁸⁹ Though not overstepping its constitutional role, the NZSC’s broad and generous approach appears to overflow Parliament’s apparent aim to limit the reach

¹⁸³ Above n 6, at [146].

¹⁸⁴ At [154].

¹⁸⁵ At [145]; and above n 168, at [162].

¹⁸⁶ Above n 6, at [154].

¹⁸⁷ At [145].

¹⁸⁸ At [154].

¹⁸⁹ At [151].

of Treaty principles through specifying carefully when and how they apply to decisions made under the EEZ Act.

The NZSC rightfully rejected TTR’s submissions which sought to constrain the effect of section 12 to the four processes explicitly mentioned, and instead applied section 12(c) with full strength to the consideration of the application under section 59.¹⁹⁰ The NZSC used the “strong direction” of s 12(c) to read the meaning of “existing interests” in a Treaty-consistent manner, stating this requires “that the DMC was to take into account the effects of the proposed activity on existing interests in a manner that recognises and respects the Crown’s obligation to give effect to the principles of the Treaty”.¹⁹¹ The NZSC held tikanga-based customary rights and interests were “existing interests” under section 59(2)(a) and that the DMC needed to consider the kaitiakitanga of iwi over their relevant rohe, as well as rights under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, in making the marine consent decision.¹⁹² Furthermore, the court referred to its judgment in Takamore v Clarke as aiding the holding that tikanga as law must be taken into account as “other applicable law” under section 59(2)(1).¹⁹³ The NZSC held the requirement to consider “kaitiakitanga of iwi of their relevant rohe” followed from the guarantee of tino rangatiratanga in article 2 of the Treaty.¹⁹⁴ However, the duty to merely acknowledge kaitiakitanga still gives very little force to the actual meaning of tino rangatiratanga in this context, as it offers no decision-making, or even direct participatory, powers.

The NZSC stated that the approach in section 12 illustrates the trend in more recent statutes to give a greater degree of definition as to how the Treaty principles are to be given effect, and departs from the more general, free standing Treaty clauses like that in section 4 of the Conservation Act.¹⁹⁵ Nevertheless, the NZSC stated:¹⁹⁶

“... the move to more finely tuned subtle wording does not axiomatically give support to a narrow approach to the meaning of such clauses. Indeed, the contrary must be true given the constitutional significance of the Treaty to the modern New Zealand state.

¹⁹⁰ At [149].

¹⁹¹ At [8].

¹⁹² At [154].

¹⁹³ At [169]; and Takamore v Clarke [2012] NZSC 116 at [150].

¹⁹⁴ At [154].

¹⁹⁵ At [150].

¹⁹⁶ At [151].

The courts will not easily read statutory language as excluding consideration of Treaty principles if a statute is silent on the question.”

Thus, it appears the NZSC was able to take an expansive approach to sections 12 and 59 by reading in stronger Treaty obligations than Parliament had made explicitly clear in drafting. As well as holding that a “broad and generous” interpretation of Treaty clauses should be applied, the NZSC stated that any “intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear”.¹⁹⁷ This reasoning again verges on that of a NZBORA style presumption of consistency between the legislation and the relevant Treaty principles. Hanna Wilberg discusses the possibility of “an assertive use of a presumption of consistency with the Treaty to read down the substantive scope of statutory powers”, an approach which would require all public powers to be “exercised consistently with the Treaty” except where the legislation is “clear beyond doubt” that Treaty rights and obligations can be breached.¹⁹⁸ Counsel for the respondents, Natalie Coates, referred to this approach as the principle of legality in action, wherein the legislature would have to be explicitly clear in its intention to overthrow or infringe Treaty principles.¹⁹⁹ Thus, the Treaty and its principles acts as a pou around which statutory interpretation takes place. Although the NZSC in Trans-Tasman did not explicitly assert the use of such a presumption of consistency or principle of legality, its judgment shows a willingness on its part to read Treaty rights and obligations into legislation when the relevant statutory clauses seem purposefully evasive as to how the Treaty principles apply, providing something of a remedy to the Fifth National Government’s reticence to shift the balance of tino rangatiratanga and kāwanatanga to a more equal setting.

Ultimately, even with such a “broad and generous” interpretation, a decision maker under section 59 only needs to identify the “existing interests” that would be affected by the grant of the consent and explain “albeit briefly, why these existing interests were outweighed” by other factors – in order to grant the consent.²⁰⁰ Given the relationship of Māori to the foreshore and seabed, and in light of the foreshore and seabed controversy of the early 2000s, it is fair to conclude that this legislation fails to set up the right balance of kāwanatanga and tino rangatiratanga, within a joint sphere of decision-making, in this important zone. It shows

¹⁹⁷ At [151].

¹⁹⁸ Hanna Wilberg “Judicial Remedies for the Original Breach” (2007) NZ L Rev 713 at 714, 720.

¹⁹⁹ Natalie Coates “Kōrero with Te Rōpū Whai Pūtake” (University of Otago, Dunedin, 22 September 2022).

²⁰⁰ Above n 6, at [161].

minimal progress since Parliament vested ownership of the foreshore and seabed in the Crown in 2004.²⁰¹

In drafting these second stage Treaty sections, Parliament seems to have tried to avoid binding decision-makers to increased Treaty obligations. The increase in specificity and direction sought to prevent the backlash garnered by broad and vague first stage sections, while the omission of specific mention of Treaty principles elsewhere in the relevant second stage statutes sought to narrow the range of situations to which Treaty principles applied. As opposed to generally applicable sections like section 4 of the Conservation Act, second stage sections do not appear to require all actors under the Act to take Treaty principles into account, or take them into account on all occasions, thereby severely limiting their force. They appear to limit the force of Treaty principles to specific decision makers in specific contexts, and even at this point the law uses the language of “take into account”, and not “give effect to”, those principles. Samuel Wevers notes the limited effect of “statutory acknowledgements” in legislation that require special consideration of Māori interests during decision-making, but only constitute one influence on the final decision, rather than any imposing greater constraint.²⁰² This is usually the position under the EEZ Act. For example, a consent authority, such as the EPA, may be required to consider Māori interests, but these interests will not constrain their decision, if other relevant factors are ultimately given more weight. There is therefore no guarantee of a Treaty consistent outcome. This approach offers Māori little by way of a “basket of power- sharing provisions” and is barely on the spectrum of co-governance.²⁰³ Thus, the Crown, through Parliament, appears to recognize the significance of the Treaty through its more detailed incorporation into legislation, while at the same time limiting the implications for public sector decisions.

The Trans-Tasman Resources case shows an intention on the part of the courts to apply second stage sections broadly, despite Parliament’s obvious evasive tactics. The NZSC also appears well aware of Parliament’s tactics, stating that subtle wording does not necessarily result in a narrow approach, especially given the constitutional importance of the Treaty.²⁰⁴ Rather than

²⁰¹ Foreshore and Seabed Act 2004, section 13. See also Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 section 9 defines the “exclusive economic zone” as “those areas of the sea, seabed, and subsoil that are beyond and adjacent to the territorial sea of New Zealand”.

²⁰² Above n 18, at 27.

²⁰³ At 20.

²⁰⁴ Above n 6, at [151].

apply Treaty principles in the confined and specified way second stage legislation seems to prescribe, the court will “not easily read statutory language as excluding consideration of Treaty principles if a statute is silent on the question”.²⁰⁵ Thus, it appears the courts are finding a way to give effect to Treaty principles even where this is not clearly intended by Parliament.

²⁰⁵ At [151].

Chapter Five: A Possible Third Stage of Treaty Incorporation

Waiho i te toipoto, kaua i te toiroa Let us keep close together, not wide apart

5.1 The Third Stage of Treaty Incorporation

First stage legislation, as exemplified by the Conservation Act, only provided broad and vague Treaty clauses which made reference to as yet undefined Treaty principles. Beyond this, second stage Treaty incorporation became more specific and directive as to how the Crown was to give effect to Treaty principles, but in doing so constrained the reach of Treaty principles. Both first and second stage statutes are severely limited in their ability to properly balance kāwanatanga and tino rangatiratanga due to the fact that the administrative structures established by the other provisions of the relevant Acts limit the exercise of decision-making powers by Māori. However, we might be seeing the emergence of a third stage of Treaty incorporation in mainstream legislation which seeks to remedy this fault. Treaty clauses themselves are still necessary and useful, but in order for any meaningful balance to be struck between kāwanatanga and tino rangatiratanga, the wider Act must explicitly provide for and establish legal arrangements which allow for power-sharing. While such power-sharing arrangements can exist on a spectrum, third stage statutes could open the door for co- governance regimes of varying strengths. Two such examples currently working their way through Parliament are the Natural and Built Environments Bill and the Water Services Entities Bill.

5.2 The Natural and Built Environments Bill

The Natural and Built Environments Bill (NBA) is planned to be the main piece of legislation replacing the Resource Management Act 1991 (RMA). ²⁰⁶ Thus, there is the potential for a third stage approach to be adopted, upon its enactment. The RMA currently governs the sustainable management of air, water, soil, and ecosystems.²⁰⁷ As the RMA has become cumbersome and ill-adept to deal with climate change and desired environmental outcomes over time, three new Acts are proposed to take its place.²⁰⁸ The NBA plans to integrate environmental protection

²⁰⁶ Ministry for the Environment Natural and Built Environments Bill: Exposure Draft (29 June 2021).

²⁰⁷ Resource Management Act 1991, section 5.

²⁰⁸ Ministry for the Environment Explanatory material on the exposure draft of the Natural and Built Environments Bill (Parliamentary paper, 2021) at 7.

46

and land use, with the aim of protecting and restoring the environment while better enabling development, therefore addressing the key weaknesses in the current resource management system.²⁰⁹ Rather than focusing on managing adverse effects, as the RMA does, the NBA will require the Minister for the Environment to set environmental limits and for all plans to promote environmental outcomes.²¹⁰ Additionally, the Minister retains higher policy level decision-making powers as they must prepare and maintain a national planning framework, which involves setting strategic goals.²¹¹ The regional planning committees, as discussed below, sit beneath this higher level of Executive decision-making.

The exposure draft for the NBA provides an early look at its te Tiriti o Waitangi clause and related provisions. Section 6 states “all persons exercising powers and performing functions and duties under this Act must give effect to the principles of te Tiriti o Waitangi”, using similar language to previous Treaty clauses. Nevertheless, in contrast with first and second stage legislation, it is the wider provisions of the NBA, beyond section 6, which allow for the exercise of decision-making powers by Māori, as discussed below.

Given that the NBA’s stated purpose is to uphold Te Oranga o te Taiao (the wellbeing of the natural environment), it is fitting that some decision-making power be exercised by Māori through a co-governance regime.²¹² Section 23 states a planning committee must be appointed for each region, with the purpose of making and maintaining the plan for a region, to approve or reject recommendations, and to set environmental limits for the region that the national planning framework (as set out by the Minister) authorizes the committee to set, with the operation of this committee being constrained by the matters listed in section 24. Schedule 3 states that the membership of a region’s planning committee must be one person appointed to represent the Minister of Conservation, plus mana whenua representatives, and one person nominated by each local authority or regional council. How mana whenua representatives are to be selected and appointed is not clarified in the exposure draft, however the use of the plural “representatives” infers that there will be two or more, therefore at least matching the number of Crown and local authority appointed members. Section 25 then confers significant powers on the planning committee by stating that it must decide and set the environmental limits in the

²⁰⁹ At 15.

²¹⁰ Above n 206, section 8.

²¹¹ Sections 7, 9, 11.

²¹² Section 5(1)(a).

region’s plan. The powers conferred on planning committees seem akin to delegated law making powers, with the planning committee secretariat providing only advice as to higher policy-making.²¹³ The planning committee does not seem to make specific decisions, such as granting consents, or set higher level policy, but they carry significant power in regards to setting environmental limits, which are integral to the operation of the Act.²¹⁴ Strong mana whenua representation on this committee would therefore be a significant form of co- governance.

This Bill provides an example of how mainstream legislation is now moving to a third stage which explicitly sets up legal arrangements and power-sharing provisions within the Act. The result of these provisions is that the exercise of powers, functions, and duties under the Act might give greater effect to the principles of te Tiriti of Waitangi by attempting to strike a proper balance between kāwanatanga and tino rangatiratanga. This explicit construction of an administrative body with some decision-making powers and mandatory mana whenua representation is what is lacking in first and second stage statutes.

5.3 The Water Services Entities Bill

This dissertation was born out of an interest in the Three Waters Reforms and the government’s co-governance proposals. Evidence has proven that Aotearoa New Zealand’s infrastructure for drinking water, wastewater, and stormwater has not been adequately maintained or improved across the motu.²¹⁵ Both the current government and the Opposition are in favour of affirmative action to remedy this in the interest of public health as well as long term affordability and reliability. However, they disagree on what such reform should entail.²¹⁶ The New Zealand Labour, the Green Party, and Te Pāti Māori are in favour of centralising the Three Waters system through establishing four publicly owned water services entities to provide more efficient and better-funded services than most local authorities are offering currently.²¹⁷ Importantly, the reforms seek to honour te Tiriti by establishing co-governance arrangements that explicitly provide for Māori representation. While the National and ACT Parties claim the

²¹³ Section 5.

²¹⁴ Section 7.

²¹⁵ Internal Affairs Transforming the system for delivering three waters services: Summary of proposals (June 2022) at 5.

²¹⁶ (9 June 2022) 760 NZPD (Parliamentary Debates (Hansard) for Water Services Entities Bill – First Reading, Hon Nanaia Mahuta).

²¹⁷ Above n 216.

co-governance arrangements in the Bill are “unnecessary and divisive” and that “pipes do not differentiate based on race”, Minister Nanaia Mahuta has aptly stated that Māori “have never expressed the wish to sell water assets, and will bring an intergenerational long-term lens to the governance of the water services entities”.²¹⁸

The Water Services Entities Bill recently passed its first reading in Parliament and is currently in the Select Committee stage, with the co-governance model drawing the majority of opposition. The Bill itself has a Treaty clause (s 4) stating “all persons performing or exercising duties, functions, or powers under the Act must give effect to the principles of te Tiriti o Waitangi/the Treaty of Waitangi”, and states that they are subject to Treaty settlement obligations. Already, this section is more powerful than the second stage Treaty sections in the LGA, CCRA, and EEZ Act which sought to evade placing Treaty obligations on all persons performing duties and functions under the Act. Schedule 2 establishes four water services entities by geographic location (Northern, Western-Central, Eastern-Central, and Southern). Section 27 establishes a regional representative group for each of the four water services entities consisting of no fewer than 12 and no more than 14 regional representatives, which must be an equal number of territorial authority and mana whenua representatives.²¹⁹ Furthermore, sections 28 to 37 explicitly set out the parameters of the co-governance regime, including the process for appointments to the regional representative group, and what decision- making powers, from a cluster or basket of powers, are allocated to whom. The Bill thus provides for the explicit establishment of the legal arrangements that first and second stage statutes lack, showing how wider provision in the Act is needed to sanction the exercise of decision-making powers by such representative bodies and to bring the Act into line with Treaty principles.

Section 28 sets out the role of the regional representative group in appointing and removing water entity board members, participating in the process of setting the water entity strategic direction and performance expectations, reviewing said performance, approving the appointment and remuneration policy prepared by its board appointment committee, and performing any other duties, functions, or powers under legislation.²²⁰ Furthermore, the regional representative group must perform its duties for the benefit of all communities in the

²¹⁸ Above n 216.

²¹⁹ Water Services Entities Bill 2022 (126-1), sections 32-33.

²²⁰ Section 28.

entity’s service area, taking into account the diversity of communities and community interests as well as future interests.²²¹ Decisions made by regional representative groups must be made by consensus if possible, or 75% vote in any other case.²²² The need for a consensus first and foremost, then 75% thereafter, again quells fears of an imaginary ‘Māori veto power’ which surrounded section 4 of the Conservation Act in the Ngāi Tai case.

For all the political and public backlash against establishing the regional representative groups, the powers granted to the group sit within a highly moderated scheme and are not on the strongest end of co-governance. Section 28 confers specific decision-making powers on the co-governance group, such as approving appointments and remuneration through a board appointments committee, which is also potentially a co-governing body.²²³ However, when it comes to membership of the Board, the Act reverts back to the language used in second stage statutes such as the LGA, CCRA, and EEZ Act requiring collective knowledge, experience, and skill in relation to certain factors, including the principles of te Tiriti o Waitangi, mana whenua perspectives, mātauranga Māori, tikanga, and te ao Māori, rather than specifying Māori representation.²²⁴ As distinguished from second stage statutes, however, it is the co-governing group that will appoint members of the water entity boards, rather than the Minister, thus conferring some decision-making powers on the co-governing body. Section 28 uses the language of “participation” and “review” in relation to the regional representative group’s role in appointing members to water entity boards and participating in the process of its strategic direction and performance, while the Board itself holds most of the other decision-making power.²²⁵

As an exercise of kāwanatanga in this co-governance regime, the Minister’s role is to “oversee and manage” Crown interests in the water services entities.²²⁶ This is achieved through appointing Crown reviewers, observers, and managers for the purposes of requiring information, addressing problems within the water services entities, and reviewing the performance of the water services entities’ functions. ²²⁷ Although this is not higher policy- making or delegated law-making power, the exercise of the Minister’s powers introduces a

²²¹ Section 29.

²²² Section 30.

²²³ Sections 38-40.

²²⁴ Section 57.

²²⁵ Section 56.

²²⁶ Section 26.

²²⁷ Sections 26, 175, 177, 179.

strong kāwanatanga Karauna presence into the functioning of the Three Waters regime, possibly diluting the potential power of the regional representative groups. The Minister’s powers recognise the kāwanatanga exercised by central government, while territorial authority representation on the regional representative group recognises the power of local councils. It might therefore be questioned why mana whenua representatives share decision-making powers with territorial authorities rather than central government as might be more fitting with the principle of partnership. Therefore, this potentially overbearing Crown power, which threatens to dilute the co-governance regime, may be indicative of the “overweening state” Chris Finlayson warns of.²²⁸ In addition, as discussed by the Controller and Auditor-General, the governance structure in the Bill needs to be clarified and more “clearly delineated” so as to “avoid the risk of overlapping accountabilities” of the group to the board, as well as the accountability of the group itself.²²⁹

Nonetheless, the Water Services Entities Bill illustrates a large step into the third stage of Treaty incorporation in mainstream legislation. The Bill explicitly sets up legal arrangements for power-sharing between the Crown, local government, and Māori. Where first stage Treaty incorporation was broad and vague, and second stage specific and directive, both stages failed to explicitly establish co-governance structures which properly balance kāwanatanga and tino rangatiratanga. In contrast to the Conservation Act and the EEZ Act, under this new regime Treaty principles can be given more fulsome effect when wider provisions of the Act, and not just the Treaty clause, provide for power sharing arrangements.

²²⁸ Chris Finlayson “Leading the Way: Finlayson & Solomon” (Auckland Writers Festival 2022, Aotea Centre, Auckland, 28 August 2022).

²²⁹ Controller and Auditor-General “Submission on the Water Services Entities Bill” (2022).

Part Three: Co-Governance as Positive Constitutional Development Chapter Six: Conclusion

I orea te tuatara ka patu ki waho

A problem is solved by continuing to find solutions

This dissertation has been a case study investigating how Parliament has navigated the relationship between Treaty principles and the exercise of public powers, especially in the resource management domain. Te Tiriti itself calls for the establishment of a proper and equitable balance between the kāwanatanga granted to the Crown and tino rangatiratanga retained by Māori.²³⁰ First and second stage statutes have failed to achieve that balance. However, there is hope for a third stage.

Looking back to first stage Treaty incorporation statutes, as exemplified by the Conservation Act, it appears Parliament did not give much thought to the full implications, even though incorporation of the Treaty was novel for the time. Parliament conferred an immense interpretive power, of a constitutional kind, on the courts with these broad and vague references to Treaty principles which were yet to be defined. However, because the Conservation Act does not provide for the conferral of decision-making powers on Māori, and does not set up co-governance bodies, it is questionable whether it can give effect to the Treaty, in this context. While incorporation of the Treaty into legislation was a milestone, it is now time to move beyond mere inclusion of broad and vague sections. This does not have to mean repealing sections such as section 4, but rather supporting them with provisions which establish co- governance bodies and clearly confer decision-making powers on Māori.

Rather than create proper power-sharing structures, Parliament seems to have attempted to constrain the potentially far reaching effect of phrases, such as “to give effect to” Treaty principles, in second generation statutes, such as the LGA, CCRA, and EEZ Act in its attempts to rein in the scope of Treaty obligations imposed on the state. In the EEZ Act, it appears Parliament unsuccessfully attempted to constrain the effect of Treaty principles to the contexts listed in section 12. However, the Supreme Court’s “broad and generous” approach to interpreting the Act, verging on a presumption of consistency with te Tiriti, has overflowed

²³⁰ Above n 9, at 10.

52

Parliament’s apparently restrictive aims, allowing for greater consideration of existing Māori interests, rights, and tikanga, based on the court’s interpretation of the statutory scheme. The NZSC’s decision in Trans-Tasman illustrates the interesting dynamics between Parliament and the courts, wherein the courts hold a significant amount of constitutional power in their interpretation of these sections, possibly permitting the courts to extend the meaning of the legislation beyond its specific and directive drafting. Even though the composition of Parliament has altered over time, the courts have nonetheless played a creative role in interpreting essentially restrictive first and second stage legislation, most notably in the Trans- Tasman case. Additionally, the Executive has sometimes changed its own policies and practices within the structure of the legislation, such as in the case of DoC, in administering the Conservation Act. However, such changes again fall short of striking a proper balance between kāwanatanga and tino rangatiratanga. Moreover, it is not the role of the courts or government departments to establish co-governance bodies and build up the relational sphere: this is more properly a job for the Legislature.

Up until the present, Parliament has largely shied away from establishing co-governance bodies between Māori and the Crown outside Treaty Settlement legislation, and has only just begun to do so with the creation of Te Aka Whai Ora/ the Māori Health Authority. That legislation, the Natural and Built Environments Bill, and the Water Services Entities Bill therefore represent a significant shift in how the government is giving effect to Treaty principles. Where first and second stage statutes did not provide for the conferral of decision-making power, these new measures do. However, it must be remembered that co-governance exists on a spectrum and generally concerns three types of decision-making: policy-making, delegated law making, and making specific decisions. While the co-governance bodies established under these new measures may not yet have full policy-making powers or delegated law making powers, and exist under layers of central governance, they do signal a movement to a new point on the spectrum of co-governance, in the context of mainstream legislation. Even though these proposed co-governance structures may leave high level policy-making powers with central government, these fledgling third stage statutes attempt to strike a better balance between kāwanatanga and tino rangatiratanga by taking account of Māori interests at the central, local, and iwi levels. These reforms illustrate a move away from vague and evasive legislation to an approach which actively grows the relational sphere where kāwanatanga and tino rangatiratanga have the potential to be properly balanced.

This third-stage shift can be said to be a positive development for Aotearoa New Zealand’s constitution. Revolutionary macro-constitutional change at the level of Parliament, such as dual legislative systems, as envisaged in Matike Mai, does not seem imminent or readily achievable.²³¹ However, positive change may be achieved at the micro-constitutional level, with the enactment of robust co-governance arrangements in mainstream legislation, which grows the joint relational sphere of kāwanatanga and tino rangatiratanga. Such micro- constitutional change would, in line with Treaty principles, promote the place of the Treaty as a pou of our unwritten and unentrenched constitution. Moreover, taking a Dworkinian approach, stronger incorporation of the Treaty in third stage legislation gives Treaty principles more persuasive gravitational force in general within the law.²³² Thus, the creation of co- governance arrangements in mainstream legislation is a significant form of constitutional change, even if occurring at the level of local and regional authorities rather than the level of Parliamentary redesign.

²³¹ Above n 24, at 104-105.

²³² Ronald Dworkin “Is Law a System of Rules?” in The Philosophy of Law (1^st ed, Oxford University Press, Oxford, 1977) 38 at 43; and John Dawson “Dworkin and the Treaty of Waitangi as a Legal Principle” in S Bookman et al. (ed) Pragmatism, Principle, and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (1^st ed, Intersentia Ltd, Wellington, 2022) 247 at 256.

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55

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John Dawson “Dworkin and the Treaty of Waitangi as a Legal Principle” in S Bookman et al. (ed) Pragmatism, Principle, and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (1^st ed, Intersentia Ltd, Wellington, 2022) 247.

Matthew Palmer The Treaty of Waitangi in New Zealand’s law and constitution (1^st ed, Victoria University Press, Wellington, 2008).

Nicola Wheen and Janine Hayward Treaty of Waitangi Settlements (1^st ebook ed, Bridget Williams Books, Wellington, 2012).

Robert Joseph Waking the taniwha: Māori governance in the 21st century (1^st ed, Thomas Reuters, Wellington, 2021).

Ronald Dworkin “Is Law a System of Rules?” in The Philosophy of Law (1^st ed, Oxford University Press, Oxford, 1977) 38.

Ross Carter Burrows and Carter Statute Law in New Zealand (6^th ed, LexisNexis, Wellington, 2021).

Ross Carter Subordinate Legislation in New Zealand (1^st ed, LexisNexis, Wellington, 2013).

Steven Webster A Separate Authority (He Mana Motuhake), Volume I, Establishing the Tūhoe Māori Sanctuary in New Zealand 1894-1915 (1^st ed, Palgrave Macmillan, Auckland, 2020).

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Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 1.

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James Carruthers “The effect of removing Treaty of Waitangi principles from NZ legislation” (LLB (Hons) Dissertation, University of Otago, 2005).

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(18 July 2012) 681 NZPD 3689.

(28 August 2021) 683 NZPD 4779.

(7 June 2022) 760 NZPD (Pae Ora (Healthy Futures) Bill — Third Reading, Hon Andrew Little).

(9 June 2022) 760 NZPD (Parliamentary Debates (Hansard) for Water Services Entities Bill – First Reading, Hon Nanaia Mahuta).

K Speeches

Chris Finlayson “Leading the Way: Finlayson & Solomon” (Auckland Writers Festival 2022, Aotea Centre, Auckland, 28 August 2022).

Natalie Coates “Kōrero with Te Rōpū Whai Pūtake” (University of Otago, Dunedin, 22 September 2022).

Matthew S R Palmer “Indigenous Rights, Judges and Judicial Review” (Public Law Conference 2018, Melbourne Law School, Melbourne, 11-13 July 2018).

L Press Releases

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M Government Publications

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N Internet Materials

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O Submissions

Controller and Auditor-General “Submission on the Water Services Entities Bill” (2022).