Q6: Are there Māori-Crown implications of the decision?

The Treaty of Waitangi and Treaty principles can be significant to the exercise of a decision-maker’s authority, a mandatory relevant consideration, or can impose consultation requirements on the decision-maker.  This will depend on statutory wording and context.

Some statutes provide that the decision-maker must “have regard to” or “take into account” Treaty principles, which makes the Treaty a mandatory relevant consideration in decisions taken under that Act.

In such cases, decision-makers must:

  • carefully identify the Treaty interest(s);
  • determine whether “active protection” of the interests is required; and
  • produce a decision which balances the interest(s) at play in accordance with the statutory direction. 
Section 9 of the State-Owned Enterprises Act 1986 prohibits the Crown from acting inconsistently with Treaty principles when exercising powers under that Act.
This means the Treaty principles are critical to the lawful exercise of the decision-maker’s authority. 
The decision-maker will need to ensure they act reasonably and in good faith, are well informed (through consultation as necessary), and ensure the substantive decision reached is not inconsistent with any Crown obligations to protect Māori interests.

Consultation with Māori and consideration of relevant reports of the Waitangi Tribunal may be required to ensure the decision-maker is informed of Māori interests.

The relevant statute may not mention the Treaty or Treaty principles but they may still be relevant where the factual context involves Māori interests or where the relevant provisions in other (related) Acts require Treaty principles to be accounted for in some way.

It will also be important to be aware of any obligations that might arise from existing Treaty settlement arrangements – each department should have a record of obligations that must be taken into account in its decision-making (or Te Arawhiti can assist with understanding what might apply).

In 1987, the Court of Appeal expressed the Treaty principles in a way which remains their fundamental legal articulation in New Zealand Māori Council v Attorney General [1987] 1 NZLR 641 . The Court found that the exercise of a power to transfer land to State-owned enterprises would be unlawful without setting up a system to consider claims/potential claims to the Waitangi Tribunal.  The Court expressed the Treaty principles as follows:
– The Crown and Māori must act reasonably and in good faith towards each other;
– The Crown has a duty to make informed decisions, which may require consultation with Māori.  Consultation does not require negotiation, nor is it open-ended.  Consultation may be required to ensure the decision made is informed
– The Crown may have an obligation to protect Māori interests which prevents the Crown from acting to unreasonably compromise the resolution of grievances that have arisen under the Treaty
– However, the Crown is sovereign and should provide laws and make decisions for the community as a whole, having regard to the economic and other needs of the day.
New Zealand Māori Council v Attorney General [1987] 1 NZLR 641
In 2018 the Supreme Court considered the use of the phrase “to give effect to the principles of the Treaty of Waitangi” in section 4 of the Conservation Act 1987.
The Supreme Court held that section 4 was a “powerful” treaty provision requiring more than procedural steps. The Court noted that “enabling iwi or hapū to reconnect to their ancestral lands by taking up opportunities on the conservation estate (whether through concessions or otherwise) is one way that the Crown can give practical effect to Treaty principles“.
Noting that a number of other factors needed to be taken into account, the Court concluded that what is required is “a process under which the meeting of other statutory or non-statutory objectives is achieved, to the extent that this can be done consistently with s 4, in a way that best gives effect to the relevant Treaty principles.
The Supreme Court quashed tourism concessions granted to two commercial providers and directed the decisions to grant them to be reconsidered because, in light of section 4, the papers setting out the Minister’s decisions showed two errors of law.  The decision was mistaken in incorrectly concluding that:
– there was no basis for preferential entitlement to concessions in favour of any party under the relevant legislation or current planning documents; and
– economic benefit (and the interest of another party, in this case the Trust, in that benefit) was not a relevant consideration.
Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation [2018] NZSC 122