Saturday, September 24, 2011

Wai 262 - Taonga and the Conservation Estate

While Chapter Three of Ko Aotearoa Tēnei is concerned with environmental law and policy as it relates to resource management and the use of private land, there is a significant set of distinctive issues that arise in respect of the conservation estate.  Chapter Four of the report addresses those issues relating to Taonga and the Conservation Estate.

The first thing to note is the particular importance of the conservation estate in the context of these issues.  In part, the vast size of the conservation estate makes it central to any discussion relating to environmental law and policy.  As the report notes, the Department of Conservation owns or is responsible for more than 8 million hectares of land, about one third of New Zealand.  But the area of land is not the only significant matter.  The conservation estate has not been subject to the sort of farming, urbanization, and other modifications to the land and the environment that other parts of the landscape have undergone.  The conservation estate is therefore home to most of the surviving “taonga places”, where kaitiaki relationships with the natural environment and flora and fauna are possible in a way that they are not in other areas.  The Department of Conservation is also responsible for almost all remaining indigenous flora and fauna species and so control access to these taonga.

The Waitangi Tribunal acknowledges that, in many ways, the Department of Conservation has led the way amongst government agencies in terms of building relationships with Māori, and yet the Department’s structure and guiding policies still fall well short of what is required by the Treaty partnership.  The Department seems to be very comfortable with consultation, but has not taken more substantive steps towards power-sharing. The Tribunal notes that the Conservation Act 1987 includes the most powerful Treaty principles provision in current legislation and recommends significant reforms in order for the Department to meet the obligation to give effect to Treaty principles.

One of the ways in which the Department of Conservation engages with Māori at a local level is through their Pou Kura Taiao.  The Pou Kura Taiao are chosen for their mana within the local Māori community and their knowledge of tangata whenua, tikanga, and te reo.  Their role is to ‘monitor and sustain departmental capability to achieve effective engagement’ between Māori and the Department.  The Tribunal recognises that this is a very effective model for ‘upgrading DOC’s capacity to relate to tangata whenua on the ground’ but stresses that Pou Kura Taiao cannot take the place of the Māori Treaty partner. 

And in order to institutionalise a shift to a partnership model changes are required to the Department’s structure and policy.  For example, the Tribunal considers that the Conservation General Policy and the General Policy for National Parks, which set the key strategic and policy direction for the Department, ought to include obligations to give effect to the Treaty principle of partnership.  Similar to the Tribunal’s recommendations in relation to local authorities in the resource management context, in relation to the management of the conservation estate, the Department of Conservation should be required to seek out and identify opportunities to establish power-sharing arrangements with tangata whenua wherever possible.  The Tribunal is also highly critical of the 2006 document published by Te Puni Kōkiri and the Ministry of Justice entitled Crown-Māori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies.  The Tribunal finds that these guidelines are effectively binding rules that are ‘far too restrictive for an organization with a statutory duty to build sound Treaty relationships.’

The major structural change recommended by the Tribunal is the establishment of a national Kura Taiao Council and conservancy-based Kura Taiao boards.  These entities would sit alongside the existing Conservation Authority and conservation boards.  The Conservation Authority and conservation boards provide important stakeholder input into conservation strategy and planning at both a national and local level. The Tribunal envisages that the Kura Taiao Council and Kura Taiao boards would provide a tangata whenua parallel to the existing organizational structure and engage with the Conservation Authority and conservation boards “to determine, case by case, the appropriate level of tangata whenua control, partnership, or influence over taonga in the environment, and to develop new models for the management of those taonga”. 

The Tribunal’s report addresses two other specific areas of the management of the conservation estate.  The first of these is the customary use of taonga species from within the conservation estate.  This was a significant issue for many of the claimants involved in the inquiry.  Again the Tribunal looks to the development of partnerships between local tangata whenua committees and the Department of Conservation to manage customary harvesting and access to taonga species, emphasizing the importance of joint decision-making in these matters.  The Tribunal also considers the management of commercial activity on conservation land, recommending the Department of Conservation formalize its processes for consulting with tangata whenua about concessions within their rohe as well as providing that tangata whenua interests have a reasonable degree of preference when the Department makes decisions about commercial activities in the conservation estate.