Consenting

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

"Improvements to land use planning under RMA due to part 2 requirements and the enactment of the New Zealand Historic Places Trust Act 1993 also came a little too late for other taonga sites of significance such as Maniapoto’s Cave. While the legislation led to greater participation from affected Māori post 1991, in practice that participation has been reduced to consultation and information sharing. In Te Rohe Pōtae, this practice is evident in the case studies reviewed after the year 2000. Where consultation and participation has occurred in relation to planning and consents, Te Rohe Pōtae Māori consent was given with qualifications that they wanted respected. However, sites were and are still being disturbed, damaged or destroyed."

"Importantly, consultation for the completion of a resource consent application is not mandatory either by an applicant or local authority. This provision in the RMA was enacted as late as 2005. Thus any consultation is usually only undertaken to advance a local or regional authority planning process or an applicant’s resource consent proposal, where they need to provide a cultural assessment of the sites or waterways subject to the application. Iwi rightly ask : What is the benefit to them of such a system, given the evidence is that decision makers rarely gave full consideration to Treaty of Waitangi principles, other than superficial tick box exercises around stating that they have complied with part 2 or section 8 of the RMA" (p 497)

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

"Professor Jacinta Ruru, David Alexander, and other claimant witnesses confirmed that Māori interests have also been balanced away in freshwater management decisions during the period under review in chapter 2. We noted that this situation may improve to some extent, depending on the application of the Supreme Court’s King Salmon decision. We also noted the Crown's view that there was an ‘increasing sophistication’ in the Environment Court's treatment of Māori interests. But litigation remained a costly exercise, time and expertise-intensive, which was beyond the reach of many iwi and hapū. Also, RMA consent hearings have presented the same barriers, to the prejudice of Māori. In our view, statutory amendments are required to ensure that RMA decision-making on freshwater matters is Treaty compliant."

“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: [including]

• 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.
• 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.

“We are aware that monitoring and enforcement of consent conditions is also a significant issue in the freshwater management regime, but we did not receive sufficient evidence to make a recommendation (other than the recommendation made above in respect of Joint Management Agreements).”

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“While the ‘He Hokioi Rerenga Tahi/The Lake Horowhenua Accord’ (2013) has created opportunities to work in partnership with local bodies, and that is to be applauded, under the RMA 1991 and the local government legislation Muaūpoko have no lawful rights to control or to enforce the commitments made in that accord In other words, Muaūpoko mana whakahaere (control and management) over their taonga is not fully provided for under the current legislative regime Such a situation can be compared to the rights that the Waikato-Tainui river tribes have in terms of the Waikato River under the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. The 2010 legislation states that the ‘RMA 1991 gave regional and local authorities substantial functions and powers over natural resources, including the power to grant resource consents for river use’. It is further recorded that the RMA does not provide for the protection of the mana of the river or the mana whakahaere (ability to exercise control, access to, and management of the river) of Waikato. It notes the number of resource consent proceedings that the tribe had been involved in, and then the Crown acknowledges, among other things, that it ‘failed to respect, provide for, and protect the special relationship of Waikato-Tainui’ with the river.”

Wai 796: The Report on the Management of the Petroleum Resource

“Recommendation: Joint consent hearings by local authorities be put to greater use.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“In addition, as with the land use studies above, the RMA cannot be used to require historical rectification of environmental effects. Therefore, the historical destruction of wāhi tapu, archaeological sites, the desecration of Maniapoto’s Cave and the historical effects of mining operations on the lakes at Tahāroa, are not matters that new consents can address. All that can be done is to make sure new resource consents (and associated conditions) are adhered to. Whether or not enforcement is undertaken depends on the views of the regional or local authority concerned or Heritage New Zealand, rather than Ngāti Te Wehi, Ngāti Maniapoto, Ngāti Mahuta or any other group affected.” (p 497)