Māori interests

Current relevance of the Act for Māori

The review garnered relatively limited engagement across Māoridom, despite efforts to ensure all iwi and major national groups were informed about it. Māori stakeholders noted a general lack of awareness of the Act and the work of the Commission, primarily as a result of the Act’s limited impact on, and relevance for Māori to date.

Most Māori who engaged with the review said it is important to have the Act, although changes should be made to capture Māori interests. Further, a number of Māori stakeholders noted the importance of having the Commission’s skills in negotiating as an honest broker. The Commission has achieved this in some instances with Māori, for example in relation to access in Cape Kidnappers.

However, there was also some criticism of the Act and Commission, with one submitter noting that the Commission had been not been sufficiently neutral or effective in establishing access in its rohe, so that it could act as kaitiaki for the land. A small number of submitters also noted that they had used other means of developing access, for example, by working with territorial authorities (with processes in place for working with Māori), DOC and local landowners.

However, Māori also noted that their relationship with local landowners could take a significant time to develop – even up to 25 years.

Māori responders were concerned to get access to sites important to them, and several said they were open to providing wider public access in some cases. However, this would be dependent upon two key issues being addressed. These were first, that iwi would lead and/or partner with the Commission in identifying, developing and managing public access; and second, that visitor behaviour, specifically in relation to culturally significant and sensitive sites, was appropriately guided and managed.

Some stakeholders also called for the Act and Commission to support economic opportunities for Māori associated with public access. These included opportunities to provide interpretation services, language and cultural education, and guide services.

Reflecting Māori interests in the Act

The Act is silent on many issues relevant to Māori in the context of access. The only ‘touch points’ currently included relate to the naming of walkways, a requirement to consider the appropriateness of publishing a map or information indicating the location of a known culturally sensitive site, a requirement to provide information about tikanga Māori guidance in the New Zealand Outdoor Access Code, a requirement that the board have a member who understands tikanga Māori, and requirements about whom the Commission must negotiate with for access on Māori freehold land.

A number of submitters commented on the absence in the Act of any reference to meeting Treaty obligations. One submitter captured this shared sentiment in the following comment:

‘There has been no engagement with the Crown who have legislated and delegated their responsibilities as Treaty partners to a Commission that they have selected.’

A wide range of issues and suggested amendments to the Act arose from engagement with Māori, ranging from the need for an overarching partnership approach with the Commission on access issues, to the development of a separate tool for negotiating access to culturally significant sites (that would not necessarily involve wider public access). Given the intersecting nature of these issues, this review finds that they would most appropriately be dealt with in a separate section in the Act dealing specifically with Māori interests. A separate section would give prominence to these issues and ensure the Commission prioritises its work with Māori. It would also provide clarity to Māori on the relevance of the Act and how the Commission can work with them. This section would be supplemented by references to Māori, and the cultural benefits of access, in the purpose of the Act (see Purpose, objectives and priorities) and functions of the Commission (see Functions of the Commission).

Proposed Māori interests section in the Act

Reflecting engagement feedback, a separate section in the Act addressing Māori interests should cover the following:

• interests in access to culturally significant sites for Māori;

• interests in developing public access over Māori land; and

• a requirement for the Commission to partner with Māori across the breadth of their work.

Interest in access to culturally significant sites for Māori

Feedback from Māori focused strongly on the desire to access sites important to them, including wāhi tapu.

Many noted that they would want exclusive access to such sites, as public access was not appropriate in many cases. It was also acknowledged that access in this context could relate to culturally significant sites on privately or publicly owned land, or to sites on land-locked Māori land. There was a sense that Māori prioritised organising access to culturally significant sites first, before considering opportunities for developing public access over Māori land.

Māori noted the current challenges to securing access to sites important to them. For example, one group described how it had to work over a long period to gain access to wāhi tapu, but emphasised the value of this access:

‘a relationship with the settler and landowner families to be able to have continued access to our sacred sites/wāhi tapu, heritage sites, our puna and our lakes… has given us an opportunity to re-establish our relationship with our ancestral lands again.’

The general consensus drawn from engagement with Māori was that support from the Commission to establish access to sites of importance would be beneficial. However, access should be limited in some cases to relevant Māori groups and not offered or advertised (for example on WAMS) to the general public.

Interest in developing public access over Māori land

Māori feedback indicated there would be interest in working with the Commission to develop public access over Māori land. One group acknowledged ‘the need to get people out into our beautiful country’. Others acknowledged the economic opportunities for Māori that could accompany public access.

Some non-Māori submitters expressed frustration at a perceived lack of public access over Māori land, in particular where they identified land as well-suited for recreational pursuits or containing iconic landmarks. This review finds that many of these comments pointed to a lack of appreciation of the cultural importance and sensitivity of Māori land. Further, as noted by the Commission, there appears to be a lack of understanding that Māori land is private land and therefore access is subject to negotiation and agreement with its owners – as is the case with all privately owned land.

Māori groups identified a number of barriers that would need to be addressed for them to feel comfortable offering public access over Māori land. The paramount concern expressed by nearly all submitters was protection of the land – both land belonging to them, and wider land important to them such as their rohe. These barriers included:

• concerns that non-Māori New Zealanders often believe they are entitled to roam over Māori land. One submitter noted ‘[p]eople incorrectly view Māori land as public land – because it’s communally owned… not necessarily have someone living on it. This is frustrating for the owners of that land’;

• concerns that public access would result in Māori being alienated from their land; and

• experiences of poor visitor behaviour. Some submitters described being met with aggression when explaining that visitors were trespassing, with this behaviour at times frightening whānau, tamariki and older people on the land at the time. Submitters also reported damage to the their land, including desecration of urupa, removal of taonga, defecation and urination in waterways, damage to property, theft of farm equipment and destruction of infrastructure such as signs.

Other Māori landowner concerns relating to the provision of public access aligned with those raised by non-Māori landowners (see Challenges and future requirements), including:

• concerns about the time and cost associated with developing and maintaining access;
• impacts on privacy and ‘quiet enjoyment’ of their land; and
• concerns about the health and safety of visitors on their land. For example, one submitter described ‘overseas young tourists who would not take advice on a mountain that they needed to wear more than bare feet, shorts and tee shirts… later required rescuing and iwi member working with emergency services’.

A likely requirement to address these barriers is the inclusion of provisions in the Act that ensure Māori can retain control of the land over which public access is granted. This could be achieved through further investigation of an access mechanism (other than the current walkway mechanism) that preserves Māori rights over public access areas on their land. A potential model is the covenant/management agreement used by DOC under its Ngā Whenua Rāhui programme. This model seeks to facilitate the voluntary protection of indigenous biodiversity on Māori owned land, while leaving the land in Māori ownership and control.

This could also be achieved by expanding Controlling Authorities under the Act to include non-public bodies, to capture relevant Māori groups (see Controlling Authorities). This option could also be beneficial in the case of public access being granted to culturally significant sites, rather than being limited to certain Māori groups as discussed in the preceding section. Māori feedback supported this idea, indicating that the role of Māori groups would be to act as kaitiaki over any public access areas. It was emphasised, that even in cases where Māori were not willing to take on the role of Controlling Authority, there should be a partnership and ongoing engagement with relevant Māori groups on the management of public access areas.

Another way these barriers could be addressed is to place appropriate conditions on public access, including limiting types of access. Under the Act, the Commission has a wide scope to apply conditions to public access. As such, legislative amendments would not be required to enable this. Conditions on access could be supplemented by ensuring visitor guidance provided by the Commission sufficiently captures appropriate behaviour when accessing culturally significant sites. The New Zealand Outdoor Access Code includes information about tikanga Māori and Māori relationships with land. However, it would be beneficial for this information to be revisited, in partnership with Māori, to ensure it addresses the gamut of concerns raised through engagement feedback.

Even with changes to the Act, some Māori will not be interested in working with the Commission. One Māori group voiced their strong opposition to having their land used for public access, just as some non-Māori private landowners do not want to provide public access:

‘[our] hāpu … do not support walkways being constructed on our lands to allow strangers to access places that were guaranteed to our ancestors over 179 years ago…The lands we inherited are what remains from the thousands of acres that were once ours. It is the turangawaewae of our people and our future generations.’

Partnering with Māori across the breadth of Commission’s work

Engagement feedback identified a number of key elements, or ‘principles’, that should underpin the Commission’s approach to partnering with Māori. These elements or ‘principles’ could be captured in the Act to emphasise their importance and set high-level guidance for the Commission, which can then filter down into organisation strategy and practice. Proposed principles are:

• any access to Māori land must be driven by Māori. This aligns with the Act’s fundamental principle that access to or across private land must be negotiated and agreed with landowners. Māori frequently raised concerns that the Act would require them to give up land coercively. As such, it is important that this principle is clearly reflected, and given prominence, as part of any partnership approach;

• the Commission should consult on, and take into account, the cultural sensitivity and significance of any proposed public access areas as identified by Māori;

• partnership with Māori should extend across all stages of access, including the provision of advice, establishment of access, and its ongoing management. This includes in the context of providing advice to other government agencies, such as the Overseas Investment Office (LINZ), where confidentiality requirements or application timeframes do not prohibit this. Some Māori stakeholders raised specific concerns about the lack of consideration given to rohe-wide matters when advising on access opportunities;

• The Commission should encourage fellow stakeholders it is working with to establish and manage access, to consult with relevant Māori groups;

• priority should be given to relevant Māori groups taking on the role of Controlling Authority for public access over Māori land, or where public access is provided to sites of cultural significance. Where this is not possible, appointed Controlling Authorities should partner and engage with relevant Māori groups on the management of access;

• the complexity of Māori land ownership, often involving several hundred or more owners, must be acknowledged in the work of the Commission. Any negotiation of public access over Māori Land must accommodate the diversity of interests and values that comes with this form of land ownership; and

• in negotiating public access over land subject to a Treaty settlement, the Commission should consider the maintenance of the integrity and durability of settlements.

Recommendation 19: That amendments be made to the Walking Access Act 2008 to acknowledge the Māori-Crown relationship under the Treaty of Waitangi and better reflect Māori interests, by including:

1. explicit principles of a partnership approach between the Commission and Māori across the breadth of the Commission’s work, with a requirement that these principles be translated by the Commission into its organisation strategies and practices; and

2. a new access mechanism that allows access to sites of cultural significance for Māori to be limited to relevant Māori groups, and, as far as possible, preserves Māori ownership and control over their land where public access is provided; and

3. a requirement for Controlling Authorities to partner and engage with relevant Māori groups on management of public access areas on Māori land, or where public access is negotiated to sites of cultural significance.

Recommendation 20: That the Commission continue to work with Māori to understand and address barriers to providing public access, including revisiting content in the New Zealand Outdoor Access Code about behaviour on culturally sensitive or significant land.

Other changes to reflect Māori interests

Māori and the purpose of the Act

Māori identified improving cultural, health, social and economic outcomes as key benefits of access to sites culturally important to them. There is mounting evidence that connection to culture improves other wellbeing outcomes and several submitters emphasised the cultural connection that would be achieved by obtaining access. Some Māori groups noted access is especially important in urban areas where disconnection from land can be acutely felt. It was acknowledged that many tamariki and rangatahi stand to benefit from the Commission’s Connecting Franklin-North Waikato Project, as they can walk and bike to get to school, to events or to see friends.

Māori were also interested in developing access to increase knowledge of Māori culture in their area. One example of where public access has been combined with cultural education is the resource produced by Ara. This resource uses augmented reality and mixed reality technologies to share traditional knowledge (mātauranga) relevant to the local area, as individuals walk around the physical sites. Another example is the work undertaken by Ngāi Tahu with Outward Bound, Aoraki Bound, which provides a personal and cultural experience for both Māori and others. This work not only strengthens Māori cultural identity, particularly for rangatahi, but also enhances the profile of mana whenua in the eyes of both domestic and international tourists.

Recommendation 3 under Purpose, objective and priorities proposes that the purpose of the Act be amended to capture wider benefits of access, including cultural benefits. As such, no further recommendations are made here.

Working with Māori where Treaty settlements refer to the Act

Engagement feedback noted that it would be beneficial for the Commission to work more closely with Māori groups where Treaty settlements include reference to the Walking Access Act 2008. This would align with the wider partnership approach between the Commission and Māori, and could improve the Commission’s ability to identify and establish access opportunities.

Māori noted they often receive abuse as a result of closing access when land had been returned to them through Treaty settlements, even where they are entitled to close such access. Māori suggested that where access is not established, the Commission could also play a role in educating people about the reasons for this, helping reduce the level of anger and misunderstanding.

While a number of current Treaty settlements include reference to the Act, the Commission noted it is often unaware of them. It would be beneficial for the Commission and the Office for Māori Crown Relations - Te Arawhiti to work together to ensure the Commission is informed about Treaty settlements including reference to the Act.

Recommendation 21: That the Commission work more closely with relevant Māori groups where Treaty settlements include reference to the Walking Access Act 2008, to explore, and where appropriate, establish access opportunities.