By Paul Roger, partner, Adderley Head
The terms of reference for the review of the Resource Management Act 1991 (RMA) included Maori have an effective role in the resource management system consistent with the ‘principles’ of the Treaty of Waitangi, or Te Tiriti o Waitangi (Te Tiriti).
Further reference terms included ensuring appropriate mechanisms for Maori participation in the system, including giving effect to treaty settlement agreements.
This article focuses on the review panel’s (panel) discussion and recommendations relating to the Treaty (Te Tiriti) in respect of section 8 of the RMA. The purpose in doing so is to provide additional visibility around recommendations for change enabling local government to be both aware and prepared for future engagement.
I acknowledge that Maori interests and issues with the RMA are much broader than this discrete topic. Those additional interests and issues, while clearly linked to Section 8 justify discussion beyond the scope of this article.
Status quo – current issues with Section 8
Currently section 8 requires all persons exercising functions and powers under the RMA … to take ‘into account’ the principles of the Treaty of Waitangi.
The issues identified by the panel included a lack of recognition and provision for the treaty within the RMA.
In detail the panel, referencing Waitangi Tribunal reports, noted the tribunal found section 8 does not require those with responsibilities under the RMA to give effect to the Treaty’s principles, but only to take them into account. This is not an obligation to apply them. Treaty rights are not guaranteed, but are at risk of being diminished within the balancing exercise that the RMA supports.
Another issue identified by the panel is the lack of clarity about local government’s role in the treaty ‘partnership’ between Maori and the Crown. However, local government exercises Crown control over resources which can be of significance to Maori without the corresponding obligation to meet the Crown’s Treaty guarantees.
Clarity is not aided by the definition of the Crown in other legislation, namely the Finance Act 1989 which specifically excludes local government. This is in the face of the obvious that the RMA delegates some treaty obligations to local government via Section 8.
The panel considered that currently there is a lack of oversight and limited monitoring of Treaty performance makes it difficult to know how well local authorities are in fact upholding its principles and the obligations resulting from its settlements.
Nevertheless, the panel noted there are numerous reports, submissions, feedback from hui/meetings and other evidence that indicates significant issues for Maori with the RMA system. So lack of monitoring and evaluation makes it difficult to know to what extent outcomes important to Maori are being achieved and how their well-being is affected.
Options for change
Options for change emerged from the panel’s issues and options paper, the Maori working group report, and suggestions from submitters along with discussions undertaken by the panel at regional hui.
The panel considered options to strengthen the Treaty clause by increasing the weighting from “take into account” to one of “recognise and provide for”. Alternatives were utilising the words “have particular regard to” or “give effect to”.
Other options including the following were considered:
- Placing the Tiriti clause earlier in Part 2 to elevate its importance;
- explicitly referring to the principles of Te Tiriti or Te Tiriti itself or both;
- determining whether Te Tiriti should be referenced in both the English language and the Maori language version within the new environment legislation developing guidance on how to implement Te Tiriti clause by including further sub clauses and/or a national policy statement on Te Tiriti; Better alignment between the RMA and other legislation such as the Te Ture Whenua Maori Land Act 1993;
- And providing for regular auditing of central and/or local government performance in meeting Te Tiriti requirements. Monitoring could be undertaken by a central government agency, mana whenua groups or an independent entity or through self-monitoring.
Discussion and panel outcomes.
If the new resource management system is to better align with Maori interests and to be consistent with the Treaty the panel considered recognition of both should be specifically reflected in the purpose and outcomes of the proposed Natural and Built Environment Act (Act).
The panel propose a new clause that would read as follows:
“To achieve the purpose of this Act, those exercising functions and powers under it must give effect to the principles of Te Tiriti o Waitangi”.
The panel was of the view there was strong support for its proposed change to “give effect to” the principles of Te Tiriti within the submissions and feedback it had received.
The panel considered such changes would modernise the RMA’s Tiriti clause and send a strong signal that those performing functions under the Act should give greater weight to it.
Furthermore such a change would place the Act in the company of at least seven other current pieces of legislation that use the directing words “give effect to” in regard to the Treaty or its principles.
The panel considered this change would help address a number of matters including the lack of alignment between the Crown, local authorities and Maori on the role of local authorities in the treaty relationship, provide a lens through which other parts of Part 2 will be viewed, and a catalyst for the partnerships needed to achieve Maori outcomes and to prevent future Treaty breaches and claims.
The panel concluded that defining Te Tiriti o Waitangi as having the same meaning as the word Treaty as defined in section 2 of the Treaty of Waitangi Act 1975 is preferred. Such a change will not affect the legal application of the term which will still consider both versions of the treaty document.
On the issue of referring to the wording of Te Tiriti or alternatively to its principles the panel concluded it is preferable to refer to the principles of Te Tiriti.
Its supporting reasons included the points that Te Tiriti has come to mean more than just words on the page, and it is considered by many to be the founding document of New Zealand/Aotearoa. Also referring to the principles enables the ‘partnership’ to go beyond the transaction made in 1840 and evolve. So the panel prefer treating the Treaty as a living document.
Being alive to the point that changing the words in Te Tiriti clause will not in itself resolve issues, the panel acknowledged further guidance on how to give effect to the clause will be required.
Two options identified by the panel include providing further sub clauses in the Act to direct how specific powers and functions are to be exercised and or national direction. Either of these options could provide greater specificity on how to give effect to the principles of the Treaty.
Of the two options the panel preferred a national policy statement because it would be as directive as additional sub clauses, if not more so, because local authorities would need to give effect to it as a consequence of the hierarchical RMA structure.
The panel were alive to the point that a proposed Tiriti national policy statement would need to be developed through an appropriate process with Maori prior to it undergoing a board of inquiry process.
The panel did stress that in its view giving effect to Te Tiriti is not intended to create a priority right for Maori to the allocation of resources, other than in respect of land or resources they own or as recognised by legislation or Tiriti settlements.
As to monitoring and oversight of Treaty performance, and noting this issue received fewer responses from submitters, the panel noted Maori supported monitoring while also noting their limited resources were already stretched.
However, Maori considered they should have a role on any monitoring body. The panel considered some form of national advisory board broadly in line with options put forward by the productivity commission and the Waitangi Tribunal would be the best option for monitoring Te Tiriti performance.
Such boards should have a range of expertise including planning, law, tikanga and matauranga Maori as well as technical and audit skills. The panel saw the board as a body providing advice and recommendations with Te Tiriti partners being able to undertake their own monitoring or other actions as needed.
The national board would have a clear and active role to assist local authorities and mana whenua who to engage with. Benefits would be to provide certainty and reduce cost for all parties involved.
Local authorities would need to make available relevant monitoring data they held two support the national board in the effective execution of its tasks.
The panel considered that local authorities should be able to set up boards for an area to assist in understanding of the particular Tiriti issues in that area and proactively improve Te Tiriti performance before audit by the national board.
Any boards established by a local authority would be required to report to the national board and the Ministry for the Environment on the monitoring activities and findings.
Local government challenges
This article focuses on section 8. There are many other very important related Maori interest issues that information on and understanding of will be needed.
However, while accepting actual change is some way off, the change process has already begun. So preparations for Maori to be involved and heard in that process need be actioned by local government.
Undoubtedly national bodies and representatives will engage and play key roles. However district and regional perspectives will inform how national bodies undertake those roles.
So ensuring local communication networks with Iwi are functioning well, enabling dialogue on local issues from a local perspective, is important.
Allowing time and resources for these local discussions to promote dialogue on the Panel’s considerations, reasoning, and recommendations on section 8 would enable a focused exchange.
Appreciating actual change will follow the usual legislative reform process, involving submissions on draft legislation, developing informed but adaptable positions now will make involvement within that process even via a national body more effective and efficient.
If the panel’s recommendations are ultimately included in legislation then data gathering on treaty issues and some analysis of the same will be required by local government.
So, checking what data is gathered now and if that data is in usable form having regard to the purpose of the collection would be useful. Changes to existing processes to quality data could also be considered.
While again acknowledging its early days, I do think it’s realistic to accept RMA reform will occur. So it could be helpful now in council planning sessions to add an agenda item that assumes panel recommendations to Section 8 will form part of the new Act.
Doing so enables councils to consider now how such changes would impact on its and others’ roles under the RMA. Further consideration should also be given to what other local authority legislation and related process would be next in line for similar consideration?
If you have any questions about this article please get in touch with one of the Adderley Head team.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.