The Treaty of Waitangi provides for the exercise of kawanatanga, while actively protecting tino rangatiratanga of tangata whenua in respect of their natural, physical and spiritual resources. All persons acting under the RMA (including applicants, councils and tangata whenua) must take into account the principles of the Treaty of Waitangi (s8). Similar obligations are imposed on councils under the Local Government Act 2002 (LGA).
Statutory obligations and case law developed under the RMA have helped to translate how the obligations under the Treaty of Waitangi are to be given effect to in practice. A guide to the principles of the Treaty of Waitangi, as interpreted by the Waitangi Tribunal and the Courts, has been produced by Te Puni Kokiri.
The Environment Court has said that consultation, or the need to consult, arises from the principle of partnership in the Treaty of Waitangi; this requires the partners to act reasonably and to make informed decisions.
Resource Management Act 1991 (RMA)
Part II of the RMA contains a number of specific provisions relating to tangata whenua that must be considered in RMA processes:
- Sections 6(e),6(f) and 6(g) require that "the relationship of Maori and their culture and traditions with their ancestral lands, water, sites,wahi tapu, and other taonga", "the protection of historic heritage from inappropriate subdivision, use and development" and “the protection of protected customary rights” is recognised and provided for.
- Section 7(a) requires that 'kaitiakitanga'
- Section 8 requires that the principles of the Treaty of Waitangi are taken into account.
Several other general provisions in the RMA need to be considered, including the requirement to take into account iwi planning documents. In terms of consultation with tangata whenua, there are different requirements for resource consents, notice of requirements and plan development processes.
Section 36A of the RMA specifically states there is no duty to consult any person about resource consent applications and notices of requirement. This applies both to applicants and local authorities. Nevertheless, for many resource consent applications and notices of requirement, consultation with tangata whenua will play a significant role in assessing the effects on Maori cultural values and the matters set out in Part II of the RMA. Consultation with tangata whenua is mandatory when developing plans and policy statements. Clause 3B of the First Schedule to the RMA sets out a process for consulting with iwi authorities. This process is based on a number of principles to follow to achieve good consultation outcomes, rather than a step-by-step methodology.
Principles of RMA consultation
The Environment Court has developed a statement of principles for consultation synthesised from a number of 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.
Benefits of consultation with tangata whenua in RMA processes
Effective consultation with tangata whenua can produce better environmental outcomes.
Timely consultation is also able to reduce bottlenecks, delays and added costs that can occur if tangata whenua only become aware of proposals at the last minute and options for influencing the proposal and mitigating adverse effects are past.
Other benefits of consultation with tangata whenua include:
- identifying resource management issues of relevance
- identifying methods to achieve Maori objectives in RMA plans
- providing for their relationship with their culture and traditions with ancestral lands, water, sites, wahi tapu, and other taonga as set out in s6(e)
- ensuring all actual and potential environmental effects are identified
- resolving or narrowing issues down before lodging a resource consent application
- providing tangata whenua with active involvement in exercise of kaitiakitanga
- protecting matters of cultural, spiritual or historical importance and putting measures in place to avoid remedy or mitigate any adverse effects.
It is important that consultation is fully understood and properly managed to avoid:
- time delays
- unnecessary costs for the applicant and affected parties
- misinformation and conflicts
- unrealistic expectations by tangata whenua, council, and applicants about the possible results.
Disadvantages can be managed if realistic expectations are set at the start of any consultation process; and if initial consultation has been undertaken to identify the most appropriate methods and processes to follow where there are no existing arrangements (such as an operational agreement) in place.
A statutory acknowledgement is an acknowledgement by the Crown that recognises the mana of a tangata whenua group in relation to specified areas - particularly the cultural, spiritual, historical and traditional associations with an area. These acknowledgements relate to 'statutory areas' which include areas of land, geographic features, lakes, rivers, wetlands and coastal marine areas, but are only given over Crown-owned land. Office for Treaty Settlements
Locations of statutory areas in settlements are shown on the Land Information New Zealand website, with the text of each statement the text of each statement of association set out in Schedules to the Settlement Act that establishes them. Councils must consider statutory acknowledgements when making decisions on whom to involve in resource consents and hearings. They also help address concerns where councils have processed consent applications that relate to an area of significance for certain claimant groups, without consultation or their written approval, and where claimant groups have been adversely affected. While a statutory acknowledgement may vary for each claimant group, in essence, a statutory acknowledgement requires councils to:
- forward summaries of all relevant resource consent applications to the relevant claimant group governance entity - and to provide the governance entity with the opportunity to waive its right to receive summaries
- have regard to a statutory acknowledgement in forming an opinion as to whether the relevant claimant group may be adversely affected in relation to resource consent applications concerning the relevant statutory area
- within the claim areas, attach for public information a record to all regional policy statements, district plans, and regional plans of all areas affected by statutory acknowledgements.
None of the requirements limit or affect councils' existing obligations under the RMA. Statutory acknowledgements can be used in submissions to consent authorities, the Environment Court and the Historic Places Trust, as evidence of a specific claimant group's association with a statutory area.
As claims are progressively settled, more and more councils will need to comply with statutory acknowledgements. Entering into agreements on consultation on consents before the establishment of a statutory acknowledgement is a positive first step in building relationships. See the Office for Treaty Settlements website for further information on settlements.
Local Government Act 2002
The Local Government Act 2002 (LGA) contains a number of provisions that relate specifically to Maori. The LGA requires that, in order to recognise the Crown's responsibilities, councils must take appropriate account of the principles of the Treaty of Waitangi. The LGA sets out specific requirements for councils to facilitate participation by Maori in local authority decision-making processes. The LGA requires councils to consult with persons who may be affected by or have an interest in their decisions. Iwi authorities and other representatives of Maori interests must be consulted in relation to any decision or matter of interest to Maori.
There are some clear synergies between the consultation required with tangata whenua under the LGA and RMA. The LGA provisions require councils to establish and maintain processes to provide opportunities for Maori to be involved in local government decision-making. Subject to some limitations, Clause 3C of Schedule 1 of the RMA provides for plan and policy-making consultation to be undertaken as a part of consultation under another Act, such as the LGA. The period for such consultation under other Acts, that can be used for RMA plan and policy making purposes, is 36 months. This provides more opportunity to combine LGA and RMA consultation exercises.
Councils should explore how multipurpose consultation can be undertaken, in order to make best use of everyone's time.
Determining which tangata whenua group to consult
It can be challenging to determine which iwi authority, group representing hapu for the purposes of the RMA, or other tangata whenua group to consult. This is particularly so where a number of groups overlap in interests in a particular locality within a district or region.
To address this, the Environment Court has established, through case law, a set of principles to consider when dealing with mandate issues between different tangata whenua groups. In some cases, these principles may also apply to individuals within iwi authorities or tangata whenua groups. These principles are:
- When an iwi or hapu has a formal management body, such as a trust board, a marae committee, or something similar, it is entirely appropriate that an applicant and a local authority should consult that body as the iwi/hapu representative.
- Unless there is some extraordinary factor plainly signalling that the processes of that body are dysfunctional and cannot be relied upon, the responses given by it should be accepted as authoritatively speaking for the iwi or hapu.
- It is human nature that, in any organisation, there will be dissenting views which remain after the decision-making processes have concluded. That can be so even where, as is the custom for Maori organisations, the objective is consensus rather than a majority decision.
- The fact that individuals express dissent with an announced decision does not mean that the applicant or local authority, or the Court, cannot rely upon the decision announced by those whose positions appear to entitle them to announce it.
- The internal processes of such bodies are for the members of them to control and resolve. Outsiders have no ability to do so and no business in trying to do so.
- Unless bodies such as councils or the courts can rely upon the apparent authority of office holders to speak for an organisation, no agreement could be relied upon unless there was a referendum of every member of that organisation. That is obviously completely unworkable and unreasonable.
- If there is a serious issue within a Maori organisation, or between Maori organisations, as to who holds mana whenua or who has the right to express an authoritative view, the Maori Land Court is the appropriate tribunal to resolve it. A timely application to that Court should be made so that only the Resource Management issue, if there is one, comes before the Environment Court.
Additionally, it is important to note that an individual or a tangata whenua group may have a range of interests in a proposal or issue and the wider environment; their concerns may need to be considered in different roles. For example, an individual or group may have interests as a landowner, or as a person or group with mana whenua, or as an iwi authority, or as a general member(s) of the public.
Councils can assist in dealing with mandating issues by maintaining and regularly updating their s35A register and contact databases, and by recognising the different roles and interest of tangata whenua in the community. Councils should also be prepared to consult with more than one tangata whenua group in case there are overlapping interests within a particular locality within a district or region. Iwi management plans can be a useful guide for assisting councils to determine which tangata whenua group or groups to consult, as they will generally define over which particular areas a tangata group claims mana whenua.