Questions Concerning Consultation with Maori: What is Required from a Treaty Perspective?

Abstract

The New Zealand case law and Waitangi Tribunal jurisprudence have developed the meaning of consultation in the Treaty context. Recently, this has been informed by UNDRIP. Overall, New Zealand has always had substantive consultation obligations in certain circumstances but the duty has been interpreted too narrowly. Purely procedural consultation in some situations is insufficient to discharge the Crown’s duty to actively protect Maori or to discharge their duty of partnership. The level of consultation required is directly correlated to the taonga (interest) at stake, and interests in land are sufficient to trigger a substantive duty. The fears espoused in the SOE case have impeded the development of a substantive duty; however, the Canadian duty to accommodate and their spectrum analysis (shared by the Waitangi Tribunal) demonstrates that fear of creating an onerous duty is inflated and consultation can be developed in a way that balances the partnership between Maori and the Crown, as well as allowing a duly elected government to govern as it sees fit.