RMA ambition/delivery – general

Wai 894: Te Urewera Report Volume VII

“There seems to have been some improvement in recent decades, but at the time of our hearings the Crown was still not giving effect to its Treaty obligations. In particular, it did not appear that enough was being done to restore fisheries, and Resource Management Act powers to delegate or share power with iwi were not being used. As the Wai 262 Tribunal found, the Resource Management Act ‘has delivered Maori scarcely a shadow of its original promise’”

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

“Ngā iwi o te kāhui maunga have largely been excluded from the management of their water resources. Under the RMA, this task has been delegated to the Manawatu– Wanganui and Waikato Regional Councils. Ko Aotearoa Tēnei, in an examination of the RMA, has asked if the current RMA system provides for kaitiakitanga control, partnership, and influence on environmental management. It finds that the Act has not fulfilled its promise with respect to Māori: there have, in particular, been very few transfers of powers to iwi authorities”

Wai 262: Ko Aotearoa Tēnei

 “The RMA in the reform process that led to it was a beacon of hope for Māori. For the first time, it seemed that they might be able to take more positive and proactive roles in environmental decision-30 making than those they had become accustomed to under earlier legislation.”

“It is disappointing that the RMA has almost completely failed to deliver partnership outcomes in the ordinary course of business when the mechanisms to do so have long existed. It is equally disappointing that Māori are being made to expend the potential of their Treaty settlement packages or customary rights claims to achieve outcomes the Resource Management Law Reform project (now two decades ago) promised would be delivered anyway.”

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

“But it should not be forgotten that Maori were intended to be active participants in, for example, the resource management regime, from the outset – in the case of the Resource Management Act, since 1991. There are extensive provisions in that Act for recognition of the Maori interest in the management of the environment, including the devolution to them of decision-making powers. It is certainly the case that the Treaty aspirations of that legislation have never come to fruition. The complaints of Maori about the regime have come before us, and have been reported upon to the Government.”

Wai 1200 – He Maunga Rongo: Report on Central North Island Claims Stage 1 – Te Taiao The Environment and Natural Resources

“On the basis of our discussions in this chapter (and the other chapters of part V), we begin by rejecting the Crown’s contention that the RMA is consistent with the principles of the Treaty of Waitangi. In doing so, we accept the submissions made by Mr Bennion that, while the Act is an advance on previous legislation, it still fails to accord with Treaty principles. It fails in the following important respects:

• “During the reforms of the 1980s, the Crown indicated that ownership issues were not to be dealt with by the RMA. But the Crown then preserved its rights to control access to natural water, which it promptly delegated to regional or district councils. It also preserved its rights conferred by the Coal-mines Act Amendment Act 1903. Thus, while the section of the Coal-mines legislation vesting ownership in the Crown of all beds of navigable rivers was repealed, as was section 21 of the Water and Soil Conservation Act 1967, section 354(1) of the RMA provides that the Crown’s rights conferred by these statutes continue. So the Crown’s position has never been diminished by the RMA. Conversely, the Maori position has been diminished. Their rights and interests have not progressed much further than where they were pre-1991. We take this view because section 6 simply indicates that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga is a matter of national importance. Other than broadening the category of taonga that may be considered, this provision takes Maori little further than the Town and County Act 1977. Furthermore, taking into account kaitiakitanga, as listed in section 7, does not recognise that, in order to exercise kaitiakitanga, there had to be rangatiratanga. If that may not be taken into account when considering the meaning of kaitiakitanga and its relevance to the ‘matter of national importance’, then what is left? The answer has to be Maori cultural and spiritual values. This again takes Maori no further than was recognised in the Huakina Development Trust (1987) High Court decision. Finally, in terms of section 8 of the Act, all that can be considered may be restricted to those matters listed in part II. Therefore, we ask, what has been gained? The only answer must be perhaps a greater right to be consulted. Although not as sophisticated, that was already a feature of the pre‑1991 regime.”

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

“The Crown’s failure to respond to the Tribunal’s repeated recommendation to cure the RMA of its ‘fatal flaw’ is a continuing source of grievance for many claimants."

Wai 1071: Report on the Crowns Foreshore and Seabed Policy

“In our view, the Crown had an obligation to take measures to ensure that the intentions of that Act were realised long ago. To agree to do it now as partial recompense for the removal of legal rights does not seem to us to be a very good deal for Maori.” (p 104)

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

“Therefore, no tangible result from these provisions of the Resource Management Act (as then in force) had been achieved in terms of water under the Act until 2012, and we note that the statutory power to determine such matters still resides with Environment Waikato. The departure from this pattern was the enactment of the Ngā Wai o Maniapoto (Waipā River) Act 2012. This was watershed legislation for Te Rohe Pōtae Māori that clearly gives effect to the principles of partnership, reciprocity, and mutual benefit and provides a blueprint for the management of water and waterways/bodies in the district. However, the vexed issue of possession and ownership remains.”

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

“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.”

“Iwi/Māori rights and interests are sometimes not addressed and provided for, or not in a consistent way. Current arrangements do not always reflect their role and status as Treaty partners…” “As a result, some iwi/Māori concerns which could be addressed through a better freshwater management system are dealt with through Treaty settlements, while other iwi continue to feel excluded from management processes.”

“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.”

“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.”

Wai 262: Ko Aotearoa Tēnei

“It is equally disappointing that Māori are being made to expend the potential of their Treaty settlement packages or customary rights claims to achieve outcomes the Resource Management Law Reform project (now two decades ago) promised would be delivered anyway.”

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

“Ultimately, however, we found that the RMA had significant flaws in Treaty terms at the time the reform programme began, and that the reforms the Crown has completed are not sufficient to make the RMA and the freshwater management regime Treaty compliant. We also found that the NPS-FM is not yet Treaty compliant, for the reasons summarised in the following sections. We found that Māori have been prejudiced by these breaches, including the failure to set adequate controls and standards for the active protection of their freshwater taonga.”

“In the manner and to the extent that we have found breaches and prejudice, the Wai 2358 and Wai 2601 claims are well founded. The breaches and prejudice in respect of the RMA and the Crown’s freshwater reforms have also affected those iwi and hapū who were interested parties, and who gave evidence and made submissions in our inquiry.”

“Previous Tribunal reports have found that a balancing exercise was widely applied under the RMA, which allowed Māori interests to be balanced out altogether in many RMA decisions. Māori have been significantly prejudiced as a result. 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.1 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.” 

“[W]e 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.”

“[W]e found that the RMA and its allocation regime are not consistent with the principles of the Treaty of Waitangi. Māori have been prejudiced by:

• the ongoing omission to recognise their proprietary rights ;
• barriers that have prevented their participation in the first-in, first-served allocation system in the past ; and
• the lack of partnership in allocation decision-making.”

“We found that section D is an inadequate mechanism for ensuring the Māori ‘involvement’ in freshwater decision-making required by the Treaty principle of partnership. We found that it is not Treaty compliant, and that Māori have been prejudiced in their exercise of tino rangatiratanga and kaitiakitanga in respect of their freshwater taonga as a result.” 

“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.”

“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.”

“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.”

“[W]e found that the freshwater quality standards set in the NPS-FM 2014, as amended in 2017, are not yet adequate to provide for the Crown’s Treaty duty of active protection of freshwater taonga. In chapter 2, we described the prejudice experienced by iwi and hapū whose spiritual and cultural relationships with their freshwater taonga have been profoundly harmed by degraded water quality.”

 “On balance, we found that the 2017 amendments have improved the NPS-FM in Treaty terms, but the amendments have some significant weaknesses. We found that the NPS-FM is still not compliant with Treaty principles, and Māori continue to be prejudiced by the weakness of mechanisms for the inclusion of their values and interests in freshwater management.”

“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.” 

“We noted further that three-quarters of native fish species are now threatened with or at risk of extinction, compared to only one-fifth in 1991 when the RMA was passed. The fishing rights guaranteed in the Treaty have been infringed by this loss of fisheries, and Māori have been prejudiced thereby.”

“In this section of our chapter [Recommendations], we make our recommendations for the remedy of the breaches and prejudice summarised above, and to prevent similar prejudice from occurring in the future.”

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

“The Ngāwha Tribunal, said counsel, found that in enacting this legislation the Crown failed to include adequate provisions to ensure that the Treaty rights of the claimants ... are fully protected. As a consequence, the claimants have been, and are likely to continue to be, prejudiced by such a breach."

Wai 55: Te Whanganui-a-Orotu report

“As in the Ngawha claim, we have found in the present claim that the claimants have been or are likely to be prejudicially affected by the foregoing omission and, in particular, by the absence of any provision in the Act giving priority to the protection of their taonga (Te Whanganui-a-Orotu) and confirming their Treaty rights in the exercise of their rangatiratanga and kaitiakitanga to manage and control it as they wish.”

Wai 304: Ngawha Geothermal Resources

“The tribunal further finds that the claimants have been, or are likely to be, prejudicially affected by the foregoing omission, and in particular by the absence of any provision in the Act giving priority to the protection of their taonga and confirming their Treaty rights in the exercise of their rangatiratanga and kaitiakitanga to manage and control it as they wish. The omission of any such statutory provision is inconsistent with the Treaty duty of the Crown, when delegating powers of governance to local and regional authorities, to ensure that it does so in terms which will guarantee that the rangatiratanga of the claimants in and over their taonga is recognised and protected as required by the Treaty.”