Consultation with tangata whenua
Under the RMA, sometimes local authorities have to, or should, consult with tangata whenua. However, there are no set procedures in the RMA to guide this consultation process.
But, there are some guidelines about consultation from the Courts.
Who should consult?
Councils–when preparing or changing plans
Local authorities must consult with tangata whenua through their iwi authorities in the preparation or change of a regional or district plan [Clause 3 of Part I of the First Schedule of the RMA].
Decision makers
Before any decisions are made under the RMA, decision makers must consider sections 6(e), 7(a) and section 8 of the RMA. (For more information on these sections, see Principles of the RMA.) To find out what these sections may mean for Maori in their area, local authorities should consult with the tangata whenua.
Resource consent applicants
Under the RMA, resource consent applicants do not have a duty to consult with tangata whenua. However the Courts have said that applicants should consult with tangata whenua when their applications for resource consents may affect the matters referred to in sections 6(e) and 7(a) [Paihia & District Citizens' Assn v Northern Regional Council & Anor (A 77/95)]. The details of the applicant's consultation should be included in the assessment of effects [Clause 1(h) of Part I of the Fourth Schedule of the RMA].
If an applicant is aware that the tangata whenua may be interested in or affected by their proposal, they would be wise to consult.
This is because a consent authority may require further information from the applicant about what consultation, if any, they carried out with Maori [See section 92(2)(a)(ii) of the RMA] or any other party.
Consent authorities
The consent authority itself (as a quasi-judicial body) does not have a duty to consult with tangata whenua because they are making the decision. [See Whakarewarewa Village Charitable Trust v Rotorua District Council (1994) W61/94].
However consent authorities need to make sure they know all the necessary facts before preparing a report on a resource consent.
Iwi authorities should be consulted
The RMA says that 'iwi authorities' should be consulted when local authorities are preparing or changing plans or regional policy statements [Clause 3(1)(d) of Part I of the First Schedule of the RMA]. It's up to whanau, hapu and iwi to decide who are the most appropriate representatives to carry out consultation on RMA matters.
Having a representative group is important for making sure that you have a voice in any RMA matters that may affect you.
Good iwi or hapu environmental plans could also be used to identify who your representatives for consultation with local authorities are (see Iwi/hapu environmental management plan).
Consultation does not always result in agreement
Consultation does not mean that the parties involved must come to an agreement.
However, if consultation with tangata whenua is to be meaningful, what is proposed should be openly discussed. The Courts have described consultation as including:
- listening to what others have to say and considering responses
- allowing enough time for proper consultation
- making a genuine effort to consult
- giving enough information to the party being consulted
- keeping an open mind and be ready to change or even start again [Wellington International Airport Ltd v Air NZ (1991) 1 NZLR 671].
You can participate in consultation
If your hapu or iwi has not developed a formal consultation process for consulting with local authorities or resource consent applicants, you can either:
- develop your own formal consultation process or
- respond on a case by case basis (no formal consultation process).
Case by case consultation
If responding on a case by case basis, think about the following points when deciding whether or not to participate in any consultation with a local authority or a resource consent applicant.
These include asking the local authority or applicant:
- what is the nature of the consultation? (for example, are you going to be receiving or giving them information, or both?)
- what is the purpose of the consultation? (for example, what do they wish to discuss with you and why they feel they need to discuss these matters?)
- how will your input in the consultation process be used? (for example, how is the information you receive or give during the consultation process going to influence any decision that may be made?)
- what are the timelines for making the decision?
- where is the consultation going to take place?
- who is going to provide the resources for the consultation process?
- who is expected to attend the consultation?
- when are they going to inform you of the outcome of the process?
If your local authority does seek consultation, it would be wise to take part in that consultation. It is more difficult to challenge a decision on the basis of no consultation if you have withdrawn or refused to take part in the process.
The consultation process, when carried out in the right manner, should be helpful to everyone and establish a better relationship between your hapu/iwi and the local authority.
