Sharing and transfer of powers

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. 

“For all the above reasons, we 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.”

“We also noted that none of the recommendations of the Wai 262 Tribunal in respect of section 33, section 36B, and iwi management plans have been carried out since that report was issued in 2011.” 

“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]

• A national co-governance body should be established with 50/50 Crown–Māori representation, to ensure that Treaty principles and Māori values, rights, and interests are fully incorporated in freshwater policy and management. The details should be arranged between the Treaty partners.
• 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.
• Sections 33 and 36B should also be amended to include a process for iwi authorities to apply to councils for transfers and Joint Management Agreements. A mandatory process of engagement would follow any application, with mediation and the assistance of the Crown (or the co-governance body for freshwater applications) to be available as required.
• 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.

“We also recommend that the national co-governance body should assess whether a separate Water Act is necessary. Whether such an Act is required or not, we do not recommend the duplication of authorities at the regional level. Land, water, and other natural resources should be managed in an integrated manner by regional councils on a co-governance/co-management basis with iwi and hapū.”

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 ngā iwi o te kāhui maunga and the regional councils for Manawatu–Wanganui and Waikato enter into a partnership arrangement for the management of the waters of te kāhui maunga (sections 36B, 36C, and 36D of the RMA provide a framework for this ; section 36E, which allows for termination at 20 days’ notice, is not applicable). One of the tasks of this partnership would be the preparation of a water management plan. As a further aspect of the partnership, when applications for water-related consents are considered, the hearing committee should be appointed jointly by iwi and regional councils.”

Wai 262: Ko Aotearoa Tēnei

“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.”

“The RMA regime has the potential to achieve these outcomes through provisions such as sections 33, 36B, and 188. But they have virtually never been used to delegate powers to iwi or share control with them. Where some degree of control and partnership has been achieved, this has almost always been through historical Treaty and customary rights settlements. We do not believe that iwi should have to turn to Treaty settlements to achieve what the RMA was supposed to deliver in any case.”

“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:

• Improved mechanisms for delivering control: We recommend that the RMA’s existing mechanisms for delegation, transfer of powers, and joint management be amended to remove unnecessary barriers to their use. We recommend that local authorities be required to regularly review their activities to see if they are making appropriate use of sections 33 and 36B, and be required to report annually to the Parliamentary Commissioner for the environment explaining why they made delegations or established partnerships in some circumstances and not in others. We also recommend that the Ministry for the environment be required to proactively explore options for delegations under section 188, and to report annually to Parliament on this.”

Wai 863: Wairarapa ki Tararua Report 

“We recommend that the Government commit to a comprehensive review of these Acts that achieves…” “shared power and delegation of local authorities’ functions to Māori entities in all appropriate areas and circumstances;”

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

“For several reasons, the Act’s provisions that enable Māori to exercise rangatiratanga and act as kaitiaki in environmental management have not yet been properly realised in practice. Councils have been slow to come to terms with the Act’s requirements to engage with Māori in their planning processes. At present, the most potentially potent provisions in the Act for the exercise of Māori rangatiratanga are those relating to the transfer, delegation, or sharing of powers; however, councils in the region have made only very small and tentative steps towards sharing powers.”

“In our view, the real issue with the Act, as it stands, is that the existing legislative provisions for Māori to exercise rangatiratanga and act as kaitiaki are not being properly implemented. In particular, after almost 20 years there has still not been a single instance of a transfer of powers to iwi. Nor, in Tauranga, has there been an explicit instance of joint management under section 36. There have been very tentative movements towards allowing Māori to participate in management functions and powers, but these fall far short of Māori aspirations, and do not reflect a true partnership. Clearly, given such a history, the provisions relating to Māori management or joint management or resources cannot be left solely at the discretion of local authorities. 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. The Crown must actively work with tangata whenua and local authorities to identify which natural resources and environments in Tauranga Moana will most help to restore tribal rangatiratanga over their taonga, and are suitable for a shift in the management regime.”

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

“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.”

“As we note in detail in chapter 20, consultation with Maori in the resource consent process is not a statutory requirement under the Act unless they are recognised landowners who may be affected by the grant of a consent. (See section 36A of the Act.) Rather, consultation is a matter left to the discretion of the staff of the consent authority or the applicant for the consent. While we note the decisions of the Environment Court and the High Court suggesting that it would be good practice to engage in such consultation, it is unlikely that the failure to consult (given the new section 36A of the Act), could now be used as the basis for rejecting a resource consent application.”

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

“The Mana Whakahono a Rohe arrangements had the potential to improve iwi–council relationships and the way they work together, especially by providing a mechanism for the schedule 1 consultation process to occur. But many options that were omitted in 2016 were so crucial that, in our view, the Crown squandered a real opportunity to make the RMA and its freshwater management regime Treaty-compliant.” 

“The Mana Whakahono a Rohe mechanism was one of the major achievements of the freshwater reform programme. As summarised above, the impetus for enhancing Māori participation began with a dual approach in Improving Our Resource Management System in 2013: new Iwi Participation Arrangements paired with statutory reforms to section 33, section 36B, and the provisions for iwi management plans. The period of Crown–ILG co‑design in 2015 resulted in a renewed effort towards Iwi Participation Arrangements – in the form of the ILG’s broader Mana Whakahono a Rohe – and reform of section 36B Joint Management Agreements.”

“But the necessary link between these two things was severed in 2013 and again in 2016, with the result that the Crown pinned everything on the new participation arrangements alone.”

“The claimants argued that the Mana Whakahono a Rohe arrangements are to be ‘applauded’ as an improvement, but ‘they are too little, too late, and do not go anywhere far enough’. In particular, the claimants noted that these new arrangements have not removed the statutory barriers to section 33 transfers or JMAs, and that Māori utilisation of these arrangements is ‘constrained by the same resourcing problems that inhibit effective Māori participation in RMA processes more generally’. Crown counsel stressed that Mana Whakahono a Rohe offered the possibility of ‘formal and permanent relationships’ between councils and iwi, a possibility that had not been present before in the RMA. According to the Crown, they represent a significant step forward in the ‘RMA’s ability to give effect to the Māori role as kaitiaki’. In terms of the particulars, the Crown relied mainly on the voluntary aspects of the Mana Whakahono a Rohe, and only one of the compulsory requirements (a role in monitoring) :”

“During these discussions, Māori may demand more meaningful involvement in resource management processes, either through agreements to transfer local authority powers to an iwi authority, or in other forms, such as the co-management of resources. The agreements may include involvement in decision-making through the appointment of iwi commissioners on hearing panels, establishing joint management agreements or other mechanisms, and environmental monitoring. They can also be used to develop monitoring methodologies so that mātauranga Māori and Māori measurements can be consistently used in regional council processes.”

“We noted that key points sought by the ILG to be matters for compulsory negotiation and agreement were relocated to the voluntary parts of the Mana Whakahono a Rohe in the Resource Legislation Amendment Act 2017.”

“Our view was that this mechanism in its final form (in the 2017 Act) was important but limited. It was important because, in negotiating agreement on the compulsory parts of the Mana Whakahono a Rohe, there is an opportunity for iwi or hapū to seek co-management agreements, joint planning committees, or some other mechanism not provided for in the Mana Whakahono a Rohe itself. Also, a relationship/participation agreement was a vital step towards councils and iwi or hapū working together in freshwater management. Without the establishment of some kind of improved and enduring relationship, it is difficult to imagine a council agreeing to a Joint Management Agreement, for example, without the intervention of the Crown (as has occurred in some Treaty settlements). Further, iwi can initiate a Mana Whakahono a Rohe, councils are compelled to negotiate and reach agreement if iwi initiate one, and councils cannot end the agreement unilaterally ; these are all improvements over other RMA participation mechanisms. But the key problem with the Mana Whakahono a Rohe arrangements is that the compulsory matters to be agreed are very limited. Apart from an increased role in monitoring, which does now have to be agreed upon, the mandatory parts of the agreement relate to the consultation required by the Act (which is limited to policy statements and plans) and the participation of iwi in plan preparation or changes. In reality, what this does is provide a mechanism for councils and iwi to do the things that schedule 1 of the Act already required them to do. Anything extra comes under the parts that the parties may discuss and agree but there is no requirement for them to do so.”

“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.”

“Further, even if relationships are improved and discussions are held through a Mana Whakahono a Rohe, statutory barriers still inhibit section 33 transfers and Joint Management Agreements. The evidence of the Crown was clear on that point. In all these circumstances, it is at best unlikely that Mana Whakahono a Rohe will result in a greater decision-making role for Māori in freshwater management, such as co-governance and co-management, without further statutory amendment.”

“The issue of resourcing is also crucial. The ILG’s view was that ‘both local authorities and iwi must be resourced to ensure that the establishment and implementation of Mana Whakahono a Rohe agreements is as successful as possible’.25”

“We agreed. The evidence in our inquiry was that the lack of resources has prevented effective Māori participation in RMA processes. Mana Whakahono a Rohe arrangements will be no different in that respect unless resources are provided.”

“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.”

“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]

• The Mana Whakahono a Rohe provisions of the RMA should be amended to make the co-governance and co-management of freshwater bodies a compulsory matter that must be discussed and agreed by the parties. Other matters could also be made compulsory (as discussed in chapter 4), and the Crown should discuss and agree to any such further proposed amendments with the ILG, which designed the original Mana Whakahono a Rohe proposal. 

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

“We accepted, however, that Treaty settlements have delivered co-governance and co‑management authority for a limited selection of freshwater taonga.”

“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.” 

 “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.”

“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 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]

• The Crown should offer co-governance / co-management agreements for freshwater bodies in all future Treaty settlements, unless sole iwi governance of a freshwater taonga is more appropriate in the circumstances.” 

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

Māori have expended considerable effort on fighting resource consents. This is a costly and ineffective way to try and shape planning processes, and as a result many Tauranga Māori have become extremely frustrated. The capacity of Tauranga Māori to participate in environmental management as kaitiaki is badly compromised by a lack of resources.