3 Why Consultation is Necessary
3.1 Summary
This section examines the basis for consultation, both statutory and otherwise. Essentially, the basis for the requirement to consult with tangata whenua can be found in the provisions of Part II of the RMA. Therefore, this section examines what the Courts have said on taking account of sections 6(e), 7(a) and 8 of the RMA when making decisions on plans and consents.
- Express or implied obligations are imposed by particular provisions of the RMA such as sections 6(e), 7(a) and 8 and clause 3(1)(d) of the First Schedule.
- Consultation is part of a recognised principle of protection and partnership under the Treaty which "all persons exercising functions and powers ... shall take into account" under section 8 of the RMA.
The early cases that considered the meaning of sections 6(e), 7(a) and 8 tended to focus on whether consultation was required under the RMA and on identifying the parties that should be doing the consulting. More recent cases have seen a significant shift away from the narrow focus on consultation to encompass a holistic application of sections 6(e), 7(a) and 8 to the whole decision-making process. These cases indicate a move away from mere consideration of consultation to a wider consideration and understanding of all the relevant Treaty and Māori provisions of the RMA.
After analysing the relevant statutory provisions and other instruments, together with how the courts have interpreted the basis for consultation, this section concludes that:
- the RMA provides for tangata whenua interests to be fed into the mix of considerations that must be balanced under Part II of the RMA
- sections 6(e), 7(a) and 8 place specific obligations on local authorities and decision-makers to incorporate tangata whenua interests into their decision-making
- consultation is a sub-set of these obligations, but it is required in order to inform decision-makers how to discharge their obligations under Part II of the RMA, and sections 6(e), 7(a) and 8 in particular.
3.2 The purpose of the Act
The purpose of the Act is stated in section 5:
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, 'sustainable management' means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while -
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.
The interests of tangata whenua may be relevant under section 5 through both the wide definition of 'environment' in section 2 of the RMA (which includes people and communities and cultural conditions affecting natural and physical resources), and through the reference to the cultural wellbeing of people in communities in section 5(2).
The High Court in Beadle held that although tangata whenua beliefs are not natural or physical resources, they can be considered as part of cultural and social wellbeing.
This reflects the decision in TV3 Network Services Ltd v Waikato District Council [1997] NZRMA 557, where the High Court found that although a proposed television translator (to be built on land with a long history of occupation by ancestors of tangata whenua) would represent a use of resources that would enable people to watch television and to provide for their social and cultural wellbeing, it would fail to enable the tangata whenua to provide for their social and cultural wellbeing. However, the Court noted that in this instance the cultural uniqueness of the land was significant. The Court stated:
A rule of reason approach must surely prevail: the question is whether, objectively, the particular kind of activity is intrinsically offensive to an established waahi tapu, or other cultural considerations.
3.3 Sections 6(e) and 6(f)
Māori interests are also recognised as a matter of national importance in section 6(e), and potentially under section 6(f). These subsections read:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
...
(e) The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
(f) The protection of historic heritage from inappropriate subdivision, use, and development.
Subsection (f), which was introduced under the Resource Management Amendment Act 2003, may also give rise to Māori issues due to the wide definition of historic heritage, which includes sites of significance to Māori, including waahi tapu.
Section 6(e) requires decision-makers to 'recognise and provide for' the relationships between tangata whenua and their taonga.
An example of a strong relationship between tangata whenua and the environment can be seen in Te Awatapu o Taumarere v Northland Regional Council (A34/98), where the Court directed the regional council to impose a condition in its proposed regional policy statement to recognise Nga Puhi's kaitiaki status in relation to the Taumarere River. The Court agreed that the regional policy statement should be amended to provide for cultural purposes and to give effect to sections 6(e) and 7(a) of the RMA.
However, the Court in Ngati Hokopu found that the extent to which relationships between tangata whenua and the environment must be provided for under section 6(e) could vary, depending on the strength of that relationship:
[45] ... although section 6(e) suggests that these relationships must be provided for, it is inherent in the concept that the weaker the relationship, the less it needs to be provided for.
Recently in Te Runanga o Ati Awa ki Whakarongotai Inc & Takamore Trustees & Waikanae Christian Holiday Park Inc v Kapiti Coast District Council (W50/2003) ("Takamore"), the Environment Court (in a decision referred back from the High Court) found that consultation was a part of recognising and providing for section 6(e) interests:
[54] It is accepted that a consultative process is but part of the recognition process (under s6).
In Ngati Hokopu, the Court noted that this requirement of section 6(e) could go further than the commitments to Māori under the Treaty:
[37] ... section 6(e) may exceed the Treaty's obligations on the Crown.
The inclusion of matters pertaining to historic heritage in section 6, which were introduced by the 2003 amendments to the RMA, may result in further reasons to consult. Section 6(f)'s aim of protecting historic heritage from inappropriate uses, where historic heritage includes sites of significance to Māori, may result in a need to canvass the views of tangata whenua.
However, as the effect and scope of section 6(f) has not yet been tested in the courts, it is difficult to predict how that requirement will be interpreted. Nevertheless, as one of the matters listed in section 6, historic heritage is likely to be given equal importance to the matters contained in section 6(e).
3.4 Section 7(a)
Section 7(a) provides for kaitiakitanga to be recognised and reads:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to -
(a) Kaitiakitanga
...
The term 'kaitiakitanga' is defined in the Act as meaning:
[t]he exercise or guardianship by the tangata whenua of an area in accordance with Tikanga Māori in relation to natural and physical resources; and includes the ethic of stewardship.
Several cases have examined what having 'particular regard' to kaitiakitanga should mean for decision-makers. In particular, there has been some conflict between the role of a consent authority to make decisions under the RMA and the ability of Māori to exercise kaitiakitanga over a resource.
In Contact Energy Ltd v Waikato Regional Council & Taupo District Council (A4/2002), local iwi wanted the Court to require Contact to enter into an arrangement with the local iwi holding kaitiakitanga over the geothermal resource, giving them future involvement in its management, and requiring them to be consulted so that the resource could be actively protected. However, the Court held that section 7(a) has to be read in the context of the RMA, which entrusts decisions on the sustainable management of natural and physical resources to particular classes of consent authorities, not iwi authorities. Despite this, the Court said that some of the iwi's concerns could possibly be met through conditions requiring them to be provided with ongoing information and arranging for karakia (prayers) to be performed.
It is again clear that consultation is part of the obligation on a decision-maker when considering section 7(a). However, in Takamore, the High Court (on appeal) held that the process of consultation is distinct from the requirements of section 7(a). In particular, the Court held that the fact that consultation had occurred did not mean that a consent authority had necessarily given particular regard to kaitiakitanga in its decision:
[86] Consultation by itself without allowing the view of Māori to influence decision-making is no more than window-dressing. Section 7 requires the decision maker to have particular regard to how Māori view the way in which the land is to be used. The Court appears to have limited its consideration of this issue to consultation. This was less than required by law.
3.5 Section 8
Section 8 incorporates principles of the Treaty in decision-making under the RMA and reads:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
There is no comprehensive or authoritative list of the principles of the Treaty of Waitangi available for decision-makers to consider. A list of 'central principles' extracted from decisions of the Waitangi Tribunal is set out in Laws NZ, Treaty of Waitangi, paragraph 12. This list includes the following principle, inconsistently referred to as the 'consultation principle' in Environment Court decisions:
The Crown and Māori have mutual obligations to act reasonably and in good faith. Good faith consultation between parties is necessary to sustain the Treaty relationship: Report of the Waitangi Tribunal on the Orakei Claim (Wai 9) at 150.
This principle has been analysed in Laws NZ, Treaty of Waitangi at paragraph 75 in the following terms:
The duty to consult has been formulated as part of the obligation for Treaty partners to work in good faith in their dealings with each other. Therefore, the Crown has a duty, when acting within its sphere, to make an informed decision; that is, a decision which is sufficiently informed as to the relevant facts and law to be able to say that it has had proper regard to the impact of the principles of the Treaty.
Other principles of the Treaty include what are commonly referred to in Environment Court decisions as the 'active protection principle' and the 'mutual benefit principle'. Carter Holt Harvey contains a thorough analysis of the application of the Treaty principles in pages 10-18.
In Ngai Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA), the Court of Appeal held that the requirement to take account of the principles of the Treaty should be interpreted and applied widely. The Court held that the Treaty principles in terms of the RMA were not limited to consultation but also included active protection of tangata whenua interests.
The Court in the Beadle case considered the numerous decisions concerning the effect of section 8 of the RMA, and arrived at the following proposition as representing the law as it concerns the active protection principle of the Treaty, as applied in that particular case:
[671] The person making a decision on a designation requirement or resource consent application has to take into account the principle of the Treaty by which the Crown has an obligation of active protection of Māori property and taonga, which are not limited to physical and tangible resources but extends to spiritual and intrinsic values.
The Court went on to say that the Crown's obligation is not absolute, as it is qualified by its other responsibilities as the government, but the Crown must take the action that is reasonable in the circumstances prevailing at the particular time.
In Mason-Riseborough the Court noted that the importance of recognising the views of Māori cannot be denied, but that this does not extend to giving these views paramount status. A balanced, objective consideration of the relevant interests is required based on the circumstances.
As this indicates, section 8 is to be balanced against the other principles and purposes of the Act and is subordinate to the purpose of sustainable management contained in section 5. In fact, the Takamore High Court decision noted that if a decision-maker has properly incorporated section 6(e) and 7(a) concerns into its decision, it may have already discharged its obligation under section 8:
[91] It has been suggested that if the decision-maker properly takes into account s6(e) and s7(a) matters, it may well have fulfilled its s8 objectives in any event. This will depend very much on the facts of each case ...
3.6 Part II purpose and principles
The courts adopt a holistic application of sections 6(e), 7(a) and 8. All these sections, including the Treaty principles of active protection and partnership, as well as consultation, need to be taken into account when making decisions. Consultation is also to be approached in a holistic manner. It is not an end in itself, but a means to take into account the relevant Treaty principles and the requirements in sections 6(e) and 7(a) in the decision-making process.
A number of cases have discussed how to balance the objectives set out in Part II of the RMA. In Mahuta & Ors v Waikato Regional Council (A91/98), the Court noted that sections 5-8 of the RMA have different weights, in terms of the extent to which a decision-maker must incorporate them into a decision:
... embracing all elements set out in section 5(2), in that sections 6, 7 and 8 are subordinate and accessory to it.
In Mangakahia Māori Komiti the Environment Court emphasised that sections 6, 7 and 8 must be read in context against the background of Part II as a whole and how it is framed. The provisions are intended to be applied to promote the purpose of the RMA expressed in section 5, not to counterbalance it.
In Carter Holt Harvey the Court particularly considered the relationship of section 8 to the rest of the principles in Part II, commenting on the Mangakahia Māori Komiti decision. It stated:
[25] The obligation, set out in s8 of the Act, to take into account the principles of the Treaty of Waitangi does not elevate that factor above other factors which those responsible for exercising functions and powers under the Act are required to consider. Indeed, the fact that the Act does not require persons exercising functions and powers under it to act in conformity with the principles of the Treaty has been criticised by the Waitangi Tribunal: Ngawha Geothermal Resource Report (Wai 304) at 147. The question whether the obligation of those responsible for exercising functions and powers under the Act to consider the principles of the Treaty should be elevated is, of course, a matter for Parliament, not for this Court. There is a consistent line of authority in the Environment Court which has emphasised the need for s8 to be read and understood in the context of the whole Act: eg Mangakahia Māori Komiti v Northland Regional Council [1996] NZRMA 193 at 214. [emphasis added]
This contemplates that choices will need to be made. In Mahuta the Court was faced with balancing the interests of Waikato-Tainui and the wider community over the expansion of a dairy factory, which would discharge wastewater into the Waikato River. In the circumstances of the case, the Court held that the applicant had taken a number of steps to meet the cultural concerns of the Waikato-Tainui which meant that the adverse effect on the relationship Waikato-Tainui had with the river and on kaitiakitanga would be recognised and provided for and mitigated.
The Court held:
It is our judgment that because of the community value of the proposed expansion of the dairy factory, and because the cultural interests of the Waikato-Tainui people would be provided for in so many other ways which avoid tangible harm to the river, the perceptions which are not represented by tangible effects do not deserve such weight as to prevail over the proposal and defeat it.
In comparison, in Te Runanga o Taumarere v Northland Regional Council (A108/95), the Planning Tribunal found that a planned discharge into Uruti Bay would have an adverse effect in that it would be incompatible with the cultural and spiritual values of the Bay to tangata whenua. This was the case even though the effluent discharged would be of a very high quality and there were significant positive environmental effects.
Sections 6(e), 7(a) and 8 are the main provisions that refer to tangata whenua interests. However, as these examples illustrate, they must be balanced against the other interests set out in Part II.
3.7 Iwi planning documents
Through the 2003 Amendment Act, iwi planning documents have been given greater recognition. Prior to the Amendment Act, regional and district councils were required, when preparing a regional policy statement, regional plan or district plan, to "have regard to" any relevant planning document recognised by an affected iwi authority. The 2003 Amendment Act has elevated the status of these documents. The relevant councils must now "take into account" any such documents when preparing or changing a policy statement or plan.
The term 'iwi authority' means the authority that represents an iwi and that is recognised by that iwi as having authority to do so. There is no definition nor requirement for matters to be included in iwi planning documents. However, these documents will undoubtedly assist in determining what is, and what is not, of concern to the relevant iwi authorities.
There does not appear to be any guidance given by the courts regarding the purpose and status of iwi planning documents. Accordingly, the extent to which an applicant or council may rely on their contents to determine the concerns of tangata whenua and whether they are likely to be affected by any particular proposal is unknown.
Nevertheless, it is anticipated that iwi planning documents will assist applicants and consent authorities in (at least at an initial stage) identifying matters of concern to an iwi authority. The Select Committee's report on the Amendment Bill noted that it was neither desirable nor practicable to specify a process for the preparation of iwi planning documents to ensure they are rigorous and properly represent the interests of relevant iwi. The Committee went on to note that an iwi planning document that is prepared by an iwi authority (being an authority that represents an iwi and that is recognised by that iwi as having the authority to do so) "legally covers the concerns of that iwi", and that it is "for the people of each iwi to hold their iwi authority to account". This suggests that it may be reasonable for a council or applicant for resource consent to rely on the content of an iwi planning document in determining the matters of concern to iwi for the purpose of deciding whether consultation is appropriate.
For further discussion on iwi management plans, refer to the Ministry for the Environment publication Making the Best of Iwi Management Plans under the RMA (revised June 2003).
