Appendix 1 – List and summary of literature reviewed

The Resource Management Act 1991(RMA) is the primary legislation for the sustainable use, development and protection of natural and physical resources. The Act sets out some key responsibilities for resource managers that impact on Māori including Māori special relationships with the environment, sites of significance to Māori, Kaitiakitanga and the taking into account the principles of the Treaty of Waitangi. The Act provides opportunities for Māori to have input into statutory plans and policy documents through consultation and recognition of relevant iwi policy documents. Recent changes to the Act in 2005 have clarified that there is no duty to consult with regard to resource consents and requirements. Resource consent processes have been the primary vehicle for Māori to influence outcomes on the ground. The RMA also links to other Acts, namely the Foreshore and Seabed Act in relation to customary rights orders, and Historic Places Act with regard to the register.

The recent Local Government Act 2002 provides for democratic and effective local government that recognises the diversity of New Zealand communities and enables democratic local decision-making and action by, and on behalf of, communities.

The Act sets out new parameters for promoting the social, economic, environmental and cultural well-being of communities, in the present and for the future. It sets out principles when exercising any power or performing any duty under the Act. It requires long-term council community plans to be developed by councils which include statements of community outcomes. There are no fewer than 38 Māori references in the Act, including such matters as the Treaty of Waitangi, Māori input into decision-making processes, provision of information to Māori, consultation with Māori, and capacity building.  

This legislation requires the council to consider Te Rūnanga o Ngāti Awa as an affected party to resource consent applications that affect an area subject to a statutory acknowledgement. It also requires the council to record statutory acknowledgements in the regional policy documents and plans. As a matter of process, Te Rūnanga o Ngāti Awa shall be sent summaries of resource consent applications till 2025.

This Act follows the June 2003 Deed of Settlement which includes statutory acknowledgements, which register the special association Ngāti Tuwharetoa (Bay of Plenty) has with an area and will be included in the settlement legislation. They are recognised for certain purposes relating to standing and notification under the Resource Management Act and the Historic Places Act.

There are five statutory acknowledgements over Rotoma Forest Conservation Area, Lake Rotoma Scenic Reserve, Lake Tamurenui Wildlife Management Reserve, parts of the Tarawera and Rangitaiki Rivers. There is a sixth statutory acknowledgement over geothermal water and geothermal energy located in the Kawerau Geothermal System and this is recognised in section 46 of the Act.

This legislation requires the council to consider Ngāti Tuwharetoa ki Kawerau governance entity as an affected party to resource consent applications that affect an area subject to a statutory acknowledgement. It also requires the council to record statutory acknowledgements in the regional policy documents and plans. As a matter of process Ngāti Tuwharetoa at Kawerau shall be sent summaries of resource consent applications till 2025.

The Act records the statutory acknowledgement and apology by the Crown to the Te Arawa confederation of hapū and iwi whereby both parties agree to a final settlement of all Te Arawa's historical claims relating to 14 lakes and the remaining annuity issues. Of particular relevance to the council is the ownership of the 13 lake beds vested with Te Arawa Lakes Trust, governance and joint management regimes (Rotorua Lakes Strategy Group which consist of Te Arawa, Rotorua District Council and Environment Bay of Plenty) that are put in place to manage Te Arawa lakes and the harvesting of plants and traditional materials.

The title to the lake beds and subsoil of all these lakes, except for Ōkaro, is being transferred to Te Arawa. Lakes Rotoehu, Rotomā, Rotoiti, Rotorua, Ōkataina, Ōkareka, Rerewhakaaitu, Tarawera, Rotomahana, Tikitapu, Ngāhewa, Tutaeinanga and Ngāpouri are covered by the settlement. The Crown will continue to own the water column and airspace. The water itself is not owned by either the Crown or Te Arawa, and will continue to be regulated in accordance with the Resource Management Act 1991.

This legislation vests the Coastal Marine Area with the Crown and provides for recognition of customary rights to coastal resources. The provisions relating to the regional councils’ functions are potential recognition of Customary Rights Orders through the Resource Management Act 1991. Whakatohea Iwi and Te Whanau a Apanui have customary rights order applications before the Māori Land Court.

Recognises the traditional relationships Tainui/Waikato; Ngāti Tuwharetoa and other iwi have with the Waikato River in principle. This agreement is to reflect a commitment by the Crown and Waikato–Tainui to enter into a new era of co-management over the Waikato River. The purpose of the agreement is to restore and protect the health and well-being of the Waikato River for future generations. Settlement offer includes Crown acknowledgements (Para 28–36); co-management (Para 38–39); statement of significance (Para 43); vision and strategy; guardians of the Waikato River (Para 49–53); Waikato Statutory Board (Para 66–68); Waikato River accords with Ministers of the Crown; lands; financial packages and settlement implementation funding.

This report provides a number of case studies including Wellington Regional Council, and two unitary authorities, Marlborough District Council and Gisborne District Council.

The report identifies seven areas of action for improving engagement with Māori. These are:

• balancing strong leadership and relationships with formal processes and structures
• distinguishing between governance, participation and consultation
• guidance around the role of councils in relation to the Treaty of Waitangi
• managing conflict
• adequate resourcing
• raising the capacity of tāngata whenua to engage with councils
• building councillor and staff understanding of tāngata whenua issues, history, tikanga Māori, and Māori social and political structures

The report also mentions a number of methods that have not worked for these councils.

In 2005, Te Puni Kōkiri commissioned a case study report on practical issues including capacity and capability affecting engagement between local government and Māori.

Of relevance to this review are the successful practices taking place across the country in the areas of relationships, governance, Māori participation in decision-making processes and resourcing.

• The best examples of Māori participation encountered were all supported through strong structural arrangements.¹
• In areas such as Rotorua and Te Tau Ihu o te Waka a Maui where there are large numbers of iwi/hapū within a council’s boundaries, pan-iwi and hapū advisory committees and forums have been successfully used to coordinate iwi/hapū participation in RMA matters.²
• Māori groups consistently expressed the view that the key to moving from reactive to proactive participation in resource management is to ensure they are involved at the planning and policy-making stage under the RMA.³
• All of the councils interviewed provide some level of administrative support to Māori groups.⁴
• It was stressed that council–Māori engagement must be developed at all levels, from councillors to senior management to operational staff and volunteers.⁵
• Awareness of the time constraints to provide well-formulated and researched policy response has prompted the formation of multi-iwi committees such as the Nelson iwi Resource Management Advisory Komiti and the Tai Tokerau Technicians Forum (now Te Waka Motuhake).
• In areas such as Te Tauihu o te Waka a Maui and Te Taitokerau, where there are a large number of iwi within council boundaries, pan-iwi/hapū advisory committees and forums coordinate iwi participation in RMA matters. Councils and iwi generally agreed that multi-iwi committees are efficient in terms of time and resources and create certainty of process around iwi involvement.⁶
• Multi-iwi structures for collective engagement can be problematic. Councils tend to dictate the committee’s objectives, and iwi concerns become diluted within the collective forum.⁷
• Wairoa District Council has a Māori Advisory Committee, which consists of the mayor, councillors and 14 hapū representatives. The council visits 80 per cent of the marae in its area each year and publishes a newsletter on Māori issues.⁸
• Gisborne District Council has formed committees or advisory groups to help manage specific projects, which has had positive outcomes. ⁹
• Auckland City Council has a tāngata whenua consultation policy that has three levels of status for local Māori: ‘Ahi kaa’, iwi with historical connections and ‘Taurahere’.¹⁰
• Rotorua District Council uses a comprehensive system of committees for involving Māori in council activities. There are a total of eight Māori committees, including the main Te Arawa Standing Committee. ¹¹

In July 2004, a report was published describing surveys of local government in New Zealand¹². The report identifies the following key characteristics:

• Involvement of Māori in council structures
  • governance and management structures, advisory committees, Māori wards/constituencies
• Policies and practices for maintaining relationships with Māori
  • co-management of sites and activities
  • relationship agreements
  • consultation policies and practices
  • iwi management plans
  • projects and funding
• Council resource, training and monitoring
  • iwi liaison and Māori policy units
  • internal staff and councillor training
  • monitoring of relationship
  • Māori hearing commissioners.

This report provides results of surveys with district and regional councils regarding Māori participation in governance, relationships and training. At the time of the development of this report, all regional councils had formal consultation processes, and all but one had training in Treaty of Waitangi on subjects such as statutory obligations, the Treaty of Waitangi, the Māori language, and culture and marae-based protocols. Most regional councils also provide for or have projects to work with Māori communities (10), provide funding targeted at initiatives with Māori (10), and hold iwi management plans (10). In addition, one third (4) have established a co-management regime with Māori, and half (6) have implemented tools to monitor and assess the effectiveness of their engagement with Māori. Only two (20 per cent) regional councils have Māori standing committees, only three have a Māori advisory committee and nine (33 per cent) have formal relationships with Māori. Most councils have Māori hearings commissioners, projects with communities and targeted funding for iwi initiatives.

Noteworthy methods include:

• Northland Regional Council co-management of Lake Omapere
• Bay of Plenty Regional Council Māori Standing Committee (Bay of Plenty Regional Māori representation Empowering Act 2001)
• Taranaki Regional Council MoUs with iwi who have deeds of settlement
• Hawkes Bay Regional Council co-management regime with Ngāti Pahauwera (Mohaka River Gravel Extraction)
• Wellington Regional Council Māori commissioners used on all resource consent hearings
• West Coast Regional Council process with Te Rūnanga o Ngāi Tahu regarding statutory acknowledgments
• Canterbury Regional Council riparian planting projects with runaka
• Environment Southland Charter of Understanding
• Tasman District Council Māori member on strategic water resources committee.

This report commissioned by the Ministry for the Environment identified regional council practices for managing fresh water under the current regulatory framework, the Resource Management Act 1991 (RMA). It identified current and emerging issues and areas where central government may assist in improving practice through a variety of mechanisms including legislative changes, development of national policy statements and national environmental standards, and preparation of best practice guidelines. There are a few references to Māori and iwi participation in freshwater management.

The report indicated that local government involvement in Waitangi Tribunal claims and settlement negotiations is becoming more common – and this had significant cost and other implications for councils. This may also have different settlements and different ownership issues.

Support for a pool of iwi commissioners for hearings to better Māori involvement in decision-making. Need central government to establish expectations to get better consistency across councils. No other party required to be involved in RMA without the ability to obtain funding/resourcing – assistance with capacity building required.

Consideration of the application of Treaty of Waitangi settlement redress to local government and role of councils in managing fresh water.  Also need to consider methods to build capacity within iwi – pool of experts to assist local iwi, encouraging Māori into sciences/planning/policy, cadetships into local government etc – wider issue than just at local level.¹³

All of the major freshwater plans reviewed in this report had sections dedicated to iwi issues, values, matters of cultural significance and the Treaty of Waitangi. Most plans identified ways in which tāngata whenua can participate in resource management including through consultation, identification of sites of special significance, the development of iwi management plans and the transfer of powers under section 33 of the RMA. However, it is not clear how this translates into practice.

In the report (Issue 8) identifies iwi groups often have limited capacity to be adequately involved in the resource management process.

All councils have established processes to involve iwi in plan development and general resource management activities. However, many councils indicated that a lack of expertise and capacity within iwi often compromised an iwi’s ability to be involved at an appropriate level. It was suggested that this could lead to “generic” submissions from iwi on notified consents. Consideration could be given to how central government might facilitate or assist capacity building within iwi. The report identified a range of options available to assist iwi in building increased expertise and capacity to be more involved in freshwater management. These included:

• the retention of “expert” iwi panels to assist local organisations on an as required basis
• the development of incentives to encourage iwi into planning or the sciences
• the development of placement schemes to encourage iwi into councils or the Ministry to assist in developing expertise
• funding assistance as appropriate.

The report considered that costs were likely to be low to moderate, depending on the options that are preferred. Benefits were assessed as moderate, as iwi capacity and resourcing was variable.

This report recorded views of Māori throughout the country with respect to the sustainable water programme of action. Within the report a large number of methods to improve the management of fresh water are identified. This includes national water standards, Māori involved at all levels, regular consultation as part of relationships rather than response to a proposal, education of young people and decision-makers, technological solutions, consistency among councils, resolving competing interests, preparation of iwi management plans, Māori principles in legislation, pilot programmes, bonds on discharges, Māori community access to fresh water, re-use, recycle, reduce, restoration, resourcing iwi, catchment and river specific recognition, riparian management, customary water quality indicators, efficiency based on costs, governance. Examples of good practice identified included Kaituna and Whanganui River recommendations, Mahurangi Catchment study, and Environment Bay of Plenty governance structure.

The Whanganui River report provides a strong opinion that the RMA does not give effect to the principles of the Treaty of Waitangi, in particular the active protection of iwi ownership and management interests in the Whanganui River. The report highlights the wish of iwi to manage and control the water resource, rather than have Māori relationships and values balanced with others within regional policy statements and regional plans.

This report provides an assessment of environmental law, in particular the RMA, as it applies to the Whanganui River (chapter 10). At chapter 10.4, the contention of the claimants is that Te Atihaunui authority is subsumed within policy statements and regional plans. The contention is that Treaty rights are one of many considerations to be balanced not only within the RMA but also the regional policy statement and plan. The issue was not whether the interests of Te Atihaunui were being acknowledged, as they most certainly were, but that the authority to make decisions for the resource were not being recognised. Furthermore, the Tribunal found that the RMA did not ‘give effect’ to the Treaty principles and by doing so avoided the Crown’s duty of active protection of Māori property interests. Thus, the regional policy statement and plans were constrained to giving effect to the principles of the Treaty, rather taking them into account. As a result, the ability of Atihaunui to manage and control the Whanganui River had not been protected.  

• The Kaituna River report provides the Tribunals findings on water rights with respect to the Kaituna River. It contends that Māori cultural and spiritual values should be considered in water allocation.
• This report was released prior to the enactment of the RMA. Claim Wai 4, the Kaituna River claim, was brought on 30 January 1978 by six claimants on behalf of the Ngāti Pikiao people, a sub-tribe of Te Arawa, and concerned the Kaituna River pipeline scheme, a project developed to address pollution affecting Lake Rotorua. The Tribunal found that the scheme was contrary to the principles of the Treaty because of the pollution it would cause to the Kaituna River fisheries and that there were alternatives to the pipeline which were practical and did not go against Māori values. It recommended that the pipeline not proceed, that research be carried out into land disposal as an alternative method for getting rid of the effluent, and that the Water and Soil Conservation Act 1967 and related legislation be amended so that regional water boards and the Planning Tribunal had to take account of Māori spiritual and cultural values when they made decisions about water rights.
• The Crown subsequently abandoned all financial support for the pipeline and instead announced its support for a combined treatment plant and land-disposal option for Rotorua’s effluent. This decision gives weight to the consideration of cultural and spiritual values with regards to water rights.

Environment Bay of Plenty has governance and management structures with Māori participation. The council has been a leader in Māori participation at governance level, being the only regional council with Māori constituencies. There are consultation policies and practices, use of iwi management plans, projects and funding. The council has a dedicated Māori policy section, internal training and Māori hearing commissioners.

Muaupoko working with Manawatu-Wanganui Regional Council, Department of Conservation and Horowhenua District Council, launched the Lake Horowhenua and Hokio Catchment Management Strategy in 1998 to address concerns with the state of these two water bodies. The strategy aims, by 2018, to restore water quality to a level that satisfactorily provides for cultural and amenity values and enhances the life-supporting capacity of the lake and stream.

Following the Waitangi Tribunal Report The Mohaka River in 1992, Ngāti Pahauwera is in discussion with the Crown to settle its Treaty claim to provide for joint management of the river. Currently, the Mohaka River is subject to a water conservation order as well as being a taonga of Ngāti Pahauwera.

As part of a wider focus on improving the effectiveness of Māori participation in the management and use of natural resources, this report outlines the findings of a review of iwi management plans (IMPs). The review investigated whether IMPs are meeting the expectations of both the iwi who have developed them and the relevant local authorities.

Nga Pae o Rangitikei is a pan-tribal iwi/hapū group formed with Horizons Regional Council in relation to management of the Rangitikei River. 'Nga Pae o Rangitikei' and Horizons Regional Council formed a major partnership in 2005/2006 for the purpose of improving tāngata whenua  engagement with council in relation to management of the Rangitikei River.

2020 Taupo-nui-a-tia Action Plan is a non statutory long-term action plan for Lake Taupo. The Plan is supported by central and local government (Ministry for the Environment, Department of Conservation, Department of Internal Affairs, Environment Waikato, Taupo District Council), the Tuwharetoa Māori Trust Board and the Lakes and Waterways Action Group (see http://www.taupoinfo.org.nz/).

There are also a number of Integrated Catchment Management (ICM) projects around the country with iwi/hapū involvement. Examples include the Taieri Trust (http://www.taieri.org.nz/trust/trust.html) and the Motueka River ICM project (http://icm.landcareresearch.co.nz/research/research.asp?theme_id=4&research_id=35).

Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments.

The report reviews international human rights obligations related to the provision of safe drinking water and sanitation. It discusses their scope and content, nature and monitoring, and points to areas needing further elaboration. The report ends with conclusions and recommendations to further strengthen and implement human rights obligations related to access to safe drinking water and sanitation.

For example, conclusions 65 to 69 find that although various mechanisms at the international, regional and national level monitor certain aspects and dimensions of human rights obligations in relation to access to safe drinking water and sanitation, this issue is currently being neglected, and that while the United Nations special procedures and treaty bodies have contributed to clarifying human rights obligations in relation to access to safe drinking water and sanitation, the UN HR Commission’s work also highlights the difficult task of covering these issues in a comprehensive and continuous way.

The Commission finds that specific, dedicated and sustained attention to safe drinking water and sanitation is currently lacking at the international level, given the broad range of issues that special procedures and treaty bodies have to address within their mandate and the specific questions that arise in relation to access to safe drinking water and sanitation.

This report identified effective communication and a coordinated effort amongst key stakeholders as a crucial factor in freshwater management. A key element of the communication effort seemed to be the non-judgemental assessment carried on by the field crew that spent an entire summer season in the area in the first year of the programme. Report recommendations (page 7) include:

• local people should be involved in wetlands management
• local people must be able to realise that non-local (regional, provincial and national) governments recognise the value of wetlands management
• local people must be given support from interested agencies to facilitate meetings and interaction in which they can be assured of the ‘buy-in’ of other stakeholders including landowners, residents and interested wetlands agencies
• key process steps for RAMSAR include:
  • careful selection of working groups (field and office)
  • familiarisation with social, cultural and economic parameters of local people
  • familiarisation with the wetlands themselves
  • use of an informal approach
  • commitment to a plan for management based on non-judgmental assessment of past activities
  • commitment to a plan for management based on a ‘bottom up’ construction rather than the traditional ‘top down’ approach
  • keeping in mind that the goal is the sustained conservation of the integrity and potential of the wetlands
  • acceptance that sustained results come from slow processes
• negotiation procedures include:
  • using an approach which is locally familiar to the culture and sensitive to their politics
  • taking time to build trust
  • always demonstrating the good intentions of wetlands management
  • being willing to compromise
• agreements
  • formal and informal agreements are beneficial, but should only be introduced after a convincing demonstration of the benefits which will be derived by such agreements
• procedures to enforce such agreements:
  • the best enforcement is community social pressure to live up to commitments
  • legislative requirements should be strongly defended and enforced
• management institutions
  • existing organisations should compliment wetlands management efforts. If they do not or are indifferent, their participation should be minimal
  • the creation of such organisations should be as a result of a need identified in the planning process
• monitoring and evaluation
  • the criteria for these measures should be based on the need to allow for growth of the consciousness of this ethic among the people of the area without compromising the goal of sustainable conservation of the RAMSAR site.

The Tonda experience and others in Oceania suggests that engagement of indigenous communities is most likely to be successful where:

• indigenous land tenure is recognised or clear claims exist that may be recognised in future
• conflicts over resource ownership have been or can be resolved
• the community is now or may potentially become a significant user of wetland resources and has a stake in maintaining productivity and significant sites
• indigenous communities are eager to be involved in continued wetland management
• communities have or can develop the capacity to manage (or contribute to management of) wetlands
• identified community leadership is supported and collaborative
• indigenous land management systems exist and are operating eg, clan structures, land spokespersons, delegation systems, and harvest restrictions
• government extension and support for wetland management is weak and co-management is necessary to extend limited resources.

A comparison of water rights law in United States of America, Canada, Australia and New Zealand reveals that although the notion of indigenous customary rights to fresh water is widely accepted, the content and outcomes from this recognition vary considerably.

Freshwater rights are a key area of concern for indigenous people worldwide yet water law is a relatively new area, especially in terms of indigenous commercial rights to water and rights of management. In many settler countries, including Australia and New Zealand, indigenous rights to water have been inadequately recognised by the legal system.

The Canadian experience shows that historical treaties are liberally interpreted such that they have been extended to more commercial uses of natural resources, but most useful are the modern treaties which result in significant natural resource development rights for indigenous people.

The Canadian Constitution further advances and protects indigenous water rights deriving from both common law and treaties, making indigenous natural resource rights in their customary form legally paramount to other interests in water. This superior interest is second only to conservation measures.

Over the last 20 years, mana whenua, local community groups and the general public have been working to address concerns about the water quality of the harbour and catchment land use practices in the Whaingaroa Harbour. Those concerns included land erosion, degradation of the water quality of inflowing streams to the harbour and the health of the harbour fishery. The Whaingaroa Environment Protection Trust developed a catchment plan to protect and restore the special qualities of this harbour environment. Work undertaken by the Trust under the plan includes:

• supporting Whaingaroa Harbour Care and other landcare groups, and working with farmers to fence and plant stream and harbour margins
• improving culvert and bridges on public and private roads so native fish can travel upstream
• assisting whitebaiters to work together to restore the fishery on particular streams
• building partnerships between government agencies and locals to preserve key natural areas through formal protection and plant and animal pest control
• creating a range of learning opportunities for the community in the management of catchment wildlife including fresh and saltwater fisheries, and in sustainable land and waste management.