|‘The decision in Ngai Tahu concerned a claim based on the Treaty of Waitangi. The Ngai Tahu held a permit, which enabled it to engage in a commercial whale-watching business. In 1993 the Director-General of Conservation issued another permit for the same purpose to another company. The Ngai Tahu brought an action claiming that it was insulated from competition. Section 4 of the Conservation Act 1987, under which the permits were issued, provides that: ‘the Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi’.
The Court held that the second article of the Treaty of Waitangi, which in the English version guarantees Maori ‘the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively of individually possess, must extend to such sea fisheries as the tribes possessed. (at 558) Although the Court did not specifically discuss aboriginal title, they appeared to accept that aboriginal title in the form of a right to take dolphin, whale and seals could exist offshore.’ (Dorsett and Godden, 97).|