4. Planning as a community

This illustration presents the first step in the planning process for managing freshwater, if councils choose to use a collaborative planning process. It shows councils, iwi/Māori and communities coming together to begin the planning process.

This is the first of three chapters that describe in more detail the Government’s reforms. This chapter presents a new approach to planning and decision-making processes. Rather than legal action and conflict, this should facilitate inclusive community discussions on local challenges and aspirations, and the gathering of robust information.

The immediate reforms focus on quality decision-making and provide:

• a collaborative planning process for fresh water, as an alternative to the existing RMA process
• effective provisions for iwi/Māori involvement in freshwater planning and decision-making.

These topics are described in this chapter, along with the expected benefits and challenges, and how they will be achieved.

Building on its own experience and practice, the Land and Water Forum strongly emphasised the benefits of a collaborative approach to planning and decision-making. The Forum also endorsed the need to enhance and clarify the role and status of iwi in planning and decision-making processes regarding fresh water. Another significant message from the Forum was the need for stronger national leadership in freshwater management.

Quality decision-making

Reform 1: A collaborative planning process for freshwater-related regional plans and policy statements

Collaboration is about local government, iwi/Māori, resource users, and community members working together early in the decision-making process, and sharing science and knowledge to reduce conflict and achieve wider understanding and buy-in to decisions. Collaborative approaches are increasingly recommended internationally as good practice for dealing with contentious and complex resource management issues. Collaboration is already successfully occurring in New Zealand at regional level, and nationally, through the Land and Water Forum.

The Resource Management Act 1991 (RMA) will be amended to provide a collaborative planning process that councils may choose when preparing, changing and reviewing freshwater policy statements and plans. Councils will have a choice to use either the existing process (Schedule 1 of the RMA) or the proposed new collaborative planning model.

Using the alternative planning process would mean that:

• Councils will partner with communities and iwi/Māori from the beginning of the process to develop options and solutions jointly.
• Councils will appoint at least one collaborative stakeholder group involving representative(s) of the community and parties that have a major interest in the water body. This group will give advice as the plan is developed. Stakeholder group(s) will represent the broad range of interests affected by the plan change. The exact role of the group(s) may differ depending on the terms of reference for each, but could involve advice to council on desired values, freshwater objectives and limits for particular freshwater bodies and/or a role working alongside a council to draft plan provisions.
• Councils will have some flexibility in designing the process but, as a minimum, they must give public notice of the following elements of the process: how the council and stakeholder group(s) will work together to engage with the wider community; the nature of advice being sought from the stakeholder group(s); clear timeframes and deadlines for processes; and what to do if collaboration breaks down. Central government will provide further guidance on its expectations about the design of the process.
• The council will retain responsibility for approving a plan for notification, that reflects the consensus views of stakeholder groups. The council will be required to demonstrate a high level of transparency and rigour of analysis.
• An independent hearings panel with a majority of non-council commissioners will be appointed to consider public submissions against the evidence and analysis underpinning the notified plan. The hearings panel will make a recommendation to the council on any changes to the proposed plan arising out of submissions. The panel would run mediation processes (if required) and hold a hearing with Environment Court rigour (including cross examination). Appointments will be made by the council and include accredited commissioners and an independent chair (ie, not a councillor) with a mix of knowledge and experience on the subject matter of the plan. At least one member will be required to have an understanding of tikanga Māori and the perspectives of local iwi/Māori, and the council will consult with local iwi/Māori when deciding this appointment.
• The council will remain responsible for making decisions on submissions and consequential changes to a proposed plan. The council will be under a statutory requirement to consider the recommendations of the hearings panel. The council will be required to give reasons for its decisions, including any reasons for deviating from the notified plan and/or the recommendations of the hearings panel. Iwi/Māori will have a role in providing advice and formal recommendations to council ahead of the final council decision and the council will be under a statutory requirement to consider this advice and recommendations when making its decision on submissions.
• Appeal rights would be limited, available only when council deviates from the recommendations of the hearings panel. The Environment Court will consider the original decision made by council and have the ability to re-hear evidence, though it could decide when this was appropriate. There may be limitations on new evidence being presented and heard by the Court, particularly where it was able to be produced during the hearings panel process. The right to appeal to the High Court on points of law will be available where a council accepted the hearings panel decisions/recommendations.

Reform 2: Effective provisions for iwi/Māori involvement in freshwater planning

A more effective role for iwi/Māori in national and local freshwater planning and decision-making is a crucial aspect of recognising them as Treaty partners.

There are benefits for all in clarifying and enhancing iwi/Māori role in decision-making processes. This will provide greater certainty for iwi/Māori and others with an interest in using fresh water.

A more effective role in freshwater planning for iwi/Māori will be provided for through:

• a statutory requirement ensuring iwi have a place alongside other key parties and interests in alternative collaborative planning processes, described in quality decision-making reform 1
• a role for iwi in providing advice and formal recommendations to a council ahead of its decisions on submissions, with a statutory requirement for the advice and recommendations to be explicitly considered before decisions are made. These requirements would apply to all decisions on submissions on freshwater plans, whether they are developed under the new collaborative process or the existing process in Schedule 1 of the RMA.

This new role will not displace or override any existing arrangements that have been created under Treaty settlements. Iwi and councils will also have the freedom to reach a different arrangement for the advisory and recommendation role, if this would better meet local needs, as currently occurs in some regions.

Benefits of these reforms

Many councils are choosing more collaborative approaches to planning. This reform supports this direction by limiting the costly appeals processes that could otherwise undermine good quality collaborative processes.

A collaborative planning process is more likely to reflect the diverse range of community values and interests than today’s framework. It can provide opportunities to accommodate the broad range of community interests (eg, iwi, farmers, kayakers, urban dwellers, industry) by allowing people to have their say and to listen to the views of others early in the process. Communities can then work together towards the outcomes they want for fresh water in their region. A collaborative planning process will provide a basis for considering iwi values in decision-making processes and engaging with iwi, and better reflects the Treaty partnership.

Even if unsuccessful in reaching consensus or agreeing solutions, a collaborative process can provide good information to decision-makers. And by supporting councils to engage with communities about their values and interests earlier, and, over time, can build stronger relationships and trust.

Challenges of these reforms

Planning as a community will be challenging and complex. Councils will need to build capability in running collaborative processes and communities will need to meet different (and possibly increased) demands as they commit to and engage in collaborative planning.

Where councils use the new collaborative process, councils are likely to find they have to commit a lot of effort and resources at the beginning to build and run a good collaborative process. This may require new skills to be built – for example, skills in running an intensive community process, or turning technical information into ‘plain English’. The Government has a role in supporting councils in these challenges by providing an implementation package – for example, tools or targeted assistance to help run a robust process.

Engaging in the alternative planning process (including the collaborative process and the hearings panel) will place different demands on those who participate (council, community, iwi, stakeholders) from what they are used to under the current Schedule 1 process, where full engagement may not occur until the Environment Court process. Collaborative engagement requires a significant commitment, such as time for reading materials, attending meetings, digesting scientific reports and travel (although there is expected to be an off-set of reduced costs and time spent resolving appeals). This may be particularly challenging for those whose interests are spread over many areas, rather than localised. Learning to work collaboratively and finding ‘win-wins’ rather than taking an adversarial approach may be a new way of working for some participants.

Reform phasing