Kaitiakitanga and the conservation estate: Protecting Māori guarantees under the Treaty of Waitangi through the New Zealand Bill of Rights Act 1990

Abstract

Māori are tangata whenua (people of the land) of Aotearoa New Zealand. The development, sustenance and transmission of mātauranga Māori (Māori knowledge) requires a relationship between tangata whenua and their taonga (everything that is held precious). Since the arrival of Europeans, this relationship has been compromised by environmental degradation, the alienation of tangata whenua from traditionally owned lands and urbanization.

The conservation estate is one of the few remaining avenues through which Māori can fulfil their cultural obligations as kaitiaki (guardians) over their taonga. Since the creation of the conservation estate, the Crown has assumed near-absolute management. As the Waitangi Tribunal’s Ko Aotearoa Tēnei report identified, the exclusion of Māori from participation in the management of the estate renders the Crown in breach of both the governing legislation, the Conservation Act 1987, and the Treaty of Waitangi.

This paper considers whether the exclusion of Māori from the governance of the conservation estate, frustrating their ability to act as kaitiaki over their taonga, breaches two rights under the New Zealand Bill of Rights Act 1990. The paper asks whether the Crown’s exclusion violates s 15, the right to manifest religion or belief, or s 20, the right to culture.

This paper concludes that the scope of both rights can incorporate, and protect, the exercise of kaitiaki obligations, with s 20 being the most appropriately tailored to protecting this practice. The analysis explores the parameters of both rights and considers whether similar claims taken in comparative jurisdiction can provide guidance for the inclusion of this practice under New Zealand Bill of Rights Act. Recognising kaitiaki obligations as protected under the Act provides that in acting as a gatekeeper between Māori and their ability to sustain a relationship with their taonga, the Crown is breaching human rights.