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Bay of Plenty Regional Council – First Mana Whakahono a Rohe

In June 2017, Bay of Plenty Regional Council was the first local authority in the country to receive an iwi authority Mana Whakahono a Rohe invitation. Council’s Maori policy team leader Anaru Vercoe details steps taken and learnings to date.

Anaru Vercoe

In April 2017 the National Government released a suite of changes to the Resource Management Act 1991 (RMA). Among those changes was a significant provision to enhance the participation of Maori in council decision-making enshrined in the legislation as Mana Whakahono a Rohe (MWR) or Iwi Participation Agreements. Completion of these arrangements is mandatory should a local authority or regional council receive an invitation from an iwi authority.

Prior to the amendments, councils had the discretion to achieve what is now prescribed under legislation. MWR represents government’s intention to raise the profile of Maori participation in decision-making and to hold councils to account.

The purpose of a Mana Whakahono a Rohe is (section 58M):

• to provide a mechanism for iwi authorities and local authorities to discuss, agree and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under this Act; and

• to assist local authorities to comply with their statutory duties under this Act, including through the implementation  of sections 6(e), 7(a) and 8.

This article focuses on the Bay of Plenty Regional Council’s involvement with the MWR invitation from an iwi authority. The intention is not to promote the approach taken by council but to highlight matters that can only be drawn from experience. 

The invitation

In June 2017, the Bay of Plenty Regional Council was the first council in the country to receive an iwi authority Mana Whakahono a Rohe invitation. Notwithstanding the ink was still drying on the amendments to the RMA, it was a steep learning curve for council officers to, first, understand the intention of the MWR provisions, and second to inform council of the impact it would have on responding to Maori. 

Completion

There are several things going for the regional council which gives us the confidence that an MWR with the iwi will be completed:
• There is a supportive general manager, who understands the legislation, the risks and also the potential benefits. She is known and respected by the iwi which further strengthens and enhances the chances of a successful outcome.
• The council has a team of Maori advisors who have legal, policy and planning backgrounds. They are supported by an in-house legal advisor who can act quickly when called upon for advice.
• Council already has a very good relationship with the iwi and parties are comfortable with each other to the extent that discussions are open and honest. There is probably no other quality that can expedite shared positive outcomes than collaboration built on respect and trust.
In combination with these three attributes are actions that facilitate wider understanding of MWR across the region. Bay of Plenty Regional Council recognised early on that collaborating with colleagues in district councils and in central government would lead to future opportunities to share expertise and provide support:
• The Bay of Plenty Regional Council is promoting an inter-council collaborative group to provide support to staff and encourage thinking on options to improve the implementation MWR; and
• It is inviting the Ministry for the Environment to attend council committees, to answer queries, clarify issues and advise on any specific matters falling out of the RMA amendments.
While this experience continues, and as we become more conversant with the nuances of the legislation, perhaps the most valuable lesson we are learning is that MWR will provide clarity on how iwi would like to participate in resource management decision making.
This can only lead towards closer relationships with iwi and opens up opportunities to minimise differences of opinion and produce outcomes that are supported by all parties.

Internal draft guidelines were drawn up setting out the “must do’s” and the “options” as prescribed under the various sections of the Act. These, along with supporting reports, were presented to council which generated a lot of discussion.

This was to be expected given that the changes to the RMA only crystallised in the form of a bill in March 2017, a short period before it was passed in law. This, consequently, did not give council the time to adequately understand the MWR provisions. 

Council had at its disposal the resources to be able to support and attend to the invitation, unlike the iwi, who do not have a suite of specialists to draw on. Resourcing iwi to be an equal partner in the process has been identified as a challenge, but necessary to ensure the success of the MWR.

The iwi involved, however, consider MWR as highly significant, warranting their attention to enable their aspirations for their land, associated waterways and
their people.

Under section 58O (3) & (4), an initial hui must be arranged within 60 days from receipt of the invitation. Since June 2017 there have been four hui focused on understanding what the iwi authority wants to be included in its MWR, who will be involved, the timeframes for completion, the phases or milestones with the timeframe, and how this will be implemented.

It has taken longer to scope out the parameters of the MWR by both parties under the mantle of the “initial hui” or phase one. 

In March 2018 the initiating iwi authority indicated that two other iwi would join in the MWR. This takes the experience into new territory where multiple parties will have specific expectations.

The aim here will be to ensure that iwi have a collective kaupapa that captures those interests under a single umbrella, whilst maintaining good relationships throughout the process. Completing a multi-party agreement will provide a useful template for the future.

Our observations of the process this far have been positive. There is a willingness shown by iwi to be practical and open, but at the same time ready to debate and contest matters with council.

For council this has represented a paradigm shift where decision-making is on equal footing, and that the usual discretionary powers it exercises have been tempered by the provisions of the MWR.

There are levels of understanding, and views on what the legislation purports to enable. The Ministry for the Environment’s recent release of the guidelines on MWR has answered many questions and provided confidence to council staff that they were on the right track.

However, all parties remain on a steep learning curve particularly on the extent and scope of the arrangement.

The test will come when the specific details pertaining to participation have been identified: in particular those matters that are not mandatory which include (section 58R (4)):

• How a local authority is to consult or notify iwi on resource consent matters;

• Circumstances in which an iwi authority may be given limited notification as an affected party;

• Any arrangement relating to other functions, duties, or powers under [the RMA];

• If there are two or more iwi authorities, how they will work collectively together to participate with local authorities; and

• Whether an iwi authority has delegated to a group or person a role to participate in particular processes under the RMA.

Resourcing

An issue of concern to both the council and iwi is the ability for iwi to adequately resource their participation in preparing an MWR. Some iwi negotiators do not live in the region and travel great distances. Financial constraints will also mean that most of the iwi representatives are volunteering their time and expertise.

Further, having to ensure that the technical level of understanding is present during negotiations places an additional pressure on iwi, as most of their experts are engaged in other equally important projects.

Many iwi, for example, are already heavily burdened with having to engage on consent matters, planning and policy proposals, and the new Water Management Areas (WMA) under the National Policy Statement on Freshwater Management 2014.

This is before having time to divide their attention further to initiate an MWR and is set against other tribal matters such as economic and social development. 

MWR has huge potential to reduce costs in the Environment Court, consenting and planning, the sum of which would justify increasing support to implement these arrangements.

As with anything new, though, it will take time to see the benefits, understand the risks, and promote confidence within council and the wider community.

Decision Making

Council committee schedules are set for the year. Using a phased approach with decision-making focused on milestones reduces the frequency to report. Ensuring that council is presented with the specific points for decision making that pertain to the agreed milestones means that key decisions can be considered together in one committee meeting.

For the iwi, negotiators will need to ensure that the same package of proposals is presented to the iwi authority for their consideration within the same period for council. It becomes a challenge to synchronise timeframes where differences of opinion between iwi and council on matters to be included in the agreement arise.

Council officers are currently looking at ways in which decision-making can be sufficiently streamlined to reduce delays in reaching agreed outcomes.

The experience so far

We need to acknowledge that we are in new territory. While councils across the country may have relationship protocols, memoranda of understanding, management plans, or any other participation instruments that enhance their relationships with Maori, MWR is several levels up in terms of enhancing Maori participation in decision-making.

There are mandatory components, optional extras, dispute resolution provisions and a responsibility on councils to review their operational processes every six years to ensure that they are commensurate with an MWR.

Having to navigate through the legislation while almost immediately implementing it has been challenging. The iwi invitation came within a month and a half of the amendments passing, so constructive analysis had to be undertaken while we were engaging with the iwi. Suffice to say, that the analysis continues as we move through the negotiation process.


• Bay of Plenty Regional Council Maori policy team leader Anaru Vercoe also presented a paper on the Mana Whakahono a Rohe at the recent New Zealand Planning Institute Conference in Tauranga. Anaru.Vercoe@boprc.govt.nz


This article was first published in the June 2018 issue of NZ Local Government Magazine.

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