Press Release Monday June 25th)

Treaty of Waitangi breached by Crown

The Department of Conservation has breached the Treaty of Waitangi legislation by allowing the aerial dropping of 1080 onto areas where the people of New Zealand gather their food.

Can the Crown guarantee that our people’s kai is not contaminated in areas where 1080 and other poisons are used?

Very doubtful, in fact "No", the Crown can’t and because it cannot be guaranteed of non-contamination by 1080 and other poisons, the Crown is contravening the Treaty and this is extended to include gathering food and medicines in any place; as many farms border areas where 1080 has been aerial dropped and in many cases buffer zones have been breached by the pilots.

And that the killing of the people’s native birds and animal species through first and secondary poisoning is also a breach of the Treaty.

It is also believed that under a Grandfather clause wild pigs, wild deer and game animals can now be claimed as food as initially they were an introduced species for the interests of recreational hunting by all New Zealanders, Maori and non-Maori, and they have now become an integral part of our daily living and food gathering.

New Zealanders and tourists have direct access to many of these areas for recreational purposes and by dropping 1080 poison onto our waterways this is affecting our micro-organisms, which in turn affect our insects, native birds and other species, and taonga food like water cress, koura, eels, and wild trout, which are essential to our food gathering and the health of kai.

The knowing part of killing native species puts in place the fact that DoC are knowingly doing this and that they have deliberately breached the right of all New Zealanders to gather food.

Under Article 2 of the Treaty, we are assured of the security in our rangatiratanga over our lands, villages and “possessions”.

These possessions include our forests, fisheries and resources. Clearly there are many examples through history of this article not being honoured. One key area of concern is the degradation of fisheries, traditional food sources and natural resources.

In the Wai 262 Claim also known as the flora and fauna claim, rights around indigenous flora and fauna and other taonga were sought. Taonga includes traditional knowledge and intellectual property rights over cultural ideas, design, language and much more. Legislation is said to breach the Treaty in this respect.

The Crown sideline their treaty obligations from decisions of vital importance to our New Zealand culture – for example, decisions about the flora, fauna and wider environment that created our culture, and decisions about how education, culture and heritage agencies support the transmission of culture and identity.

In conjunction with this claim, the Crown has breached ‘public interest’ in several respects in Exemption Regulations promulgated in the name of the then Minister for the Environment Nick Smith. Detailed argument has been presented to the Court of Appeal recently, the appellant being the Brook Valley Community Group Inc. We refer you to the submission of counsel for that group. Also, the Crown has failed to acknowledge s13 (1) (d) of the RMA with this proposed activity, and apparently intends currently to continue to do so. This matter is also addressed in the argument presented by the Community Group. A judgement is currently awaited, but it is to be noted that Forest and Bird have changed their view on the law in this matter and now support the appellant. It is unlawful for any person to deposit any substance into or onto the bed of a river, without a National Environmental Standard, provision in a Regional Plan or a Resource Consent. None of these exist in the current situation. Were this current intention to be acted upon, it would be unlawful, according to this argument. It would be unwise to proceed with the proposed drops while the matter is under consideration by the Court.

Public Interest is the welfare of the general public in which the whole society has a stake and which warrants recognition, promotion, and protection by the government and its agencies. Despite the vagueness of the term, public interest is claimed generally by governments in matters of state secrecy and confidentiality. It is approximated by comparing expected gains and potential costs or losses associated with a decision, policy, program, or project.

It is the Crown’s duty to protect our rights as New Zealanders and other interests which arise from the plain meaning of the Treaty, the promises that were made at the time (and since) to secure the Treaty’s accept¬ance, and the principles of partnership and reciprocity. The duty is, in the view of the Court of Appeal, ‘not merely passive but extends to active protection of New Zealanders in the use of our lands and waters to the fullest extent practicable’, and the Crown’s responsibilities are ‘analagous to fiduciary duties’.

Active protection requires honourable conduct by, and fair processes from the Crown, and full consultation with – and, where appropriate, decision-making by – those whose interests are to be protected.

The NZ Conservation Authority, in its document The Treaty and the Legislation, at paragraph 3.1.2, states, The injunction of Section 4 of the Conservation Act [1987] that it “shall so be interpreted and administered as to give effect to the principles of the Treaty” - is unique in New Zealand law. It establishes a stronger obligation than other recent legislation:

Section 8. End at (Te Tiriti of Waitangi) and remove the final lines beginning: and requires that all persons...of the Treaty.

The Resource Management Act 1991, Section 6 Matters of national importance - in achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance, (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.

The Resource Management Act 1991, Section 8 Treaty of Waitangi - in achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

The principles of the Treaty of Waitangi include the duty of the Crown to act reasonably and in good faith and the duty of the Crown to actively protect our interests and make informed decisions (which in most cases will require consultation).

Maori still are guardians of all natural resources under Article 2 of the Treaty, iwi are assured of security in their rangatiratanga over their lands, villages and “possessions” – these possessions include forests, fisheries and resources.

The aerial dropping of 1080 poison must be stopped immediately because the Crown cannot guarantee non-contamination of kai and we can no longer accept the continued breaching of the Act, as under the Treaty we are guaranteed the absolute right to gather food under the protection of the Crown.

Graham Carter Wyn Hibberd
President Pro Hunter

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