Iwi battles for Hauraki

After lost challenges, Nga¯ i Tai has been granted leave to appeal to the Supreme Court

An Auckland iwi is taking its bid for exclusive rights to commercial operations on two Hauraki Gulf islands to the highest court in the country. Nga¯ i Tai ki Ta¯ maki Tribal Trust has claimed rangatiratanga, exclusive rights, to conduct commercial tours on the Rangitoto and Motutapu motu (islands) in the Hauraki Gulf for at least five years.

The iwi lost challenges in the High Court and then the Court of Appeal over the Department of Conservation’s issuing of five-year tourism concessions to Fullers and the Motutapu Island Restoration Trust on Rangitoto and Motutapu Islands.

Now the iwi has been granted leave to appeal to the Supreme Court on Tuesday.

The concession periods granted to Fullers and the Motutapu Island Restoration Trust were half the 10 years both asked for, in recognition of Nga¯i Tai’s pending Treaty settlement, and given a new conservation management plan was in development.

The concessions also contained conditions aimed at protecting the cultural interests of iwi.

But Nga¯i Tai argued it should have exclusive rights to conduct guided tours.

Nga¯i Tai ki Ta¯maki Tribal Trust chairman James Brown said the main issue was the interpretation of section four of the Conservation Act, “to give effect to the principles of the Treaty of Waitangi”.

“What does ‘give effect to’ really mean in terms of active protection of Treaty partner rights like kaitiakitanga and manaakitanga? Those things for us are quite ancestral, we have been doing them for hundreds of years before the arrival of Europeans. But for the last 178 years we have been deliberately excluded from our lands.”

In its appeal, the iwi said commercial activity concessions should not

For the last 178 years we have been deliberately excluded from our lands.

James Brown, Nga¯i Tai ki Ta¯maki Tribal Trust chairman

be granted to entities unconnected to the island, and that economic opportunities should be preserved for iwi on the motu.

Fullers has been operating ferry services to Rangitoto since 1988.

It offers a bundled ferry and tour service to Rangitoto and passageonly ferry services to both motu. It does not conduct tours on Motutapu.

Motutapu Island Restoration Trust has a concession to conduct smallscale tours.

In the High Court, Judge John Fogarty acknowledged an error of law had been made when granting the concessions, but it was not enough to invalidate the decision because they still gave effect to the Treaty of Waitangi. The Court of Appeal agreed.

It also held the Hauraki Gulf Marine Park Act provided for both ta¯ngata whenua interests and those of the general public to the “social, economic, recreational and cultural well-being” of those who use the Gulf.

Manaakitanga was “undoubtedly of substantial importance” but could not displace all other considerations.

In its appeal, Nga¯i Tai relied on a 1992 decision known as the “Whales Case”, involving South Island iwi Nga¯ i Tahu, which claimed exclusive rights over whale watching enterprises off the Kaiko¯ura coast.

The Court of Appeal said Nga¯i Tai made too much of this case, as while Nga¯i Tahu prevailed, its claim to a veto was rejected.