In 2018 the Supreme Court instructed DOC to reconsider the concession applications at the centre of the case brought by Ngāi Tai ki Tamaki, which argued that DOC had not properly given effect to Treaty principles when granting the concessions.
When processing concession applications to operate on public conservation land DOC must give effect to the Treaty of Waitangi, under section 4 of the Conservation Act.
Fullers have chosen not to pursue any further guiding concessions on the island at this time, however DOC decided it was prudent to continue to review the application to meet the Court's direction.
DOC's Deputy Director General Mike Slater says upon review DOC decided the application should have been declined.
"This is because we didn't take into account preference and economic interests for mana whenua in the initial decision, when it was required under the Conservation Act," he says.
"There have also been changes in legislation and circumstances since the 2015 decision, which have contributed to DOC reaching a different decision. This includes the Ngāi Tai ki Tāmaki Claims Settlement Act, and Conservation Relationship Agreements with both Ngāi Tai Ki Tamaki and the Tāmaki Collective.
"The Supreme Court made it clear that iwi do not have a right of veto of granting concessions to other applicants nor any exclusive right to concessions," Mike Slater says.
"However, we now know that preference to iwi with mana whenua based on commercial or economic interests can be considered and, in some circumstances, may be appropriate."
All applications for commercial activities on public conservation land must be treated on a case by case basis, depending on the interests and circumstances at place.
The decision about the Fullers application on Motutapu and Rangitoto provides short-term preference to Ngāi Tai ki Tamaki to help them establish their tikanga based guiding.
The Department retains the ability to consider other applications for activity on the two islands, including from other Treaty Partners, which will be assessed individually and on their own merits.
"DOC is making concession decisions in a complex area and we need to make sure we fully understand iwi and hapū interests (both cultural and commercial)," Mike Slater says.
Concessions decisions will turn on the specific circumstances of an Application, considering a range of matters including the relevant legislation at play, iwi interests and the Treaty Settlement landscape.
