Part E - Improving certainty for iwi consultation and iwi resource planning
Background
139. With regard to iwi resource management issues, the Act is silent as to how decision-makers should give effect to the principles of the Act (s6 and s7) and the principles of the Treaty (s8). Guidance has largely come from the courts.
140. Regarding notified consents, there is an obligation on local authorities to notify affected parties (s93 and 94B). In relation to Māori the RMA provides specific obligations to notify iwi authorities where they should have notice of an application (having regard to statutory acknowledgements).
141. The courts have interpreted this as implying:
- That consent authorities have a higher obligation to consult with tangata whenua when they know the tangata whenua have a special relationship with the area affected by a proposal.
- That consent authority officers in preparing reports may have a duty to consult the tangata whenua, to enable the consent authority to take account of matters arising under s6(e) (the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga), s7(a) (kaitiakitanga) and s8 (the Treaty) when making decisions. However, depending on the circumstances, the applicant's consultation with tangata whenua may be sufficient.
- That the Crown, as applicant and as consent authority, is required to consult with tangata whenua.
142. The Foreshore and Seabed Bill proposes additional requirements. The Bill proposes that the holder of a customary rights order must be treated as being adversely affected for the purposes of notification of a resource consent if, in the opinion of the consent authority, the grant of a resource consent may adversely affect a recognised customary activity.
143. There is no specified consultation obligation on the Minister when preparing national policy statements, national environmental standards, water conservation orders or call-ins, but case law on s8 strongly implies the need for the Crown to consult in order to inform decisions.
144. Regarding plan making, clause 3 of the First Schedule to the Act, requires local authorities to consult "the tangata whenua of the area who may be so affected, through iwi authorities and tribal runanga" when preparing a policy statement or a plan (ie. it is mandatory). Further, sections 61(2A), 66(2A) and 74(2) require local authorities when preparing or changing a plan "to take into account any relevant planning document prepared by an iwi authority and lodged with the council, to the extent that its content has a bearing on resource management issues of the region/district".
What is the problem?
145. Most commentators agree that, whilst practice is developing across the country, there are still practical problems with the administration of the iwi provisions under the RMA.
146. Some local authorities are unclear about their consultation requirements or are unwilling to implement them. Some iwi lack capacity, resource management skills or the desire to engage.
147. There can be issues identifying the appropriate iwi or persons within an iwi - this leads to delay.
148. Some Māori use the RMA consents and appeals processes as a means to express dissatisfaction, where they may consider that consultation and engagement have been unsatisfactory earlier in the process. Engagement is sometimes related to lack of progress in other fora, such as negotiation of Treaty claims. The RMA provides unclear and open-ended obligations on local authorities and in some cases has raised unrealistic expectations with iwi. On the other hand, some iwi argue that despite explicit obligations the mono-cultural nature of some local authorities means the decision making fails to recognise and provide for their interests.
149. There is no specific provision or framework for co-management in the RMA that enable co-operative agreements between iwi and local authorities. Absence of such provisions may deter local authorities from exploration of these options and requires ad hoc solutions to be developed.
150. Although practice is improving, performance is varied. Looking forward, and especially as Treaty claims are settled and the Māori fisheries settlement is rolled out to iwi, the RMA process will work better - greater clarity should exist as to who the mandated bodies are.
What's the outcome sought?
151. Improving practice needs to be built on clear law. There is no doubt that the RMA could be clearer about many issues - greater clarity on consultation obligations for local authorities, iwi and applicants is at the top of the list. This would reduce uncertainty and cost and avoid raising unrealistic expectations that have a corrosive effect on local authority / iwi relationships. The focus should be on consultation at the plan level, removing the burden on iwi, applicants and consent authority (especially councils) during the consent process.
What is proposed?
152. It is proposed to improve the quality of engagement with iwi authorities at the front end of the planning process, ie. in plan and policy preparation. This currently occurs through taking into account any relevant planning document recognised by an iwi authority and will be enhanced with greater certainty on when iwi authorities should be consulted, which iwi authorities should be consulted, and how, and what the process and scope of consultation should be.
153. In this regard, it is proposed to require local authorities through the plan making process to:
(a) keep a register of iwi authorities prepared by Te Puni Kokiri and their role for their regions/district (not specific, only stated tribal areas)
(b) establish a consultative procedure with iwi authorities (similar to the requirements under the Local Government Act)
(c) identify matters that have bearing on resource management issues (including s6(e)), and how the issues have been dealt with
(d) identify and take into account any iwi authority planning and/or other relevant documents (as is already required by the Act)
(e) undertake 'reasonable endeavours' to consult with iwi authorities.
154. If the process for involvement with iwi authorities is achieved in plan making then when it comes to consents greater understanding of Māori issues will occur and Māori will have the same opportunities as other groups to participate where they are affected parties. A transition will be required so that requirements to consult Māori on consents reduce only once consultation at the plan level has been undertaken.
155. It is also proposed to recognise the government's role in consultation with iwi, by providing a clear process for iwi consultation on the development of national policy statements and national environmental standards.
156. Explicit empowering framework for co-management will be provided under the Act, building on existing examples such as Tuwharetoa/Lake Taupo, Okahu Bay, and Te Arawa Lakes.
157. A number of the changes highlighted elsewhere in this paper will also have a positive bearing on the practical performance in relation to iwi issues (eg, promoting accreditation of decision-makers - that would include training in Te Ao Māori).
158. Amendments to the Act should work in tandem with improved best practice, but probably the biggest improvements will come from more investment in the promotion of best practice.
What are the risks, costs and benefits?
159. The proposals above were developed by officials in consultation with a group of experienced Māori RMA practitioners.
160. Some iwi will see these proposals as a diminishing their ability to influence development of natural resources. The proposals do not generally appear to alter what is already required by the RMA, instead they create greater certainty. Crown Law advice is that it is unlikely the proposals would be a contemporary breach of the Treaty of Waitangi - especially since there is no proposal to alter s8.
161. In contrast business and the wider community will see this as a fairer approach. Special transitional processes will overcome most issues. There will, however, likely be increased costs for local authorities and iwi in the establishment of processes for taking into account interests in a more certain way through plan making. But it is most important that iwi interests are addressed during the plan making stages of RMA processes.
Last updated: 6 May 2008
