In what may prove to be one of the most difficult issues the Government faces over its resource management reforms, the Select Committee considering the legislation is now coming hard up against the Treaty of Waitangi.
Not just Māori but also some local government entities are critical of the way Resource Management Reform Minister Chris Bishop’s legislation treats the Treaty.
There have already been warnings from one of our biggest City Councils that they could find themselves tied up in litigation as a consequence.
Iwi are telling the Committee that the Bill breaks the “marriage” between the Crown and iwi enshrined in the settlements.
That is a serious charge and suggests that if it is not addressed there will be a backlash from iwi.
But the problem is that RMA critics have often focused on the old legislation’s Treaty provisions as the cause of major holdups in the consenting process.
At worst, those criticisms have often alleged Māori have rorted the system to extort payments for consents.
Former Whangarei District Councillor Frank Newman has claimed that a hapu whose Marae was 65 km from a proposed lifestyle subdivision site demanded a karakia by a Kaumatua before any earthworks began (at $150 hour plus travel); replacement of all removed native vegetation at a 4:1 ratio; kaitiaki monitors on-site during the earthworks, (at $75 hour plus travel); and consultant fees ($200 hour).
“After various meetings and invoices totalling $3,200, the landowner concluded the hapu had no meaningful connection with his land,” Newman said.
“He saw it as a scam and resented being placed in a position where the least costly option was to shut up and pay up.”
Labour’s 2020 review of the RMA, chaired by Judge Tony Randerson, suggested that involvement in the consenting process was because iwi were left out of the planning process.
“In the absence of a strategic role for mana whenua, their participation was often focused on reactive, inefficient and labour-intensive processes such as responding to numerous resource consent applications, rather than on processes with strategic impact such as planning,” the review said.
Labour’s answer, the Natural and Built Environment Act (NBA)—intended to replace the Resource Management Act—sought to enhance Māori interests by requiring decision-makers to “give effect to” the principles of Te Tiriti o Waitangi rather than merely “taking them into account”.
It centralised Te Oranga o te Taiao (the health of the environment) as a core concept, promoting stronger mana whenua involvement in planning.
The NBA rested its planning on Regional Planning Committees, which consisted of local government representatives and local iwi.
Those Committees were to have been responsible for drawing up the key regional plans.
Thus, Māori were to have been at the centre of the planning process rather than having consent applications referred to them.
Bishop’s Bill strips all that away and instead provides for Māori involvement in planning processes as “participation”, rather than partnership or consultation.
Iwi authorities would provide advice on draft national instruments prior to notification.
Similarly, iwi authorities would be provided the opportunity by spatial plan committees to provide views on draft regional spatial plans prior to notification.
There is no decision-making role for Māori in spatial planning and no obligation for councils to adopt Māori views or cultural assessments.
Councils would be required to prepare plans in accordance with any iwi participation legislation and Mana Whakahono ā Rohe (iwi participation agreements with councils) and have regard to advice provided by iwi authorities on draft plans.
The Bill requires decision makers to give effect to existing Treaty settlements.
But planning professionals, councils, and iwi organisations have been telling the Environment Select Committee that the new Bill does not go far enough.
Andrea Harris, the chair of the New Zealand Planning Institute, told the Committee that the removal of the Treaty Principles Clause and other provisions for iwi and hapu rolled back over 20 years of planning practice, case law and treaty principles.
“Starting again with a new approach will cause uncertainty for implementation and bring litigation risk,” she said.
The Wellington – South Island-based Ngati Toa iwi (proprietors of the All Black haka copyright) argued that the legislation placed treaty settlements and established partnership arrangements at risk.
“Settlements have been negotiated in the context of our current resource management system,” Iwi chair Callum Katene said.
“They should not now be narrowed, reopened or weakened through reform.
“The Bill’s places treaty settlements and established partnership arrangements at risk.
“The Bill weakens the place of Te Tiriti and the environmental decision-making.
“They allow the Crown too much scope to define its own Treaty responsibilities, rather than requiring a genuine Treaty-based framework to be shared with mana whenua.”
The much bigger Ngai Tahu iwi had even stronger views.
Ngai Tahu CEO, Ben Bateman, said what Ngāia Tahu wanted and was capable of delivering was to partner in resource management, decisions for its region, to shape a future planning system that balanced sustainable use with strong economic, cultural, social and environmental outcomes.
“We are systematic by nature, and we connect top to bottom and across,” he said.
“To achieve this, the Crown needs to look to both the Treaty of Waitangi and also to our settlements to remember the promises and the agreements made in good faith and to reconfirm those through this legislation.”
Ngai Tahu settlement negotiator, Edward Ellison, told the Committee that resource management reform could not be treated as a neutral legislative reset.
“The settlement and the Resource Management Act together created a constitutional architecture, a framework within which Rangatiratanga and Crown governance operate. In relation to managing the natural environment,” he said.
“Resource management was identified as one of the key places where historic harm had occurred, and where future decisions affecting our taonga would continue to be made.”
A legislative framework that reduced treaty partnership to advisory functions or compartmentalised clauses departed from that architecture and would look to inadvertently create contemporary treaty breaches by weakening what the settlement sought to embed, he said.
“I can guarantee you that passing the bills, then attempting to come to an agreement on treaty settlement arrangements after the fact, is not what was envisaged at the time of settlement.
“It subtracts from the good faith negotiations entered into by all parties, including those who sit on your side of the table, and is destined to repeat past errors of function and duty.
“Rangatiratanga is fundamental.”
Ellison said that without redrafting the agreement between the Crown and the iwi, it was broken.
“As the planning system is rebuilt, the treaty relationship and the Ngai Tahu settlement must remain firmly embedded in its foundations,” he said.
“These reforms may replace the RMA, but they cannot replace the commitments Parliament has already made to Ngai Tahu.”
Northland MP Grant McCallum asked how what Ngai Tahu were talking about would work on the ground; how would Canterbury farming families get their water rights re-consented, and how could they avoid that consent being for only a short term.
“I think the answer isn’t to rush things through,” said Bateman
“The answer is to take the time to engage.”
The Hamilton City Council was also concerned about the threat the new legislation posed to Treaty settlements.
Their planner, Juliana Junqueira, explained that the Treaty settlement governing the Waikato River impacted what the Council did on its banks with subdivisions and other developments because they were catchments for the river.
Councillor Maria Huata said the Council’s concern wasnot that the Bills failed to recognise Treaty settlements in principle, but that the new system might not clearly support councils to give effect to them in practice, particularly where obligations were ongoing, cumulative, or shared over time.
What the various submitters have been saying is that the Treaty is already at the centre of much New Zealand planning law and decisions made under it.
ACT, through Under Secretary Simon Court, have already had a strong influence on the legislation, particularly with their advocacy of the so-called “regulatory takings’ provisions, which would require Councils to compensate landowners for any land designated as a significant natural area and other set asides.
It is highly likely that ACT has been a force behind the diminution of the place of the Treaty in the new legislation.
But at the Select Committee, MPs are seeing that what might work well at an election meeting is much more difficult to place into law.
It is easy to see that if the Natural Environment Bill does not make some significant changes in the Treaty area, there will be another uproar from Māori.
