Treaty of Waitangi Duties Relevant to Adaptation to Coastal Hazards from Sea-Level Rise

Abstract

This paper addresses duties under Te Tiriti o Waitangi/the Treaty of Waitangi (the Treaty) for protection of particular Māori interests in the face of coastal hazards associated with sea-level rise. Under Te Tiriti o Waitangi, the Crown has a duty to actively protect Māori lands, estates, forests, fisheries and other taonga, and must enable Māori to protect these taonga. It is necessary to assess what Treaty duties may exist in relation to decisions to adopt measures to adapt in an attempt to prevent the risks of damage eventuating from coastal hazards associated with sea-level rise. Much of the climate adaptation measures that would be necessary to actively protect Māori coastal interests fall within local government authorities' jurisdictions; they are thus guided by the procedures and standards under the Local Government Act (LGA) and Resource Management Act (RMA), as well as by district and regional plans and related documents. Local government authorities are not currently directly accountable for Treaty duties when acting pursuant to these Acts; these relevant obligations are still held by the Crown, or central government. But the actions of local government, on delegated authority from the Crown, can give rise to these authorities either upholding the central government Treaty obligations or creating new, modern-day breaches of the Treaty (that the central government would have to answer for). This paper is interested in what might be necessary in order to uphold the Crown’s Treaty obligations in the area of adaptation to the coastal hazards associated with sea-level rise. The paper forms part of a New Zealand Deep South National Science Challenge project on what to do about housing that will be adversely affected by such coastal hazards. Because of the nature of Treaty interests, it is hard to limit the scope of this paper to housing only. However, housing and marae are the key focus, even while some comments may also be made on some other coastal interests protected under the Treaty. Because of the multi-layered jurisdictional approach to climate adaptation measures in law and practice in Aotearoa, such an enquiry needs to address central government rules and initiatives as well as local government actions.