RMA Part II

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

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…”

• “The continued subjection of the claimants to the decision making of regional and local authorities who are not required by legislation to give effect to the principles of the Treaty of Waitangi in the administration of their powers and functions under the legislation and in planning and consenting procedures.” (p 500)

“For these reasons, we find…” “That the Crown has acted in a manner inconsistent with the principle of good government for its continued failure to adhere to previous Waitangi Tribunal reports requiring that section 8 of the RMA 1991 be amended.” (p 499)

“One of the main issues, as previous Tribunals have found, lies in the RMA as far as Treaty principles are concerned. Section 8 needs to be amended to reflect wording more akin to that in section 9 of the State-Owned Enterprises Act 1986. Alternatively, it should be integrated into section 5 of the RMA. Left as it is the RMA is incapable of ensuring that the Crown’s Treaty guarantees to Māori are honoured.” (p 394)

“Te Rohe Pōtae Māori cannot expect veto authority over the allocation, use, and management of water, waterways/bodies as that would be contrary to the principles of the Treaty of Waitangi. However, they can expect that their Treaty rights are appropriately integrated into decision making and planning under the Resource Management Act. If the hierarchy in part 2 of the Act were reversed or if the purpose of the legislation under section 5 was extended to require all those exercising duties and functions under the Act to act in a manner consistent with the principles of the Treaty of Waitangi, a different balancing exercise would be required. It would be one that was clearly focused on partnership, mutual benefit, and reciprocity, alongside sustainable management.” (p 590)

“At the least, section 8 of the Resource Management Act should be amended to state that nothing in the Act should be done in a manner inconsistent with the principles of the Treaty of Waitangi or a new reference with the wording stipulated previously should be added to section 5.” (p 590)

“Since 1991, the RMA has improved the situation as far as managing environmental effects on the harbours but has its limitations as described in section 22.4 and this issue needs to be addressed. To address that issue, section 8 of the Resource Management Act should be amended to state that nothing in the 1991 legislation should be done in a manner inconsistent with the principles of the Treaty of Waitangi or a new reference should be added to section 5.” (p 625)

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

“We discussed part 2 of the RMA in section 2.4 of chapter 2. We agreed with the Crown that sections 6–8 of the RMA introduced tikanga requirements into the statute law for freshwater management for the first time. The legislation prior to that was mono-cultural and did not recognise Māori values or interests. After 1991, RMA decision makers were required to recognise and provide for the relationship of Māori with their ancestral waters, to have particular regard to kaitiakitanga, and to take account of the principles of the Treaty. This was a significant improvement on the previous situation. But we also agreed with the claimants that there were key weaknesses in the operation of part 2 of the Act. These included the relative weakness of the Treaty clause (section 8), and the potential for Māori interests to be ‘balanced out’ in the hierarchy of matters to be considered by decision makers under sections 6–8.”

“First, we agreed with many Tribunal reports that section 8 of the RMA is entirely inadequate for the degree of recognition and protection of Māori interests that is required by the Treaty. The Petroleum Management Tribunal found that the Crown’s delegation of Treaty responsibilities in resource management must be done in a manner that ensures Treaty compliance.2 Our view is that section 8 should be amended to state that the duties imposed on the Crown in terms of Treaty principles are imposed on all those persons exercising powers and functions under the Act. Such an amendment would ensure that Māori interests are protected (not balanced out), that local authorities and all RMA decision makers carry out Treaty responsibilities and obligations, and that part 2 of the RMA is Treaty compliant. We make a recommendation to that effect later in this chapter.”

“Secondly, we agreed with the Petroleum Management Tribunal that amending section 8 will not, on its own, ensure that RMA decision-making is carried out consistently with the principles of the Treaty.3 Māori must themselves be RMA decision makers for their freshwater taonga, and their role in this respect needs to be enhanced to meet the Treaty guarantee of tino rangatiratanga. We turn to that matter next.”

“We also noted the link between this issue and the earlier breaches found in respect of the RMA. We had already found that section 8 of the RMA was too weak to protect Māori interests, and that the RMA did not empower Māori in freshwater management and decision-making. The systemic failure of the RMA to deliver sustainable management of freshwater taonga was due in part to that fact and to those breaches.” 

“We recommend two specific amendments to part 2 of the RMA: [including]

• The amendment of section 8 to state that the duties imposed on the Crown in terms of the principles of the Treaty of Waitangi are imposed on all those persons exercising powers and functions under the Act.”

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."

“The implication of the Treaty of Waitangi Act 1975 is that the Crown is expected to act consistently with the principles of the Treaty, in that, where any Act, proposed legislation, regulation, Order in Council, policy, or practice is inconsistent with the principles of the Treaty, Māori may bring a claim about the matter to the Tribunal.”

“The Crown has delegated most of its authority to carry out the duties of the RMA to local authorities. Along with that delegation is the requirement for the local authority to ‘take into account the principles of the Treaty of Waitangi’ when making decisions. However, as the Ngāwha Tribunal noted: Implicit in the requirement to ‘take into account’ Treaty principles is the requirement that the decision-maker should weigh such principles along with other matters required to be considered, such as the efficient use and development of geothermal resources. In short, whereas the Crown itself is required to act consistently with the principles of the Treaty, that responsibility was significantly watered down under the Crown’s delegation of authority to regional councils. Essentially, local authorities were not obliged to be Treaty-compliant in their decisions. The Ngāwha Tribunal found that this aspect of the legislation was ‘fatally flawed’. The Ngāwha and CNI Tribunals recommended that the RMA be amended so that Crown delegates are required to ‘act in a manner that is consistent with the principles of the Treaty of Waitangi’."

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

“In terms of the RMA, we recommend, as the Tribunal has done many times before us, that it be amended to require decision-makers to act consistently with the Treaty.”

“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. Our inquiry has been closely focused on just one corner of the resource management system, and as a result we have been able to make specific recommendations to the Crown about how to make that corner Treaty compliant. While there are some differences between the petroleum ‘corner’ and the rest of the regime, we are confident that our recommendations for the reform of the petroleum corner will, if adopted, have beneficial flow-on effects right through the resource management system. In other words, we believe that, if the Crown ‘gets it right’ for Māori in the management of the petroleum resource, it will also get it right – or, at least, see how to get it right – for Māori throughout the entire resource management system. That is because our recommendations for reform have a very large procedural focus. And that is because, in an area of law as complex as resource management – where numerous interests are involved and very few fixed answers can be given in advance to any problems that may arise – we consider that the best way of ensuring Treaty-compliant outcomes is to ensure that all key decision-making processes involve Māori participation of a kind that is appropriate to the decisions being made.”

“Recommendations: The Resource Management Act 1991 be amended to require decision makers to act consistently with the Treaty principles.”

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

“Several previous Tribunals have found that the Resource Management Act as it then was did not provide for rangatiratanga. The Ngawha Geothermal Resource Report concluded in 1993 that the Act was ‘fatally flawed’ because it does not require decision-makers to act in conformity with, and apply, Treaty principles. It stressed that the language used by the Act’s provisions meant that the Crown’s Treaty obligations could not be given proper priority.”

“Though the Crown has since amended the Act, those amendments still do not address the principal concerns outlined in the Ngawha Report.”

“As stressed in the Ngawha Report, the key provisions of part 2 of the Resource Management Act use comparatively weak language. In particular, section 8 (by which persons exercising powers and functions under the Act must only ‘take into account’ the principles of the Treaty) is a weak provision. It is weaker than the language used in sections 6 and 7, where decision-makers are to respectively ‘recognise and provide for’ and ‘have particular regard to’ various matters, some of which are relevant to Māori. It is also weaker than powers. In allowing this to occur the Crown is in breach of the principle of partnership, and of its duty of active protection of Māori rangatiratanga. Previous Tribunals have found that the Act ought to be amended to address these shortcomings.

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

‘It is now settled law that those exercising powers under the RMA are not required to act in a manner consistent with the principles of the Treaty of Waitangi. Rather, they must engage in balancing each of these factors. Thus, all matters listed in sections 6 to 8 are evaluated one against the other. In chapter 17, we considered whether such an approach to Treaty rights is consistent with Treaty principles and concluded, as the Whanganui River Tribunal did, that it is not.’

“Furthermore – and again as Ms Chen points out – there is case law that suggests that section 8 does not give rise to any obligation on a decision maker under the RMA to consider additional obligations, beyond those listed in sections 6(e) and 7(a) of the Act.27 Thus, principles such as the partnership principle – with its accommodation between kawanatanga and rangatiratanga, its mutual benefit, and its reciprocity – cannot be weighed in the balance. Only those matters listed in sections 6 to 8 can. We also note the tendency in the legislation to overlook the fact that the kaitiakitanga listed in section 7 can exist only where there is rangatiratanga, because they are inextricably linked."

“There is no requirement on regional or district councils, when making decisions under the RMA, to give effect to Maori concerns because they are Treaty rights-holders. Contrast that with the requirement to give full expression to the purpose of the Act as set out in section 5. An example of the approach they must take comes from the decision in Te Runanga o Ati Awa ki Whakarongotai Inc v Kapiti District Council, where the majority of the Environment Court found that: We cannot see any way in which the principles of the Treaty of Waitangi, the principles of s 7, or the principles of s 6 can be applied in a manner which would cause us to set to one side the all embracing community thrust of s 5, aimed as it is in the present case, at a living community suffering extraordinary difficulties and grief as a result of substandard arterials."

“We note the option for transfer of power under section 33 of the Act. But it has never been used in the Central North Island. We also note that while a local authority may agree to enter into a joint-management agreement under the Resource Management Act Amendment Act 2005 (section 4 and section 36B of the RMA), it is not required to do so. Herein lies the problem for Maori: decisions to enter joint-management arrangements are at the discretion of a local or regional authority. This subordinates iwi or hapū rangatiratanga because they cannot expect that such decisions will be made or reviewed in accordance with Treaty principles. Such agreements could only ever operate in a manner consistent with the RMA, which, as we have explained, is deficient in Treaty terms.” 

Wai 145: Te Whanganui a Tara me ona Takiwa- Report on the Wellington District

“However, we have found that the Crown failed to make legislative provision for the involvement of Maori in the managing of the harbour and its resources until very recently, and we deplore this lack of provision during the period in which the harbour became seriously polluted. Under the Resource Management Act 1991, Maori values and the principles of the Treaty of Waitangi must now be taken into account when making decisions about resource management and there is greater provision for Maori to have input into resource management issues concerning the harbour. We consider, however, that the Act does not go far enough, in that it merely requires decision-makers to take into account the principles of the Treaty and does not ensure that persons exercising powers under the Act do so in a way that gives effect to and is consistent with the Treaty.”

“While helpful, the Tribunal believes that the provisions of the Resource Management Act 1991 and associated policy statements are inadequate. The Tribunal’s Ngawha Geothermal Resource Report 1993 was critical of the Resource Management Act on the ground that it does not require persons exercising functions under the statute to act in conformity with Treaty principles but merely provides that Treaty principles must be taken into account.85 This criticism was endorsed by the Tribunal in its 1993 Preliminary Report on the Te Arawa Representative Geothermal Resource Claims and its Te Whanganui-a-Orotu Report 1995. In its 1999 Whanganui River Report, the Tribunal found the Resource Management Act to be ‘inconsistent with the principles of the Treaty in that it omits any provision that ensures that all persons as identified in section 2 of the Act exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, are to do so in a way that is consistent with, and gives effect to, the Treaty of Waitangi’. This finding is equally relevant to Wellington Harbour.”

Wai 212: Te Ika Whenua Rivers Report

“In the Ngawha Geothermal Resource Report 1993, the Tribunal found that: the Resource Management Act is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.”

“In the Te Whanganui-a-Orotu Report 1995, the Tribunal endorsed those findings and drew attention to the absence in that Act of any provision giving priority to the protection of taonga and confirming Treaty rights in the exercise of rangatiratanga and kaitiakitanga.”

“We agree with those observations and with the view that the Resource Management Act cannot be said to provide compliance by the Crown with the principles of the Treaty relative to those issues.”

Wai 27: The Ngai Tahu Ancillary Claims Report

“We endorse the findings in the Ngawha Geothermal Resource Report 1993 that (para 8.4.6):

‘The Crown has not, in delegating extensive powers to local and regional authorities under the Act, ensured that its Treaty duty of protection of Maori interests will be implemented. On the contrary, it appears that in promoting this legislation, the Crown has been at pains to ensure the decision-makers are not required to act in conformity with and apply Treaty principles. They may do so, but they are not obliged to do so. For this reason we believe the 1991 Act to be fatally flawed.’”

Paragraph 8.4.7:

‘We repeat here our finding that the Resource Management Act is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.’ 

“The Tribunal in its Ngawha Geothermal Resource Report (Wai 304) has recently expressed strong reservations about the effect of the words ‘take into account’ in section 8 of the Resource Management Act:

‘It is difficult to escape the conclusion that the Crown in promoting this legislation has been at pains to ensure that decision-makers are not required to act in conformity with, and apply, relevant Treaty principles. They may do so, but they are not obliged to do so.’

“As a result of its inquiry into the Ngawha geothermal claim, the Tribunal has recommended that an appropriate amendment be made to the Resource Management Act 1991 to require that all persons exercising functions under the Act shall act in a manner consistent with the principles of the Treaty of Waitangi. We must now await and see how the Government responds to the Tribunal’s recommendations."

Wai 304: Ngawha Geothermal Resources

“The tribunal finds that the Resource Management Act 1991 is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.”

“The tribunal recommends that an appropriate amendment be made to the Resource Management Act providing that in achieving the purpose of the Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall act in a manner that is consistent with the principles of the Treaty of Waitangi.”

“Our consideration of the provisions of the Resource Management and in particular Part II, which sets out the purpose and principles of the Act, leaves us with no option but to conclude that the Crown has not, in delegating extensive powers to local and regional authorities under the Act, ensured that its Treaty duty of protection of Maori interests will be implemented. On the contrary, it appears that in promoting this legislation, the Crown has been at pains to ensure the decision-makers are not required to act in conformity with and apply Treaty principles. They may do so, but they are not obliged to do so. For this reason we believe the 1991 Act to be fatally flawed.”

“We repeat here our finding that the Resource Management Act 1991 is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.”

Wai 153: Te Arawa Geothermal Resources

“We repeat here our finding in chapter 8 of the Ngawha Geothermal Resource Report that the Resource Management Act 1991 is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.” 

“We reiterate our recommendation in chapter 8 of the Ngawha Geothermal Resource Report 1993 that an appropriate amendment be made to the Resource Management Act 1991 providing that, in achieving the purpose of the Act. All persons exercising functions and powers under it in relation to managing the use, development, and protection of natural and physical resources, shall act in a manner that is consistent with the principles of the Treaty of Waitangi.”

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)

“Fourthly, regional authorities and consent holders who were responsible for historical environmental effects that continue to plague the water and waterways/bodies considered taonga by Te Rohe Pōtae Māori are not required to address these matters under the Resource Management Act. We acknowledge that many of the problems associated with pollution are historical. That is exactly the issue with the Resource Management Act. It is not retrospective. Therefore, neither the Crown, nor any regional authorities in existence post 1991 or long-term consent holders, can be made accountable under the 1991 legislation for the mismanagement of water and waterways/bodies pre-1991, or before the issue of current consents.” (p 588)

“The historical management of waterways/bodies has been tantamount to treating them as sewers or drains into which pollutants such as sewage could be discharged. This has led to the significant decline in water quality in many waterways/bodies in the district and has significantly impacted on Māori spiritual and customary values and use. Because the RMA 1991 is not retrospective, the Crown, its agents, and long-term consent holders cannot be held accountable for the historical management of water pre-1991.” (p 670)

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“In context of the claims before us, we consider another important issue raised by the RMA 1991 is that it is not remedial in its purpose or effect as outlined in section 5. That provision merely provides that the purpose of the legislation is to ‘promote the sustainable management of natural and physical resources’”

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

“As we discuss below and in chapter 20, the RMA fails to deal with historical issues. It does not look backwards in any substantial way. As a result, the historic degradation, damage, or pollution of a taonga cannot be raised as more than background during resource consent processes under the Act. Nor can a consent authority consider the historical issues concerning how an iwi or hapu has lost their ownership of a resource or taonga. There is no requirement for consent authorities to consider how Maori have been placed historically in terms of these resources. While they may do so, they are not required to do so by the RMA.”

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

The Crown’s position adopted in closing submissions for this inquiry (that it must treat Māori equitably with non-Māori in the application of its policies and practices in respect of waterways and take a balanced approach) was a position not apparent in any legislation until 1991. It did not treat Māori equitably with non-Māori because it did not recognise and provide for their rights and interests, and nor did it require those matters be balanced against other interests. The only exception being the Mōkau River Trust Act 1903, which did not remain on the statute books for long. The RMA has improved the situation, but it has its limitations.” (p 557)

“While the addition of Māori issues under Part 2 of the Resource Management Act has improved the situation for Māori communities, the 1991 Act does not accord an appropriate priority to Māori concerns. Obviously, there is improved recognition of Te Rohe Pōtae Māori relationships with water and waterways, their values and tikanga, but unfortunately as is evidenced by the Piopio case study, the application of section 5 of the Act does not necessarily result in an outcome that is consistent with Māori tikanga, values, and expectations for their taonga.”

“The lack of priority accorded to the relationship between Māori groups and various waterways/bodies of water is because the Act also requires a number of other values to be recognised and provided for, taken into account or considered. Therefore, while there is space for Māori voices to be heard, this is limited by the other matters that can be given equal or greater weight. Furthermore, treaty rights and interests, and indeed all other matters listed in Part 2 of the Act, are trumped by section 5, which describes the purpose of the Resource Management Act as to ‘promote the sustainable management of natural and physical resources.’ As noted in chapter 21 on the Environment, all those exercising duties and powers under the Act, including the Environment Court, are required to give effect to this primary purpose. The Act then lists a hierarchy of matters decision makers must consider. Section 6 sets out what they must recognise and provide for and this includes the relationship of Māori with their ancestral lands and waters. Section 7 merely requires that the matters listed including kaitiakitanga be taken into account. Section 8 only requires that the court have regard to the principles of the Treaty of Waitangi.” (p 589-590)

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

“We discussed part 2 of the RMA in section 2.4 of chapter 2. We agreed with the Crown that sections 6–8 of the RMA introduced tikanga requirements into the statute law for freshwater management for the first time. The legislation prior to that was mono-cultural and did not recognise Māori values or interests. After 1991, RMA decision makers were required to recognise and provide for the relationship of Māori with their ancestral waters, to have particular regard to kaitiakitanga, and to take account of the principles of the Treaty. This was a significant improvement on the previous situation. But we also agreed with the claimants that there were key weaknesses in the operation of part 2 of the Act. These included the relative weakness of the Treaty clause (section 8), and the potential for Māori interests to be ‘balanced out’ in the hierarchy of matters to be considered by decision makers under sections 6–8.”

“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.”

“First, we agreed with many Tribunal reports that section 8 of the RMA is entirely inadequate for the degree of recognition and protection of Māori interests that is required by the Treaty. The Petroleum Management Tribunal found that the Crown’s delegation of Treaty responsibilities in resource management must be done in a manner that ensures Treaty compliance.2 Our view is that section 8 should be amended to state that the duties imposed on the Crown in terms of Treaty principles are imposed on all those persons exercising powers and functions under the Act. Such an amendment would ensure that Māori interests are protected (not balanced out), that local authorities and all RMA decision makers carry out Treaty responsibilities and obligations, and that part 2 of the RMA is Treaty compliant. We make a recommendation to that effect later in this chapter.

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

‘It is now settled law that those exercising powers under the RMA are not required to act in a manner consistent with the principles of the Treaty of Waitangi. Rather, they must engage in balancing each of these factors. Thus, all matters listed in sections 6 to 8 are evaluated one against the other. In chapter 17, we considered whether such an approach to Treaty rights is consistent with Treaty principles and concluded, as the Whanganui River Tribunal did, that it is not.’

“Furthermore – and again as Ms Chen points out – there is case law that suggests that section 8 does not give rise to any obligation on a decision maker under the RMA to consider additional obligations, beyond those listed in sections 6(e) and 7(a) of the Act.27 Thus, principles such as the partnership principle – with its accommodation between kawanatanga and rangatiratanga, its mutual benefit, and its reciprocity – cannot be weighed in the balance. Only those matters listed in sections 6 to 8 can. We also note the tendency in the legislation to overlook the fact that the kaitiakitanga listed in section 7 can exist only where there is rangatiratanga, because they are inextricably linked."

“There is no requirement on regional or district councils, when making decisions under the RMA, to give effect to Maori concerns because they are Treaty rights-holders. Contrast that with the requirement to give full expression to the purpose of the Act as set out in section 5. An example of the approach they must take comes from the decision in Te Runanga o Ati Awa ki Whakarongotai Inc v Kapiti District Council, where the majority of the Environment Court found that: We cannot see any way in which the principles of the Treaty of Waitangi, the principles of s 7, or the principles of s 6 can be applied in a manner which would cause us to set to one side the all embracing community thrust of s 5, aimed as it is in the present case, at a living community suffering extraordinary difficulties and grief as a result of substandard arterials."

“While we recognise, in certain circumstances, the need to provide for all communities, an approach that can set aside Maori concerns in the manner described above is not acceptable. In our view, alternative options would need to be explored first before a proposal got to the point where it became a contest between competing interests.”

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

“We also note the tendency in the legislation to overlook the fact that the kaitiakitanga listed in section 7 can exist only where there is rangatiratanga, because they are inextricably linked.’

“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.”

Wai 45: The Muriwhenua Land Claims Post 1865

“Not only is the definition of kaitiakitanga in the Resource Management Act 1991 inadequate, but in s.7 it is listed as only one of seven other matters that ‘persons exercising functions and powers‘ under the Act ‘shall have particular regard to‘. In s.6 a number of ‘Matters of national importance‘ are listed, including ‘preservation of the natural character of the coastal environment‘ in s.6(a), and ‘maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers‘ in s.6(d). Among all these is s.6(e): ‘The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga‘.”

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

“Carrying on the theme of providing better for Māori values in freshwater management, the Crown’s significant reform in 2014 was the introduction of Te Mana o te Wai into the NPS-FM. The ILG sought to integrate Te Mana o te Wai in all parts of the national policy statement by inserting an overarching purpose statement, a new objective A1(c) in section A (the ‘Water Quality’ section), and links to the national values of the NOF in appendix 1.”

“The Crown, however, was only prepared to agree to a very disjointed and watered-down version of Te Mana o te Wai in the NPS-FM 2014. There was no definition of Te Mana o te Wai or any explanation of it or how councils might provide for it. The overarching purpose statement was not part of the main body of the NPS-FM (and did not explain Te Mana o te Wai). The Crown rejected the ILG’s proposed Objective A1(c). The many submissions from Māori during the consultation process, seeking to strengthen and integrate the Te Mana o te Wai requirements in the NPS-FM, were also rejected. Appendix 1 did use the titles ‘Te Hauora o te Wai’, ‘Te Hauora o te Tāngata’, and ‘Te Hauora o te Taiao’ for three of the national values. But the text of those values did not necessarily identify Māori values or correspond to the titles, nor was there any explanation that these titles were connected to Te Mana o te Wai.”

“We concluded that the Crown’s inclusion of Te Mana o te Wai in the NPS-FM was weak and ineffective. It did not enhance the Crown’s objective that Māori values would be better reflected in freshwater management and plan-making. We made no Treaty finding, however, because the 2014 version of the NPS-FM did not represent the Crown’s final decision on this issue.” 

“In 2017, the new ‘National significance’ statement and section AA of the NPS-FM provided a much-needed explanation of Te Mana o te Wai, and of the requirements that councils must meet in order to ‘consider and recognise’ it in their policy statements and plans. The inclusion of mātauranga Māori in the monitoring requirements was also a major improvement, and one which Māori had sought in their submissions on the 2014 version of the NPS-FM.”

“Our view was that all of this has the potential to make the NPS-FM a more powerful instrument for the recognition of Māori values in freshwater management and the exercise of kaitiakitanga. If Māori values are to be identified and reflected in freshwater management (objective D1), then Te Mana o te Wai is a platform for achieving this (through the ‘National significance’ statement and objective AA1), and mātauranga Māori must now be used to measure its success (policy CB1). It is also a platform for the whole community’s values because it is water-centric.”

“As the Crown and the ILG had intended, Te Mana o te Wai was framed so as to put the health of freshwater bodies first in the discussions necessary to set objectives and limits under the NPS-FM. The potential for Te Mana o te Wai to have a significant impact is likely reflected in the submissions of those who tried in 2017 to disconnect it from the national values in appendix 1. We found, however, that there are some weaknesses in the tools for giving effect to Te Mana o te Wai.”

“First, as already found in chapter 3, section D of the NPS-FM is relatively weak. It does not provide a co-governance approach to identifying Māori values and setting freshwater objectives. Such an approach would have required from councils a level of dialogue and cooperation in the application of Te Mana o te Wai, which was more consistent with the Treaty partnership. Secondly, the relative weakness of section AA is a serious matter. The requirement to ‘consider and recognise’ is not strong enough, and policy AA1 restricts the application of Te Mana o te Wai to freshwater plan making. Our view was that this is not sufficient to provide for tino rangatiratanga and kaitiakitanga in freshwater management. Thirdly, the severing of Te Mana o te Wai from the NOF values in appendix 1 reduces its utility as an over-arching principle in freshwater plan making. Fourthly, the failure to include tools for cultural monitoring (policy CB1) or cultural indicators for the NOF is significant in Treaty terms, and again reduces the effectiveness of Te Mana o te Wai in freshwater plan making and freshwater management more generally.” 

“We recommend two specific amendments to part 2 of the RMA: [including]

• The amendment of section 6 to include Te Mana o te Wai as a matter of national importance that must be recognised and provided for by RMA decision makers."