5 How Consultation may be Conducted
5.1 Summary
This section follows on from the discussion in section 4 by analysing, on a more practical level, how consultation may be conducted in order to discharge a duty to consult with tangata whenua. Although each case depends on its own facts and circumstances, there are some general principles that will apply to any obligation to consult with tangata whenua.
Relevant case law on this issue indicates that:
- fairness is paramount
- consultation must be conducted with an open mind
- the right of tangata whenua to be consulted does not extend to having a right of veto over the project
- consultation is a two-way process - if iwi refuse to consult then they cannot expect the Court to hold that consultation has been inadequate
- where the consent authority will be hearing a resource consent application it must not consult unilaterally with any party
- iwi as submitters should ensure that they clearly express their concerns about a resource consent application so that the relevant issues can be clearly identified during the application process and additional information sought as required.
This section also considers the potential consequences of inadequate consultation, which provide further support to the desirability of consulting with tangata whenua.
5.2 Consultation guidelines
The leading case on consultation generally is Wellington International Airport Ltd v Air NZ [1991] 1 NZLR 671 (Court of Appeal). However, the recent Land Air Water Assn decision discusses tangata whenua consultation rather than consultation more generally, and distilled the following points from the leading cases (at paragraph 453).
- The nature and object of consultation must be related to the circumstances.
- Adequate information of a proposal is to be given in a timely manner so that those consulted know what is proposed.
- Those consulted must be given a reasonable opportunity to state their views.
- While those consulted cannot be forced to state their views, they cannot complain if, having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.
- Consultation is never to be treated perfunctorily or as a mere formality.
- The parties are to approach consultation with an open mind.
- Consultation is an intermediate situation involving meaningful discussions and does not necessarily involve resolution by agreement.
- Neither party is entitled to make demands.
- There is no universal requirement as to form or duration.
- The whole process is to be underlain by fairness.
5.3 Possible outcomes of consultation
This Land Air WaterAssn list has been cited with approval in subsequent cases on tangata whenua consultation. The Court in Beadle also focused on the possible outcomes of consultation. It held that while a fair and meaningful process should be followed, consultation does not require the parties to negotiate or agree, and it does not give tangata whenua a right of veto over the project:
[549] Those consulting need to impart enough about the proposal that those consulted are able to respond with appropriate and accurate information on the potential effects on affected Māori, so that it may be considered by the decision maker. The consulting party, while entitled to have a working plan in mind, has to keep its mind open and be ready to change or even start afresh. However, although consultation involves meaningful discussion, it does not require agreement, and does not necessarily involve negotiation toward an agreement. As counsel for the Minister submitted, the principle does not give a right to veto any proposal. [emphasis added]
This restates the established position that the right of consultation does not amount to a right of veto, articulated by the Court of Appeal in Watercare Services Ltd v Minhinnick [1998] NZRMA 113, whichstated:
[The argument that there is an ability to veto] is an argument which serves only to reduce the effectiveness of the principles of the Treaty rather than to embrace them. (pp. 18-19)
In Otararua Hapu the Court rejected submissions about the rights that section 8 confers upon Māori. The Environment Court emphasised that section 8 of the RMA needs to be read and understood in the context of the whole Act. It does not provide that tangata whenua will necessarily decide who is to be on a consent committee, that decisions will be made on the marae, or that this should be by tangata whenua in accordance with their values and laws.
In Takamore the Environment Court (in its decision referred back from the High Court appeal) also took into account the fact that the road would provide a mutual benefit to both Treaty partners, despite the fact that it was planned to cut across an urupa. In its final decision, however, the Court declined the designation.
[81] We must also observe that the proposed road confers [a] mutual benefit under the Treaty principles - a benefit which may well not eventuate if the requirement is not confirmed.
This reflects the decision in Mangakahia Māori Komiti, where the Court weighed the values and benefits of an activity to the cultural wellbeing of non-Māori, as well as Māori New Zealanders, and held that this was within the spirit of partnership recognised under the principles of the Treaty.
5.4 Tikanga Māori
As one of the purposes of consultation is to obtain information concerning potential adverse effects on tangata whenua interests, it may be necessary for those consulting to be aware of, and act in accordance with, the relevant tikanga or protocol for the particular tangata whenua group. As discussed later in this paper, tikanga Māori also provide guidance as to which group should be consulted where there are conflicting claims to tangata whenua status.
It should be noted that the tikanga applicable to any particular tangata whenua group may vary from group to group, and those consulting should be aware of such potential differences in systems.
Tikanga may also provide guidance as to what is acceptable or reasonable conduct when attempting to consult. It is important to consult in a manner that is appropriate to the tikanga of the tangata whenua. An example of good practice might be to consult at a hui convened for the purpose, where a larger project is involved. However, the courts have put limits on the extent to which tikanga should be followed. In the Beadle case, the allegation was made that no formal consultation had taken place with tangata whenua members living in Auckland and Wellington. In dismissing this claim, the Court recognised relevant tikanga and noted as follows:
[627] The Māori cultural tradition is one of living collectively in the whanau, hapu and iwi and of ahi kaa. If the appropriate whanau, hapu and iwi are consulted, both the recognition and the information purposes of consultation can be met. We do not accept that as a matter of law the Treaty principle of consultation requires a proponent to trace every member of every tribe to wherever in the world he or she has gone, and consult with them individually.
5.5 Who pays?
The starting point is that there is nothing in the RMA requiring payment to tangata whenua for consultation. The RMA does not provide any mechanism where the party consulted with can claim any money for the cost of that consultation from the party doing the consulting. In practical terms, anecdotal evidence would suggest that a number of applicants and councils pay iwi authorities to undertake consultation. The RMA does not prevent this from happening; it simply does not set up a mechanism under which it must happen.
In the Beadle case, the Department of Corrections was criticised for making payments to various local residents for services rendered, mostly in the consultation process. The Court considered whether it was appropriate for people being consulted to be paid for their efforts. The Court held that while "buying support" was inappropriate, it was not the Court's role to determine whether improper payments had occurred:
[653] The Minister could not be expected to carry out the consultation personally. Engagement of people with local knowledge was reasonable and practical. Engagement of opponents of the proposal would be counter-productive. We find no objection in principle to the Department making payments to those who provided services.
[654] Of course there is a risk of payments of amounts that so greatly exceed the value of the services provided that they might be misunderstood as buying people's support for the project. It is not the task of the Environment Court, of its own initiative, to probe for evidence of misdoing of that kind ...
5.6 Examples of acceptable processes
It is important to note that there are no universal requirements as to the form consultation must take. Any manner of oral or written interchange that allows adequate expression and consideration of views will suffice. Nor is there a universal requirement as to duration required for consultation to be adequate. Consultation could range from one telephone call to years of formal meetings. However, the following cases are examples of what the courts have found to be acceptable consultation.
In Tangiora v Wairoa District Council (A6/98), consultation was held to be adequate. The local marae had been notified concerning the proposal and plans were available. The proposal was a well-known topic for discussion. The Court noted that copies of the plans were on the local store notice board during its site visit. The appellant spoke against the proposal when it was considered at a tangata whenua meeting. The Court held that appropriate steps had been taken by Māori to consider the proposal and advise the applicant as to whether or not it was generally supported.
The Court was satisfied that everyone had acted in good faith. The proposal was duly considered within Māoridom and resulted in a response that was generally supportive of the proposal.
In Te Atiawa Tribal Council v Taranaki Regional Council (A15/98) the issue was an application for a coastal permit to dredge sand from Port Taranaki and deposit it offshore. The Environment Court found that the appellant had been un-cooperative, and that the council had consulted adequately through its actions. These included sending letters to 11 local iwi bodies inviting them to consultation meetings and requesting how the applicant might effectively conduct its consultation with them. The appellant had attended a pre-hearing meeting.
At the conclusion of this meeting, the council asked the appellant's representative if there was anything the applicant could do to prevent an appeal. The response had been a blunt 'no'. The Court held:
It is our understanding that consultation with Māori is required in application of the Treaty principle of partnership. It does not give Māori a veto over proposals the subject of resource consent applications. A partnership involves some reciprocity and so does consultation. If one party offers consultation and the other party does not respond, the latter party's assertion of lack of consultation is empty of meaning.
In Land Air Water Assn the Court found that a structure that was established to facilitate consultation with the recognised iwi authorities of Waikato Tainui had become unstable, through no fault of the applicant's, and without its knowledge.
In that case the applicant had initiated consultation, made technical presentations and site visits, undertaken regular briefing sessions, formed protocols for possible discovery of cultural or archaeological artifacts, and regularly engaged with the structure. The Court held that the applicant's efforts meant that tangata whenua representatives were given every opportunity of presenting their concerns after being fully informed, and that as a result the consultation process was underlain by fairness.
As the applicant had consulted in good faith with the recognised iwi authorities, it was entitled to rely on the integrity of that process.
5.7 Examples of unacceptable processes
In Aqua King the Court stated (in relation to consultation by a council):
Consultation to be meaningful requires more than sending out information to the various iwi about an application.
In Marlborough Seafoods Ltd v Marlborough District Council [1998] NZRMA 241, the Court commented that, although the applicant (and the council) had recognised that the local iwi was the kaitiaki of an area, there was no point in stating this if the iwi had no involvement in what occurs.
The council was also criticised for failing to do more than just advising the applicant to contact a number of local iwi representatives. The Court held that it should have done more, as it had acknowledged that it understood the historical relationship of Māori with the local area, and that the principle of exercising kaitiakitanga was an important consideration for the Court / the council to take into account. The Court held that in this situation both the applicant and the council had failed in their duties to consult.
In Kotuku Parks the applicant consulted solely with a whanau claiming mana whenua over land that was subject to its application for subdivision consent, and not the wider iwi group. The Court held that as the whanau owned part of the land that was subject to the subdivision, this whanau were 'virtually co-proponents of the subdivision' and could have had a disincentive to raise any Māori cultural issues about the development. As a result, this consultation was not adequate to allow the council to take into account the principles of the Treaty under section 8 of the RMA.
The Court in Kotuku Parks also accepted that an applicant needs to have a concept to be the subject of consultation. However, it noted that greater gains can be expected from consultation before a concept has been developed to the stage necessary to make a resource consent application. In that case, as the iwi were only consulted during an adjournment in the hearings process, the Court found that this consultation could not have had the same quality as consultation occurring before the applications were lodged. As a result of these factors, and the fact that the later consultation focused on archaeological concerns rather than wider issues, it held that consultation had been inadequate at the hearings stage.
5.8 Consequences of inadequate consultation
As stated in the Ngati Hokopu case, the RMA does not specifically deal with the consequences of inadequate consultation. Case law illustrates that there can be a number of consequences resulting from the failure to sufficiently consult with tangata whenua. In relation to applications for resource consent, these consequences can range from invalidation of the application to declining an application. Even where a resource consent application is granted, where the adequacy of consultation is at issue, dissatisfied parties may appeal the grant of consent to either the Environment Court or higher courts. Where an application is processed on a non-notified basis, and the adequacy of consultation is at issue, this could result in allegations that the decision not to notify the application was flawed because not all effects were considered. In such a case, a dissatisfied party may apply to the High Court for judicial review of the decision not to notify the application.
An AEE is required to include a statement of any consultation undertaken and the results of such consultation. As the AEE forms part of the application for resource consent, which provides the foundation for the subsequent determination of the council or court, it is an important document and is part of the matters that determine a decision-maker's jurisdiction.
In Ngati Hokopu, the Court considered the effects of an inadequate AEE. It noted that despite the fact that there is no duty on the applicant to consult, if an AEE is silent or misrepresents the applicant's efforts at consultation, then the application may be invalid:
[74] Whether or not an [AEE] is invalid because there is an inadequate report on consultation will depend on the facts and circumstances of the individual case having regard to section 88(6) and section 92(3) of the RMA.
The Ngati Hokopu case also shows that a deficient AEE can trigger several further steps if a consent authority is not convinced that appropriate consultation has occurred, as follows:
[76] A consent authority may, if it is dissatisfied as to the report on consultation in the AEE, ask for further explanation and, if still not satisfied, commission its own report on the potential effects on the environment (including ... s6(e) and 7(a) matters). Secondly, the whole submission, hearing and appeal process can be invoked by any person who thinks they have an interest in an application and should have been consulted.
However, the Court went on to suggest that, in practice, there are unlikely to be cases where an AEE is so defective that it would invalidate an application. At paragraph [77], the Court held that:
... at least for applications for land use consents, only in truly exceptional cases (and we cannot think of an example) would a total failure to refer to consultation mean that an AEE was so defective as to entail that an applicant should start again because the Council or Court had no jurisdiction to consider the application. The more likely consequences of a failure to report on consultation under the RMA will be justified delays under section 92 - and a possible loss of priority as in Aqua King Ltd v Marlborough District Council - or, on appeal, an order for costs.
Therefore, even where an AEE accurately represents the position concerning what consultation has taken place, there is also the possibility that the council will request further information under section 92 of the Act where no or inadequate consultation has occurred. A consent authority is entitled to issue a section 92 request at any time before the hearing of an application relating to the application.
In AFFCO New Zealand Ltd v Far North District Council [1994] NZRMA 224, the Court outlined the possible basis for a further information request in relation to the role of applications in the submission process, as follows (p. 234):
The proposed activity has to be described in detail sufficient to enable the effects of carrying it on to be assessed in the way described by the Fourth Schedule. The description is intended to include whatever information is required for a consent authority to understand its nature and the effects that it would have on the environment ... The application needs to have such particulars that the consent authority would need to be able to have regard to the effects of allowing the activity, and to decide what conditions to oppose to avoid, remedy or mitigate adverse effects without abdicating from its duty by postponing consideration of details or delegating them to officials.
Therefore, to place the consent authority in a position to properly determine the likely adverse effects, which in some cases may include tangata whenua interests, an application needs to address such effects. Where consultation is inadequate, an applicant may not be in a position to address these matters due to a lack of understanding of these issues.
On a practical level, inadequate consultation can also result in public notification of the application under section 93. Where consultation has been inadequate and as a result either the effects on tangata whenua are not sufficiently addressed or written approvals on behalf of tangata whenua have not been obtained, an application may be publicly notified where it otherwise may not have.
Although the Resource Management Amendment Act 2003 amends sections 93 and 94, which concern public notification of resource consent applications, the underlying issue remains the same; that is, whether there are affected parties. Although under the new regime, obtaining written approval to an application does not necessarily mean those parties will not be notified, obtaining written approvals will support a decision not to notify the application.
In Ngatiwai Trust Board v Whangarei District Council [1994] NZRMA 269,the Tribunal noted a council's requirement to enquire into and carefully assess what persons are likely to be affected by an application. This supports the suggestion that adequate consultation may place an applicant in a stronger position to assert who may and may not be adversely affected.
A consequence of consultation may be that tangata whenua give written approvals to an application for resource consent. This means that any adverse environmental effects on persons who have given their written approvals to an application are not relevant when determining an application for resource consent. It would therefore be in an applicant's interest to adequately consult with relevant tangata whenua groups as a starting point in obtaining any written approvals that may eventuate from the consultation process.
As with the delay caused by a section 92 request concerning tangata whenua interests, delays can also be the result of a failure to consult where proceedings are adjourned to enable consultation to occur. In Berkett v Minister for Local Government (A103/95 (interim decision)), the Planning Tribunal considered whether tangata whenua interests were adequately consulted prior to the council hearing. After noting the (then) indications of the Planning Tribunal that it is good practice for a planner preparing a report for a hearing body to consult with Māori, the Court adjourned the hearing pending consultation with tangata whenua. It noted:
In the special circumstances of the case, we consider that it would be reasonable or indeed appropriate, that a suitably qualified person be engaged on the Minister's behalf to facilitate consultation ... the applicants or their representatives should, of course, be invited to participate and assist in the consultation process. We apprehend that matters might be discussed between them and the consultees that may be useful in assisting a better understanding of respective standpoints and hopefully in finding some mutually acceptable approach to help resolve, or at least reduce, differences.
The case of Purnellv Waikato Regional Council (A85/96) is another example of where proceedings were adjourned pending consultation.
Failure to consult adequately may lead to an application being declined or planning provisions overturned. In Gill, the Tribunal held that the council failed in its duty to consult with tangata whenua, and this finding was relevant to the matters on which the Court relied in declining the application for resource consent. The Court appeared to link the failure to consult with a failure to have sufficient regard to the tangata whenua interests as contained in the RMA. At p. 616, the Court noted that:
We have no evidence that the Council gave especial regard to the Māori issues in its investigations into the proposal.
The failure to consult, or adequately consult, may effectively result in delays through the resulting participation of tangata whenua groups. In some cases, the relevant tangata whenua groups may be the only parties involved in any given process.
Of course, should any participant in an Environment Court hearing participate in a way that unduly delays matters, the aggrieved party may apply for an award of costs against that party. However, in the case of tangata whenua groups and interests, the courts have tended to refuse to order costs against tangata whenua groups where the provisions providing for Māori interests were invoked.
For example, in Te Rohe Potae o Matangirau Trust v Northland Regional Council (C60/97), the council sought full costs against a tangata whenua group on the grounds that its appeal was brought vexatiously and not in good faith. In response to the council's claim that the tangata whenua group was "using the appeal process to thwart" the applicant's oyster farm, the Court noted the legitimate grounds on which the tangata whenua group could participate, which had a bearing on its determination on costs. At p. 2 the Court noted:
That [the appellants were using the appeal process to thwart the application] is correct and normally such an attitude would produce at least a significant award of costs or perhaps an award equivalent to solicitor and client costs. However, in this particular case there are more than environmental factors to be borne in mind. The appellant is a Māori trust representing some of the tangata whenua. The following sections of the Act are therefore relevant. Section 6(e) ... section 7 .... However section 8 states that the Court must also take into account the principles of the Treaty of Waitangi ... I am conscious that there is a raft of unresolved issues for tangata whenua in relation to coastal marine areas and the placement of marine farms in them. I do not see how in such circumstances (at present) any appeal by tangata whenua could be seen as being in bad faith, even if section 8 was not argued appropriately or even relied on in this case. So an award of costs on an indemnity basis is appropriate here. [emphasis added]
Therefore, although the tangata whenua group were required to meet some of the council's and applicant's costs, the amount of costs was reduced due to the factors stated above.
