2. Treaty of Waitangi Responsibilities
The Conservation Act 1987 and all the Acts listed in its First Schedule must be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi (section 4, Conservation Act 1987). Where, however, there is clearly an inconsistency between the provisions of any of these Acts and the principles of the Treaty, the provisions of the relevant Act will apply, e.g. the National Parks Act 1980. There has been considerable jurisprudence on the Treaty of Waitangi and its principles, and the scope of the duties the Treaty imposes on the Crown. Interpretations continue to evolve.
Effective partnerships with tangata whenua can enhance the preservation of natural and historical and cultural heritage in national parks. Tangata whenua responsibilities to this heritage are embodied in the concept of kaitiakitanga. Kaitiakitanga is a spiritual and environmental ethos that governs tangata whenua responsibilities for the care and protection of mauri, the dynamic life principle that underpins all heritage. Kaitiakitanga includes components of protection, guardianship, stewardship and customary use. It is exercised by tangata whenua in relation to ancestral lands, water, sites, resources and other taonga. The focus of kaitiakitanga is manaaki (care) and rahui (protection).
In 1989 the Government published “Principles for Crown Action on the Treaty of Waitangi”. The principles are:
- The Principle of Government
- The Principle of Self Management
- The Principle of Equality
- The Principle of Reasonable Cooperation
- The Principle of Redress.
The way these principles are applied will depend on the particular circumstances of each case, including the statutory conservation framework and the significance to tangata whenua of the land, resource or taonga in question.
Customary use of traditional materials and indigenous species may be authorised either as a Ministerial consent under section 5 of the National Parks Act 1980 or as a concession under section 49, depending on the nature of the use. Other consents may be required.
POLICIES
2 Treaty of Waitangi responsibilities
2(a) Relationships will be sought and maintained with tangata whenua to maintain and support national parks. These relationships should be based on mutual good faith, cooperation and respect.
2(b) Partnerships, to recognise mana and to support national parks, should be encouraged and may be sought and maintained with tangata whenua whose rohe covers any national park or part of a national park. Such partnerships will be appropriate to local circumstances.
2(c) Protocols and agreements may be negotiated and implemented to support relationships and partnerships, by mutual consent between tangata whenua and the Department.
2(d) Tangata whenua will be consulted when statutory planning documents are being developed which cover national parks. Information will be made available to facilitate their contributions.
2(e) Tangata whenua will be consulted on specific proposals that involve places or resources within national parks of spiritual or historical and cultural significance to them.
2(f) Tangata whenua involvement and participation in conservation in national parks will be encouraged and may be supported with information and technical advice.
2(g) The customary use of traditional materials and indigenous species may be allowed on a case-by-case basis where:
i) there is an established tradition of such use;
ii) it is consistent with all relevant Acts, regulations, and the national park management plan;
iii) the preservation of the species involved is not adversely affected;
iv) the effects of use on national park values are not significant; and
v) tangata whenua support the application.
2(h) Public information and interpretation, where it refers to places or resources of spiritual or historical and cultural significance to tangata whenua, should be developed in consultation with them and should include Māori place and species names, make appropriate use of te reo Māori, and draw attention to tangata whenua values.
2(i) The Department will seek to avoid actions which would be a breach of the principles of the Treaty of Waitangi.
2(j) The Department will implement relevant Treaty claims settlements consistent with its statutory functions.
Note: On 13 June 2007 the New Zealand Conservation Authority (NZCA) approved and adopted a minor change to the wording of the section of the General Policy for National Parks relating to the customary use of traditional materials and indigenous species. It deleted the word 'non-commercial' from policy 2(g). The Chairperson of the NZCA, Kerry Marshall, said that "Following representations from and consultation with Ngai Tahu, and having also received advice from the Department of Conservation and considered the views of the Minister, the Authority has decided that it is appropriate to include all customary use of traditional materials and indigenous species under one policy." Customary use is defined in the policy as “Gathering and use of natural resources by tangata whenua according to tikanga.” The Minister of Conservation, Hon Chris Carter, decided to make a similar change to the Conservation General Policy, sections 2(g) and 4.1(e).
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