Direction/accountability

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

“Our findings on these issues [included]…” “councils very rarely provided an allocation to Māori in the absence of strong national direction."

“Our finding was that the NPS-FM 2011 did not provide adequate controls and standards for the active protection of freshwater taonga, and it was not consistent with the principles of the Treaty of Waitangi. On the other hand, we accepted that the Crown had finally provided some belated direction to regional councils.”

Wai 1130: Te Kāhui Maunga – The National Park District Inquiry Report

“In the National Park inquiry context, we make three recommendations which, taken together, will increase opportunity for ngā iwi o te kāhui maunga to exercise their kaitiakitanga over their waters. They include local action and national action and sit within the present resource management framework. Those recommendations are that:

That the Crown prepare a national policy statement for Māori participation in resource management (section 45(1) of the RMA). Such a policy statement should be consistent with the recommendations of Ko Aotearoa Tēnei and identify mechanisms for the exercise of kaitiakitanga, for partnerships between iwi and regional councils, and for the involvement of iwi in decision-making with respect to te ao tūroa, the sustainable management of resources.”

Wai 262: Ko Aotearoa Tēnei

“Accordingly, we recommend that the RMA regime be reformed, so that those who have power under the Act are compelled to engage with kaitiaki in order to deliver control, partnership, and influence where each of these is justified, specifically:

Greater use of national policy statements: We recommend that the Ministry for the environment develop national policy statements on Māori participation in resource management processes, including iwi resource management plans, and arrangements for kaitiaki control, partnership and influence on environmental decision-making.”

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

“Recommendation: The Crown produce National Policy Statements and National Environmental Standards to provide guidance to territorial authorities on enhancing and protecting taonga and wāhi tapu.”

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2 

“However, a number of the key recommendations of the reviews that we have summarised have not been implemented. In particular, despite the unanimity of the reviews on these key points, there is still no standalone Māori heritage agency, and there is still no national policy statement for heritage management. Other areas where significant issues remain almost entirely unaddressed include: the continuing ambiguity about the role of, and funding for, the trust’s register; the lack of incentive funding at the local authority level; and the lack of funding to assist iwi and hapū to create heritage databases.”

Wai 304: Ngawha Geothermal Resources

“We reiterate here that the Treaty was between Maori and the Crown. The Crown obligation under article 2 to protect Maori rangatiratanga is a continuing one. It cannot be avoided or modified by the Crown delegating its powers or Treaty obligations to the discretion of local or regional authorities. If the Crown chooses to so delegate, it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”

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

“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. 

“We reiterate the recommendations of previous Tribunals that the Crown should monitor the Treaty performance of local authorities. For freshwater matters, this should be carried out by the co-governance body.”

“We also reiterate the recommendation of the Wai 262 Tribunal, that councils make regular reports on their activities in respect of section 33 and 36B to the Parliamentary Commissioner for the Environment or – in the case of freshwater bodies – to the co-governance body if it is established.”

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

“We also recommend that a commissioner be established, perhaps with the title of Treaty of Waitangi commissioner, to monitor local authorities’ performance in respect of Treaty obligations delegated to them by the Crown.” “The Crown has failed to monitor the performance of its delegated Treaty responsibilities by local authorities. Although councils are trying, their efforts have been piecemeal and have not met with particular success. The Crown has failed to monitor this situation or assist with constructive solutions.”

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2 

“We find that much more active Crown oversight is required if such transfers or sharing or powers are to occur. We find that they must occur, if the Crown is to avoid further breaches of the principle of partnership and its duty of active protection. As demonstrated by the history of customary fisheries, the Crown has a legacy of passing legislative provisions that would enable a measure of Māori rangatiratanga over their property and taonga, only to then leave the provisions unsupported and unpromoted so that they are never utilised. In such cases, as found by the Manukau Report, ‘[t]hose words mean nothing’. The principle of partnership and the duty of active protection oblige the Crown to ensure that under its legislation Māori can – and do – exercise rangatiratanga over their taonga.”

Wai 304: Ngawha Geothermal Resources

“We reiterate here that the Treaty was between Maori and the Crown. The Crown obligation under article 2 to protect Maori rangatiratanga is a continuing one. It cannot be avoided or modified by the Crown delegating its powers or Treaty obligations to the discretion of local or regional authorities. If the Crown chooses to so delegate, it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”