Advice on the Stewardship Land Reclassification process

To: Hon Poto Williams, Minster of Conservation 
Date: 23 September 2022

E te Minita, tēnā koe, e rere ana ngā mihi o te rangi nei ki a koe, ano hoki ki tō turanga teitei o te mana whakahaere o Te Papa Atawhai, mai tatou o Te Pou Atawhai Taiao o Aotearoa, mauriora. Greetings to you Minister, we proffer this letter in the context of our independent advisory role to you.

Stewardship Land Reclassification process

Thank you for meeting with the New Zealand Conservation Authority at our August meeting. We strongly value our relationship with the Minister of Conservation and appreciate your willingness to have free and frank conversations about issues of importance to conservation.

During our meeting, we noted our concern regarding the current Stewardship Land Reclassification process, in particular the different positions taken by the National Panel and Ngāi Tahu Mana Whenua Panel with respect to reclassification of land as national park. We indicated that we would write to you. This letter relates to that matter.

The National Panel recommended various stewardship land parcels be reclassified as national park. The Ngāi Tahu Mana Whenua panel did not recommend that any parcels be reclassified as national park.

Francois Tumahai is Chair of Te Rūnanga o Ngāti Waewae and was also Chairperson of the Ngāi Tahu Mana Whenua Panel. Neil Clifton is Chairperson of the Western South Island National Panel. In light of the differing recommendations, we invited Mr Tumahai and Mr Clifton to present the Authority’s meeting in June 2022.

In presenting to the Authority, Mr Tumahai expressed the view that Te Rūnanga o Ngāi Tahu holds a firm stance on protecting the customary rights of mana whenua to use land for cultural harvest. Therefore, Ngāi Tahu is very reluctant to add parcels of land to existing national parks, arguing the national park status alienates the rights of mana whenua to practice cultural activities such as mahinga kai. That position aligns with the Summary of Mana Whenua Panel Recommendations for Tai Poutini; that national park status "obstructs Ngāi Tahu from maintaining ancestral relationships with the whenua, obstructs kaitiaki rights and responsibilities, and is less enabling of customary practices that are fundamental to sustaining tribal identity and mana”.

In light of the presentation from Mr Tumahai, and the differing recommendations from the Panels, the Authority sought further advice from the Department as to the position of Ngāi Tahu and the Mana Whenua panel.

The advice we received was that Te Rūnanga o Ngāi Tahu opposes all additions to national parks within the Ngāi Tahu takiwā and that this position is supported by the Mana Whenua panel. Further, that at this stage (prior to working through the implications of the Ngai Tai ki Tāmaki decision) Ngāi Tahu and the Mana Whenua Panel consider it would be entirely inappropriate and in breach of section 4 to consider any additions to national parks (DOC Memorandum dated 25 July 2022).

The Authority has not formed a view on whether that position is correct in terms of section 4, however, the Authority unsurprisingly had considerable reservations as to whether the reclassification process could result in land being added to National Parks in a manner consistent with the Act or whether section 4 required that potential National Park additions not be addressed. That was relevant to the Authority in formulating its position and recommendations, and it appeared to the Authority that it would also be relevant to you in making your decisions on the recommendations.

At the same time, the Authority was concerned that if the stewardship land reclassification process had been publicly consulted on in circumstances where there was no real ability for land to be added to National Parks, that could amount to a breach of good faith consultation obligations to the public and could lead to a risk of litigation by a member of the public/submitter.

We therefore sought further clarification around this issue, which was provided at our August 2022 meeting by Penny Nelson, Director-General of Conservation. We still have limited information about the nuances of the Ngāi Tahu position. However, we were informed that, although Ngāi Tahu continues to maintain a position in principle of opposition to National Park additions, as part of the settlement of its legal challenge to the stewardship land reclassification process, Ngāi Tahu agreed:

• to the reclassification process continuing; and
• that the Minister could make decisions on the recommendations including decisions to add land to National Park.

On the basis of that advice, as to the position of Ngāi Tahu, the Authority:

• Formed the view that it would not be inconsistent with section 4 for the Authority to take the view that land parcels which the National Panel recommended for addition to a National Park should be added to National Parks.
• Set out that view in Authority’s submission to the Hearing
• Considers it does not need to reach a formal view as to whether section 4 precludes additions to national parks (that is, whether the view expressed by the Mana Whenua Panel is correct).
• Considers it does not need to be concerned as to whether the consultation was undertaken in good faith with “all options on the table”.

Clearly, if the advice we received is not absolutely correct this could lead to significant legal and relationship risks.

During the Authority’s oral presentation to the Hearing Panel, Mr Paul Madgwick (Chair of Te Rūnanga o Makaawhio and another Mana Whenua Panel member) sought to question the Authority as to how it had reached the view that recommending additions to national parks would be consistent with section 4, given the Mana Whenua Panel’s position. The Hearing Panel Chair did not allow the question on the basis it related to Authority’s processes not the Hearing Panel’s processes. However, the question indicates that this matter is far from settled.

This issue is relevant to your decisions on the stewardship land classification, and to Authority’s performance of its functions both in respect of the submission already made and in respect of any future process for reclassification of land as National Parks (noting that, under the existing legislation the Authority retains a statutory investigation and recommendation role).

Given the context above, the Authority:

• Recommends that the Minister seeks advice on this matter from fully informed legal
• Requests that the Minister authorises provision of the judicial review settlement agreement between the Crown and Ngāi Tahu to Authority. This may require the agreement of Ngāi Tahu if the settlement is confidential; we request that such agreement is sought on the basis that it is necessary in order for the Authority to discharge its section 4 obligations.
• If the settlement is not able to be provided, we will request a further briefing from the Director-General to confirm our understanding of the position of Ngāi Tahu on this.