5 Key Issues Emerging from the Consultation
5.1 Treaty of Waitangi
Submissions expressed views that the Treaty of Waitangi creates a special relationship between the Crown and Māori. At several hui, attendees asked, “Where is the Treaty in this?”
Attendees said that both government and Māori should be honouring the Treaty relationship and inferred that this was not necessarily the case for the former.
Several hui addressed the fact that Māori freehold land will be affected by climate change policy. Officials were repeatedly asked throughout the consultation hui, how the climate change policy proposals affected the rights of Māori under Article Two of the Treaty of Waitangi to undisturbed possession of their properties, including lands, forests, and fisheries.
Māori made clear statements at the hui that there is a unique relationship between the Crown and Māori based on the Treaty, and that the government knows climate change policy will impact Māori freehold land.
5.1.1 Partnership and the Crown’s relationship with Māori
For the most-part, Māori did not see that the development of climate change policy thus far reflected a ‘partnership approach’. As one attendee stated:
We have watched policies come and go – cut down your trees, don’t cut down your trees – we have always known the value of keeping the Ngahere.
Māori wanted to be involved in making the decisions and felt that a true partnership does not exist if one party tells the other what to do. They stated that they saw themselves as having previously been managed as a ‘risk’, which in itself compromised a beneficial partnership approach.
It is evident there is considerable distrust of the government. Participants stated they were not convinced by the arguments put forward by government. They were concerned that Māori were going to be the losers; and that Māori are constantly told what they can do with their lands. Māori perceived governments as having been doing this for years.
Clarity was sought regarding what defined a ‘specialist’ of Māori issues. It was put forward that kaumātua are Māori experts and that these people have not been involved in the policy development process until this time.
There was an expectation that government should take a leadership role in addressing climate change. It was considered reasonable to expect that Māori look to the Crown to see how they manage their lands and that government would lead by example.
On many occasions, state owned enterprises (SOEs) were referred to. It was evident that Māori do not see SOEs as leading by example; and it was requested that government step over the SOE model and ensure environmental leadership.
Some noted that Māori too have obligations to fulfil given their role in partnership with the Crown. Māori must also seek to be involved with government as government seeks to be involved with tangata whenua. There is an expectation on both sides that a partnership will seek the best possible outcome in any given situation.
5.1.2 Treaty settlements
Iwi that have already settled have received land subject to forestry leases – Ngāi Tahu settlement lands were returned subject to forestry lease. The only reason it was not clear land is that the Crown had forestry agreements in place. Ngāi Tahu was seeking clear land. If we cannot clear that land because of new Crown policies then that is a fresh Treaty breach … Ngāi Tahu is not changing the land use because we never sought or planted forest – we wanted clear land but will be penalised if we convert.
This quote from Moka Richie (Ngāi Tahu) expressed one of several concerns raised by Māori throughout New Zealand. The Federation of Māori Authorities (FoMA) also challenged the government’s “carbon credit confiscation” and proposals to impose “retrospective taxes” for land conversion for other uses:
Article 2 of Te Tiriti o Waitangi affirmed hapū authority and ownership rights of their resources including forestry. the plan to confiscate carbon credits and impose a tax regime on forest owners, is another example of this government’s failure to behave in a way which is consistent with the articles of the Treaty.
FOMA and Ngāi Tahu have indicated they are initiating a claim with the Waitangi Tribunal.
The potential effects of any policy decisions and implementation of settlement quantums were also raised. The two questions were:
- Has there been a precedent set by the Te Arawa settlement in taking account of potential deforestation policies and assessing quantums accordingly? And if so, could this result in re-litigation regarding past settlements?
- How will any inequities regarding past Treaty settlement of lands be addressed?
Beyond the issues and concerns regarding quantums and their valuation or devaluation, further issues were raised regarding the property and Treaty rights associated with carbon. It was put forward that carbon sinks, and carbon, are taonga and as such belong to Māori under Article 2 of the Treaty.
The argument was raised that, should carbon be recognised as a property right, then taking any credits could amount to ‘confiscation’ through an act or policy. It was further inferred that, should carbon be recognised by the Crown under Article 2, then allocation would be affected. These considerations are perceived to be similar to those regarding water.
Several attendees questioned allocation and stated this required careful consideration as to a fair and equitable division. It was suggested that government needs to look at creating a statute regulating allocation; thus far such issues have not been dealt with very successfully under the RMA.
The Māori reference group submission reiterated these sentiments, placing particular emphasis on the Crown’s obligation to develop policy that does not negatively affect Treaty of Waitangi settlement assets.
5.2 Recognition of Māori world values and a Māori world view
There was an expression of the need to develop a comprehensive tikanga7/value-based and evidence-informed climate change strategy. However, it was echoed through the country that Māori do not have the capacity to do this themselves, and that they would like to see support from government for enhancing their analysis capability.
The concept of a quadruple bottom line (refer section 4, above) was seen as intrinsic to sustainability; it needs to be fostered within any policies developed. Several attendees said it was not clear how the environment would benefit under the proposed policies. To some, the policy package appeared to focus on the economy, agriculture and forestry. It was posed that there will have to be a trade-off between economic development and environment, whereby the latter gets priority over the former.
There was clear concern expressed that in line with their rangatiratanga,8 Māori have an intrinsic role in perpetuating a holistic and healthy approach to sustaining the environment. As kaitiakitanga, Māori have much to offer: the government should be cognisant of this and seek to involve Māori more closely in the policy development process.
Further issues related to the Māori role as kaitiakitanga and the need for government to recognise the value of this role. Several iwi retain indigenous forest in perpetuity, and carry out substantial indigenous planting. They expected extra compensation and recognition for this, given the intrinsic values of indigenous forests.
Māori perceived themselves as being good at managing the environment sustainably and would like to see climate change managed jointly. It was suggested by some that more powers be given to Māori under the Resource Management Act (RMA) because they felt impeded by government in managing land sustainably to the best of their abilities.
Hui attendees stated that biodiversity values were almost absent from the policy documents. In Invercargill, local observations on climate changes and its ill-effects on tītī (muttonbird) and tio (oyster) species were shared with government officials. At other hui, similar concerns regarding biodiversity in the environment were echoed, repeating that Māori had much to offer in this sphere.
5.3 The need for equity
Several issues around equity were discussed at many of the regional hui. In an international context, some Māori questioned how government is seeking to influence developing countries while continuing to sell unsustainable goods, and in the future might sell credits to perceived ‘dirty’ countries such as China and the USA. Some voiced an expectation for Australia and the USA to be leading the way in taking positive climate change action.
Many Māori at the hui throughout the country raised the inequity in weighting across the different sectors. It was suggested that legislation be brought upon big business and the question was posed, “Wouldn’t you take our largest emitters and work with them first?”
Farming was perceived to get preferential treatment. Some attendees questioned why a burden was being put on deforestation but not on those who put animals on the land. Some also asked why replacing stock in dairying wasn’t going to have a cost against it because eventually every cow needed to be taxed.
Several attendees suggested some farmers only looked at short-term gains. These farmers might change back to forestry when charges are introduced to agriculture five years down the track. Participants pointed out that if pre-1990 forests aren’t replanted then that land could go into dairying and could lead to an increase in greenhouse gas emissions.
It was also perceived that present policy options would devalue pre-1990 forested land and that new forest land will have a greater value. To many this presented an inequity which rewards newcomers to forestry as opposed to those who continue to keep their land forested in perpetuity.
Participants pointed at further inequities within the forestry, in that the proposed policies would see only 40 per cent of foresters getting credit for planting and/or replanting. They were concerned about forestry companies who are presently leasing land: they could threaten Māori land owners with moving their investment to other land where they can get sink credits unless the lease costs are reduced.
Beyond the domestic situation, there were also fears of competitiveness being at risk internationally for New Zealand without pre-1990 accreditation.
The consultation hui were attended by key Māori involved in the forestry sector. Their concerns were that the proposed climate change policies offer no incentive for forestry creation, they believed that it only penalises those who deforest land. Yet, forestry is vital for regional development especially for areas with high Māori populations such as the Gisborne/East Coast region, the Bay of Plenty and Northland. Forestry creates employment and wealth for Māori in these areas.
The Māori reference group submission went further and asked that government issue credits to Māori forest land owners for pre-1990 forests. In addition, their submission states that if credits are not granted then compensation should be provided for.
Attendees also considered the transport industry to be a problem; it seemed to them that government was doing very little in this area.
5.3.1 Te Ture Whenua Māori Land Act (1993) and cultural considerations
Section 8 of Te Ture Whenua Māori Land Act (1993: TTWMLA) promotes the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whānau, their hapū and their descendants. Though this seems positive for Māori, in the sense that TTWMLA protects Māori land as a taonga, owners of Māori land are limited to using the land administration structures under the TTMWLA. However, participants at the hui indicated Māori freehold land has many encumbrances on it, which Pākehā land doesn’t. Bearing this in mind, it was questioned how government would ensure that Māori can take part in the opportunities presented by the proposed policy options without being disadvantaged.
Some also pointed out that restrictions on sale meant that Māori needed to make an acceptable level of return from the activities they undertake on each area of land.
Cultural impositions were identified regarding the abilities of land incorporations versus trusts. Trusts need to have 75 per cent approval in order to do anything with their land and culturally, Māori are not predisposed to selling trust land, which is differentiated from corpus land. The latter exists for economic gain and can therefore be bought or sold according to the decisions made by the executive of a rūnanga.
Further cultural considerations relating to equity included the identification of the different needs of urban Māori and rural Māori. Discussion in urban centres focused more on air quality and health issues.
Many stakeholders suggested that, if there were to be controls on deforestation, then provision should be made to allow land clearance for local Māori housing initiatives.
5.4 Increasing Māori participation
Considerable concern was expressed regarding the lack of time available to Māori for digesting each of the discussion documents and the proposed policies within them. With a lot going on for iwi and hapū, further resources needed to be made available to Māori in order to engage in this dialogue. Māori do not follow the same process of engagement as prescribed by government; it was reiterated on several occasions that more time was needed to discuss the issues with Māori people.
In Nelson, it was recalled that a precise definition of consultation had been defined by the Court of Appeal and that this process did not reflect that definition. It was further stated that if the consultation process was recognised as authentic then people would buy into it.
Beyond the current consultation period, Māori felt there was a need for ongoing dialogue, as well as future consultation. The question was asked, “What else will government be doing to engage long-term with Māori over these issues?”
Questions were asked specifically whether there would be: consultation with Māori forest owners; public consultation on nitrogen inhibitors; and engagement around economic development and its relationship with climate change.
A need was expressed for government to go beyond rūnanga and to extend its database to encompass landowners and trustees. Further consultation needed to be publicly advertised more extensively, repetitively and more than two weeks before consulting.
Some attendees felt that the Ministry for the Environment needed to stand up, take centre stage and to lead. This leadership was not yet obvious. The biggest problem for government was that Māori do not trust the Crown. Māori expressed the wish for government to be more inclusive and asked officials to reiterate this to Ministers.
It was also stated that hui and consultation are part of the policy process and should not be perceived as a replacement for good policy analysis. Attendees suggested that in support of a process with more integrity, a national group should be formed with a terms of reference and a mandate.
Some recommended that the Sustainable Water Programme of Action be merged with climate change and that the representative body established to assist government with this programme could extend its scope to include climate change. They queried the government’s connection between the SWPOA and climate change and whether officials were working together towards a common purpose.
The Māori reference group submission reinforced the need for Māori to be involved internally and externally throughout the policy development process on an ongoing and formalised basis, that recognises their role as a Treaty partner.
