Tools for greater Maori participation
Tools for greater Maori participation
There are a number of provisions or 'tools' in the RMA that can you can use to protect our resources more effectively and give Maori greater participation in resource management decision-making.
Silent files keep locations safe from the public
The tools are the parts of the RMA you can use to achieve the result you want
The principles of the RMA (see Principles of the RMA) require Maori values, interests and practices to be taken into account when decisions are being made under the RMA.
This section lists some of these tools and briefly discusses:
- the circumstances in which these tools could be used
- the effect they may have on environmental decision-making
- the advantages and disadvantages of using certain tools.
Transfer of powers
Section 33 of the RMA allows local authorities to transfer any one or more of their functions, powers or duties to another public authority which is not part of the local council. [In other words, is not a committee or board etc within the council structure.]
This means that many of the local authority's powers can be handed over to another public authority (including an iwi authority) to carry out [Section 33(2) of the RMA. See also Whakarewarewa Village Charitable Trust v Rotorua DC W61/94 (PT)].
Some power cannot be transferred by a local authority
Powers that a local authority cannot transfer include:
- the power to approve or change any plan or policy statement
- the power to make a recommendation on a requirement for a designation or a heritage order
- the power to transfer on to anybody else, the power that has been transferred.
When can a transfer of power to an iwi authority occur?
A local authority can transfer its powers to an iwi authority when it is agreed by both that:
- they want the transfer to take place
- the iwi authority is the appropriate group able to deliver the duties, functions or powers efficiently
- the iwi authority has the expertise to exercise the powers [Section 33(4)(c) of the RMA].
An agreement must be made for the transfer of functions, powers or duties between the local authority and the iwi authority [Section 33(6) of the RMA].
The local authority is still responsible
The local authority is still ultimately responsible for how the power is exercised by the iwi authority [Hall v Port of Otago C48/96]. The local authority can change or revoke this transfer at any time [Section 33(8) of the RMA]. However, notice to the iwi authority must be given before the power can be revoked.
An iwi authority can give back the power
The iwi authority is able to give up the transferred power. This must be done according to the terms agreed to by the parties when the transfer was first entered into [Section 33(a) of the RMA. See also Te Puni Kokiri - Sites of significance process - 1996].
Examples of when to apply for a transfer of functions or powers
1. Transfer of power to become a consent authority.
You may want to control the activities over a maunga of significance to your hapu or iwi. You would then ask the local authority that the power of a consent authority be transferred to your iwi authority or committee.
This power would be used for the purpose of making decisions on resource consent applications that seek permission to carry out activities on that maunga.
2. Joint management.
As an iwi authority, you may wish to set up a joint management situation with your local authority.
This means that the exercise of a power is shared between the local authority and the iwi authority. The agreement would need to be clear and set out who is responsible for what.
The RMA sets out the consent authority's responsibilities
The provisions of the RMA set out what obligations and responsibilities a consent authority has when a power has been transferred to it [See Part VI of the RMA]. Additional responsibilities should be worked out and put into an agreement [Section 33(6) of the RMA] (see below). Some of these responsibilities can be quite heavy on iwi authorities – especially in terms of costs.
Costs for the transfer of power are agreed
The RMA doesn't say who has the final responsibility for costs when powers or functions are transferred.
Costs and other details of the transfer should be worked out and put into an agreement between the iwi authority and the local authority before the power or function is transferred because there may be considerable costs involved.
Decisions of a consent authority (which could be an iwi authority) are not final
The consent authority is only the first body to make a decision about a resource consent application. Any decision can be appealed to the Environment Court. If powers are transferred to you, you must still follow the provisions and rules in the RMA.
Important things for your iwi authority to remember if applying for a transfer of power:
- make sure that their application for a transfer of power or function is supported by the hapu/iwi
- clearly state why you want a transfer of power or function
- state why you believe your group is the most appropriate group (or 'community of interest' [Section 33(4)(c)(i) of the RMA]) to have in your control such a power or function.
To date, local authorities have not transferred any of their powers, functions or duties to iwi authorities, although there have been requests.
Water conservation orders [Sections 199-217 of the RMA]
A water conservation order is a way of protecting the mauri and characteristics [Section 199(2)(c) of the RMA] of a water body by restricting and controlling activities that can badly affect that water body. A water body is defined by the RMA as including fresh water or geothermal water. For example: a river or other water body which is not located within the coastal marine area [Section 2 of the RMA]. Once a water conservation order is made, you cannot apply to remove or vary the order within the first two years.
A water conservation order protects the characteristics of a water body
A water body must have outstanding significance to you in accordance with tikanga Maori [Section 199(2)(c) of the RMA].
Regional or district policy statements and plans cannot conflict with any water conservation order [Section 217(2)(a), (b), (c) of the RMA].
The effect of a water conservation order
A water conservation order restricts or prohibits the issuing of:
- water permits
- coastal permits
- discharge permits
by a local authority [Section 217(2)(a), (b), (c) of the RMA].
You can make an application for a water conservation order
Anyone can apply for a water conservation order by sending an application to the Minister for the Environment with a filing fee.
In the application, you must:
- identify the water body
- state your reasons for making the application. In particular you should highlight:
- the significance of the water body to you
- the sections in your regional plans and policy statements that support your application
- that it does not conflict with sustainable management
- describe the rules which you think should be included in the order
- describe the effect that such rules would have on the water body [Section 201 of the RMA].
A special tribunal can be appointed
The Minister for the Environment will decide if he or she wants more information and may either decline to make the order or will decide to appoint a special tribunal to hear and report on the application [Section 202(1)(a) of the RMA]. Once a tribunal has been appointed, it must make sure that your application is publicly notified [Section 204 of the RMA] and that the relevant iwi authority in your area knows about it [Section 204(1)(c)(iv) of the RMA]. If you are not happy with the report made by the special tribunal on your application, you can refer it to the Environment Court [Section 209 of the RMA. See also Ministry for the Environment - "The RMA" - Information sheet number two - Dec 1994].
Apply for a water conservation order when you have a concern
If you are concerned about maintaining the mauri of your awa because the awa is of significance to your iwi/hapu/whanau, then you might want to apply for a water conservation order to restrict or control activities that can be carried out on that awa. A water conservation order can be very effective because all policy statements and plans in your area must not conflict with this order. This can restrict and control activities that may have a bad effect on the water body. No one can apply to remove this order for at least two years [Section 216(1)(a) of the RMA].
There are other considerations for a water conservation order
Conservation is not the only consideration. In some cases, the needs of industry or of the community [Section 207(b) of the RMA] may outweigh the goal of conservation. All the evidence and information presented to the Minister for the Environment and/or the special tribunal is considered along with the provisions of any relevant policy statements or plans [Section 207(c) of the RMA].
Making submissions in support of or opposition to an application for a water conservation order
When a water conservation order application is publicly notified, any person may make a submission supporting or opposing the application [Section 205 of the RMA].
The submission must:
- be made by the closing date specified in the public notice
- be sent to the address outlined in the public notice.
You must also send a copy of your submission to the person making the application. You should include the following information in your submission:
- whether you oppose or support the making of the order or any part of the order, and state your reasons for this
- if you support the making of an order but would prefer that it is made on a different part of the water body or that different characteristics be protected, make sure you clearly state your reasons for any variation [Section 205 of the RMA]
- whether you wish to appear at a public hearing [Ministry for the Environment - Water Conservation Orders - A guide for the public (published in pamphlet form)].
Making a submission for or against an application for a water conservation order is similar to the procedure for making submissions for or against a resource consent application (see Making a submission for or against a resource consent application). The Minister makes the final decision which can only be challenged by way of judicial review.
Heritage protection orders [Sections 187-198 of the RMA]
A heritage protection order protects:
- any place of special significance to tangata whenua for spiritual, cultural or historical reasons
- the land surrounding that place to make sure it is protected
- a place of national, local or cultural significance [Section 189(1)(a) of the RMA].
Only a heritage protection authority can place a heritage protection order on a site [Section 189(1) of the RMA].
Heritage protection authorities include:
- any body corporate (including an iwi authority) approved as a heritage protection authority by the Minister for the Environment
- the NZ Historic Places Trust
- a local authority acting on its own or on the recommendation of an iwi authority
- any Minister of the Crown, including the Minister of Maori Affairs, either acting on his or her own motion, or on the recommendation of an iwi authority [Section 187 of the RMA].
An iwi authority can become a heritage protection authority
An iwi authority can apply to the Minister for the Environment to become a heritage protection authority where they have an interest in protecting a particular case [Section 188(1) of the RMA]. The Minister can inquire into the application and request further information [Section 188(3) of the RMA].
The Minister must be satisfied that the iwi authority:
- is the appropriate body for protecting the place
- will carry out the responsibilities of a heritage protection authority, including its financial responsibilities [Section 188(5) of the RMA. See also Te Puni Kokiri - Sites of significance process - 1996].
The decision of the Minister can only be challenged by way of judicial review.
The process for getting a heritage protection order
A heritage protection authority gives notice to a territorial authority that it requires a heritage protection order to: [Section 189 of the RMA]
- protect a place of special significance
- protect any land surrounding the place of special significance that may be necessary.
The heritage protection authority (which can include an iwi authority) needs to supply certain information to the territorial authority about the order that they want [Section 189(3) of the RMA. See also Te Puni Kokiri - Sites of significance process - 1996].
Making a recommendation on a heritage protection order
When it receives a requirement for a heritage protection order, a territorial authority must notify the public of the application and advise those people directly affected by the application.
Making submissions on an application for a heritage protection order
Any person may make a written submission regarding the application for a heritage protection order [Section 189A of the RMA]. If the person or group making the submission asks to present their submission orally, the council must hold a hearing [Section 189A of the RMA] (see Hearings for more information).
After the hearing the council makes a recommendation to the heritage protection authority about whether the heritage protection order should be confirmed, changed or withdrawn [Section 191 of the RMA].
The heritage protection authority can then accept the recommendation of the council or reject it if it is not happy with the recommendation, and must give reasons for its decision [Section 192 of the RMA].
The decision of the heritage protection authority can be appealed by the council or anyone who has made a submission to the Environment Court [Section 192 of the RMA. See also Te Puni Kokiri - Sites of significance process - 1996] (see Appeals to the Environment Court).
A heritage protection authority may have to pay a lot of costs in the process.
These include paying:
- fees to territorial authorities for processing the heritage protection order
- extra costs to the owner of the place protected by the order
- costs for resource consent applications from people who want to use the protected place
- costs to buy the place in some circumstances [Te Puni Kokiri - Sites of significance process - 1996].
How a heritage protection order protects a site
A heritage protection order over an area means that:
- the special character of the place cannot be disturbed without the consent of the relevant heritage protection authority
- the order is put into the district plan
- once it is in a district plan, no one may do anything that would wholly or partly stop the effect of the heritage order, without the written consent of the relevant heritage protection authority named in the plan [Ministry for the Environment - Kia Matiratira - June 1992].
Note: Protection for the site starts as soon as the application for a heritage protection order has been made.
The proposed heritage amendments
The Resource Management Amendment Bill (No 3) proposes two main changes to the heritage sections of the RMA that Maori should be aware of.
- Clause 32 excludes water bodies from the range of places that a heritage protection order can be placed over.
- Clauses 34 and 74 set out a decision-making framework for a protection order made by a heritage protection authority that is a body corporate.
These amendments impact Maori if passed
If the amendments are passed, water bodies would not be protected under a heritage protection order. If you then wanted to protect a water body and surrounding landscape, you would need to apply for both a water conservation order to protect the water body and a heritage protection order to protect the surrounding land. This could become very costly.
Clause 34 would shift the final decision relating to heritage protection orders from a heritage protection authority that is a body corporate, to councils.
This could be a problem for Maori
Iwi authorities can only apply to become a body corporate heritage protection authority. This means that the final decision-making power of granting a protection order shifts from the iwi authority to the council. In other words, if the amendment is passed, the council will have the final decision-making powers.
On the other hand, the other heritage protection authorities recognised by the RMA (such as a Minister of the Crown and local authorities) would still have the final decision-making powers.
Put your energy in the right place
If the amendments are passed, you may be better off putting your time and energy into getting a heritage protection order issued through your local authority or the Minister of Maori Affairs. A local authority or the Minister of Maori Affairs can act as a heritage protection authority if asked to by an iwi authority. It is still worthwhile applying for a heritage protection order despite the amendments. Following the heritage protection order process is still an effective way of protecting wahi tapu in particular.
Silent files keep locations safe from the public
A silent file allows a whanau, hapu or iwi to identify the location of a wahi tapu and to keep that information safe from the public [Section 42 of the RMA]. If anyone wanted to use that particular location then the local authority would be under an obligation to contact the guardians of the silent file to make sure that the wahi tapu would not be affected by the proposed use.
You can apply for a silent file
Any person can apply for a silent file. A local authority can make an order where it is satisfied that:
- the order is necessary to avoid serious offence to tikanga Maori
- the order is necessary to make sure that the public does not know where the wahi tapu is [Section 42(1)(a) of the RMA].
The importance of keeping wahi tapu secret must outweigh the public interest in making that information available [Section 42(1) of the RMA].
How a silent file works
The general area of the wahi tapu would be marked in a district plan. This would let the public know that some part of that area has been recorded in a silent file. In this way the specific location of the wahi tapu will not be marked.
The effectiveness of silent files is not guaranteed
This is because:
- the silent file system depends on the co-operation of local authorities
- the local authority decides whether the details of a wahi tapu will be made public by weighing Maori concerns against the public interest.
- if an official information request were made to a local authority about information in a silent file, it is not guaranteed that the information would be kept confidential
- you may not be able to keep the specific location of a wahi tapu confidential if you want it to be protected
- you may need to reveal the location to your local authority if an application for a resource consent to develop land was submitted to the local authority and the land in question involved the wahi tapu.
It would be better for you to make sure that information about the exact location of wahi tapu remained with appointed whanau/hapu/iwi guardians rather than with the local authority.
You should also make sure that a process for communicating this information is in place between the appointed guardians and your local authority.
