4 What Constitutes Consultation?
4.1 Summary
Once it is determined that consultation is necessary, the question arises as to what this means in practice. This section investigates the concept of consultation and analyses what is likely to constitute sufficient and reasonable consultation. The section is linked with section 5 of this paper, which considers methods of conducting effective consultation.
The section reaches the following conclusions.
- The method or degree of consultation will depend on the facts of each particular case.
- The purpose of consultation is to both recognise the rights of Māori under the Treaty and to gain information on the potential effects of a proposal on the environment and on tangata whenua.
- Māori spiritual values should be considered, but there are limits on the extent to which they can be taken into account.
4.2 The purpose of consultation
The Court in Beadle discussed a dual purpose of consultation, as follows:
- recognition - to recognise the rights of Māori under the Treaty as a party who has a right to be consulted
- information - to obtain appropriate and accurate information on the potential effects and effects on affected Māori.
The 'information' purpose was discussed in the Mason-Riseborough decision, as follows:
Realistically, active protection of Māori interests requires positive action. It also requires access to sufficient information of an appropriate quality to be in a position to fully consider the implications of the application on those interests.
Regarding the purposes of consultation, the Court in Land Air WaterAssn stated:
[445] In our view the reason for consultation with Māori is their special cultural relationship with the natural resources of our environment. The purpose of consultation is to enable an informed decision to be made. [emphasis added]
Therefore, it is suggested that these purposes should be used for guidance in determining how consultation should be approached and conducted.
In the Beadle case, in relation to allegations of inadequate consultation, which an iwi alleged caused a failure to understand its concerns, the Court appeared to place some weight on the formal resource consent process. In particular, it noted that the iwi had the opportunity to participate in the hearing process. The Court linked this participation to the information purpose of consultation and noted that:
... [t]he opponents have had full opportunity to present to the Court, face-to-face in a public sitting, all the information that they possess that they consider should influence the Court's decision. They had the services of experienced professional counsel and expert witnesses. They took full advantage of those opportunities, and also of the opportunity to cross-examine the witnesses called on behalf of the Minister.
It is clear from analysing Part II matters that consultation is just a part of what a decision-maker must do to comply with the obligations under sections 6(e), 7(a) and 8. Recent cases have focused on the purpose of consultation and what it is designed to achieve, in the wider scheme of incorporating sections 6(e), 7(a) and 8 into a decision.
4.3 Flexibility required
There is no set formula for adequate consultation. What will be considered adequate must be judged by reference to the particular circumstances and on a case-by-case basis. This was confirmed by the Land Air Water Assn case:
[448] The method or degree of consultation will depend on the facts of each particular case ...
In Paul v Whakatane District Council (A12/95) the Planning Tribunal said the extent of the consultation should be proportionate to the extent and likely effects of the proposal in question.
In Mason-Riseborough the Court held that the question of consultation is to be approached in a holistic way:
It is our opinion that the question of consultation is to be approached in a holistic manner, not as an end to itself, but in order to take the relevant Treaty principles into account. (p. 12)
4.4 Recognising Māori spiritual values
Māori have usually been able to invoke sections 5, 6(e), 7(a) and 8 of the RMA together in seeking to protect matters of cultural and spiritual value. There is often an overlap between tangible and intangible values, as many tangible values (eg, urupa sites) have intangible values associated with them. Tangible and intangible values are equally important.
There is no doubt that Māori spiritual values are relevant considerations under the RMA. The issue is the extent to which such values should be given weight when balancing all alleged adverse effects. In Mahuta the Court accepted that the Waikato/Tainui people have a special relationship with the Waikato River, which is of fundamental importance to their social and cultural wellbeing. The issue for the Court was the significance to be given to that relationship in determining the resource consent applications before it.
After confirming that the effects on cultural conditions that affect tangata whenua are irrelevant, and in response to an assertion made by evidence presented by Waikato/Tainui that there is no need for a discernible physical adverse effect to constitute a serious adverse effect on the relationship of Waikato/Tainui to the Waikato River, the Court held as follows:
[170] We have found no adverse effects on the Waikato River from the proposed taking of water from it, nor adverse effects on fish from entrainment in the intake structure ... There would be an adverse effect on the relationship of Māori with the Waikato river in that many of them ... have a deep spiritual respect for the river, and perceive any discharge into it as a serious effect, whether or not there is any discernible physical effect, and despite the design of the discharge and outfall structure to meet their cultural requirements.
The Court balanced the alleged metaphysical effects with aspects of the application that provided for the spiritual relationship with the river. In granting the consents sought, the Court accepted that, although the adverse effect on the relationship of Waikato/Tainui with the river would be recognised, provided for and mitigated by the application:
[260] ... those ways in which the cultural needs of the Waikato/Tainui would be recognised and provided for would not extend to avoiding all perception of contaminants flowing into the river, irrespective of physical effects ...
The Court went on to acknowledge that granting consent would not avoid the metaphysical effects claimed, but nevertheless in balancing the competing factors, acknowledged the relevance of such effects.
Māori spiritual values were also acknowledged as being relevant under the RMA in the High Court decision TV3 Network Services. That case involved an application for resource consent to construct a television translator on land alleged to be waahi tapu, which was declined by the Environment Court. The Environment Court had recognised that:
Because of the long history of occupation of Horea generally by ancestors of the tangata whenua, the whole area is closely associated with deep respect for their ancestors and the places where they lived, fought, and were buried, and that any disturbance of the ground for the translator would be regarded by them as a desecration.
The High Court, in upholding the Environment Court's decision, acknowledged that the Environment Court found the overall cultural uniqueness of the site to be significant and to outweigh the technological activity for which consent was sought. The High Court held that, in doing so, the Environment Court recognised the correct position in law and gave particular weight to section 6(e). The Court went on to note the conflict between the driving forces behind the applicant and tangata whenua. At p. 549 it said:
The developer derives her justification from the belief that stands on 'the common good'; in this case, better television signals. Strip the land of dignity, and doubtless the justification is powerful. But for others - as for Tainui here - what occurs is then culturally debilitating: what is lost is something to do with the integrity, and the spirit of a place, that no element of economic advancement can ever justify.
However, the Courts have struggled to recognise these values in other decisions, particularly where Māori disagree about what the intangible values are in an area. The Beadle case indicates that there are limits to the extent that intangible values can be taken into account:
[497] The Māori traditional 'holistic' view of the environment does not warrant treating [sections 6(e) and others] as if they extended to diffuse relationships with whole districts, and with features many kilometres distant.
[439] Neither the statutory purpose, nor the texts of [sections 6(e), 7(a) and 8] indicates that those making decisions under the Act are to be influenced by claimed interference with pathways of mythical, spiritual, symbolic or metaphysical beings, or effects on their mythical, spiritual, symbolic or metaphysical qualities ...
In Otararua Hapu v Taranaki Regional Council (A124/98) the cultural values said to be affected were described as metaphysical and spiritual. The Court stated that "in the absence of evidence we cannot claim to have a full understanding of them". This appeared to count against the hapu, as the Court rejected claims that the proposed site was a marae called Hanga Rua. There was no evidence to support this, and the Court preferred the evidence of Fletcher Challenge's programme manager and consultant archaeologists.
This approach can be compared with the recent decision Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213, which wasa decision in part on the effect of section 6(d) of the Hazardous Substances and New Organisms Act 1996 (phrased in almost identical terms as section 6(e) of the RMA). The Court held that the use of the phrase 'other taonga' included intangible cultural and spiritual taonga as well as physical objects. It held that the Authority had correctly understood taonga to include spiritual beliefs, and had taken them into account as required by the section.
These cases illustrate the importance of using consultation to understand how Māori spiritual values should be taken into account in the balancing exercise required under Part II of the Act.
