Section 36A of the RMA specifically states that there is no duty to consult any person, including tangata whenua, about resource consent applications. However, the tangata whenua interests recognised in ss6(e), 6(f), 6(g) ,7(a) and 8 of the RMA are required to be considered when making decisions on resource consent applications. These interests can be more readily identified and addressed in applications through consultation with tangata whenua. The duty of early consultation with tangata whenua has also been identified by the Court of Appeal as one of the principles of the Treaty of Waitangi.
It is best practice for applicants to undertake consultation with tangata whenua when developing proposals that are within an area of interest to tangata whenua, or involve resources of particular interest to tangata whenua. Councils can assist this process by identifying the relevant iwi authorities, the areas in which they may be interested, and the issues that tangata whenua are generally concerned about.
Where councils have identified that tangata whenua may be affected by a proposal, applicants should be encouraged to consult with tangata whenua at the earliest possible stage in the development of their proposals. This is particularly important when the proposal will clearly affect a known wahi tapu, or sites or species of importance to tangata whenua. Early consultation is also far more likely to be appreciated by the tangata whenua concerned.
Larger organisations who lodge consents regularly may have established their own agreements with particular iwi or hapu on how they will consult; they will be well aware of consultation expectations.
Tangata whenua groups may be interested in a proposal for a number of different reasons, including their historical association with a particular area; and/or quite differently, as neighbours or landowners. Individuals within tangata whenua groups may also be interested in an application as general members of the public. This means it is important to make it clear from the outset why consultation is being undertaken and how the tangata whenua groups consulted may be affected.
Tangata whenua groups may also have different ways in which they would like to be consulted or engaged. For example, some tangata whenua groups have specific resource management advisors who are authorised to speak on their behalf on some issues but must go back to the iwi or hapu on others. Some tangata whenua groups may also expect payment for their time spent in consultation exercises.
What sorts of issues are tangata whenua generally concerned about?
The primary council duty is to keep and maintain records under s35A on which iwi and hapu to consult; the Minister may require this information to be provided within timeframes specified in regulations. However, councils should also have a good understanding of tangata whenua values in the area and the types of activities that could adversely affect these values.
Some types of activity that may be of concern or interest to tangata whenua are:
- disturbance or modification of traditional and ancestral sites, such as battle sites, particularly in greenfield areas
- any activities near marae or kainga (settlement)
- activities near or on urupa (burial ground) (such as house building, earthworks etc.)
- discharges (particularly of waste) to water
- other activities potentially compromising the purity or mauri (spirit/life-force) of waters (inland, coastal or offshore)
- any activities potentially compromising the integrity of or access to food resources (mahinga kai) and food gathering areas such as dredging near shellfish beds, discharges into harbours, the placement of structures or subdivision in the coastal marine area, and discharges to air
- any activities potentially compromising access to natural resources, such as timber, stones, flax, and fish
- any activities that disturb indigenous flora and fauna, such as the clearance of bush or damming or diversion of waterways.
Specific lists of activities should be created for each iwi authority, hapu, and/or whanau and can be used as a general guide to provide advice on when consultation with tangata whenua may be warranted. When in doubt, they should be asked if they are concerned or interested in the proposal and would like to be consulted.
It is generally not the activities themselves that are of particular concern to tangata whenua, but how certain activities have potential to impact on things that are valued by tangata whenua. For example, both water and the coastal environment are highly valued by tangata whenua. Consultation with tangata whenua for discharge applications to water may often be warranted, particularly where it involves the discharge of treated sewage into coastal water or rivers.
Iwi management plans, other iwi planning documents, and cultural impact assessments undertaken for other resource consent applications can assist with the identification of the types of activities of interest to tangata whenua.
When should councils consult with tangata whenua on resource consents?
While the primary responsibility for consulting with tangata whenua should rest with an applicant, councils should also take a proactive role in facilitating consultation with tangata whenua under the RMA. This is due to the need for councils to develop long-term working relationship with tangata whenua for resource management purposes and to fulfill their role in providing good, robust advice to applicants on resource consent matters. It is important this consultation is done in accordance with any policies and/or protocols councils may have developed with tangata whenua within their region or district.
Councils may wish to consult directly with tangata whenua when:
- resource consent proposals are likely to affect the matters referred to in ss6(e), 6(f), 6(g) and 7(a) of the RMA
- the council knows that tangata whenua have a special relationship with the area affected by the application
- council is aware that tangata whenua may be concerned with the activity that is proposed (e.g. aquaculture) or the resource that may be impacted on (e.g. water allocation).
The council's role may range from contacting the tangata whenua concerned to verifying the record of consultation provided by the applicant. In the case of some significant proposals, councils may effectively take control of the consultation process: this may include arrangements for hui, attendance by applicants, commissioning cultural impact assessments, and seeking expert advice from tangata whenua groups. Where council takes a lead in consulting directly with tangata whenua, there is a need to ensure correct protocol. This often includes:
- following tikanga Maori (e.g. mihi, karakia)
- providing a koha (gift or contribution) to the marae, relying on guidance from the marae komiti
- using te reo Maori if possible, and where appropriate
- involving the Council's iwi liaison officer, if available.
Councils should not view consultation as a one-off process for application but aim to build working relationships with tangata whenua. This may involve putting in place policies, processes, and channels that facilitate:
- consultation between consent applicants and tangata whenua, including fulfilling the Council's obligations to keep and maintain records for each iwi authority and hapu within its region or district
- tangata whenua involvement in the consent process such as being provided with copies of applications or sitting on hearings committees.
When should councils forward applications to tangata whenua for comment?
Many councils have arrangements with tangata whenua to send them copies of all or some of newly lodged applications for resource consent and/or summarised lists of applications received. These arrangements are primarily used to identify whether the tangata whenua group have any interest and/or concerns about the application(s), and whether they want to see a full copy of an application (where a list is used). Statutory acknowledgements may also require that councils forward summaries of all applications to a particular tangata whenua group.
It is important that you know whether your council has an existing arrangement for consultation with tangata whenua. If they do, then the applicant needs to know what this means, for example, will someone from the tangata whenua group make contact? Or is that the responsibility of the council? Will there be a bill for such input? Councils can choose to mail or email lists of applications, or arrange for a tangata whenua representative to review the applications at a specially convened meeting. Any process should be efficient, effective and well understood by both tangata whenua and council.
Arrangements for distribution and review of applications can form the basis of operational agreements between councils and tangata whenua. These agreements can provide an effective 'safety-net ', ensuring that tangata whenua are given the opportunity to have input into the resource consent process where:
- applicants have not consulted them
- the applications are generally straightforward and are less significant
- a number of tangata whenua groups may have a potential interest.