The first big test of the new Government’s approach to Treaty matters is likely to be seen in the return of the Resource Management Act.
RMA Minister Chris Bishop has confirmed that he intends to introduce legislation to repeal Labour’s recently passed Natural and Built Environments Act and its Spatial Planning Act.
A return to the 1991 RMA will then replace them.
But POLITIK understands that legislation is unlikely to include a clause relating to Treaty principles, which have been there since 1991, and may also see the removal of the Whakahono a Rohe Maori participation clauses inserted in the RMA by National’s then Environment Minister, Nick Smith,, in 2017.
Any confirmation of an intention to do this will surely focus Waitangi day back on to protest.
The 1991 Act had a very specific Treaty principles clause: “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.”
New Zealand First’s coalition agreement with National requires that the principles clause go.
The agreement requires that the Government conduct a comprehensive review of all legislation “that includes “The Principles of the Treaty of Waitangi” and replace all such references with specific words relating to the relevance and application of the Treaty or repeal the references.”
An exchange of texts with NZ First leader Winston Peters achieved little clarification about the party’s views on the return of the RMA beyond Peters ultimately saying he was not responsible for the legislation.
That is despite the Government committing to include it within the RMA when it returns a NZ First proposal for new fast-track procedures for projects of national importance.
ACT has always opposed Labour’s RMA reforms and, in 2017, opposed the insertion of the Mana Whakahono a Rohe iwi participation arrangements in the legislation.
Simply whakahono a rohe agreements can require Councils to consult iwi on preparing plans and issuing consents.
The original clause, which was inserted to guarantee Maori Party support for the 2017 legislation after both ACT and Peter Dunne refused to support it, was prompted by the Iwi Leaders’ Freshwater Group.
That fact alone points to the controversy any removal would provoke.
But ACT leader David Seymour is emphatic that it should go.
In a text to POLITIK, he said that, basically, ACT hated the whole RMA.
“We will make some tweaks in the new year, perhaps the ones you suggest (that was in answer to the question about the Treaty and Whakahono clauses) and then replace the whole thing,” he said.
“But I doubt we will have time to deal with anything beyond reinstatement this year.”
Regardless of when the new Government takes the two clauses out, the reaction from Maori is likely to be highly negative.
When asked how removing the Treaty Principles and Maori participation clauses would go down with Maori, Waikato-whānui leader and Chair of Te Arataura Tuku Morgan simply replied, “terribly.”
Morgan will likely be a key player in Maori resistance to the Government’s broader proposals to remove the Treaty Principles clause from all legislation.
As chair of Tainui, he will be at the forefront of what POLITIK understands will be Kingitanga’s role in co-ordinating the protest against the new Government.
Interestingly, in a paper published in the Victoria University Law Review in 1999, the new Government’s new Minister of Maori Development, Tama Potaka, put the case for more Maori involvement in local government decision-making.
“The ad hoc and piecemeal development of local government Treaty responsibilities to date, coupled with the extent of local government powers, demand action from the Crown and Máori,” he wrote.
“It is submitted that action means a Treaty driven legislative agendum focussed on requiring local government authorities to comply with the Treaty in all their activities.”
That requirement is exactly what would be abolished if the Treaty-principles clause were to be removed from the RMA.
Just how the Government will manage this is unclear.
Speaking on TVOne’s “Q+A” yesterday, RMA Minister Chris Bishop said he intended to repeal the two Labour Acts before Christmas.
But whether he will wait until the new year to bring in the replacement legislation is unclear.
“On the RMA and the resource management space more generally. I’m thinking about it in terms of three phases; the first is get rid of the Natural Built Environment Act, Labour’s laws,” he said.
“That’ll be done by Christmas.
“In the New Year, I will be bringing legislation to the Parliament to establish a fast-track regime for consents, and I’m working alongside Shane Jones and other ministers on that, and you can expect to see that legislation in the new year, but that will make it easier to get started on infrastructure projects, for example.
“And you’ll see that in the new year.
“And then the third phase of the resource management reforms is to start on replacement legislation for the RMA, and that will be a longer-term process.
“The aim is to have that into law by the end of the three years, but we need to do some quite heavy, heavy policy lifting on that and do a lot of consultation on that.
“So that will be a more medium to long-term project.”
In the meantime, he will be under significant pressure from both coalition partners to remove the Treaty and Maori participation clauses from the stop-gap replacement legislation.
If he doesn’t, he will face a backlash from ACT and NZ first; if he does, National leader Christopher Luxon can expect a hostile reception at Waitangi.
(Luxon confirmed at his weekly post Cabinet press conference today what he could not confirm last week; that the Treaty principles clause will stay.)