Māori and the RMA
All persons exercising functions and powers under the Act are required to recognise and provide for seven matters of national importance set out in section 6. This includes section 6(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
Section 7 of the Resource Management Act sets out 'other matters' which persons exercising functions and powers under the Act must 'have particular regard to'. This includes section 7(a) kaitiakitanga.
Treaty of Waitangi
Section 8 requires that all persons exercising functions and powers under the Resource Management Act take into account the principles of the Treaty of Waitangi.
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
It is important to note the distinction between the “principles of the Treaty of Waitangi ” and the actual text(s) of the Treaty of Waitangi (Te Tiriti o Waitangi). The principles of the Treaty of Waitangi include the duty of the Crown and Māori to act reasonably and in good faith and the duty of the Crown to actively protect Māori interests and make informed decisions (which in most cases will require consultation).
Consultation on policy statements and plans
The Resource Management Act requires the Minister for the Environment to seek and consider comments from relevant iwi authorities when preparing a national policy statement. 542
The Resource Management Act also requires local authorities to consult local tangatawhenua, through iwi authorities 543 and take into account any relevant planning documents recognised by an iwi authority 544 when preparing a policy statement or plan. Local authorities must also provide iwi authorities with a copy of the relevant draft proposed policy statement or plan, allow iwi authorities adequate time and opportunity to consider the draft document and provide any advoce, and have particular regard to any advice recieved from those iwi authorities on the draft document. 4486 Section 32 evaluation reports must summarise all advice reviewed from iwi authorities on the proposal, and how the proposal responds to that advice. 4487
There are specific requirements for consultation with iwi authorities. 545 These include considering ways in which the local authority may foster increased capacity of iwi authorities to respond to an invitation to consult, the establishment and maintenance of processes to provide opportunities for iwi authorities to consult, enabling iwi authorities to identify resource management issues of concern to them and indicating how those issues have been or are to be addressed.
In order to assist with consultation, local authorities are required to maintain, for each iwi and hapu within its region or district, a record of the contact details for each iwi authority, the planning documents recognised by each iwi authority, and the area over which iwi or hapu exercise kaitiakitanga. 546
Consultation on resource consents
Section 36A of the RMA explicitly states that neither an applicant nor a local authority have a duty to consult any person (including Māori) about a resource consent application unless this is required under other legislation. However, an Assessment of Effect should identify any persons who will be affected by a proposal, any consultation undertaken, and any response to the views of any person consulted. 547 Early consultation with Māori is best practice for resource consent applicants (where Māori interests may be affected) in order to establish a working relationship with tangata whenua, demonstrate compliance with the relevant provisions in Part 2 of the Resource Management Act, and to reduce the likelihood of future difficulties arising, including litigation. 548
Transfer of powers
The Resource Management Act provides for local authorities to transfer their functions, powers or duties under the Act to public bodies, including iwi authorities. 549 Local authorities have generally been reluctant to relinquish their powers in this manner.
Joint management agreements
The Resource Management Act provides for the development of joint management agreements 550 between a local authority and an iwi authority (or other group representing hapu) that provide for the parties to jointly perform the local authority’s functions in relation to a natural or physical resource in all or part of the region/district.
A local authority that wants to make a joint management agreement must satisfy itself that each party to the joint management agreement represents the relevant community of interest and has the technical or special capacity or expertise to perform or exercise the function, power, or duty jointly with the local authority. 551 Any party to a joint management agreement may terminate that agreement by giving the other parties 20 working days’ notice. 552
The first joint management agreement was signed by the Taupo District Council and the Tuwharetoa Maori Trust Board on 17 January 2009. The joint management agreement provides for publicly notified resource consents and private plan change applications in relation to multiply owned Māori land within the rohe of Ngati Tuwharetoa and within the Taupo District to be decided by a panel of decision makers consisting of two commissioners chosen by each party and a jointly appointed fifth commissioner and chairman. It is the first example of an iwi authority having an equal share of statutory resource management decision-making power within New Zealand.
The Waikato River and Waipa River Settlement Acts require joint management agreements to be entered into between iwi and the relevant councils. These provide for the local planning, consenting, monitoring and enforcement functions under the Resource Management Act. These Joint Management Agreements are now in place, including:
- Ruakawa Settlement Trust and Waikato Regional Council
- Maniapoto Māori Trust Board and Otorohanga District Council, Waikato District Council, Waikato Regional Council, Waipa District Council, Waitomo District Council
- Te Arawa River Iwi Trust and Waikato Regional Council
- Waikato Raupatu River Trust and Waikato Regional Council
- Waikato Raupatu River Trust and Waikato District Council
Mana Whakahono a Rohe (Iwi Participation Arrangements)
Mana Whakahono a Rohe provide a mechanism for councils and iwi to reach an agreement on ways tangata whenua may participate in RMA decision making and to assist local authorities to comply with their statutory duties under the RMA 4488 .
Both councils and iwi authorities can initiate the process to form a Mana Whakahono a Rohe.
A Mana Whakahono a Rohe must discuss:
- How iwi will participate in plan making processes
- How required consultation with iwi will be undertaken
- How council and iwi will work together to develop monitoring methodologies
- How council and iwi will give effect to the requirements of any relevant iwi participation legislation (or agreements under such legislation)
- A process for managing conflicts of interest
- A process for resolving disputes
A Mana Whakahono a Rohe may also identify how council will consult or notify an iwi authority on resource consents matters (where required), where a iwi authority may be given limited notification as an affected party, how iwi authorities (if there are 2 or more) will work collectively together to engage with council, any delegation of roles from an iwi authority to a person or group, and any other arrangements relating to RMA processes.
Once a Mana Whakahono a Rohe has been finalised, councils must review their internal policies and processes to ensure they are consistent with the Mana Whakahono a Rohe.
Section 46 Resource Management Act
Clauses 3 of Schedule 1 Resource Management Act
Sections 61(2A)(a), 66(2A)(a), and 74(2A) Resource Management Act
Clauses 3B of Schedule 1 Resource Management Act
Section 35A Resource Management Act
Clause 1AA Schedule 4 Resource Management Act 1991
See Te Kura Pukeroa Maori Inc v Thames-Coromandel District Council (NZEnvC W069/07, 5 September 2007) where an appeal was struck out on the basis that there is no obligation to consult any persons in relation to a resource consent application.
Section 33 Resource Management Act 1991
Sections 36B to 36E Resource Management Act 1991
Section 36B Resource Management Act 1991
Section 36E Resource Management Act 1991
Clause 4A of Schedule 1, RMA
Section 32(4A), RMA
Sections 58L to 58U, RMA
Last updated at 2:56PM on January 4, 2018