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Questions over ‘manaakitanga’ in the Hauraki Gulf

04 May 2018 - By Charlotte Doyle and Sally McKechnie

Ngāi Tai ki Tāmaki v Minister of Conservation

The motu (islands) of Rangitoto and Motutapu sit in the middle of the Hauraki Gulf in Tāmaki Makaurau (Auckland). Highly popular destinations for visitors and locals, the islands are iconic parts of the city’s landscape. They are also historically and spiritually important to Ngāi Tai ki Tāmaki, tangata whenua to the motu.

These islands form the backdrop to the recent decision by the Court of Appeal in Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2017] NZCA 613. While the iwi were unsuccessful in their claim, the decision of the court delivered by Justice Kós is notable for its discussion of Te Ao Māori concepts and, in particular, manaakitanga. Such judicial discussions in the higher courts are not common.

Leave to appeal to the Supreme Court has been sought. With the ground-breaking fiduciary findings by the Supreme Court last year, in Proprietors of Wakatū v Attorney-General [2017] NZSC 17, the approach of our most senior court to arguments involving Te Ao Māori concepts will be hotly anticipated, if leave is given.

Before the court: guided tours and statutory concessions

This matter was before the court because Ngāi Tai ki Tāmaki Trust sought judicial review of the Director-General of Conservation’s decision to grant concessions to the Fullers Group Ltd and Motutapu Island Restoration Trust to renew guided tours on the islands. Each concession was to last five years, pending a review of a new conservation management plan for motu in Tāmaki Makaurau and the resolution of the Ngāi Tai claims settlement with the Crown.

The iwi claimed that the concessions were an unlawful exercise of decision-making powers under the Conservation Act 1987 and the Hauraki Gulf Marine Park Act 2000 (HGMP Act) as the decisions failed to recognise the iwi’s rangatiratanga over the islands, and what the iwi said was an exclusive right to the concessions.

Both these Acts make express reference to Māori concepts and interests. The Conservation Act requires the consideration by the decision maker of the principles of the Treaty of Waitangi. A core purpose of the HGMP Act, amongst other things, is to recognise the historic, traditional, cultural, and spiritual relationship of tangata whenua in the Hauraki Gulf with its islands. Ngāi Tai heavily relied on the protection of ‘tangata whenua’ interests in sections 7 and 8 of the HGMP Act as the basis for its argument that the concessions granted to third parties failed to maintain and enhance their relationship with the motu.

Both the High Court and Court of Appeal declined to grant the relief sought by the iwi. The Court of Appeal rejected the argument that the HGMP statutory protection amounted to an exclusive right for Ngāi Tai. It considered that the HGMP Act was intended to strike a balance between the interests of the general public in economic and environmental sustainability, as well as the interests of tangata whenua.

Te Ao Māori

The decision is notable for its discussion of a number of Te Ao Māori concepts.

Both the High Court and the Court of Appeal held that a definitive determination of rangatiratanga was not part of the Director-General’s statutory authority. It was the wrong forum for such a decision and, as the Court of Appeal noted, rangatiratanga over the motu is still in contention with other iwi.

Tangata whenua and mana whenua

There was no such reluctance about tangata whenua or mana whenua, however. In the Court of Appeal’s view, it was “plain” that Ngāi Tai were tangata whenua of the Hauraki Gulf. “Nor is there any doubt” that the iwi held mana whenua over the motu. The court referred to the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014. Ngāi Tai ki Tāmaki are recognised by this Act as part of the Ngā Mana Whenua o Tāmaki Makaurau group and the Collective Redress Act provides mechanisms to enable iwi and hapū to exercise mana whenua over the motu.

The Court of Appeal made these statements as direct statements of fact. Their legal substance is less clear.

Tangata whenua is referred to, but not defined, in the HGMP Act. It loosely refers to Māori in the Hauraki region, rather than to specific iwi. There is also no definition of mana whenua in the Collective Redress Act referred.

There is a definition of ‘manawhenua’ (sic) in the Conservation Act, as being a “customary authority exercised by an iwi or hapū or individual in an identified area”. This definition was not referred to by either the High Court or Court of Appeal.

There is no discussion of what the concept means for Ngāi Tai, and other tangata whenua, in either judgment.

It may be that these terms are so well understood in modern New Zealand that definitions are not required. However, not everyone agrees that this is the case. For example, Ta Hirini Moko Mead in the 2016 edition of Tikanga Māori Living by Māori Values devotes 14 pages to explaining how mana whenua can rise and be recognised.

In its Wai 64 Report, the Waitangi Tribunal expressed disapproval of the use of mana whenua, being concerned that it implies that one group can speak exclusively for all. In this judicial review, only one other iwi provided evidence, despite 13 iwi and hapū in Tāmaki Makaurau being recognised to have mana whenua by the Collective Redress Act.

Nor is this purely an academic debate. The Court of Appeal notes that there is “certainly authority as to the enforceability of principles of tikanga” and it is likely that they will feature more and more in arguments before the courts. The thinness of the precedents is notable however – of the three decisions cited by the Court of Appeal, two date from the early 1900s and the third is the Supreme Court’s 2012 decision in Takamore v Clarke. The Supreme Court’s finding that tikanga was a relevant consideration in Takamore was highly significant. However, the decision has left considerable uncertainty over how tikanga Māori might be recognised in other legal contexts.

Manaakitanga

In this case, Ngāi Tai are arguing for something akin to a “hosting visitors” tourism right – quite some distance from the traditional burial practices under consideration in Takamore.

Ngāi Tai argued that by being tangata whenua, tikanga Māori conferred specific roles on them over the motu: manaakitanga (authority and responsibility to host and care for visitors); and katiaki (guardianship). By holding manaakitanga over the motu, Ngāi Tai argued that they had a customary right of responsibility for introducing visitors to ancestral lands. The active protection of this right should attract commercial returns for the iwi, to the exclusion of others. In this argument, the iwi relied on the Whales Case (Ngāi Tahu Māori Trust Board v Director General of Conservation [1995] 3 NZLR 553 (CA)).

While the Court of Appeal was not persuaded, ‘manaakitanga’ was discussed at some length in its decision. In our research, we have found no other discussions of this concept at Court of Appeal or Supreme Court level.

Here, albeit in obiter, the Court of Appeal appears to indicate that ‘manaakitanga’ forms an important aspect of Treaty rights to be ‘actively protected’. The court does not define ‘manaakitanga’ itself and so, it seems, adopts Ngāi Tai’s characterisation of the concept. What evidence was before the court about what ‘manaakitanga’ is, and how it is exercised, is not clear from the judgment. In the specific circumstances of the HGMP Act, the Court of Appeal considered that manaakitanga “may well be of significance” for a statutory decision-maker, but the customary concept could not be elevated above the statutory scheme to create a ‘veto’.

Where to from here?

This judgment raises more questions than it answers:

What is ‘manaakitanga”? Is it in some way “exclusive” (as could be implied from the judgment) and exercised by one iwi over an area to the exclusion of other iwi?

Where there is no statutory scheme, what weight should manaakitanga have?

In what context does manaakitanga require active protection? What does that entail?

How is a responsible decisionmaker to approach these comments?

While judicial recognition and concern to consider and apply Te Aro Māori concepts is to be applauded, there is a need for caution. The decisions should be based on careful discussion, informed by robust evidence about the concepts’ meaning and scope. The courts cannot assume that there is a shared meaning of these concepts within Māoridom, available to be absorbed into the common law and reflected in the statute book.

Rigour must be adopted by our courts, otherwise the legal status and weight of Te Ao Māori and tikanga will continue to be speculative. It will be fascinating to see what the Supreme Court makes of this, should it grant leave.


Charlotte Doyle charlotte.doyle@simpsongrierson.com is a solicitor based in Simpson Grierson's Wellington office. Sally McKechnie is a partner at Simpson Grierson.

Last updated on the 4th May 2018