SPANIARD: Tikanga plays third rail in public land changes

Tikanga is creeping into much of our nation’s life, with control passed to iwi underhandedly. One mostly unnoticed area is conservation. When Minister of Conservation Tama Potaka recently redesignated 513,042.2 hectares of West Coast public conservation land, he did it on the basis on tikanga.

His decision-making legitimised Ngai Tahu’s leveraging of lore and law in interpreting the Conservation Act and other legislation, serious conflicts of interest, and dominance of Ngai Tahu tribal rhetoric.

In particular, Potaka created Tarahanga e Toru, a 181,481.4-hectare historic reserve the size of Stewart Island, based on what Ngai Tahu says is the land’s significance to the tribe.

The situation is about much more than conservation issues. Along with, for example, Supreme Court decisions making tikanga a source of law, and tikanga’s incursion into professional codes, it makes clear New Zealand’s democracy is in the balance.

Via the ‘thinks and feels’ of tikanga, much national park-quality land, including in the South Westland World Heritage Area, has been given low conservation status or made saleable. It’ll be exploitable. Between Ngai Tahu’s existing right of first refusal and tikanga’s democracy-bypassing capacity, the tribe will be well-placed to take advantage.

Throughout the redesignation work, Ngai Tahu used lore and law as suited, with a free pass from the Minister of Conservation.

In the 2021 establishment stage:

• The tribe requested, and got, a mana whenua panel to work alongside an existing independent expert panel for assessing land and recommending final classifications. No clear justification was given.

• Mana whenua panellists’ terms of reference included commercial and development considerations, while expert panellists’ terms came from the law’s conservation focus.

• Ngai Tahu managed its own panellists’ conflicts of interest, some serious. Expert panellists handled interests in line with the Auditor General’s guidelines.

The operational phase included the panels’ assessments and recommendations, and public submissions.

• Work done before submissions, outside the public gaze, seemed ‘off’. For example, the expert panel described “high conservation values” on some land, yet recommended low protection, iterating mana whenua panel recommendations.

• Pressure came onto members of the public in hearings. Several sessions were on marae of mana whenua panellists, not neutral ground.

After public hearings:

• Before it could complete its agreed job, the expert panel was disbanded prematurely in 2024.

• Ngai Tahu and Minister Potaka continued working together on the redesignations.

Public conservation land is owned equally by all New Zealanders and managed under New Zealand law.

How, then, did tikanga, tribal and capricious, come to play third rail in – and effectively de-rail - a public land redesignation process that should have been democratic and empirical?

The Conservation Act’s Treaty provision (section 4) is central. In a 2025 statement on the redesignations, Ngai Tahu said, “It is critical that the significance of section 4 and the role of Treaty principles in the reclassification process is clearly understood and correctly applied”. The Treaty provision is often used by Maori groups as an effective trump card that has power over the rest of the legislation, even the legislation’s overarching conservation purpose.

Ngai Tahu also references a 2018 Supreme Court case, Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation, arguing – successfully, it turns out - against national parks. The tribe makes broad claims focussed on resources, yet the court judgment established limited tribal advantage in the public conservation arena. (Tama Potaka will have been well aware of the case and that Ngai Tahu’s reliance on it was a stretch; he became Ngāi Tai ki Tāmaki chief executive not long after the judgment.)

And what’s Ngai Tahu’s beef with national parks? That they are, by law, egalitarian and nature-protective. (Ngai Tahu may not like the National Parks Act’s barriers to tribal privilege within the parks, but if it wants the Act changed, it should go through proper channels. And the Minister of Conservation should not act on tribal ‘likes’ and ‘dislikes’.)

Potaka’s decisions don’t wash. He should have either binned the Ngai Tahu mana whenua panel or stopped the redesignation work, which was optional.

His decisions may be on the right side of the line technically, but their proximity to the wrong side makes them too iffy for public confidence, if not outright unlawful. New Zealanders expect assiduous implementation of the law by their country’s leaders.

What of the Stewart Island-sized Tarahanga e Toru historic reserve and its future? Potaka says its management will be business as usual, including undiminished public access and “joint management” by Ngai Tahu and the Department of Conservation (in fact, co-management will be new). Given tikanga’s role in the wider redesignation process, the public can’t have confidence it won’t affect the reserve’s management, which taxpayers will fund.

New Zealanders’ formerly postcode-blind equal stakes in the land to become historic reserve will be gone when the deal is finalised.

Tikanga is unsuitable for any sort of standing in democratic processes.

Tama Potaka’s decisions put question marks over the new land designations’ appropriateness. They also prompt the question: is straight play possible in the land’s ongoing management? And: going forward, will the land continue to be treated as everyone’s?

The precedent, however, is the main issue. Tikanga’s presence in New Zealand’s workings, now including conservation land status changes, is seemingly undimming, despite Prime Minister Christopher Luxon’s stated desire to reduce “Maorification” of the public sector.

Spaniard has a background in conservation, farming, and recreation.