The legal dispute was as mundane as the questioned validity of a bylaw. The hot button issue was the extent to which the Treaty of Waitangi is an overarching constitutional document against which all laws are to be measured. Treaty issues are subsidiary to the making of bylaws, the High Court ruled, when refusing to overturn a Marlborough District bylaw restricting vehicle access to Kaikoura coastline.
Rangitane challenged Marlborough’s 2023 East Coast Vehicle Bylaw controlling vehicle access across beaches north and south of Cape Cambell. Council adopted a new bylaw after the 2016 Kaikoura earthquake led to an extensive uplift of coastal land.
Rangitane complains that the bylaw’s prohibition on vehicle access to some beaches is restricting its customary rights to collect seafood, a right protected by the Treaty of Waitangi.
An undercurrent to Rangitane’s High Court bylaw challenge is an ongoing dispute between Rangitane in the north and Ngati Kuri in the south as to who has historical rights to customary fishing in the area.
In recent years, a raft of legal cases have required courts to consider claims that an unstated common law rule exists in which Treaty principles apply in all areas where parliament has not otherwise specifically incorporated Treaty principles into legislation. This argument has surfaced in disputes as varied as climate change policy and operation of pharmacies within supermarkets.
Rangitane claimed the Local Government Act power delegated to Marlborough District by parliament to make bylaws carries with it an obligation to comply with customary fishing rights enshrined in the Treaty of Waitangi.
Not so, ruled Justice McQueen.
Local councils’ sole Treaty obligations are those set out by parliament in the Local Government Act, she said. The Act includes a requirement ‘to facilitate participation by Maori in local authority decision making processes.’
Rangitane failed in its separate challenge to Marlborough’s administrative process by which the disputed 2023 bylaw was adopted.
Hart v. Marlborough District Council – High Court (3.02.25)
25.060