The Treaty, Tikanga Māori, Ecosystem-Based Management, Mainstream Law and Power Sharing for Environmental Integrity in Aotearoa New Zealand – Possible Ways Forward Dr Robert Joseph, Mylene Rakena, Mary Te Kuini Jones, Dr Rogena Sterling and Celeste Rakena Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre Te Piringa-Faculty of Law, University of Waikato 2019 Tūhonohono - Tikanga Māori me te Ture Pākehā ki Takutai Moana Research Project This report was prepared by Dr Robert Joseph, Mylene Rakena, Mary Te Kuini Jones, Dr Rogena Sterling and Celeste Rakena from the research group Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre, Te Piringa Faculty of Law, University of Waikato for Ngā Moana Whakauka – Sustainable Seas National Science Challenge, 2018. Ngā Moana Whakauka – Sustainable Seas National Science Challenge is committed to the appropriate protection, management and use of mātauranga Māori within its research, outputs and outcomes. This is expressed through the respect and integrity of our researchers, both Māori and non-Māori, and in our approach to ethics and the management of intellectual property. Where mātauranga Māori is sourced from historical repositories, we recognise the obligation to take all reasonable steps to ensure its protection and safeguard for future generations. We also acknowledge the findings of the Waitangi Tribunal in relation to Ko Aotearoa Tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity and are committed to working with Māori researchers and communities to refine our approach. www.sustainableseaschallenge.co.nz 1 The Treaty, Tikanga Māori, Ecosystem-Based Management, Mainstream Law and Power Sharing for Environmental Integrity in Aotearoa New Zealand – Possible Ways Forward Executive Summary When Māori signed the Treaty of Waitangi in 1840, rangatira (chiefs) expected the Crown to protect their rangatiratanga (authority) over the taonga (valued natural resources) for as long as they wished, and that the taonga would continue to be available, accessible and affordable. In return, Māori shared governance authority acknowledging the mana of both Treaty partners. The New Zealand Crown then, is under a clear constitutional and legal duty under the Treaty to ensure that Māori community mana over taonga is protected. The exercise of mana for Māori communities on the other hand includes, inter alia, the tikanga Māori right and responsibility to ensure the protection and perpetuation of natural resources for future generations. The impacts of climate change however, compounded by the neoliberal effects of developing global economies, industry, growing populations and overconsumption of resources have led to the dramatic degradation and destruction of terrestrial and marine ecosystems globally, as well as in New Zealand, and all New Zealanders are affected negatively as a result. The resounding awareness of the importance of repairing, restoring and maintaining our environment for the future has highlighted the need to radically amend current resource management policy, practices, laws and institutions that are more collective, targeted, effective and cohesive across the New Zealand landscape and marine and coastal estate. Ecosystem-based management (EBM) has become an appropriate international response for addressing the alarming global environmental degradation. EBM is designed and executed as an adaptive, learning-based process that applies the following common international principles: the connections and relationships within an ecosystem; the cumulative impacts that affect marine welfare; focus on maintaining the natural structure and function of ecosystems and their productivity; incorporate human use and values of ecosystems in managing the resource; recognise that ecosystems are dynamic and constantly changing; are based on a shared vision of all key participants; and are based on scientific knowledge, adopted by continual learning and monitoring. The New Zealand Sustainable Seas National Science Challenge agrees with the above EBM principles and has adopted them but has adapted them to an Aotearoa New Zealand theoretical approach that fundamentally acknowledges mātauranga and tikanga Māori law hence the following Aotearoa New Zealand EBM principles: a co-governance and co-design structure that recognises the Māori constitutional relationship and mana whenua at all levels (whānau, hapū, iwi), together with the guiding principles of mauri, whakapapa, kaitiakitanga, mātauranga-a-iwi and mātauranga-a-hapū; is place and time-specific, recognising/understanding the ecosystem as a whole in all its ecological complexities and connectedness and addressing cumulative and multiple stressors; acknowledges humans as ecosystem components with multiple values; views long-term sustainability as a fundamental value, in particular maintaining values and uses for future generations; includes collaborative and participatory management throughout the whole process, considering all values and involving all interested parties from agencies and iwi to industries, whānau, hapū and local communities; has clear goals and objectives based on knowledge; and www.sustainableseaschallenge.co.nz 2 The Treaty, Tikanga Māori, Ecosystem-Based Management, Mainstream Law and Power Sharing for Environmental Integrity in Aotearoa New Zealand – Possible Ways Forward includes adaptive management, appropriate monitoring and acknowledgement of uncertainty. This report focuses on analysing EBM through the incorporation of mātauranga and tikanga Māori and power sharing through Treaty partnerships over the marine and coastal estate. The report analyses the legal enablers and challenges at this law interface over natural resources and proposes that we embrace the above EBM approach in an Aotearoa New Zealand context that could place us in a powerful position as a global leader. A similar approach occurred with the Great Bear Initiative in B.C, Canada, where power sharing and consensus building among Governments, stakeholder partners, and First Nations communities’ shifted significantly. EBM could potentially allow Māori to take a similar proactive role in the governance and management of the coastal marine environment as originally envisaged in the Treaty of Waitangi. A well- executed inclusive EBM approach that enhances the principles of partnership underscored by the Treaty and that meets the diverse commitments to Indigenous peoples enunciated in the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) provides an opportunity to normalise Māori participation in sustainable resource governance and management on the world stage. Māori environmental perspectives deserve to be fully integrated, not treated as an add-on, afterthought, or a group of matters placed in opposition to (or as grudging concessions to) a dominant mainstream New Zealand Western paradigm. To treat them as a separate theme would deny their potential for synergies with other matters including EBM over the natural resources and would partition Māori challenges from their broader systemic context. The report then supports the adoption and adaptation of EBM within this mātauranga and tikanga Māori and mainstream New Zealand law context because they could provide an incredible opportunity for New Zealand to become a world leader in implementing EBM and tailoring any potential EBM strategy around our unique legal, political, cultural and constitutional contexts and in a manner that is compatible with who we are and who we aspire to be as a bicultural and multicultural, prosperous and environmentally sustainable, nation. The report affirms the adoption of authentic Māori power-sharing arrangements to implement EBM through Treaty settlements, as well as the effective implementation of current mātauranga and tikanga Māori statutory provisions already included in the Resource Management Act 1991 and other important statutes such as the Conservation Act 1987, Hauraki Gulf Marine Park Act 2000, Local Government Act 2002, Māori Fisheries Act 2004, Marine and Coastal Area (Takutai Moana) Act 2011, and the Exclusive Economic Zone and Continental Shelf Act 2012. The report moreover, affirms Marine Protected Areas and regulations such as the Fisheries (Kaimoana Customary Fishing) Regulations 1998 for establishing taiāpure and mātaitai reserves, along with important initiatives such as the Hauraki Sea Change – Tai Timu Tai Pari Marine Spatial Plan 2013 and the Auckland Unitary Plan 2017, as prudent options going forward for incorporating mātauranga and tikanga Māori and Treaty partnership power sharing within an EBM context. Rangatiratanga denotes not only the mana to possess resources but to also govern and manage them in accordance with one’s preferences. To the above ends, adopting and adapting EBM constructed on international best practices and specific compelling comparative case studies such as the Great Bear Initiative and UNDRIP, but fit for purpose for Aotearoa New Zealand, are essential. The Aotearoa New Zealand approach then needs to acknowledge the Treaty partnership and to integrate mātauranga and tikanga Māori that may appear to be radical but are actually measured options to consider as possible viable ways for significantly improving sustainable resource management in Aotearoa New Zealand that are suitable and sustainable for Māori, for the environment, and for the nation. www.sustainableseaschallenge.co.nz 3 The Treaty, Tikanga Māori, Ecosystem-Based