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Mana Whakahono a Rohe : Iwi participation arrangements What do they mean for councils?

Mana Whakahono a Rohe Iwi participation agreements - NZ Local Government Magazine May 2017

Allowing iwi authorities to participate in resource management and decision-making processes is not the same as handing decision-making over to unelected parties, says Brookfields Lawyers partner Linda O’Reilly.

This latest attempt to “fix” the Resource Management Act (RMA) contains a variety of controversial changes and has taken a while to gain sufficient support for the government to propel it into law. With the Productivity Commission recommending a complete re-think of the RMA in its Better Urban Planning report, it seems this is just another stage in attempting to resolve the tension between protecting the environment and enabling development to meet current growth demands.
Some features of the Bill, added at the Committee stage, are the proposed new sections providing for Mana Whakahono a Rohe: Iwi Participation Arrangements (MWRs). The concept of Māori involvement and engagement in RMA processes is not new, having evolved through the many iterations of the RMA.
Productivity Commission chair Murray Sherwin notes that one of the critical goals of a planning system is that it should “recognise and actively protect Māori interests in the built and natural environments arising from the Treaty of Waitangi”.
These provisions extend current provisions, where a MWR is in place, to participating in the preparation, change or review of a policy statement or plan, and to consenting and monitoring.
The provisions apply to iwi and hapū in relation to areas of interest identified as their traditional rohe. Iwi authorities will be able to invite a local authority to enter into a MWR, the purpose of which is to:

  • provide a mechanism to discuss, agree and record ways for tangata whenua, through their iwi authorities, to participate in resource management and decision-making processes; and
  • assist local authorities to comply with their statutory duties under the RMA.

A set of guiding principles is included for the initiation, development and implementation of a MWR. Once invited to enter into a MWR, a local authority must convene a hui to discuss how to develop it, and a MWR must be concluded within 18 months, or such other period as agreed by the parties.
An existing relationship agreement relating to resource management matters may, by written agreement, become a MWR.
A MWR must include provision for iwi authority participation in policy statement and plan preparation, consultation requirements and the development of monitoring methods. It may also provide for consultation on resource consent matters, and define circumstances in which iwi is deemed an affected party.
It cannot be altered or terminated without the agreement of the parties. Once entered into, the local authority must review its policies and processes for consistency with the MWR within six months or an agreed period.
There has been adverse reaction to these changes introduced into the Bill at a late stage, and without the opportunity for further public submissions.
However, substantial changes are often made to Bills as a result of Select Committee recommendations, and it is not uncommon for such changes to reflect political expediency.
Putting the process issue aside, it seems that fears of a tangata whenua takeover of the resource management process are exaggerated.
Allowing iwi authorities to “participate in resource management and decision-making processes” is not the same as handing decision-making over to unelected parties. Local authorities have to agree the terms of a MWR, and are unlikely to want to lose control of their regulatory responsibilities.
It is also worth remembering that in many instances RMA decision-making is already delegated to independent (and unelected) hearing commissioners with no direct accountability to electors.
Further, as with all persons exercising authority under the RMA, the procedural and substantive provisions of that Act continue to apply. There is no reason to expect that parties to a MWR are any less capable of working within the framework of the RMA than any other person.
These new provisions are undoubtedly a big step towards greater involvement of iwi in RMA processes. With goodwill on all sides we have every reason to hope improved participation should result in improved outcomes.

• Linda O’Reilly is a partner at Brookfields Lawyers. 

This article was first published in the May 2017 issue of NZ Local Government Magazine.

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