The RMA guarantees tangata whenua an opportunity to become involved in the preparation of plans and policies by councils under the RMA. Tangata whenua are represented variously through iwi authorities, tribal rūnanga, iwi and hapū trust boards, land trusts or directly as representatives of whānau, hapū and iwi.
The RMA does not provide the same guarantee for individual resource consent applications. However, the courts have clearly held that it is good practice for resource consent applicants to consult with tangata whenua where proposals might affect matters set out in sections 6(e) and 7(a) of the RMA.
The courts also suggest that councils (through their officers) have some obligation to consult with tangata whenua if the information they receive from applicants is insufficient to make an informed decision on the effects on tangata whenua interests. Councils certainly have an obligation to confirm the adequacy or otherwise of any consultation carried out by an applicant.
The bottom line is that where tangata whenua have a legitimate interest in, or are affected by, a particular application, they have a right to have input into the decision-making process.
A useful summary of case law on consultation with tangata whenua has been published by the Ministry for the Environment (Guidelines for Consulting with Tangata Whenua Under the RMA: An Update on Case Law, December 2003). Download load it from the publications section on the Ministry website (www.mfe.govt.nz).
How to influence those outcomes
You can follow a number of principles to ensure your organisation or group has a strong positive influence on the actions of applicants and the decisions made by councils. Not all involve how you engage with an applicant or council over a particular proposal. Some relate to how you frame your interests or concerns, or the extent to which you ensure those interests and concerns are taken into account well before any proposals are actually put to you for comment. These principles are as follows.
- Build strong relationships with councils, with an expectation of good faith and open information sharing from both parties.
- Develop an ongoing positive relationship with key councillors and council staff members involved in the development of plans and the processing of resource consent applications.
- Make submissions on the long term council community plans and annual plans prepared by councils, so you can influence the way they support the involvement of your organisation or group in the consent process.
- Actively participate in the development or change of regional policy statements and regional and district plans prepared by councils, so you can help ensure your relationships with your taonga are recognised and provided for. It is a process demanding in time and resources, but an essential one for any tangata whenua group serious about informing council policy-making. Given the effort required, input into plans is often best handled by an iwi, as opposed to a hapū or whānau.
- Develop iwi management plans, which are an excellent means for making councils and applicants aware of the nature of your relationship with your taonga. Iwi management plans are used to influence council planning documents. Councils must take iwi plans into account when preparing new plans or making plan changes.
- Let councils know about those aspects of the environment that you value or hold dear, such as wāhi tapu and kaimoana gathering areas, so you can ensure they are well informed when it comes to:
- deciding whether you are an affected or interested party (see below for an explanation of this)
- telling applicants how to get in touch with you to discuss their proposals.
- Provide applicants and councils with a historical and cultural context for your views about a particular proposal, so you can help them see where you are coming from.
- Work effectively with an applicant at an early stage, so you may be able to enter into a formal agreement to resolve the issues affecting you. These agreements, known as side agreements, stand outside the formal RMA processes, but can have legally binding consequences for the parties. See Your Rights as an 'Affected Person' (part of the everyday guide to the RMA series).
- Say exactly what it is about a proposal is of concern to you, and be clear about what actions, if any, an applicant might be able to take to address those concerns (by changing their proposal), or what you might expect from a council (by imposing conditions to address those concerns). In this way you are more likely to influence the outcome. The reverse is also true: if you oppose an application without saying why, or without offering some suggestion as to how your concerns might be addressed, your comments may not be given a great deal of weight.
- Focus on the application in hand, so that you are most likely to retain the applicant's attention and commitment to resolving any concerns you may have. Again, the reverse is true: if you raise issues over which the applicant has no control, such as Treaty claims or actions of the council in the past, you may dilute the influence you might otherwise have over the proposal. There may be forums at which such issues can be directly addressed and resolved (such as the Māori Land Court, the Waitangi Tribunal, or specific 'relationship' meetings with councils).
Questions and answers
When should an applicant approach tangata whenua about their proposals?
Ideally, people seeking resource consents (applicants) that may involve matters of interest or concern (or both) to tangata whenua should approach tangata whenua early in the development of their proposals. This enables any concerns identified by tangata whenua to be resolved through amendments to the proposal before it has been fully developed. Applicants are encouraged to seek advice from the relevant council as to who should be consulted. If the council thinks there might be effects on the places or resources (or other taonga) that you value, it will ask the applicant to consult with you to find out whether this is really the case. Your comments should be reported by the applicant in an assessment of environmental effects (AEE), which forms part of the resource consent application when it is lodged. The applicant may commission a report from tangata whenua which sets out their cultural concerns in detail. These are often referred to as cultural impact assessments. You may also at this stage enter into a side agreement which formalises the resolution of your concerns.
Reality check: Unfortunately, applicants sometimes approach tangata whenua when their AEE is effectively finalised. You may only be given an opportunity to respond to lengthy technical reports prepared without your concerns or interests first being discussed. This can put you in 'catch-up' mode, and lead to accusations by applicants that you are being 'reactive' or 'negative' in your responses. In such situations, it is important to maintain your position, and take the time you need to develop a reasoned, considered response.
Who decides if tangata whenua are interested in or are affected by an application for resource consent?
It is the council's role to advise applicants on whether tangata whenua should be consulted. A council can also deem tangata whenua to be interested or affected. A council may be guided in this decision by:
- the courts' findings that consultation with tangata whenua is good practice
- what tangata whenua have told the council previously
- the contents of iwi management plans
- what might have been agreed with tangata whenua in a relationship agreement (see section 3).
What's the difference between being 'interested in' and being 'affected by' an application?
In simple terms, having an interest in an application means that you may have views you wish to express about a proposal but may not be directly affected by it. In this case, you might be consulted by an applicant before any application is lodged with the council. However, having an interest in an application doesn't mean that you have any greater rights to have those interests taken into account than any member of the general public.
Being affected by a proposal means that you may be directly affected by what is proposed. It also means that any concerns you may have will be taken into account by a council in considering a consent application. In addition to being consulted on a proposal, you may be asked for your written approval to an application. You might be asked by the applicant to do this either before or after they lodge the application with the council. It means that the council thinks you or your relationship with your taonga or the other places and resources you value really could be adversely affected by a proposal. It is a stronger direction than the suggestion that the applicant merely consult you to see whether you have any interest in the proposal.
Applicants need to make clear to you what the purpose of their approach to you is (ie, whether they are consulting with you and/or seeking your written approval). If you are in any doubt about the applicant's motives, contact the council.
Refer to Your Rights as an 'Affected Person', one in a series of everyday guides on the RMA, published by the Ministry for the Environment, and available from councils, or from the Ministry's website (www.mfe.govt.nz).
What kind of input can tangata whenua have?
The kind of input you can have depends on:
- whether you are an interested party or an affected party
- when in the process of making and determining an application you become involved.
Your input can take a number of different forms.
If you are an interested party you can comment on a proposal before the application is lodged - explain the values at stake and how you think the proposal might affect those values, and request that a proposal be modified or withdrawn. If the application is publicly notified you can make a written submission and present your case in person at the subsequent hearing.
If you are an affected party, you can also comment on a proposal before the application is lodged. Applicants may also ask for your written approval. You are not obliged to provide such approval, particularly if you have concerns about the proposal that have not been addressed. Applicants will generally be keen to get your approval because it makes the process much simpler, faster and cheaper for them. If your concerns with the application are such that you don't give your approval, then you will have an opportunity to make a formal submission to the council on the application (see below).
Reality check: A council may decide that you are interested in a proposal, when you consider you are directly affected by it, or the council may not identify you as either interested in or affected by a proposal at all. If you are unhappy with such a decision, your only option may be to apply for a judicial review in the High Court. This is a time consuming and expensive process and may not result in the outcome you are looking for. The best way to avoid a situation where a council makes decisions about your interests that you are consistently unhappy with is to develop a working relationship with that council, based on a mutual understanding of your interests (see section 3). The council is then in a better position to make informed decisions.
What if applicants fail to consult with tangata whenua or effectively take into account their concerns?
Some councils will distribute applications they receive, or summaries of applications received, to tangata whenua to enable them to comment. Comments made by tangata whenua can influence whether an application is publicly notified (see below), and even whether or not it is approved and, if so, what conditions are imposed.
Although this process is not provided for in the RMA, councils often use it to as a safety net to ensure applications that might affect tangata whenua are brought to their attention.
The council may also decide to notify a consent application. A decision to notify an application depends on the nature of the effects of what is proposed, and whether any of the parties it thinks are affected by the proposal have not given their written approval. Basically, notification works as follows.
- If a council thinks the effects of what is proposed will only be minor, and that nobody will be affected, or all the parties it considers might be affected have given their written approval, then it is likely to deal with the application in a non-notified manner. This means the council makes a decision without inviting submissions, or asking for anybody else's views.
- If a council thinks the effects of what is proposed will only be minor, it will only notify those people it thinks may be affected. These - and only these - people will have an opportunity to make a written submission. This may include tangata whenua if the council thinks they are affected.
- If a council thinks the effects of what is proposed will be more than minor, then the application will be publicly notified. This means that anybody, including tangata whenua, will be able to make a submission. Submissions need to be sent to councils by the date specified in the public notice. Public notices are often sent directly to organisations or groups representing tangata whenua. They will also appear in the local newspaper.
Forms for making submissions are available from the council, but these often don't allow room for a full response, so you may wish to develop your own submission form or provide additional information as an attachment to the council submission form. Submissions need to clearly state whether you support or oppose an application, your reasons for your views, and what actions you expect the council to take to reflect those views.
What happens once a submission is made?
If you make a submission, you will have an opportunity to talk about it at a public hearing. So will any other submitters, as well as the applicant. The council will then decide on the application. It will decide whether to grant or decline the application, and what conditions to impose on the granting of any consent. If you are unhappy with the decision you can appeal it to the Environment Court.
Refer to Making a Submission About a Resource Consent or a Designation;Appearing at a Resource Consent or Designation Hearing; and Your Guide to the Environment Court, three in a series of everyday guides on the RMA, published by the Ministry for the Environment and available from councils, or from the Ministry's website (www.mfe.govt.nz).
It is important to understand that no matter whether they are interested or affected, no party other than the council itself has any right of veto over an application. If you are not happy with the council's decision, there are opportunities to appeal that decision to either the Environment Court or High Court, depending on what you are not happy with. These are formal and usually expensive processes.
The various opportunities for involvement in resource consent decision-making are illustrated in the fictitious scenarios set out in the following text box. The jargon that councils commonly use in corresponding with parties on consent applications is explained in this context.
The resource consent process and tangata whenua - some scenarios
You can get involved in influencing resource consents in several ways. The following examples illustrate the various opportunities you have to become involved.
The iwi is consulted by Applicant A
Applicant A wants to build a hotel on the lake front next to some natural hot pools. He approaches the local council. The council's planner tells Applicant A that if he wants to go ahead he will need a resource consent. The council planner also suggests that before the applicant applies to the council he should consult with the tangata whenua. Given the iwi's relationship with the lake, the council planner thinks they will be interested. The planner gives Applicant A the contact details for a representative of the local iwi.
Applicant A contacts the iwi representative and arranges a meeting. At the meeting the iwi representative is given a copy of the applicant's plan. Applicant A and the iwi representative reach an understanding about the internal hapū process required to get feedback, how the cost of this can be met, and how long it will take. Once discussions have taken place within the iwi, the iwi representative contacts the applicant and explains what the iwi likes and dislikes about the proposal. She also offers a suggestion on how the proposal might alleviate some of her iwi's concerns.
Applicant A thinks about what the iwi representative has told him and decides to alter his plans by setting aside a reserve between the lake and his hotel. He prepares an assessment of environmental effects (AEE), which he must give to the council along with his application for resource consent. In the AEE, Applicant A says that he has talked to the iwi representative and that she has talked to her people. He also includes the feedback he got from the representative and explains what he proposes in response.
This is called being consulted before an application is made, or pre-application consultation. While an applicant is not required to do this, it is recommended good practice and its value is supported by case law.
The council might use the information provided by the iwi representative to help decide:
- whether an application should be publicly notified
- who it should regard as an affected party
- whether the information supplied by the applicant is sufficient
- what the effects of the proposed development might be.
Reality check: Applicants may be resistant to consulting you before finalising their proposals and/or lodging their applications. In such cases, you will be reliant on councils recognising that particular applications may be of interest or concern to you (see next scenario).
The iwi is notified about a consent application
One day the iwi representative gets a letter from the local regional council about an application for a resource consent she has never heard about before. The application is from Applicant B, the owner of a large dairy farm. Applicant B has just installed a new milking shed and wants to discharge waste from the new shed into a river that flows through his property.
The council's rules don't allow for dairy shed waste to be discharged into rivers. In fact the regional plan states that any application for discharge of waste into rivers should be automatically publicly notified. The council has told Applicant B that the application will be notified but that he really should consult with the tangata whenua before making an application as they are likely to be directly affected by what is proposed. However, Applicant B decided not to talk to the tangata whenua.
The letter the iwi representative receives tells her that the council has an application from Applicant B that might be of interest to her iwi, that it is being publicly notified and that the iwi has until the end of the month to make a submission.
The council sent the letter just in case the iwi representative has not seen the public notice in the newspaper. The iwi will be able to make a submission - but so will anybody else.
This is called being advised of a notified application (or being served notice).
Reality check: A council officer will often make a decision as to which tangata whenua (if any) are likely to want to respond to specific consent applications. Unless there is an agreed process in place, relevant tangata whenua can be overlooked. Even with an agreement, processes can occasionally break down. To be certain that opportunities to respond to notified resource consent applications are not missed, you should regularly check the public notices in the newspaper or the council website, or both.
The iwi is identified as an affected party
Another day the iwi representative gets a letter from the local council. The letter says that the council has received an application from Applicant C, who wants to build a new house on a ridge overlooking the estuary. The iwi representative didn't know anyone was planning to build on that ridge.
The council is advising the iwi of the application because when the council planner visited the ridge to look at where Applicant C wants to build her house, he noticed a lot of shells and some uneven ground that suggested it might once have been occupied by tangata whenua.
The council decided that the local iwi is an affected party. The letter it wrote to the iwi representative said that the iwi could make a formal submission on Applicant C's application.
In this case the iwi representative is the only person the council wrote to. Only her iwi can make a submission.
This is called limited notification to an affected party.
Reality check: As with scenario B, the council officers would need to know which tangata whenua to contact. In this case, council officers would also need to be able to anticipate an issue of interest to tangata whenua. This may be problematic when council officers are not aware of such issues.
Applicant D seeks the iwi's written approval
Applicant D wants to build a new marina just down the road from the local marae. Applicant D has prepared plans that show a new marina just inside the mouth of the local estuary. When he shows these plans to the regional council planner, the planner realises that if the marina is built where Applicant D wants it, pipi beds used by the local marae might be lost.
The council planner tells Applicant D that the regional council will consider the local iwi as an affected party. He also says that the council will also treat the local boat club as affected because they use the area for boating activities (sailing school, waterskiing, etc).
Applicant D is very keen to begin work on the marina in the coming summer so he doesn't want the marina application to be publicly notified. Applicant D rings up the iwi representative and arranges to come and talk to the marae committee. He also contacts the boat club.
The marae committee holds a hui, where Applicant D explains what he wants to do. He explains how much of the pipi beds can remain available for the marae and how the marae committee will have access to a berth in the new marina.
In return he asks that the marae committee give their written approval to the proposed marina. After internal consultation and discussion, the iwi decides that most of the pipi beds would not be affected and with their access to the berth they will be able to get easier access to other kaimoana. They give their written approval to Applicant D and sign the appropriate development plans.
This is called gaining written approval from affected parties.
Reality check: The applicant may not be active in consulting with tangata whenua before finalising their proposals. The marae committee may not be prepared to lose a portion of the pipi bed, and the applicant may not be prepared to modify his proposal to avoid that loss. In such situations, the marae committee are perfectly within their rights to refuse to give their written approval. They are then likely to have an opportunity to lodge a submission on the application, if the applicant decides to proceed and their application is publicly notified.
The applicant may also get the written approval of some tangata whenua who may not be mandated to speak for a group and may not understand the consequences of their support. While this may result from applicants failing to understand hapū dynamics, the result can be a cause of divisions within tangata whenua.
Applicant E negotiates with iwi over obtaining their written approval
Applicant E wants to erect a cellphone communications aerial on a promontory near a marae. The site is a former pa, and it is referred to in pepeha of the marae. Tangata whenua understand the positive gains from the proposal, which will provide cellphone coverage for their area and out to sea. The seaward coverage will significantly contribute to marine safety.
The applicant and tangata whenua discuss how their concerns can best be resolved. The applicant agrees to continue dialogue about the most appropriate location of the tower so maximum coverage can be maintained but it is not visible from the marae. The applicant agrees that tangata whenua will be engaged to oversee initial works to ensure no cultural heritage sites are compromised and that tangata whenua will be informed when there are job opportunities for construction and maintenance.
The applicant agrees to resource the process. The tangata whenua agree not to oppose the applicant.
Reality check: If tangata whenua are not skilled in negotiating agreements, they may find they have been excluded from opposition but the fine print of the agreement fails to support the concerns that they have raised and thought were resolved. There is also the possibility that people can be 'bought off', leading to a short-term gain and a long term loss. Finally, while side agreements can be a means of reaching effective resolution, they are outside the RMA and can only be enforced under civil law proceedings. The council will not enforce any side agreements.
Applicant F proposes a non-complying subdivision of concern to iwi
Applicant F wants to subdivide a coastal property into 2,000-square-metre residential lifestyle sections. The subdivision rules of the district plan allow a minimum section size of 4 hectares. The application is classed as a non-complying activity under the district plan. The applicant argues in her AEE that the objectives and policies of the plan encourage development of subdivision where there is existing residential development, and that within 1 kilometre of the site there have been similar density subdivisions approved.
The tangata whenua identify that the specific coastal area proposed for subdivision is of special significance, and there are objectives and policies in the plan that recognise the importance of such areas to Māori and support their preservation. Tangata whenua point out that to approve this application could effectively enable all the area within a kilometre of the other settled areas to be similarly subdivided if the applicant is unable to show that this proposal has unique aspects that would differentiate it from any subsequent applications.
The council decides to decline the application as not being consistent with the plan's objectives and policies.
Reality check: The need to understand planning law and how to present tangata whenua values in its terms may prevent many tangata whenua arguments being effectively heard. Even when they are, you can not always expect that the decision made by the council will support tangata whenua values, as there will be many factors influencing their decision. Where a proposal may have a significant impact on tangata whenua values and there is a need for these to be clearly articulated, tangata whenua may wish to employ the services of an expert such as a resource management lawyer or planner to help them to prepare and present their case.
The iwi makes arrangements with the council to view applications received
After a request from the iwi, the council instigates a new practice. It agrees to send a weekly summary of every resource consent application that it receives to the local iwi representative.
The iwi representative carefully reads the summary, noting down any applications she thinks the iwi might have an interest in. She has some internal guidelines to help her and an agreed timeframe for getting back to the council. Once she has a complete list of all the applications that seem to be of interest, she sends a fax back to the council asking for copies of all the applications on her list.
She receives copies of the applications the next day. Once she has the applications she works through them checking to see whether any issues of interest to the iwi are raised by the applications. Sometimes she goes and looks at the site where a development is proposed. If she is not sure, she discusses issues with others in the iwi.
If there are applications that affect the iwi, the iwi representative will write a letter back to the council explaining that the iwi considers itself an affected party. She will also explain why and how it is affected. The iwi representative has an arrangement with the council that if she doesn't respond within a certain time the council will assume the iwi authority considers itself unaffected.
This is called responding to council-initiated consultation. Not all councils provide this opportunity, but some iwi can negotiate this arrangement with their councils. Just like Applicant A's case, the council uses the information supplied by the iwi representative to help decide:
- whether an application should be publicly notified
- who it should regard as an affected party
- whether the information supplied by the applicant is sufficient
- what the effects of the proposed development might be.
While this arrangement provides a useful safety net, it doesn't do away with the iwi's desire to be consulted by applicants early in the process over proposals that are most likely to affect them. This position is clear to the council, and it acts accordingly by advising people to consult with the iwi over particular applications that are likely to be of concern to them.
Reality check: Council staff change, their interpretation of agreements changes, and in time tangata whenua may find that the applications they have an interest in are not being sent to them for a response. Agreements must be monitored and reviewed to ensure they remain valid, and that they are respected by the parties concerned. The workload reviewing all applications can be onerous, and often unachievable. The quandary is finding the right balance: if you don't get them all, you might miss the critical one; if you do get them all, you may be too busy to find the critical one.
Section 2: How and when can tangata whenua get involved?
© Ministry for the Environment