1 Introduction
1.1 Purpose
The purpose of Guidelines for Consulting with Tangata Whenua under the RMA: An Update on Case Law is to outline the current legal position on consultation with tangata whenua under the Resource Management Act 1991 (RMA). The paper builds on and updates earlier papers published by the Ministry for the Environment, in particular:
- Case Law on Consultation, Working Paper No. 3, June 1995
- Case Law on Tangata Whenua Consultation, RMA Working Paper, June 1999.
This paper is primarily targeted at local authorities, applicants for resource consent and tangata whenua groups. It is intended to provide a workable framework to determine, on a case-by-case basis, whether tangata whenua should be consulted under the RMA, and if so, how this should be done. It also aims to provide a general overview of the principles applying to tangata whenua interests and consultation under the RMA.
Although this is intended to be a stand-alone document, because it is an update on case law since 1999 it puts more focus on the effects of decisions by the Environment Court and higher courts since this date. So although the leading earlier cases are still discussed, the 1999 paper contains a more in-depth discussion of their particular details.
This paper also briefly discusses the effect of the Resource Management Amendment Act 2003 on tangata whenua interests and consultation.
1.2 Structure
This paper has been structured to try to provide a practical and logical approach to the issue of consultation with tangata whenua. The aim is to enable readers to determine whether a duty of consultation exists in any particular case, and then to adopt a flow chart-type approach as to what to do next.
The first question to resolve is whether there is a duty on a party to consult tangata whenua. Section 0 discusses who may need to be consulted and when that duty arises. Section 0 then explains the basis for this duty, both statutory and otherwise. Sections 4 and 5 discuss what constitutes consultation and how it may be conducted. The final issue to be resolved is which tangata whenua group or groups should be consulted. This matter is discussed in section 6.
The first time a case is noted in the text its citation is given in full, and afterwards it is referred to simply by a key word (eg, Beadle). Numbers that appear next to indented quotes refer to the paragraph number of the decision where that quote can be found. Italics within a quote is used to emphasise a point being made in this paper, rather than reflecting any emphasis in the decision itself.
1.3 Disclaimer
While every effort has been made to ensure that this paper is as clear and accurate as possible, the Ministry for the Environment will not be held responsible for any action arising out of its use. In cases where there is uncertainty, the readers should refer directly to the RMA and/or cases cited in this paper. Any advice given through this paper is intended as a guide only and should not be taken as defining or providing a definitive interpretation of the RMA or case law.
1.4 Acknowledgements
A draft of this paper was prepared for the Ministry for the Environment by Helen Atkins, Partner, Daniel Clay, Senior Associate, and Michaela Stirling, Solicitor, all of Phillips Fox Lawyers.
