Waitangi tribunal report abstracts relating to the RMA and co-governance/co-management and co-design
Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims
“Having heard the evidence of the claimants and interested parties in both stage 1 and stage 2 of this inquiry, our view is that the Māori Treaty right in the management of most freshwater taonga is at the co-governance / co-management part of the scale. Freshwater taonga are central to tribal identity and to the spiritual and cultural well-being of iwi and hapū, and traditionally played a crucial role in the economic life and survival of the tribe. The Crown’s guarantees to Māori in the Treaty, including the guarantee of tino rangatiratanga, require the use of partnership mechanisms for the joint governance and management of freshwater taonga.”
“The exception to co-governance and co-management is that, in some cases, the strength of the Māori interest in a particular freshwater taonga may be such that it requires Māori governance of that taonga. Our view was that the presence of other interests in New Zealand’s water bodies will more often require a co-governance/co-management partnership between Māori and councils for the control and management of freshwater taonga; that is the Treaty standard for freshwater management.”
“In making this finding in chapter 2, we were not departing from the Wai 262 findings but rather specifying the Treaty standard for one particular resource out of the many that come under the RMA.”
“Having set the Treaty standard for freshwater management and decision-making, we assessed the RMA mechanisms against that standard. We also examined the Crown’s argument that statutory arrangements and Treaty settlements have created a ‘tapestry of co‑governance and co-management arrangements for waterways across New Zealand’ since 2011.5 We accepted that the RMA has a number of participation mechanisms for Māori, including section 33 (which enables the transfer of functions and powers to iwi authorities), section 36B (which enables Joint Management Agreements between councils and iwi or hapū), the provision for iwi management plans, and the schedule 1 consultation requirements for regional plan making. The provision for Heritage Protection Authorities, however, does not apply to water and therefore does not provide a mechanism for Māori to participate in freshwater management.”
“After examining the evidence and submissions, we found that these participation mechanisms were flawed and had not delivered results that were consistent with either the intention behind some of them (sections 33 and 36B) or the principles of the Treaty. Our findings on flaws in the particular RMA mechanisms were as follows:
- Section 33 of the RMA has never been used to transfer power to iwi authorities. This is partly due to the existence of significant barriers within the terms of section 33 itself, partly to poor relationships between some councils and iwi, and partly to the Crown’s failure to introduce either incentives or compulsion for councils to actively consider its use.
- Section 36B (as to joint management) has only been used twice since its introduction in 2005, apart from mandatory use in some Treaty settlements. This section of the RMA was supposed to compensate for the non-use of section 33. Instead, it has remained severely under-used for the same reasons that section 33 itself has not been used. That is, there are high barriers within section 36B itself to its use by councils and iwi or hapū (as the Crown has acknowledged),6 and the Crown has not provided incentives for its use or any compulsion to actively consider its use.
- Iwi management plans have not been accorded their due weight in RMA planning. The Crown has turned down repeated calls for the enhancement of their legal weight.
- The consultation requirements of the RMA have been confined to the plan-making phase of freshwater decision-making (consultation is not required for the consenting phase). The consultation requirements have also suffered from under-resourcing and the lack of a clear path for consultation to take place in a meaningful and effective way. Crown counsel argued that the new Mana Whakahono a Rohe mechanism will provide just such a path (our findings on that new mechanism are summarised below).”
“Alongside these flaws in the RMA mechanisms themselves, we found that under resourcing has contributed to a lack of capacity and capability for many Māori entities in freshwater management. This has crippled their ability to participate effectively in RMA processes. Examples included the ability to meet the ‘efficiency’ requirements of sections 33 and 36B, to prepare effective iwi management plans, and to participate effectively (or at all) in consultation and RMA hearing processes.”
“The Local Government Act 2002’s requirement that councils must ‘consider ways to foster the capacity of tāngata whenua’ has not sufficiently addressed this crucial problem. The Crown has recognised the existence and importance of this problem in multiple policy and consultation documents since 2004, as we set out in chapters 2-4.”
“For all the above reasons, we found that the participatory arrangements of the RMA are not consistent with the principle of partnership and the Treaty guarantee of tino rangatiratanga. Māori have been significantly prejudiced because they have been unable to exercise kaitiakitanga effectively in respect of their freshwater taonga, and their rights and interests have been excluded or considered ineffectively in freshwater decision-making.”
“We also noted that none of the recommendations of the Wai 262 Tribunal in respect of section 33, section 36B, and iwi management plans have been carried out since that report was issued in 2011.”
“We accepted, however, that Treaty settlements have delivered co-governance and co-management authority for a limited selection of freshwater taonga.”
“Council practice and iwi-council relationships have also improved in some areas– mostly but not entirely due to Treaty settlements. Some councils have provided limited funding. But some of the participatory arrangements created by Treaty settlements, or by councils of their own initiative, have been limited to an advisory role. Some have also been limited to segments of the freshwater management process, such as plan-making. Our conclusion was that Treaty settlements have provided for the exercise of tino rangatiratanga over selected waterways, such as the Waikato and Whanganui Rivers. But not all iwi who have settled with the Crown obtained those kinds of arrangements, nor will they necessarily be available for groups which are yet to settle. In those cases, Māori participation in freshwater management remains limited in nature. The Crown could not reasonably rely on the Treaty settlement process, therefore, to avoid reforming the participatory arrangements in the RMA.”
“We also found that the NPS-FM will not be Treaty compliant until section D is reformed in such a way that it provides more effectively for the tino rangatiratanga of iwi and hapū. Our view was that this required a co-governance level of ‘involvement’ in decision-making, and national direction for councils to use partnership mechanisms in plan-making and in freshwater management more generally.”
“As summarised earlier (section 7.2.3), the Treaty requires co-governance and co-management in plan-making, as it does in other parts of the decision-making relating to freshwater taonga, for the RMA regime to be compliant with the principle of partnership and the Treaty guarantee of tino rangatiratanga. We agreed with the claimants that co-management must be ‘fixed at an irreducible involvement’, including ‘a leading role in developing, applying and monitoring / enforcing water quality requirements, and thereby protecting the mauri of water bodies’.”
“We found that Māori have been prejudiced by the following omissions from the Crown’s decisions on Next Steps reform options:
- no amendments of section 33 to make transfers of authority more accessible to iwi, or to compel councils to explore the use of this mechanism ;
- no amendments of section 36B to make JMAs more accessible to hapū and iwi, or to compel councils to explore the use of this mechanism ;
- no alternative co-governance or co-management mechanisms inserted in the RMA (to make these kinds of mechanisms available to more than a few settled iwi if JMAs continued to remain outside the reach of most hapū and iwi) ;
- no amendments to enhance the legal weight of iwi management plans ;
- no mechanisms for formal recognition of iwi and hapū relationships with– and rights in respect of – freshwater bodies, as had been proposed in the recognition workstream;
- no strengthening of the weak requirements in section D of the NPS-FM to provide a role for Māori as freshwater decision makers ;
- no recognition of proprietary rights (ruled out by the Crown’s bottom line that ‘no one owns water’) ;
- no commitment as yet to allocate water or discharge rights to Māori (either to iwi and hapū or to the owners of Māori land), which could have been made in principle in the Next Steps process ; and
- no funding or resourcing for Māori participation in freshwater decision-making, RMA processes, or the building of capacity and capability (other than through a training programme on Mana Whakahono a Rohe), thus failing to address a critical practical barrier to Māori participation.”
“The Crown rightly argued that one-off co-governance and co-management arrangements have been made for some iwi in Treaty settlements. The claimants were equally correct when they pointed out that many iwi have not obtained those kinds of mechanisms in their settlements, or have not yet had the opportunity to do so in settlement negotiations; in both cases these iwi are reliant on the RMA’s provisions. The possibility of co-governance arrangements in future settlements (as well as the type and degree) will continue to be at the discretion of the Crown.”
“Further, even if relationships are improved and discussions are held through a Mana Whakahono a Rohe, statutory barriers still inhibit section 33 transfers and Joint Management Agreements. The evidence of the Crown was clear on that point. In all these circumstances, it is at best unlikely that Mana Whakahono a Rohe will result in a greater decision-making role for Māori in freshwater management, such as co-governance and co-management, without further statutory amendment.”
“The issue of resourcing is also crucial. The ILG’s view was that ‘both local authorities and iwi must be resourced to ensure that the establishment and implementation of Mana Whakahono a Rohe agreements is as successful as possible’.”
“We agreed. The evidence in our inquiry was that the lack of resources has prevented effective Māori participation in RMA processes. Mana Whakahono a Rohe arrangements will be no different in that respect unless resources are provided.”
“The fact is that governance and co-management mechanisms have been available under the RMA for 28 and 14 years respectively. But Parliament has made those mechanisms virtually inaccessible to iwi, and the Crown has repeatedly omitted to introduce amendments and remove the unnecessary barriers. We found that this is profoundly unfair to Māori, and it is not consistent with the principles of the Treaty of Waitangi. Māori have been prejudiced by these repeated acts of omission. Those who lack co-governance and co-management arrangements in their Treaty settlements are unable to act effectively as Treaty partners in freshwater management. They are unable to exercise their tino rangatiratanga and kaitiakitanga in respect of their freshwater taonga, to the extent guaranteed and protected in the Treaty.”
“We agree with the forum and the claimants that there should be an independent national body established on a co-governance basis with Māori. At a minimum, its role should be to act in partnership to ensure that Treaty principles and Māori values, rights, and interests are fully incorporated in freshwater policy and management.”
“We also agree with the ILG that the Crown could, and in some cases should, develop policy on a co-design basis with an existing national Māori body or bodies, with the choice to be made according to the nature of the issues and the Māori constituency most involved with those issues. Either model could work so long as it is institutionalised, but the value of the co-governance model proposed by the NZMC is that it is a decision-making body. One of the flaws in the co-design process carried out for freshwater reforms in 2015–16 was that the decisions were not made in partnership but by the Crown alone. The results were disappointing given the options supposedly on the table, the sustained effort put in on both sides, and the actual outcomes for Māori. In terms of the scope and possible functions of a co-governance partnership body, our view is that that is a matter to be negotiated and decided by the Treaty partners, but we have recommended that the Crown include some particular functions where that seemed necessary.”
“We recommend a number of paths and mechanisms for co-governance and co-management which, severally or in combinations, will enable iwi and hapū to arrive at the most appropriate arrangement for their particular rohe and for each of their water bodies:
- A national co-governance body should be established with 50/50 Crown–Māori representation, to ensure that Treaty principles and Māori values, rights, and interests are fully incorporated in freshwater policy and management. The details should be arranged between the Treaty partners.
- Sections 33 and 36B of the RMA should be amended to remove statutory and practical barriers to their use, to provide incentives for their use, and to compel councils to actively seek opportunities for their use. Sections 33 and 36B should also be amended so that transfers of power and Joint Management Agreements cannot be revised or cancelled without the agreement of both parties. Section 33 should be amended so that transfers of power in respect of a water body or water bodies may be made to hapū. Joint Management Agreements for water bodies should apply to the whole catchment of a water body, and should include (among other things) ‘a leading role [for iwi and hapū] in developing, applying and monitoring/enforcing water quality requirements’, and a decision-making role in both plan-making and relevant consents.
- Sections 33 and 36B should also be amended to include a process for iwi authorities to apply to councils for transfers and Joint Management Agreements. A mandatory process of engagement would follow any application, with mediation and the assistance of the Crown (or the co-governance body for freshwater applications) to be available as required.
- The Mana Whakahono a Rohe provisions of the RMA should be amended to make the co‑governance and co-management of freshwater bodies a compulsory matter that must be discussed and agreed by the parties. Other matters could also be made compulsory (as discussed in chapter 4), and the Crown should discuss and agree to any such further proposed amendments with the ILG, which designed the original Mana Whakahono a Rohe proposal.
- Objective D1 of the NPS-FM should be amended to specify that iwi and hapū must be directly involved in freshwater decision-making, that Māori values, rights, and interests must be recognised and provided for in freshwater decision-making, and that councils must actively seek opportunities to enter into section 33 transfers and section 36B Joint Management Agreements for freshwater bodies (where Treaty settlements have not already established co-governance agreements for freshwater bodies). Consequential amendments should be made in policy D1, and further policies could be inserted as required. These amendments should specify ‘a leading role [for iwi and hapū] in developing, applying and monitoring/enforcing water quality requirements’, and a decision-making role in both plan-making and relevant consents.
- The RMA provisions for iwi management plans should be amended to provide that, in the case of water bodies where co-governance and co-management has not been arranged, the iwi and hapū management plans filed by kaitiaki will have greater legal weight in the process of developing or amending regional plans and in consenting processes.
- The Crown should offer co-governance / co-management agreements for freshwater bodies in all future Treaty settlements, unless sole iwi governance of a freshwater taonga is more appropriate in the circumstances.”
“We also recommend that the national co-governance body should assess whether a separate Water Act is necessary. Whether such an Act is required or not, we do not recommend the duplication of authorities at the regional level. Land, water, and other natural resources should be managed in an integrated manner by regional councils on a co-governance/co-management basis with iwi and hapū.” (7.7.3 Co-governance and co-management)
Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims
“We hesitated to characterise this as a partnership model in the period up to 2014, because there was no co-design of the version of the NPS-FM that was issued in 2011, and only limited co-design of the 2014 version. The real co-design phase came later in 2015–17…” “The result of the collaboration was a quite limited treatment of Māori rights and interests in the first six years of the Crown’s freshwater reform programme.”
“From 2014 to 2017, the Crown and ILG entered into two phases of ‘co-design’ of reform options: the first was the ‘Next Steps’ phase (summarised here); and the second was the work of the officials and the IAG on a revised version of the NPS-FM in 2017 (summarised in section 7.3.10).”
“In Treaty terms, co-design was probably the most important process innovation of the Crown’s freshwater reform programme. Our view was that the process of co-design with a national Māori body, followed by wider consultation with Māori and the public, was compliant with the principles of the Treaty. The Crown is to be congratulated on this innovation, which we thought should become a standard part of government policy-making.”
“We also found that the Crown did not breach the principle of equal treatment in its choice of the Iwi Chairs Forum (and its appointed iwi leaders group) as the national Māori body with which to work. Having said that, we thought that the need for other perspectives in the co-design process became clearer as time went on. When the NZMC filed its claim in 2012, it presented itself as a national Māori body with a particular and contrasting view to that of the ILG – a view that was also widely supported by a number of interested Māori parties. We think it was evident to the Crown that it ought to have broadened its co-design programme to include the NZMC, and this was a missed opportunity to have included the view that the Māori council represented.”
“Although the co-design concept was promising in Treaty terms, we found that its outcomes in 2016 were disappointing. This was primarily because the Crown reserved the final power of decision-making to itself alone, and its decisions were not – for the most part – Treaty compliant.”
“We concluded that ‘co-design’ of reforms by the Crown and iwi leaders did not fulfil its potential. The Crown’s omission of so many important options to address Māori rights and interests seriously limited the value of its freshwater reforms in Treaty terms. In particular, the Crown’s Next Steps reforms did not meet their stated objective of enhancing Māori participation in freshwater management and decision-making, other than providing a new mechanism to improve relationships and schedule 1 consultation. We summarise our view on the Mana Whakahono a Rohe mechanism further when we assess the Crown’s RMA reforms in the next section.”
“The RMA’s allocation regime was urgently in need of reform in the early 2000s. The first-in, first-served approach had resulted in the full or over-allocation of many catchments. During the co-design of the Next Steps reform proposals, the Crown and the ILG agreed that providing an economic benefit from water was essential to addressing Māori rights and interests in fresh water. But they could not agree on what form this should take: the ILG wanted an allocation to iwi and hapū; whereas the Crown wanted an allocation for the development of Māori land.”
“The Crown had imposed bottom lines on the co-design of reform options, including that no one owns water and that there would be no generic share of water for iwi. Discussions in the ‘economic development’ workstream reached an impasse, so no reforms from that workstream were proposed in Next Steps. More work was needed to design a whole new allocation system in any case, but, as noted above, the Crown could have decided in principle that there should be an allocation for iwi and hapū.” (7.5 Allocation Reform Options, 7.5.1 Introduction)
“Broadly speaking, the ILG had a minimal role in the allocation work programme. It provided a member of the Technical Advisory Group and nominated two qualified people for the work programme team. There was also a Joint Advisory Group but its role and impact were not clear to us on the evidence we received. The Crown decided there would be no co-design of these reforms, and the ILG considered that its level of engagement with the allocation programme was inadequate. There were some discussions with the IAG as the programme developed.” (7.5.2 Collaboration)
“We also agree with the ILG that the Crown could, and in some cases should, develop policy on a co-design basis with an existing national Māori body or bodies, with the choice to be made according to the nature of the issues and the Māori constituency most involved with those issues. Either model could work so long as it is institutionalised, but the value of the co‑governance model proposed by the NZMC is that it is a decision-making body. One of the flaws in the co-design process carried out for freshwater reforms in 2015–16 was that the decisions were not made in partnership but by the Crown alone. The results were disappointing given the options supposedly on the table, the sustained effort put in on both sides, and the actual outcomes for Māori. In terms of the scope and possible functions of a co‑governance partnership body, our view is that that is a matter to be negotiated and decided by the Treaty partners, but we have recommended that the Crown include some particular functions where that seemed necessary.” (7.6.5 Our view of the water commission proposals)
“We recommend that the Crown continue its approach of co-design of policy options with a national Māori body or bodies and that this should be made a regular feature of government where Māori interests are concerned.” (7.7 Recommendations)
“We acknowledge that the national water body may come to alternative views on amendments to the NPS-FM, but if such a body is not established, or agreement cannot be reached between the Crown and Māori representatives, we recommend the following amendments to the NPS-FM:” [recommendations followed]
“If the national co-governance body has not been established, these recommendations should be carried out by the Crown in partnership, and on a co-design basis, with the Freshwater ILG, the NZMC, and Te Kahui Wai Māori.” (7.7 Recommendations, 7.7.6 Water quality)
“We recommend that the Crown recognise Māori proprietary rights and economic interests through the provision of what the NZMC has called ‘proprietary redress’.”
“In conjunction with this, we make the following recommendations concerning the RMA’s allocation regime:” [recommendations followed]
“If the co-governance body is not established, then the Crown should carry out these recommendations in partnership (and on a co-design basis) with the Freshwater ILG, the NZMC, and Te Kahui Wai Māori.” (7.7 Recommendations, 7.7.7 Māori proprietary rights and economic interests vis-à-vis the allocation regime)
“Finally, we make a recommendation that arises from one of the unfulfilled reform options in the Next Steps co-design process. We recommend that the Crown provide urgent assistance, including funding and expertise, for water infrastructure and the provision of clean, safe drinking water to marae and papakāinga.”
“This will likely need to include a subsidy scheme to resume the important but incomplete work of the previous National Drinking Water Assistance Subsidy Scheme (2005–15).”
“We recommend that the national co-governance body should devise an appropriate water supply and infrastructure scheme for marae and papakāinga, which may need to be developed and implemented with or alongside a scheme for safe, clean rural water supplies. If the national co-governance body is not established, the Crown should develop and implement a scheme in partnership with Māori on a co-design basis and with co-governance of the scheme.” (7.7 Recommendations, 7.7.9 Clean, safe drinking water for marae and papakāinga)
Co-governance/co-management and co-design
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