Past RM review processes

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

“Importantly, in 2013 the Crown decided not to make any reforms in respect of section 33 transfers, Joint Management Agreements, and iwi management plans.”

“Urgent reforms were needed on these parts of the RMA to remove statutory barriers to their adoption, and to make them more genuinely available to iwi and councils.”

“The Wai 262 Tribunal had recommended significant reforms in its 2011 report.”

“The Crown decided in 2013, however, to limit its enhanced ‘iwi/Māori participation’ in freshwater management to a mechanism for giving advice to councils on RMA plans. We found that the Crown’s omission to adopt and pursue reforms that would improve the governance and co-management tools in the RMA, and enable them to be actually used, was a breach of the Treaty principles of partnership and Māori autonomy. Māori were prejudiced in their ability to exercise tino rangatiratanga in freshwater management and in RMA processes more generally, and – as the evidence throughout this inquiry has shown – this prejudice was serious.”

“It was particularly concerning to the Tribunal that the RMA already had these tools to provide for the Treaty partnership in freshwater management but that the Crown had put those tools beyond the reach of tribal groups unless they could secure co-management arrangements in their Treaty settlements. Some have done so but many have not, yet the RMA theoretically made co-management available to all iwi. We found that the Crown’s omission to reform the RMA and make these RMA mechanisms genuinely effective was a breach of Treaty principles.” (7.3.6 RMA reforms: the Crown’s decisions on enhancing participation prior to Next Steps)

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

“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.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.3.7 The ‘Next Steps’ co-design process)

“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.” (7.3.8 The effectiveness of the ‘Next Steps’ process in developing and progressing reforms to address Māori rights and interests)

“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.”

“Also, no funding actually materialised as a result of the proposal about water infrastructure on marae and papakāinga.”

“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.” (7.3.8 The effectiveness of the ‘Next Steps’ process in developing and progressing reforms to address Māori rights and interests)

“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 were not convinced that the final version of the Mana Whakahono a Rohe mechanism, in the form that it was enacted in 2017, will have a material impact on the situation. For this new participation arrangement to be more than a mechanism for consultation, legislative amendment is required and resources must be found. The Mana Whakahono a Rohe agreements have the potential to improve relationships and to ensure that iwi are consulted on policy statements and plans.”

“They will likely result in an enhanced role for Māori in decision-making at the front-end, planning stage of the RMA. But the range of matters iwi and councils are compelled to negotiate and agree on is very limited. Our finding was that the Mana Whakahono a Rohe provisions have not made the RMA Treaty-compliant.” (7.3.9 RMA reforms: Mana Whakahono a Rohe arrangements)

“The third Next Steps reform arose from the Crown’s decision on the issue of resourcing for capacity and capability. The Crown and the ILG had agreed to ‘consider ways to build iwi and hapū capability and resourcing to enable effective participation in freshwater decision-making’.26 The result was an objective to ‘[b]uild capacity and capability amongst iwi/hapū and councils, including resourcing’ (emphasis added). The Crown dropped the phrase ‘including resourcing’ from its reform proposal on this matter, and the proposal in Next Steps was for the Crown to ‘build capacity and capability by providing training and guidance’.”

“In response, the strongest theme in the consultation submissions was the need for additional resourcing to support Māori and councils to carry out the additional requirements on top of the already resource-intensive RMA processes. The Crown did not change its mind, and so the ultimate outcome in this case was a guidance manual and training on Mana Whakahono a Rohe.”

“We found that the Māori Treaty partner has made repeated appeals to the Crown over many years to assist with funding and resourcing, and these appeals have not been adequately met. The Crown’s stated objective to enhance Māori participation in freshwater management and decision-making will not be achieved unless an answer is found to the problem of under-resourcing. Many Crown documents have admitted that Māori participation in RMA processes is variable and sometimes non-existent. The Crown–ILG objective to ‘[b]uild capacity amongst iwi/hapū and councils, including resourcing’ has not been fulfilled, and it needs to be if the Crown’s reforms are to be Treaty compliant.”

“We accepted that the Crown’s reform programme is not finished, and that there is still opportunity to address this long-standing problem more effectively. We reiterated its crucial importance and the need for it to be addressed if the Crown’s reforms are to be Treaty compliant. In the meantime, Māori continue to suffer long-term prejudice.” (7.3.11 Resourcing for capacity and capability)

“We made no findings on the allocation reforms because the Crown did not make any decisions, and the new Government is in the course of deciding its freshwater reforms. We did, however, provide our view of what was necessary to make the allocation regime Treaty compliant (having found that it was not in chapter 2).”

“Our view was that an allocation of water and discharge rights for Māori land development would not satisfy the rights and interests of Māori as guaranteed by the Treaty of Waitangi. If regulatory reforms are to deliver something approximating the Treaty guarantees in today’s circumstances, then an allocation for the exclusive use of iwi and hapū is also required. That allocation should be inalienable other than by lease, and it should be perpetually renewable (as all consents are in theory, provided there is still allocable water available). We did not see any insuperable obstacle to this, given the arrangements for Māori that the Crown has agreed to in the past concerning commercial aquaculture and fisheries. We agreed with the Crown that the circumstances of catchments must be taken into account when the details are decided, especially where catchments are over-allocated. But RMA reform can provide a solution without the need for a national percentage, which was one of the former Government’s bottom lines. The details of such a reform could be worked out by a national water commission if one is established.”

“The evidence suggested that some Māori groups will not consider that their proprietary rights are fully satisfied by an allocation of water and/or discharge rights, if allocation reforms of that type do in fact eventuate. If the Crown is only prepared to consider regulatory reform, the other mechanism which the RMA can offer is a charge or royalty.”

“We also considered that, if it is necessary to go outside the RMA for solutions, the Crown’s previous bottom lines (2015–17) were not likely to permit a Treaty compliant outcome. We did not consider the new Government’s bottom lines (described as ‘parameters’) because we lacked the necessary evidence. We noted, however, that, if the Crown’s decision is still to confine allocation to Māori land development, then that will not produce a result that makes the RMA and its allocation regime compliant with Treaty principles. Too many Māori have lost too much land throughout the country as a result of Treaty breaches for that approach to have any prospect of being compliant with Treaty principles.” (Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims (2019): 7.5.6 Our view of a Treaty-compliant allocation regime)

“It seems to us that there are some commonalities in the various approaches that have been put forward so far. The stakeholders of the Land and Water Forum clearly saw that a national commission is necessary, and that it must be established on a co-governance basis (points held in common with the NZMC and the Wai 2601 claimants). The claimants and interested parties also agreed that there needs to be a role for the exercise of tino rangatiratanga at the national level, in partnership with the Crown, although they had differences on what kind of institutional arrangement would best reflect that partnership function. The Crown has said that it is open to exploring such matters but has not endorsed an institutional role for Māori at the national level. In practice, we note that it has developed most of its reforms in collaboration with the appointed representatives of a national Māori body (the ILG and IAG) and more recently with Te Kahui Wai Māori.”

“In our view, another point of agreement between the forum and the claimants is that there is a significant gap in the freshwater policy and management structure (following the dissolution of the National Water and Soil Conservation Authority); there is no independent national body to oversee the system, monitor performance, develop policy, and conduct research on a national scale. We agree that this is a significant gap. For example, the need to conduct research and to develop and populate the NOF underlines the need for this gap to be filled.”

“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.” (7.6.5 Our view of the water commission proposals)