Clauses 2 - 3C of the First Schedule of the Resource Management Act 1991(RMA) set out statutory requirements for consultation which must occur before the notification of any proposed plan. These requirements apply to developing new plans, undertaking plan reviews and making variations or changes to proposed or operative plans, including plan change requests made under Part 2 of the First Schedule. For more information on private plan change requests see the guidance note on private plan changes.
Clause 3(1) provides the following list of parties that councils must consult with in preparing a proposed plan:
- the Minister for the Environment; and
- those other Ministers of the Crown who may be affected by the policy statement or plan; and
- local authorities who may also be affected; and
- the tangata whenua of the area who may be so affected, through iwi authorities; and
- any customary marine title group in the area.
Councils may also consult with any other parties (Clause 3(2), which must be undertaken in accordance with s82 of the Local Government Act 2002 (LGA) (Clause 3(4)). This section of the LGA sets out a series of principles for consultation.
Regional Policy Statements - Clause 3A of the First Schedule specifically requires that a regional council, and every territorial authority whose district is wholly or partly within a region, enter into an agreement on consultation processes when a regional policy statement is reviewed; or when a change or variation is being prepared. This agreement must form part of the triennial agreements under s15 of the LGA. This agreement on consultation processes is particularly important, given that territorial authorities are required to give effect to any revised regional policy statement.
These agreements must be in place before 1 March following a local authority election and remain in force until they are replaced by another agreement. Amendments can be made to an agreement provided that these are completed before the next local authority election.
If after 1 March following a local authority election, the local authorities cannot agree on the consultation process, they are required to notify the Minister for the Environment. If the matter is not submitted to mediation by the local authorities concerned, or mediation has been unsuccessful, the decision on the consultation process will be made by the Minister for the Environment, or persons appointed by the Minister.
Regional Coastal Plans - Clauses 2(2) and 3(3) of the First Schedule require that a regional council must consult with the following parties when preparing a proposed regional coastal plan:
- the Minister of Conservation
- iwi authorities of the region
- any customary marine title group in the region
- the Minister of Transport
- the Minister of Fisheries
Previous consultation - Clause 3C provides the ability for councils to combine consultation exercises where appropriate, potentially helping to reduce consultation fatigue and make more efficient use of resources. This means that people who must be consulted under clause 3 need not be re-consulted if they have been consulted on the same issue under another enactment within 36 months. However, this applies only if they were advised that the initial consultation would apply to RMA matters.
The RMA contains specific requirements to undertake consultation with tangata whenua through iwi authorities as part of the plan development process:
- Clause 3(1)(d) of Schedule 1 of the RMA requires that councils consult with tangata whenua through iwi authorities before notifying any plan.
- Clause 3B sets out a procedure for consulting with iwi authorities whose details are contained within the Council's record of iwi authorities under s35A. A council will be treated as having consulted with iwi authorities if the council:
- considers ways in which it may foster the development of their capacity to respond to an invitation to consult; and
- establishes and maintains processes to provide opportunities for those iwi authorities to consult it; and
- consults with those iwi authorities; and
- enables those iwi authorities to identify resource management issues of concern to them; and
- indicates how those issues have been or are to be addressed.
- Clause 2(2)(b) requires regional councils to consult with iwi authorities when preparing a regional coastal plan.
Undertaking consultation with tangata whenua is important for councils to be able to fulfil particular obligations to tangata whenua under the RMA. These obligations are:
- All councils are required to take into account any iwi management plans in undertaking any plan development process, and recognise and provide for any relevant matters is a customary marine title planning document (ss61(2A), 66(2A) and 74(2A)).
- A regional policy statement must state the resource management issues of significance to iwi authorities of the region (s62).
- Councils must recognise and provide for:
- the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga (s6(e))
- the protection of historic heritage from inappropriate subdivision, use, and development (s6(f))
- the protection of protected customary rights (s6(g)).
- Councils must have particular regard to kaitiakitanga (s7(a)).
- Councils must take into account the principles of the Treaty of Waitangi (s8).
In addition, new requirements for consultation with iwi authorities are beginning to emerge through Treaty of Waitangi settlements and under the Marine and Coastal Area (Takutai Moana) Act 2011.
See the Facilitating consultation with tangata whenua guidance note for more information on the obligations for consultation with tangata whenua.
The Environment Court has 'synthesised' a statement of principles for consultation from a number of court case decisions. These have been primarily developed through case law relating to resource consents and notices of requirement, yet they are equally applicable to the plan development processes and should be understood before embarking on any consultation process.
Plan development (particularly whole-plan reviews and major policy shifts) are also potentially subject to consultation processes under the LGA. A set of principles for consultation is contained in the LGA, as well as general provisions about when and how councils should consult people interested in or affected by a council decision. Some councils have a specific consultation policy that takes into account the requirements of the RMA and LGA.