Shorter extracts on the RMA by report

“At the very least, to compensate for the prejudice that has been suffered from the Crown’s environmental management regime, we stated that any settlement legislation negotiated by the parties should explicitly recognise the rights of Te Rohe Pōtae Māori te tino rangatiratanga and mana whakahaere. In no other field of endeavour is this more needed than in the area of environmental management.”

“Ultimately, Te Rohe Pōtae Māori lack power under the RMA system – more than consultation alone is needed for the Crown to meet its Treaty of Waitangi obligations. Iwi should be full participants as self-governing entities working in partnership with local and regional councils both in terms of planning and resource consents, including the appointment of hearing committees.”

“The Crown has an obligation to make sure this is happening in all areas of land use decision making and heritage protection included under the RMA and this must be done by legislative amendment and the allocation of resources for iwi and hapū.”

“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 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.”

“We recommend two specific amendments to part 2 of the RMA

• 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.”
• 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.”

“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…” [seven recommendations follow]

“We recommend that the Crown continue its approach of co-design of policy options with a national Māori body or bodies and that this should be made a regular feature of government where Māori interests are concerned.”

“We recommend that the Crown urgently take such action or actions as are necessary to ensure that under-resourcing no longer prevents iwi and hapū from participating effectively in RMA processes, including freshwater management and freshwater decision-making”

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

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

“We also reject the Crown’s approach regarding its responsibility for the day-to-day affairs of local authorities on the same basis that it was rejected in Ko Aotearoa Tēnei (the Wai 262 report) That report found that the environmental management regime on its own without reform was not sufficient in Treaty terms. The Wai 262 Tribunal stated that the Crown has an obligation to protect the kaitiaki relationship of Māori with their environment and that it cannot absolve itself of this obligation by statutory devolution of its environmental management powers and functions to local government. Thus the Crown’s Treaty duties remain and must be fulfilled and it must make statutory delegates accountable for fulfilling them too The same duty to guarantee rangatiratanga, and to respect the other principles of the Treaty thus remains as an obligation on the Crown and it is not enough for the Crown to wash its hands of the matter and say that the day-to-day decision-making process is in the hands of local authorities”

We note further the Waitangi Tribunal has previously held in various reports that the RMA 1991 is not fully compliant with Treaty principles*. In the Wai262 report, the Tribunal stated:

the RMA has not delivered appropriate levels of control, partnership, and influence for kaitiaki in relation to taonga in the environment. Indeed, the only mechanisms through which control and partnership appear to have been achieved are historical Treaty and customary rights settlements”

“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.”

“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 Māori scarcely a shadow of its original promise’.”

“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 Māori scarcely a shadow of its original promise’.”

“The Crown cannot avoid its Treaty obligations by delegating powers, but is bound to preserve and pass on those obligations to its delegates.”

“Ko Aotearoa Tēnei [found] 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…’ ‘As a consequence, the claimants have been, and are likely to continue to be, prejudiced by such a breach.”

“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.’ In the National Park inquiry context, we make three recommendations…”

“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” “We have found that a Treaty-compliant environmental management regime is one that is capable of delivering the following outcomes, by means of a process that balances the kaitiaki interest alongside other legitimate interests.”

“In the Ngawha Geothermal Resource Report, the Tribunal examined in some detail the implications for the Crown of its duty of active protection of Māori resource-use. It identified several important elements of the duty, including :

• that Māori are not unnecessarily inhibited by legislative or administrative constraint from using their resources according to their cultural preferences;
• that Māori are protected from the actions of others which impinge upon their rangatiratanga by adversely affecting the continued use or enjoyment of their resources whether in spiritual or physical terms;
• that the degree of protection to be given to Māori resources will depend upon the nature and value of the resource. In the case of a very highly valued rare and irreplaceable taonga of great physical and spiritual importance to Māori, the Crown is under an obligation to ensure its protection (save in very exceptional circumstances), for so long as Māori wish it to be protected ; and
• that the Crown cannot avoid its Treaty duty of active protection by delegation to local authorities or other bodies (whether under legislative provisions or otherwise) of responsibility for the control of natural resources in terms which do not require such authorities or bodies to afford the same degree of protection as is required by the Treaty to be afforded by the Crown. If the Crown chooses to so delegate it must do so in terms which ensure that its Treaty duty of protection is fulfilled.
• “We agree with these views about the nature and extent of the Crown’s duty of active protection over Māori possession of their lands, waters, and other taonga.”

“In 1992 the Te Roroa Tribunal provided a sustained analysis of the proper role of tangata whenua and the Crown in the management of Māori cultural heritage….” “That Tribunal further proposed that the Crown : re-affirms the traditional and Treaty rights of tangata whenua to control and protect their own wahi tapu and requires the Department of Conservation and other of its agents concerned in the management of national and cultural resources to give practical effect to this commitment…” “We endorse these findings of the Te Roroa Tribunal.”

“The Resource Management Act 1991 gave regional and local authorities substantial functions and powers over natural resources, including the power to grant resource consents for River use. The Act did not, however, provide for protection of te mana o te Awa and te mana whakahaere of Waikato-Tainui.”

“From the 1860s to the present, Waikato-Tainui have continually sought justice for their Raupatu claim and protection for the River. The principles of te mana o te awa and mana whakahaere have long sustained the Waikato River claim together with the principles described in the Kiingitanga Accord, and those principles underlie the new regime to be implemented by this settlement...”

(This extract is from legislation but has been included as it was highlighted in a Waitangi Tribunal report. The Waikato Raupatu Claim was dealt with by direct negotiation, not through the Waitangi Tribunal.)

“We find that while the local Government Act 2002 exposes iwi to the policies and actions of local government, it does not hold councils to account if they fail to provide opportunities for Māori to participate in decision making or do not actively protect environmental taonga. [T]he Crown has delegated responsibility to local councils, but has not delegated an equivalent level of accountability.” “[W]e have seen in all spheres of local government activity, that the Treaty provisions and the relevant legislation are not sufficiently prescriptive to oblige local bodies to conduct themselves in a manner that is consistently Treaty compliant. In this the Crown fails in its duty of active protection. Thus, we consider that both the Local Government Act, and the Resource Management Act, require more compelling Treaty provisions. Also needed are regular audits and sanctions for non-compliance.”

“The Crown has failed to monitor the performance of its delegated Treaty responsibilities by local authorities. Although councils are trying, their efforts have been piecemeal and have not met with particular success. The Crown has failed to monitor this situation or assist with constructive solutions.”

“We consider that there are fundamental flaws in the operation of the current regime… which arise from the combined effect of the following features: the limited capacity of ‘iwi authorities’ to undertake the role envisaged for them in the regime; the Crown’s failure, despite its Treaty responsibility to protect Māori interests, to provide local authorities with clear policy guidance and to require them to adopt processes that ensure appropriate Māori involvement in key decisions; and the low level of engagement with te ao Māori and Māori perspectives exhibited by central and local government decision-makers.”

“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.’ ‘It fails in the following important respects…’”

“[The Crown] has failed to ensure that the Resource Management Act 1991 is implemented in accordance with its stated intention to protect Maori interests and to provide for their values, customary law, and authority in resource management decisions. It has failed to ensure that Te Tau Ihu iwi have adequate capacity to participate in a fair and effective manner. These are significant breaches. The Crown says that it has devoted ‘significant resources’ to improving this situation, we were provided with almost no evidence of it, despite the importance of this legislation and the compelling claimant evidence about the problems with it.”

“We suggest that, for the Resource Management Act to be a more consistently effective tool for Maori (which the Crown has conceded is not always the case), the Government, local authorities, and Maori should work together to ensure an understanding of the processes on offer, as well as a consistent approach to their application. We acknowledge that the Resource Management Act already makes provision for these parties to work together, and we encourage the use of these available provisions for protection of wahi tapu to the fullest extent possible. Use of the existing provisions under the Resource Management Act should be carefully monitored, so that the Crown can put in place effective mechanisms should the existing provisions be less than fully adequate.”

“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.”

“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.”

“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.”

“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‘.”

“We find that we must part company with the understanding of ‘tangata whenua’ and ‘mana whenua’ as used in the Reserves Act 1977, the Conservation Act 1987, and the Resource Management Act 1991.”

“[W]e cannot support the approach adopted in the Resource Management Act 1991, which defines tangata whenua by asking who has the customary authority in a place. If that question can be answered at all, the answer will surely exclude many who are properly tangata whenua as well. If it is the intention of the Act that some special consideration should be given to Maori who have ancestral associations with particular areas of land, then we think that it would be best if that were said. It might then be found that more than one group has an interest. If in any particular case it is intended that particular Maori communities should be heard, then it would be best to describe the type of community, be it traditional or modern.

“To the extent that the Resource Management Act 1991 vests authority or control in respect of the river in other than Atihaunui, without Atihaunui consent, that Act too is inconsistent with Treaty principles.”

‘Management’ is the word used for the powers exercised in relation to the Act, but on our analysis of the statute, the powers given to regional authorities in respect of rivers are more akin to ownership. However viewed, and no matter how often it is said that the Resource Management Act concerns management and not ownership, in reality the authority or rangatiratanga that was guaranteed to Atihaunui has been taken away.’

“While there are now provisions under the Resource Management Act 1991 for consultation with tangata whenua, these could be likened to recognition of tangata whenua as a party with a special interest, not one with authority and control commensurate with tino rangatiratanga over taonga or property.”

“In the Ngawha Geothermal Resource Report 1993, the Tribunal found that…” “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.”

“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.”

“We must now await and see how the Government responds to the Tribunal’s recommendations.”

“We caution, however, that in devolving power to local authorities the Crown’s responsibility to uphold the principles of the Treaty is in no way lessened.”

“We endorse the findings in the Ngawha Geothermal Resource Report 1993. 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.”

“In the present climate, we think that the resource management and conservation management structures are themselves impediments to Treaty principles and utmost good faith.”

“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.”

“We reiterate our recommendation in chapter 8 of the [Ngawha Report]”

“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. In this respect the legislation is fatally flawed.”

“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… shall act in a manner that is consistent with the principles of the Treaty of Waitangi.”

“The Crown obligation … “cannot be avoided or modified by the Crown delegating its powers or Treaty obligations to the discretion of local or regional authorities. If the Crown chooses to so delegate, it must do so in terms which ensure that its Treaty duty of protection is fulfilled.”

“The Crown is entitled to devolve its duties under the Treaty, through carefully worded legislation, to another authority. Nonetheless, it cannot divest itself of its Treaty obligation actively to protect rangatiratanga over taonga. The question of whether the Act is consistent with the principles of the Treaty was not argued in detail before us. We therefore express no opinion on that question.”

“That the Crown take urgent action to amend the procedural provisions of the Resource Management Act 1991 to ensure that all Maori with interests in multiply-owned Maori land have the right to be informed on all matters affecting their land.”

“That the Crown resource an advocacy service to represent all Maori with interests in multiply-owned Maori land and provide advice to Maori in relation to resource management and conservation issues.”

“The Crown has identified a problem with multiply-owned Maori land in relation to resource management matters and has provided a solution, the “iwi authority”, which is assumed to be a traditional concept. To provide what is thought to be a “Maori” solution suggests an assumption that it is a Maori problem. It is not. It is a Crown problem…” “In our view there is an urgent need for amendment to the Resource Management Act 1991 in order to overcome problems such as those in relation to s353 “iwi authorities” and the time limits throughout the Act.”

“To fulfil its obligations under the Treaty, we do not consider that the procedure under the Resource Management Act for the creation of heritage protection authorities is an option to be adopted by the Department of Conservation. We accept the claimants’ submission that it would be a violation of their rangatiratanga.”