This page last modified 18 September 1998
Treaty of Waitangi & Maori claims
Treaty
text
Principle
of 'Partnership'
DOC's partnership
response
Bruce Mason, Public
Access New Zealand
15 September 1994
The Department of Conservation undertook to non-government organisations (NGO's) to respond to "The Principle of 'Partnership' and the Treaty of Waitangi" by Bruce Mason. It did not. Instead, in a letter dated 1 September 1994, DOC (signed by Alan Edmonds) wrote to me in reply to a letter of 22 December 1993 which asked the Director-General of Conservation--
"PARTNERSHIP PLAN
"It has been announced in a DOC circular that a Partnership Plan Steering Group has been established--
"to prepare a strategy for the development of a conservation partnership with iwi Maori which contributes to the mission of the Department and to take initial steps towards the implementation of such a partnership".
"Could you please cite the statutory, case law, and constitutional basis for you determining--(1) that a partnership exists or should exist between the Crown/DOC and iwi Maori in the ownership or management of lands and natural resources vested under the administration of DOC via the National Park, Reserves, Conservation, and related Acts;
(2) the nature of such a 'partnership';
(3) as the manager in trust for public lands, that you have power to take steps to divest management or ownership of public resources via partnerships with iwi Maori.
"Could you also inform me of the mission of the Department, and the constitutional and legal basis for its component parts".
I resubmitted the letter on 28 February, 3 March, and 12 April
1994.
DOC's belated response of 1 September states that it is an answer
in general terms. It also pretends to not know the context in
which the issue of 'partnership' was raised by myself. Significantly
it does not address most of the critical detail contained in my
partnership paper and avoids major areas such as my discussion
of the Lands case, the non-implimentation of Government's policy
entitled 'Principles for Crown Action on the Treaty of Waitangi',
the application of Treaty principles within the department, and
the conclusions of my paper.
This critique of the DOC letter of 1 September is confined to
commentary on the limited areas the DOC letter covers. Wider matters
contained in my partnership paper, as itemised above, are not
discussed. There remains need for substantive official responses
to these.
The baseline used for this critique is provided by the Department's
own recent words on the subject-
"The Department's interpretation of the [Treaty] principles, as recently outlined to the NZ [Conservation Authority], NGO's and staff, is based on decisions of the courts in interpreting the law", D-G Conservation to FMC, 21 July 1994.
Quotations from the DOC response are grouped into key issues for
the purpose of commentary--
DOC: The requirements of section 4 of the Conservation
Act 1987 [are] "weaker than the directive of the State-owned
Enterprises Act 1986" (section 8).
DOC: "The meaning of 'principles of the Treaty' will
depend on the context in each case".
Commentary: These two quotations challenge the direct application
by DOC of principles that the Court of Appeal derived from the
Lands case. The Lands case was brought under the SOE Act, not
the Conservation Act. As the context of each case and statute
is critical to understanding of Treaty principles, DOC cannot
safely infer from the Lands case that there is a generic principle
of 'partnership' affecting all its functions over all the resources
it administers.
DOC: "In respect of the so-called partnership
principle, I refer to the Lands case. A reference to the concept
of partnership or to the partnership principle is a short-hand
for the observations of their Honours that the Treaty signified
a partnership between pakeha and Maori requiring each to act towards
the other reasonably and with the utmost good faith (per Cooke
P at 664, 11; Richardson J at p 673, 1 50; Somers J at p 693,
1 5; Casey J at p 702, 1 32; p 703, 1 6 [incorrect reference?];
Bisson J at p 715, 1 27).
Commentary: The relevant citations from the Lands case
are as follows (emphasis added)--
Cooke P at 664, line 1; "The Treaty signified
a partnership between races, and it is in this concept that the
answer to the present case has to be found".
Richardson J at p 673, line 50; "That basis for the
compact requires each party to act reasonably and in good faith
towards the other".
Somers J at p 693, line 5; "Each party in my view
owed to the other a duty of good faith. It is the kind
of duty which in civil law partners owe to each other".
Casey J at p 702, line 32; "...it is not difficult
to infer the start in 1840 of something in the nature
of partnership between the Crown and the Maori people.
At p 703, line 6; "...inherent in the concept of an on-going
partnership founded on the Treaty. Implicit in that relationship
is the expectation of good faith by each side in their
dealings with the other, and the in the way that the Crown exercises
the rights of government ceded to it" [p 603, lines 1-4]
Bisson J at p 715, line 27; "The passages I have quoted
from the speeches of two Maori chiefs and from the letter of Governor
Hobson enable the principles of the Treaty to be distiled from
an analysis of the text of the Treaty. The Maori chiefs looked
to the crown for protection from other foreign powers, for peace
and for law and order. They reposed their trust for these things
in the Crown believing that they retained their own rangatiratanga
and taonga. The Crown assured them of the utmost good faith
in the manner in which their existing rights would be guaranteed
and in particular guaranteed down to each individual Maori the
full and undisturbed possession of their lands which is the
basic and most important principle of the Treaty in the context
of the case before this Court".
Commentary: The Judges did not state that partnership
was 'short-hand' for the relationship they deemed to exist between
the Crown and Maori. It is DOC's interpretation, not that of the
Courts, that 'categorises' the relationship as one of 'partnership'.
In the Lands case the Judges defined the relationship as requiring
reasonable action and good faith between the parties. Later, in
the Forest case, the relationship was deemed to be founded on
"reasonableness, mutual cooperation and trust".
The Judges did not categorically state that a partnership existed.
They said that the relationship signified and inferred,
something in the nature of a partnership. Elsewhere in the
Lands case Casey J said that it was a relationship akin
to partnership (p 704 line 16). The judgements have not defined
what is meant by 'partnership', other than the characteristics
noted in the above paragraph.
Definition:
Signify: " Be a sign or indication or presage of",
Concise Oxford Dictionary, Seventh Edition.
Broadcasting assets case:
citation per DOC: "their
Lordships provide their opinion on the nature of the principles
of the Treaty categorising them as "underlying mutual
obligations and responsibilities...this relationship the Treaty
envisages should be founded on reasonableness, mutual cooperation
and trust".
Commentary: Their Lordships categorise the principles as
underlying not as 'overarching'.
DOC: "This relationship is that which in earlier cases
has been categorised as "partnership".
DOC: "The foregoing brief review of some of the relevant
case law shows that the concept of partnership can be categorised
as an overarching principle".
Commentary: this is a DOC categorisation; it is not to
be found in the cases.
DOC: "...the overarching principle identified
by the Court of Appeal using the term "partnership"
(NZ Maori Council v Attorney-General [1987] 1 NZLR 641 - "the
Lands case").
Commentary: The only reference to an 'overarching' principle
has been by Richardson J in the Lands case (p 673 line 43): "There
is however one overarching principle--to which I shall
return--which in its application here is sufficient to answer
the present case. It is that considered in the context of the
State-Owned Enterprises Act, the Treaty of Waitangi must be
viewed as a solemn compact between two identified parties,
the Crown and the Maori, through which the colonisation of New
Zealand was to become possible".
DOC again: "The foregoing brief review of some of
the relevant case law shows that the concept of partnership can
be categorised as an overarching principle".
Commentary: This is DOC's interpretation of the case
law, not that expressly derived from the cases. Richardson J identified
'a solemn compact' as the 'overarching principle', not 'partnership'.
Definitions:
Overarch: "form arch over"; Concise Oxford
Dictionary, Seventh Edition.
Compact: "agreement or contract between two or more";
Concise Oxford Dictionary, Seventh Edition.
Commentary: The DOC opinion acknowledges from
the Forests and Coal cases (DOC paragraph 6) that "with respect
to claims to resources" the Courts did not determine that
this "automatically require[s] equal shares between the parties".
This admission establishes the central flaw in moves towards divesting
or 'sharing' ownership or management of public resources with
iwi. Such an intent, reinforced by erroneous statements by the
Minister of Conservation's that Maori are "equal Treaty partners"
with the Crown, has no lawful basis in the management of public
lands.
Commentary: DOC's paragraph 8 records "the
potential for judicial activism in other areas of law, in particular
the approach to the application of Treaty principles", earlier
noting "there may be occasions in which there is a moral
although not a legal duty to ensure adherence to the spirit of
the Treaty by acting in accordance with its principles".
This raises the issue, is DOC to pursue 'moral' or politically
correct 'duties' by anticipating developments in judicial
law making, or follow established law? To pursue the former, as
the Department appears to be currently doing on 'Treaty' matters,
conflicts with the Department's mission which "is found in
the various Acts which it administers and which confer functions
upon it" (DOC: paragraph 11).
The DOC response confirms the basis for the central criticism contained in "The Principle of 'Partnership' and the Treaty of Waitangi" --that DOC is extending the determinations of the Courts, under a mythology of 'partnership', well beyond what the Courts have defined. There is an inherent and inescapable connotation of equality between the 'partners' that make the use of the term inappropriate in the context of the Treaty and Treaty principles.
In common and departmental parlance the concept of 'partnership is ill-defined, confused, and misleading--dangerously so in regard to the Crown's obligations to all citizens.
That danger is manifest in DOC policies for divesting ownership and for 'shared' and 'co-management' of public resources with iwi under an assumption that an equality of partnership exists. Such policies have no basis in judicial or statutory law. PANZ believes these policies to be unlawful.