2 Who Needs to Consult, and When Does the Duty Arise?
2.1 Summary
This section of the paper considers the issue of who, if anyone, is required to consult with tangata whenua under the RMA and when this duty arises. Generally, the provisions of the RMA determine the timing of when consultation should occur. This section discusses the responsibilities of applicants for resource consents, local authorities and the Crown.
After analysing the relevant provisions of the RMA and case law in this area, the conclusions of this section are as follows.
- Applicants have a duty to report on consultation when constructing an assessment of environmental effects, but this does not amount to a legal duty to consult.
- Despite this, it is recognised good practice that applicants for resource consents should engage in consultation with tangata whenua where their proposals may affect the matters referred to in sections 6(e) and (f), section 7(a) and section 8 of the RMA.
- Local authorities must consult when preparing planning documents and where proposals are likely to affect tangata whenua interests recognised in sections 6(e), 7(a) and 8 of the RMA.
- There may also be a higher obligation on consent authorities to consult with tangata whenua when they know tangata whenua have a special relationship with the area affected by a proposal.
- Where a council is acting in its role as consent authority, any consultation should be done by a council officer and then reported to council, to avoid conflicts with the council's role as the decision-maker.
- Consent authorities should also carefully assess, after reasonable inquiry, whether an iwi, hapu or particular Māori representative should be personally notified of a resource consent application.
- The Crown, as a Treaty partner, is under a stricter duty to consult whenever it takes actions that may affect tangata whenua interests. However, the extent of this will be determined by the relevance of Part II of the RMA on tangata whenua interests.
2.2 Resource consent applicants
A resource consent application must include an assessment of environmental effects (AEE). Under Clause 1(h) of the RMA's Fourth Schedule, this AEE must identify the people interested in or affected by the proposal, the consultation that has been undertaken, and any response to the views of the people consulted.
Therefore, under the RMA an applicant is obliged to report on consultation, but is not obliged to consult per se. This was recently confirmed in Ngati Hokopuki Hokowhitu v Whakatane District Council (C168/2002), which stated:
[66] Part VI of the RMA imposes no invariable obligation on a potential applicant to consult with anyone. The only obligation imposed by the words of the Fourth Schedule is to report on consultation. While that suggests consultation should occur it is silent as to the consequences if it does not.
This theme was mirrored in the case of Carter Holt Harvey v Te Runanga o Tuwharetoa ki Kawerau & Bay of Plenty Regional Council (AP42/2002). The Court held:
[31] The duty to consult arises out of the relationship of Treaty 'partners' - it is not an obligation cast on individual or corporate citizens.
However, the Court noted that it was good practice for applicants to engage in consultation with tangata whenua, despite the fact that it was not a legal obligation. It stated:
[51] Responsible holders of resource consents will, undoubtedly consult regularly with tangata whenua interests to ensure efficient despatch of such applications. While this is good practice, there are difficulties in elevating the obligation to consult to the status of a legal obligation ...
Consultation was also described as "recognised good practice" in the case of Paihia & District Citizens Association Inc v Northland Regional Council (A71/95), where the Court noted:
The Act does not make any specific requirement of consultation by applicants for resource consents, or by local authorities when acting in their function as consent authorities ... it is recognised good practice that applicants for resource consent engage in consultation with the tangata whenua where their proposals may affect the matters referred in section 6(e) and 7(a), and that those reporting to consent authorities on such applications to inform themselves and advise on those matters. [emphasis added]
The Ngati Hokopu case also held:
[65] Consultation must necessarily take place before the application is lodged with the council. Therefore, any discussion between the applicant and other persons which takes place after the application is lodged is not consultation for the purposes of the AEE report.
Accordingly, the approach of the courts has been relatively consistent. An applicant has no legal duty to consult with tangata whenua, but it should be encouraged as a matter of good practice.
2.3 Local authorities
Local authorities, incorporating regional councils and territorial authorities (district and city councils), have two distinct functions under the RMA which may create a duty to consult:
- preparing and changing policy statements and plans
- determining applications for resource consent.
Preparing policy statements and plans
Clause 3(1)(d) of the First Schedule of the RMA requires local authorities to consult with tangata whenua when preparing a plan or policy statement, or a change to a plan or policy statement. It states that local authorities must consult:
... the tangata whenua of the area who may be so affected, through iwi authorities and tribal runanga.
This obligation applies in relation to regional policy statements, regional plans (including coastal plans, water, soil and land plans) and district plans.
Ngati Kahu and Pacific International Investments Limited v Tauranga District Council [1994] NZRMA 481 indicates that consultation on a proposed plan should be ongoing, and that a council should re-open consultation if other factors and information are brought to its notice which necessitate a review of the understanding previously reached.
However, the case also noted that consultation should not fetter the council's decision-making responsibility, and that a council must be free to consider a submission or cross-submission made to it on a policy statement or plan, without being restricted in its decision-making responsibility by an understanding reached before the policy statement or plan was notified.
Applications for resource consent
However, this position is slightly less clear-cut when a local authority is acting in its role of determining resource consent applications under section 104 of the RMA. Section 104 directs councils to consider the effects of a proposal, which are outlined by the applicant in its assessment of environmental effects (AEE).
As discussed earlier in this section, an applicant is only required to report on the consultation it has undertaken. There is no specific duty on the applicant to consult widely, although it is good practice to do so. Because the effects of a proposal may impact on tangata whenua interests, this raises the question as to whether there is a duty on a local authority to make sure that appropriate consultation has occurred.
A council is subject to Part II of the RMA when it exercises its powers under section 104, including section 8, which requires persons exercising functions and powers under the RMA to take into account the principles of the Treaty of Waitangi (the Treaty). Although councils are not party to the Treaty, in acting under section 104 they are bound to consider its principles as part of the Part II provisions.
In considering the duty of active protection under the Treaty, the Court in Mason-Riseborough v Matamata-Piako District Council (A143/97) concluded that there may be an obligation on council officers to consult independently of any consultation by an applicant in order to fulfil the Treaty principles:
Certainly there will be times when that duty obliges the person reporting to the Council to engage in consultation with the tangata whenua. At other times, depending on the circumstances, an applicant's consultation may be sufficient.
This appears to follow the Aqua King Limited v Marlborough District Council (W19/95) line of cases, where the Planning Tribunal stated:
We accept that there are two stages of consultation under the Act that are required where there are issues of moment to Māori. They are the applicant's consultation or otherwise under the Fourth Schedule, and the Council officers' consultation under Part II of the Act which arises from the principles of [the Treaty]. That consultation is an obligation which pertains only to Councils.
Planning Tribunal decisions released in the early 1990s appear to suggest that there was a duty for councils to consult (eg, see Gill v Rotorua District Council, [1993] 2 NZRMA 604, Haddon v Auckland Regional Council [1994] NZRMA 49.)
However, in the latter part of the 1990s, the courts have been wary to ensure that a consent authority's quasi-judicial capacity was not compromised by any consultation that may take place by the consent authority. In Mangakahia Māori Komiti v Northland Regional Council [1996] NZRMA 193, the Court held that a council should not prejudice its own position as a quasi-judicial body by undertaking consultation itself. Therefore it found it was appropriate for council officers (in a non-judicial capacity) to undertake consultation and report the results for the council to consider as decision-maker.
Regardless of how the consultation is achieved, the implication that councils need to consult in order to make informed decisions on Part II matters was noted in Director-General of Conservation v Marlborough District Council (A89/97), where the Court held:
... we fail to see how under section 6 of the Act consent authorities are able to recognise and provide for the matters listed in section 6(e) if they do not consult with iwi because they would not have adequate knowledge of the issues on which to make an informed decision.
In Berkett v Minister of Local Government (A6/97), the Court held:
Where an applicant has not consulted with Māori in a case involving matters of Māori interest and concern it is good practice for the planner preparing a report to carry out such consultation.
In Kotuku Parks Limited v Kapiti Coast District Council (A73/2000) the Court agreed that a consent authority does not have a duty to consult under the Treaty, but that it should be on enquiry that consultation has occurred, where consultation was appropriate. This could occur through a planner's report. It also stated:
In practice, it is the applicant who will need to consult with Māori, in cases where that is appropriate, to avoid the risk of the application being postponed or refused by the consent authority if it is not satisfied that grant of the resource consent would be consistent with its duty to take into account the principles of the Treaty.
In Land Air Water Association v Waikato Regional Council (A110/2001), the Court took a more holistic approach to the issue of who must consult:
[448] In our view it matters little who facilitates or carries out the consultation. In some cases it may be the applicant. In other cases officers of the consent authority or a combination of both ...
Therefore, it appears from case law that there is an obligation for councils to undertake consultation through their officers, to the extent required to fulfil the requirements of Part II of the RMA. This will vary from case to case.
Finally, the Local Government Act (LGA) 2002 imposes new requirements for local authorities on consultation and to undertake capacity-building for Māori. In particular, section 81 of LGA 2002 requires local authorities to establish processes to provide opportunities for Māori to contribute to decision-making. Section 82 sets out standard principles for local authorities to follow when undertaking consultation, and specifically requires local authorities to adopt processes to consult with Māori in accordance with these principles.
As yet, there is no case law to assist in interpreting how these sections may affect consultation by local authorities under the RMA, but the existence of these guidelines may help to standardise procedures between different councils.
Certificates of compliance
In contrast to a council's role in determining resource consent applications, there appears to be no obligation for a council to consult when it determines an application for a certificate of compliance under section 139 of the RMA. This is on the basis that a council's role in this process is simply to interpret the provisions of its plan (Waitutu Incorporation v Southland District Council (C68/94)).
2.4 The Crown
Section 8 of the RMA requires persons exercising functions and powers under the Act to take into account the principles of the Treaty. As the Crown is a Treaty partner, this places a special obligation on the Crown, whether it is acting in its capacity as a decision-maker or as an applicant under the RMA.
Crown as decision-maker
Instances where the Crown is the decision-maker under the RMA include the following:
- the Minister for the Environment when:
a) making recommendations concerning national policy statements
b) calling in an application of national significance
c) considering coastal tenders
d) determining applications for water conservation orders
- the Minister of Conservation when:
a) preparing New Zealand coastal policy statements
b) approving a regional coastal plan
c) deciding applications for restricted coastal activities
- any Minister of the Crown, as a Heritage Protection Authority, when determining territorial authority recommendations on applications for heritage protection orders.
As any decision made by the Crown in the above capacities will be an exercise of a function or power under the RMA, the provisions of Part II providing for Māori interests will be relevant to any decision made. In such cases, the Crown is in the same position as a consent authority and, prima facie, is bound by the same requirements regarding consultation.
Crown as applicant
There has been some inconsistency in case law on the question of whether consultation is a Treaty principle per se or if the obligation to consult arises out of the Treaty principle to act in good faith and in partnership. Despite this question of interpretation, it is clear that consultation does fall under the Treaty principles as recognised by section 8.
In Beadle v Minister of Corrections (A74/2002), the Minister accepted that he had an obligation to consult tangata whenua arising out of the Treaty principles.
In the Ngati Hokopu case the Court appeared to raise the bar for consultation where an applicant is the Crown. After noting that it was "unlikely that Parliament intended that consultation should be compulsory in applications for resource consent", the Court noted that the position may be different for an applicant that is an arm of the Crown:
Where the applicant for resource consent is the Minister of the Crown the position may be different because then the applicant (as a Treaty partner) must consult because this may be a duty in certain circumstances which arises out of the Treaty principles of partnership and good faith: Beadle v Minister of Corrections.
2.5 Requiring authorities
In relation to designations under the RMA, requiring authorities that are also Crown entities will also be under an obligation to consult with tangata whenua under Treaty principles. Requiring authorities include Crown ministers, local authorities and approved network utility operators. Where a requiring authority is not the Crown, its position in relation to consultation is similar to that of an applicant for resource consent.
Where a requiring authority seeks a designation, it must give notice to a territorial authority of such requirement. As with AEEs, this notice must include a statement of "the consultation, if any, that the requiring authority has had with persons likely to be affected by the designation".
When a territorial authority makes its recommendation on an application for a designation, it will consider whether adequate consideration has been given to alternative sites, routes or methods of achieving the public work. As with applicants for resource consent, and in considering alternatives, consultation may be seen as good practice in order to ensure that any alternatives that might incorporate tangata whenua concerns can be determined.
