Ngā Kaihautū Tikanga Taiao Report - EEZ000006 Application from Chatham Rock Phosphate Limited (CRP) for marine consent to undertake the mining of phosphate nodules in the Chatham Rise In accordance with section 44 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the Act). Ki te kore e whāngai i te Kākano, me pēhea te tipu If we do not nurture seedlings, how will they grow Ngā Kaihautū Tikanga Taiao Operating Principles: Maintaining the integrity of our independence Setting the horizon Maintaining cultural integrity in our work and interactions Leading the EPA in its relationships and work with Māori 4 August 2014 Tēnā koutou katoa Introduction Ngā Kaihautū Tikanga Taiao (Ngā Kaihautū) is charged with the responsibility of providing advice and assistance, from a Māori perspective, to the Environmental Protection Authority (EPA) on policy, process and decision making. As part of that role, Ngā Kaihautū has considered this application under section 44(1)(c) of the Exclusive Economic Zone (and Continental Shelf) Act 2012 (EEZ Act). This report represents the views of Ngā Kaihautū regarding the application by Chatham Rock Phosphate Ltd (CRP). Ngā Kaihautū members have examined the application along with its associated information. We have read the submissions received from Māori on the application, and in general, concur with what they present. As a result of this process and a review of the application by Ngā Kaihautū, we note that there are several outstanding Māori concerns to be addressed. These concerns are introduced in this report. It should be noted, however, that this may not represent all the potential issues that could be raised by affected iwi or Māori generally. From a Māori interests’ perspective, until there is adequate and final redress to Treaty of Waitangi grievances, there will always exist ongoing issues around resource and environmental management. The exercise of tino rangatiratanga and the role as kaitiaki are important to Māori, and therefore will always be important to Ngā Kaihautū, and will be paramount in the promotion of Māori perspectives from Ngā Kaihautū. In addition, we note an ongoing concern that the ability of Māori to appropriately participate in the regulatory regime for applications of this nature is significantly inhibited by the use of highly technical and legal information during engagement with Māori, and in the application itself. This can be seen as an inconsistency with Treaty of Waitangi principles. Executive Summary Māori have outlined a wide range of interests in this application through the engagement process conducted by the applicant, and through submissions. These include: whakapapa (genealogy); mātauranga Māori (knowledge) which informs factors such as tikanga (best practice) and kawa (protocols); the Treaty of Waitangi; fisheries (current and future interests as well as customary and commercial interests); and the environment. There is a need to consider the impact of the proposed activity in terms of the holistic nature of the environment, and the intergenerational responsibility of kaitiaki. Māori, regardless of their physical location are here for all time and do not consider their association or responsibilities in a short-term manner. Rather they focus on future generations. The application is considered contrary to the purpose of the Chatham Rise Benthic Protection Area (BPA), part of which is covered by the application. The position of Māori submitters and Ngā Kaihautū is to reinforce the purpose of the BPA, especially given that it was established on clear environmental principles. Cultural Impacts 1. It is important that we acknowledge the relationship of Māori to the activity and rohe (area) through whakapapa (genealogy) and the broader associations which consolidate the relationship. Whakapapa is what ensures the interconnectedness of all living things and is central to Māori life, and the role of kaitiaki. 2. We know and understand the role ngā Atua (Gods), and in this case, of Tangaroa, and Hine-moana. Others might see the isolated location of the proposed activity as one of lesser relevance, but Māori do not apply a spatial restriction on the ocean, but instead respect it as a whole. Any activity which has an overarching environmental cost in cultural and other ways, impacts directly on this whakapapa relationship and Māori identity. 3. The ecosystem as a whole represents all facets of the environment. For Māori, this interconnectedness will ensure continual integrity and the ability to provide for the sustenance of humankind through access to food and other resources. The Māori position on the ecosystem is quite different (i.e. in a cultural context) from a purely western scientific context. Ideally, the pursuit should be for both views to inform the use and management of the natural world. 4. Kaitiaki are those persons or entities with an intergenerational responsibility to uphold the cultural demands. The practice of tikanga and kawa and the application of mātauranga Māori in the role as kaitiaki, ensures the māuri of the ecosystem and environment. With such a high reliance on scientific methods and information in applications and decision making processes, kaitiaki must be confident that any apparent issues that do not align with tikanga will not persist beyond the current generation of kaitiaki. 5. The role of tohu (‘signs’) in any cultural ecosystem applies across the wider resource landscape. For example, the sight of feeding seabirds for Māori indicates a relationship to the food chain which may have further seasonal or diurnal explanations. This is an intricate knowledge system and one that Māori seek to maintain, while also relearning many aspects lost in recent generations. Similarly, the Hokotehi Moriori Trust submission introduces other knowledge systems. The location of the proposed activity is known to have a unique environmental presence within Tangaroa and as such has the potential to impact negatively on the intricate mātauranga (or knowledge) systems Māori have developed over centuries. These mātauranga systems exist at both micro (iwi, hapū or whānau) and macro (pan-Māori and iwi) levels, for example, fish or species migration habits or the precursor to weather changes. 6. Finally, the Hokotehi Moriori Trust description of mauri as interconnectedness likened to transfer of energy within any food web, means that the disruption to the ecosystem that will occur from the activity will adversely affect the mauri moana. Existing Interests 7. Following are some key points relative to existing interests for iwi and hapū and the levels of risk considered acceptable to iwi individually or collectively. It should be noted that iwi is inclusive of Moriori for the purposes of this report. Treaty of Waitangi 8. It is important to be clearly cognisant of the relationship iwi Māori draw from the Treaty of Waitangi relative to these application and submission processes and to give due regard to their views. Ngā Kaihautū suggest the Decision-Making Committee (the Committee) considers the Treaty principles alluded to in statute and in particular the overarching principles of partnership, protection and rangatiratanga. 9. The principle of partnership is now well recognised in Treaty jurisprudence and is regularly referred to by both the courts and the Tribunal to describe the relationship between the Crown and Māori. The Court of Appeal used the concept as an analogy emphasising a duty on the parties to act reasonably, honourably and in good faith. With regard to the existing interests derived from Treaty of Waitangi Settlements (e.g. Ngāi Tahu Settlement Act, and Fisheries Settlement Act), Ngā Kaihautū believe it is important to consider the effects posed by the application within the context and spirit of the partnership which is expressed in those settlements. This is discussed in more detail in the next section. 10. The principle of active protection recognises the obligation to take positive steps to protect Māori interests. The Court of Appeal in the 1987 Lands Case, considered that the obligation is 'not merely passive but extends to the active protection of Māori people in the use of their lands and waters to the fullest extent practicable'. Given the existing interests of several iwi afforded through settlement legislation, we encourage the Committee to give particular consideration to the potential effects identified not just to fisheries, but to the cultural interests and activities reliant on the marine environment in the permit area and beyond. 11. Rangatiratanga is linked to the principle of active protection and recognises the rights of Māori to self- determination inherent in both the English and Māori translations of the Treaty of Waitangi (Tiriti o Waitangi). The Tribunal has noted in the Ngāwhā Geothermal Resources Report (1993), that Māori should be protected from the actions of others that impinges on their rangatiratanga by adversely affecting their continued use or enjoyment of their resources, whether in physical or spiritual terms. 12. Ngā Kaihautū considers it important to recognise the unique relationship Māori have as Treaty partners and the impact of binding decisions on their ability to continue to be afforded their Treaty rights and practices. For example, Ngāti Mutunga o Wharekauri Iwi Trust consider further opportunities exist to define their fishing and other rights relevant to the proposed activity and application area through the Treaty claims process. We share their general