6 Which Groups should be Consulted?
6.1 Summary
Once it is determined that there is a duty to consult with tangata whenua, or it is considered good practice to do so, and the method and process to be followed when consulting are established, the next and final issue is to determine which group or groups should be consulted.
This can be a controversial issue as it involves concepts of tangata whenua and mana whenua, particularly in relation to areas in relation to traditional rohe (boundaries) of iwi or hapu areas. Consequently, and particularly in the case of an applicant for resource consent, the question may arise as to what steps such parties can reasonably be expected to take to ascertain the correct tangata whenua group to be consulted.
Analysis of the relevant provisions of the RMA and applicable case law lead to the following conclusions.
- The terminology of the RMA should be used to guide the determination of which Māori group should be consulted.
- Tikanga Māori is recognised by the RMA as determining tangata whenua status. Tikanga is a matter for expert assessment.
- Council records and any statutory acknowledgements should be checked to assist in determining tangata whenua status.
- Reasonable steps must be taken to identify the correct tangata whenua group.
6.2 Definitions in the Act
The starting point for determining which groups should be consulted, when there is a duty to consult, is the RMA. The RMA includes the following definitions, which may be relevant when investigating which group should be consulted.
Tangata whenua in relation to a particular area, means the iwi, or hapu, that holds mana whenua over that area.
Mana whenua means customary authority exercised by an iwi or hapu in an identified area.
Iwi authority means the authority that represents an iwi and that is recognised by that iwi as having authority to do so.
Tikanga Māori means Māori customary values and practices.
Kaitiakitanga means the 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.
Of course not all of the above definitions will apply in any given case and the applicability of each term will depend on which provisions of the RMA are being invoked.
In addressing the likely effects of an application, an applicant (if it decides to consult with tangata whenua) or a council, when it determines the application, needs to determine who the tangata whenua of the affected area are. To do this, an applicant or council needs to ascertain which iwi or hapu holds mana whenua over that area. To determine mana whenua, an applicant or council needs to ascertain which iwi or hapu exercises customary authority over that area. Customary authority may be determined by reference to tikanga Māori, meaning Māori customary values and practices.
Determining these issues is a matter of expertise, and often an applicant - and in some cases councils - may not possess the expertise to decide which group to consult with. Even where expertise is available, there may nevertheless be disputes between Māori groups as to who holds mana whenua or kaitiakitanga in relation to a particular area.
Similar issues can arise in relation to preparation of local authority policy statements or plans, as local authorities are required to consult the "tangata whenua" of the area which may be affected by proposed planning controls, through "iwi authorities and tribal runanga" (clause 3(1)(b), First Schedule). In relation to regional coastal plans, the regional council must consult with "iwi authorities" of the region.
The issue in these cases becomes the extent to which an applicant or council must attempt to identify which group has status as tangata whenua and, in cases of disputes over tangata whenua status, which of the disputing groups should be regarded as tangata whenua for the purpose of consultation.
6.3 Determining who is tangata whenua
Under tikanga Māori, kaitiakitanga determines who has the right to be consulted over proposals affecting a particular resource. Where there is a dispute over which group has mana whenua over an area of land, this must be determined by the Māori Land Court (Winter & Ors v Taranaki Regional Council (A106/98)). The Māori Land Court, acting under section 30 of Te Ture Whenua Māori Act 1993, has jurisdiction to determine who are the most appropriate representatives of a class or group of Māori. This jurisdiction can arise when another court or tribunal requests the Māori Land Court to provide such advice, or when any person seeks an order from the Māori Land Court to that effect.
In the Beadle case, the Court was faced with the issue of which group or persons represented the tangata whenua interests. The Court noted that it was for tangata whenua, not the Court, to determine who had the right to speak on behalf of any group:
[408] In these proceedings the Court has no occasion to make any finding about who has the right to speak on behalf of any whanau, hapu or iwi, according to its tikanga. No opinion on that topic is to be inferred from anything in this decision.
In Tangiora the Court considered the weight to be given to competing tangata whenua evidence. In this case the Court took an unusual step and moved the proceedings to a location where it could hear evidence from a senior kaumatua of the local tangata whenua. Two other tangata whenua witnesses had contended that the land was waahi tapu, being the site of an old burial ground.
However, the kaumatua, described as an "impressive witness" by the Court, gave evidence that the beach front was more likely to have been used for food gathering and therefore it could not have been a burial ground. In terms of the weighting of scientific and tangata whenua evidence, this case is another in which there appears to be no contest between anecdotal evidence, and the "opinions of well qualified evidence based on following scientific method, and formed with professional integrity". Therefore, tikanga is likely to be applied by the Court to determine tangata whenua status and in order to decide the weight to be placed on conflicting tangata whenua evidence.
6.4 Council registers
In some cases the local authority may hold information concerning tangata whenua groups and the areas over which they hold mana whenua. It would be prudent for an applicant seeking to consult with and identify the relevant tangata whenua group to enquire with the council to determine this issue (see Winstone Aggregates Ltd & Heartbeat Charitable Trust v Franklin District Council (A80/02)).
As mentioned above, the RMA recognises planning documents produced by iwi authorities. The purpose of these documents appears to be to provide a vehicle for expressing the concerns of tangata whenua in any given area. However, as mentioned, the purpose and effect of iwi planning documents in relation to defining issues of concern to iwi does not appear to have been specifically dealt with by the courts. Nevertheless, it is suggested that, where an iwi planning document is registered with a council, its contents can be reasonably relied on by an applicant or a council in determining which group should be consulted.
6.5 Statutory acknowledgements
Acknowledgements of tangata whenua interests in particular areas can be contained in other legislation, particularly legislation that gives effect to Treaty settlements between the Crown and Treaty claimants. For example, the Ngai Tahu Settlement Act requires statutory authorities to have regard to a statutory acknowledgement relating to a particular area when deciding whether Te Runanga o Ngai Tahu is likely to be affected by resource consent applications.
Therefore, any statutory acknowledgements concerning tangata whenua status should be considered when determining this issue for the purpose of consulting under the RMA.
Section 94B(2) of the Act (as amended in 2003) requires a consent authority to have regard to every relevant statutory acknowledgement specified in Schedule 11, which lists particular statutes, when determining who may be adversely affected by an application for consent. Schedule 11 should therefore be referred to in determining who may be adversely affected by a particular proposal.
6.6 Reasonable attempts to identify relevant parties
Where there is uncertainty as to which group is tangata whenua, a council or applicant seeking to consult is only expected to take reasonable steps to identify the correct group (Luxton v Bay of Plenty Regional Council (A49/94)).
In Winstone Aggregates, where the applicant relied on the council's information concerning the tangata whenua group, it was held that the applicant was entitled to rely on such advice and in the circumstances it would be unfair to require more. At paragraph [240] the Court stated:
Winstone not only relied on Council to identify Māori parties, but also made efforts through the Tainui Trust Board to identify any possible additional party. To require more of Winstone or the Council would put applicants and consent authorities in an impossible situation. It would mean that consultation with Council identified parties would not be sufficient, nor would consultation with those other parties who identified themselves during the process, as occurred here. To require more in the present circumstances would be impracticable and unfair.
In Contact Energy Ltd, the Court determined that Contact had respected the Treaty principle of consultation by correctly identifying the relevant tangata whenua, holding three hui, and by meeting with a representative committee, although there were problems finding someone with a mandate to speak for the affected hapu. Although the mandate issue was never resolved, the Court focused on Contact's actions and dismissed an argument that it had failed to consult appropriately.
6.7 Disputes over status
While the issue of which tangata whenua group should be consulted can, on its own, be difficult to answer, the situation will obviously be more difficult where there is a dispute between tangata whenua groups over who has authority to speak for tangata whenua. As already noted in section 6.3 of this paper, resort may be had to the Māori Land Court. Alternatively, a broader approach can be taken, as illustrated by the Beadle case.
The Beadle casedeals with the issue of determining the status of tangata whenua groups where this is in dispute. In that case, various persons or groups claiming to represent tangata whenua interests held opposing views on the appropriateness of the proposed prison: some supported it, while other groups remained fundamentally opposed to the application.
The concept of 'tuakanatanga' (seniority) was raised by the parties in an attempt to resolve the issue. The regional council in that case submitted that neither it nor ultimately the Environment Court were in a position to judge whether or not tuakanatanga was the tikanga of Nga Puhi (the local iwi) and to make an assessment of who is and who is not tuakana (senior) as, in the council's view this would be a recipe for an administrative quagmire.
The Court was not persuaded that the concept of tuakanatanga has significance in decision-making under the Act. In this connection, it made the following comments:
[405] First, the Court has to make findings on issues raised by the purpose of the Resource Management Act which is described in section 5, and the particular aspects of that purpose described in sections 6(e), 7(a) and 8. None of those sections indicates that persons of particular status are to be preferred over others.
[406] Rather, on the issues raised by those provisions, findings have to be made on the evidence. Where the evidence of one of more witnesses is in conflict with that of other witnesses, the Court has to make a finding. In doing so, it may give greater weight to the testimony of a witness of greater experience of the subject, or it may be persuaded by the evidence of another witness who may lack customary authority but whose testimony carries conviction for other reasons. [emphasis added]
While the Court confirmed that the relevant people to be consulted should be those who had rangatiratanga (chieftainship) over the resource, it also held that this class of people could extend to include others who held relevant information about the possible adverse effects of the proposal on that resource. It noted:
[548] ... Māori who are to be consulted are those who hold rangatiratanga or kaitiakitanga in respect of natural and physical resources affected by the proposal and those who possess appropriate and accurate information on the potential effects of the proposal on affected Māori. In a particular case, the second class might extend beyond those who hold rangatiratanga or kaitiakitanga in respect of the resource affected. [emphasis added]
In the Beadle case, the hapu opposing the prison claimed that consultation with them had been defective as "instead of all kaitiaki being 'heard' (in the natural justice sense) on an equal footing, some appear to have been 'heard' more than others". After considering the relevant evidence, which did not include evidence concerning rangatiratanga, and relying on its findings about who primarily held kaitiakitanga (Ngati Rangi), the Court prioritised the views of Ngati Rangi, based on its kaitiakitanga over the specific resource.
The Court held that the consultation was not defective just because the group with the primary kaitiakitanga role in respect of the affected resource had been consulted with more rigorously. It stated:
[629] As Ngati Rangi hold the primary kaitiakitanga role in respect of those resources, and have done for more than a century, it was appropriate that consultation with them was regarded as the first priority, and indeed their views were important to the Minister ... The views of others were also canvassed, particularly those of Te Uri o Hua. However because their kaitiakitanga in respect of the resources to be affected ... is additional to that of Ngati Rangi, we find that consultation with Te Uri o Hua was not defective by being supplementary to that with Ngati Rangi.
The fact that the hapu that held ancillary kaitiakitanga was also consulted, as were other hapu, appeared to have had bearing on the Court's finding that consultation was adequate.
The Court also commented that it placed little weight on the number of people opposing the application compared with the number of people supporting it. In this respect, it noted that:
[380] [i]t is the Court's understanding that the Resource Management Act regime allows for differing points of view to be expressed and explained ...
[381] It is also our understanding that the Resource Management Act does not provide for decisions on proposals to [be] made according to whether more people support the proposal or more oppose it. Where Parliament has wanted decisions to make on that kind of basis, it has provided for elections or polls.
