This is a case just decided in the New Zealand courts. The background is
that the Ngai Tahu of the South Island have in recent years started an
internationally acclaimed business taking tourists in boats off the coast to
view sperm whales.
Marine Mammals are protected in New Zealand law from "harrassment" and
special permits are issued to permit this viewing. The boats come quite
close to the whales.
The Conservation Department proposed to issue a new permit. Ngai Tahu were
concerned that this could harm their business and claimed that they must be
consulted, and must agree to the issue of a new permit. The were anxious to
protect their unique business from competition until it was sufficiently
strong to handle outside competition.
Although the outcome of the case turns on statute law in New Zealand, it has
some interesting features which may be of interest to overseas readers.
Ngai Tahu Maori Trust Board & Others v D-G of Conservation & Others Court of
Appeal CA 18/95, 22 September 1995. Cooke P, Richardson, Casey, Hardie Boys,
Gault JJ.
Background: The Director-General of Conservation in 1992 notified his
intention to issue a further permit for commercial sperm whale-watching off
the Kaikoura Coast. The holders of the only 2 existing permits, both of them
companies owned by Ngai Tahu, objected on Treaty of Waitangi and legitimate
expectation grounds. An injunction was obtained. However in December 1994
the High Court dismissed the Ngai Tahu claim that, by virtue of the Treaty
of Waitangi, they were entitled to a period of five years protection from
competition, or were able to require that the D-G issue no new permits
without their consent. Ngai Tahu appealed that decision.
Decision: Regulations in 1990 and 1992 made under the Marine Mammals
Protection Act 1978 (MMPA) controlled the issue and nature of permits for
whale-watching. The MMPA required that before issuing any permit the
Minister of Conservation should have regard to the need to conserve marine
mammals, any international agreements to which NZ is a party, and
submissions received as a result of public notification of the intention to
issue a permit. The width of these provisions would enable submissions based
on the Treaty and the taking into account of Treaty considerations by the
Minister. There was also nothing in the 1990 or 1992 regulations (conferring
on the D-G the discretion is issue permits) to prevent the D-G likewise from
taking into account Treaty considerations.
Section 4 of the Conservation Act 1987 provides that that Act be interpreted
and administered so as to give effect to the principles of the Treaty.
Section 6 made it a function of the department to administer the MMPA. There
was accordingly sufficient direction to make it a requirement for the D- G
to administer the MMPA so as to give effect to the principles of the
Treaty.
Whichever version of article 1 of the Treaty is used (in which Maori gave up
"sovereignty" or "kawanatanga" in exchange for retaining complete control of
tribal matters or "tino rangatiratanga"), it provided power to the Queen in
Parliament to enact comprehensive legislation for the protection of the
environment and natural resources. The second article (Maori to retain
their "fisheries") also clearly extended to such sea fisheries as the tribes
possessed. Authority for the view that Maori had developed fisheries along
the coasts before 1840, and that Maori have customary, aboriginal title or
Treaty rights and that the Crown has fiduciary duties in relation to those
rights is found in Te Runanga o Muriwhenua Inc v A-G [1990] 2 NZLR 641,
646-7 and Te Runanga o Wharekauri Rekohu v A-G [1993] 2 NZLR 301, 303-6.
Rights in both commercial and non- commercial fishing are dealt with by the
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which does not
however affect whales.
Ngai Tahu had pitched their claim too high in arguing that the right to
conduct commercial whale- watching tours came within the scope of the Treaty
or aboriginal title, and that no permit could be granted without their
consent (even allowing that consent could not be unreasonably withheld).
Ngai Tahu, following the findings of the Ngai Tahu Sea Fisheries Report 1992
of the Waitangi Tribunal about traditional shore and sea whaling operations,
had argued that while traditionally they had no property in the whales
themselves, they had a right of control over access to resources in the sea,
and that the present whale-watching operations were a modern-day expression
of that right, or arose from it as a right of development. Putting aside the
possibility that control may have been extinguished with the extinguishment
of title to adjoining coastal lands, it is obvious commercial whale-watching
is distinct from anything envisaged by the Treaty. Nor has there been any
case in any jurisdiction in which an exclusive right to carry out whale-
watching has been dealt with, and while international jurisprudence is
coming to recognise an right of development within indigenous rights, that
right is not necessarily exclusive. The argument of the Crown was to be
preferred, relying on Te Runanganui o Te Ika Whenua Inc v A-G [1994] 2 NZLR
20, 24-5, that however liberally customary title and Treaty rights might be
construed, tourism and whale-watching are remote from anything contemplated
by the original parties to the Treaty. A Ngati Tahu veto right must
therefore be rejected.
However, the Crown had also pitched its argument too high in saying it had
no more than a duty to consult with Ngai Tahu, and that Ngai Tahu
representations could not materially affect the decision to issue a permit.
Although commercial whale-watching is not a taonga, it is so linked to
taonga and fisheries that a reasonable Treaty partner would recognise that
Treaty principles are relevant, and the matter must be approached broadly.
Since NZ Maori Council v A-G [1987] 1 NZLR 641 it has been established that
active protection of Maori interests is required and to restrict this to
consultation would be hollow. While conservation values must be paramount,
the D-G could legitimately take into account whether rival applicants were
less disturbing of the whales, a secondary issue might be the standard of
service provided to tourists. A residual factor of weight must be the Treaty
duty to recognise the special interests that Ngai Tahu have developed in
these coastal waters. A period of protection from outside competition might
be part of that.
Accordingly, the decision would be referred back to the D-G with a
declaration that, subject to the primary consideration of preservation and
protection of the whales, the D-G should take into account as a relevant
factor the protection of Ngai Tahu Treaty interests.
There were special features in this case to be noted; viewing whales has
some similarity with fishing or shore whaling, and although not a taonga or
a subject of rangatiratanga, it is analogous. Historically, guiding visitors
to see natural resources has been a natural role of Maori, the whale watching
operation is essentially tribal, the companies involved are 'emanations of
Ngai Tahu', and Ngai Tahu had been pioneers of the enterprise. As was
recognised in Te Runanga o Wharekauri Rekohu v A-G (p304) the Treaty created
an enduring relationship of a fiduciary nature akin to a partnership, with
each party accepting a positive duty to act reasonably towards the other. A
reasonable Treaty partner would not restrict consideration of Ngai Tahu
interests to mere matters of procedure. The iwi were in a different position
in substance from other applicants. Subject to overriding conservation
considerations and the quality of service offered, Ngai Tahu were entitled
to a reasonable degree of preference. However, it should be noted that the
particular combination of factors were influential in the court's decision
and they may well be unique. The precedent value of the case is therefore
likely to be 'very limited'.
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Tom Bennion mailto:bennion@actrix.gen.nz
editor, Maori Law Review
http://www.wcc.govt.nz/extern/bennion/mlr_home.htm