This page last modified 18 September 1998
Treaty of Waitangi & Maori claims
Treaty text
Principle
of 'Partnership'
[copy]
Department of Conservation
Head Office
1 September 1994
Mr Bruce Mason
Trustee
Public Access New Zealand Inc
Dear Mr Mason
1. I refer to your letter dated 28 February 1994 seeking certain
information on partnership relationships between the Department
and iwi Maori. The way in which you have phrased the questions
seems to indicate that you have in mind a particular policy initiative
or statement by the Department. Since this is not identified I
propose to answer your question in general terms by reference
to the principles of the Treaty of Waitangi. I assume that your
specific use of the term partnership is sourced from interpretations
of these principles. In particular you have sought the statutory,
case law and constitutional basis for certain "determinations"
in respect of partnership and the Department's functions. While
I question the appropriateness of the term "determinations",
your questions are addressed under the following headings.
2. What is the statutory authority
for a reference to "partnership"? As noted above
the concept of partnership derives from the principles of the
Treaty. As you are aware the Conservation Act 1987 ("the
Act") contains the requirement that the Act "be
interpreted and administered as to give effect to the principles
of the Treaty of Waitangi" (s4). This provision appears
on its face to be stronger than the corresponding provision in
the Resource Management Act 1991 which requires a decision-maker
to "take into account the principles of the Treaty"
(s8), yet weaker than the directive in the State-Owned Enterprises
Act 1986 that nothing in that Act permits the Crown to act in
a manner that is "inconsistent with the principles of
the Treaty of Waitangi". Thus the Department is to administer
the legislation in a way which gives effect to any relevant principles
and importantly the legislation is to be interpreted in the same
way. "To give effect to" may be defined as "to
fulfil" or "to make operative". This
imposes a legal requirement on the decision-makers exercising
powers under the Act and the Department in terms of administration
of the legislation. The meaning of "principles of the
Treaty" will depend on the context in each case.
3. A question arises as to whether the same requirement is imposed
in respect of the Reserves Act 1977, the National Parks Act 1980
or any of the other pieces of legislation referred to in the First
Schedule to the Act. Section 6 of the Act specifies that the Department
is to administer the legislation listed in the Schedule. It may
be argued that s4 only applies to the Act since there is no specific
wording extending the application of this section to the Acts
listed in the First Schedule. This argument is strengthened by
the fact that some pieces of legislation listed in the First Schedule
have specific clauses which refer to the principles of the Treaty
(eg the Foreshore and Seabed Endowment Revesting Act 1991). The
alternative argument is that as a result of the directive in S4
of the Act s6 should be interpreted as to give effect to the principles
of the Treaty, thus the administration of the Acts specified in
the First Schedule must give effect to the principles, including
the overarching principle identified by the Court of Appeal using
the term "partnership" (New Zealand Maori
Council v Attorney-General [1987] 1 NZLR 641 - "the
Lands" case). The Department of Conservation considers
the better view is that s4 does apply to the Acts in the First
Schedule unless there is some provision in the scheduled Act which
is inconsistent with this interpretation.
4. The issue may be clarified when the judgement of the High Court
in Ngai Tahu Maori Trust Board and ors v Director- General
of Conservation and ors (CP No 841/92) is delivered. In any
event if the Acts listed in the First Schedule are not subject
to s4 of the Act it Must be remembered that the Waitangi Tribunal
has jurisdiction to consider whether any legislation is consistent
with the principles of the Treaty. In certain cases it may be
appropriate in administrative law terms for decision-makers to
address principles of the Treaty as a relevant consideration when
exercising powers under legislation which does not make direct
reference to those principles.
5. Identification of principles
of the Treaty by the Courts has occurred in a number of high profile
cases with which I understand you are familiar. 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 p 664, 1 1: 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; Bisson J at p 715, 1 27). Reasonableness and good
faith are characteristics of this partnership which are identified
in the judgements - as opposed to any direct analogy with elements
of partnership law for example (p 664, 1 23ff; p 673, 1 35).certain
specific duties on the parties or principles of the Treaty are
referred to in the judgements and developed in subsequent cases.
6. The concept of partnership is referred to again in New Zealand
Maori Council v Attorney-General [1989] 2 NZLR 142 ("The
Forests" case), the court stating at p 152, 1 30 that
the obligation of good faith might require consultation in certain
circumstances and that with respect to claims to resources did
not automatically require equal shares between the parties. The
latter point was reiterated in Tainui Maori Trust Board v Attorney-General
[1989] 2 NZLR 513 at p 527, 1 36 ("The Coal"
case). At p 5 of the Privy Council decision in the Broadcasting
Assets case (New Zealand Maori Council and ors v Attorney-General
and ors) their Lordships provide their opinion on the nature
of the principles of the Treaty categorising then as "underlying
mutual obligations and responsibilities". The relationship
between Maori and the Crown is emphasised - "This relationship
the Treaty envisages should be founded on reasonableness, mutual
cooperation and trust". This relationship is that which
in earlier cases has been categorised as "partnership".
7. The foregoing brief review of some of the relevant case law
shows that the concept of partnership can be categorised as an
overarching principle. The various principles of the Treaty identified
by the courts to a greater or lesser extent derive from this relationship.
What appropriate behaviour to one's partner might be in any particular
situation is dependent on the f acts of the case and the governing
legislation as is apparent from the court's approach in the Forests
case. Thus, to answer your second questions, the nature of the
relationship conceptualised as partnership cannot be precisely
defined but, as their Lordships expressed, it should be founded
on reasonableness, mutual cooperation and trust. In order to ensure
that the relationship is maintained in the modern apparatus of
the State it is necessary to develop policies which address the
principles of the Treaty in a practical way.
8. The foregoing answers the questions you have posed without further reference to constitutional matters. However, I note that whether or not the principles of the Treaty have been recognised in legislation there may be occasions in which there is a moral although generally not a legal duty to ensure adherence to the spirit of the Treaty by acting in accordance with its principles. It is interesting in this context to note the Court of Appeal's approach in Tavita v Minister of Immigration (1984] 2 NZLR 257. The court notes that the law as to the bearing on domestic law of international human rights and instruments declaring them is undergoing evolution. Though it was not necessary to decide this case on the basis of this issue, these observations are perhaps an indication of the potential for judicial activism in other areas of law, in particular the approach to the application of Treaty principles.
9. Finally, the Minister of
Conservation, the Department and the officers of the Department
have the powers and functions conferred on them (directly or indirectly
by way of delegation) by the Act, the legislation listed in the
First Schedule to the Act, any other legislation where specific
powers are conferred or delegated legislation. The Act establishes
the Department under the control of the Minister of Conservation
(s5) and s6 sets out the functions of the Department.
10. The Minister of Justice has recently announced new Crown policy
being developed in respect of the use of lands administered by
the Department in Treaty settlements.
11. The Department's "mission"
is found in the various Acts which it administers and which confer
functions upon it.
Yours faithfully
Alan Edmonds
Deputy Director-General
for Director-General