By Mike Doesburg and Emma Burns, lawyers specialising in local government and environmental law at Wynn Williams.
This year, considerable debate has been had about the Treaty of Waitangi due to the ill-fated principles of the Treaty of Waitangi Bill. However, that has not been the only development in the Treaty Space. A recent case has considered whether local authorities are Treaty partners and subject to duties under the Treaty of Waitangi.
Hart v Marlborough District Council [2025] NZHC 47 involved an unsuccessful challenge by Te Runanga o Rangitane to the East Coast Vehicle Bylaw 2023, put in place under the Land Transport Act 1998 and the Local Government Act 2002 to protect the values and significant habitats present in Marlborough’s east coast environment.
The disputed Bylaw imposed different zones with varying levels of exclusion and prohibition of motor vehicle access to beaches. Rangitane argued that the Bylaw breached Article 2 of the Treaty as it hindered iwi members from exercising customary rights and responsibilities in the Bylaw Area.
This was on the basis that Marlborough District Council was acting as a delegate of the Crown in exercising its functions under the relevant legislation. Rangitane also challenged the Council’s decision-making and consultation process.
Decision
The decision issued by McQueen J confirmed the long-standing (but perhaps little-understood) legal position: councils are not directly subject to the Treaty and its principles because local authorities are not part of the Crown, and thus not party to the Treaty.
The Courts, therefore, traditionally have not recognised local authorities as subject to a common law obligation under Article 2 of the Treaty. Indeed, the clearest example of the imposition of distinct Treaty obligations is the ‘treaty clause’ of the Resource Management Act 1991, which provides:
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).
While local authorities are not Treaty partners, local authorities can still be ‘agents’ of the Crown if the empowering statute delegates powers to local authorities in a way that implicates the Treaty relationship. Any constraint on Treaty principles must also be clear.
In the Hart case, the relevant delegation is found in s 4 of the Local Government Act 2002, which provides:
4 Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Maori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Maori in local authority decision-making processes.
The Court found that the empowering legislation that the Bylaw relied on (Land Transport Act 1998 and the Local Government Act 2002) clearly conveyed Parliament’s intention that the Council’s Treaty obligations were constrained to those in the Treaty clause.
Justice McQueen observed that “Parliament intended to restrict the Treaty obligations of local authorities making decisions under the Local Government Act to those explicitly included in that Act”.
The Court was ultimately satisfied that the Council had not breached its Treaty obligations: the Bylaw had been made lawfully under the Local Government Act 2002.
The Court then considered whether the Council had breached its obligations under Part 6 of the Local Government Act 2002 (relating to planning, decision-making and accountability). The short answer was that the Council had not breached its obligations.
Notably, the technical report relied on had identified Rangitane’s interests in the Bylaw Area, and the Council had established and maintained processes for Rangitane to contribute to the decision-making. The Council had also undertaken extensive consultation involving Rangitane from before public notification up until the Bylaw was passed.
Comment
The decision confirms previous authority that councils are not Treaty partners and that the extent of their obligations under the Treaty will depend on the legal context of the legislation they are acting under.
However, this case is unlikely to be the end of the story. As McQueen J recognised, these issues have not yet been argued in the appellate courts and “this question is not settled”.
We understand that the High Court’s decision has been appealed, so appellate authority may not be long away. This is undoubtedly an issue for local authorities to keep a mental bookmark on.