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Facilitating consultation with tangata whenua

Abstract

Consultation with tangata whenua under the Resource Management Act 1991 (RMA) is a legal requirement in some circumstances. Even when it is not a legal requirement, consultation is generally best practice and can lead to a stronger understanding of the issues, and result in better environmental outcomes.

Consultation requires time and commitment from all the parties involved, whether they be tangata whenua, applicants, council staff or politicians. Consultation is most effective when a mutually trusting relationship is developed.

This guidance note provides practical advice and tools for councils in facilitating consultation with tangata whenua relating to RMA processes. The information will assist RMA practitioners in understanding the statutory context for consultation with tangata whenua and the benefits of consultation.

See Council engagement with tangata whenua on RMA processes - a Ngai Tahu case study for additional guidance. This guidance should be read alongside Consultation for plan development and Consultation for resource consents.

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Guidance note

Context for consultation with tangata whenua:

How to facilitate consultation:

In this guidance note, the term 'tangata whenua ' is used when referring to consultation with Maori groups with mana whenua over particular areas. Unless otherwise specified, this should be read as being inclusive of consultation with any group that represents tangata whenua interests, be they iwi, runanga, hapu, whanau, iwi authorities, or in some circumstances, taurahere.

It is important when embarking on any consultation exercise, to understand the differences between different tangata whenua group. However, through both s35A and clause 3B of the First Schedule, the RMA states that recognised iwi authorities should be the primary point of contact.

See Relevant publications for further information on Maori and council engagement under the RMA.

Context for consultation with tangata whenua

Treaty of Waitangi obligations

The Treaty of Waitangi provides for the exercise of kawanatanga, while actively protecting tino rangatiratanga of tangata whenua in respect of their natural, physical and spiritual resources. All persons acting under the RMA (including applicants, councils and tangata whenua) must take into account the principles of the Treaty of Waitangi (s8). Similar obligations are imposed on councils under the Local Government Act 2002 (LGA).

Statutory obligations and case law developed under the RMA have helped to translate how the obligations under the Treaty of Waitangi are to be given effect to in practice. A guide to the principles of the Treaty of Waitangi, as interpreted by the Waitangi Tribunal and the Courts, has been produced by Te Puni Kokiri.

In Ngati Rangi Trust and Others v The Manawatu-Wanganui Regional Council (A067/2004), the Environment Court said that consultation, or the need to consult, arises from the principle of partnership in the Treaty of Waitangi; this requires the partners to act reasonably and to make informed decisions.

Resource Management Act 1991 (RMA)

Part II of the RMA contains a number of specific provisions relating to tangata whenua that must be considered in RMA processes:

Several other general provisions in the RMA need to be considered, including the requirement to take into account iwi planning documents. A more detailed list is set out in RMA provisions.

In terms of consultation with tangata whenua, there are different requirements for resource consents, notice of requirements and plan development processes.

Section 36A of the RMA specifically states there is no duty to consult any person about resource consent applications and notices of requirement. This applies both to applicants and local authorities. Nevertheless, for many resource consent applications and notices of requirement, consultation with tangata whenua will play a significant role in assessing the effects on Maori cultural values and the matters set out in Part II of the RMA. See the guidance note Consultation for resource consents for more information.

Consultation with tangata whenua is mandatory when developing plans and policy statements. Clause 3B of the First Schedule to the RMA sets out a process for consulting with iwi authorities. This process is based on a number of principles to follow to achieve good consultation outcomes, rather than a step-by-step methodology. See the guidance note Consultation on plan development for more information.

Principles of RMA consultation

The Environment Court has developed a statement of principles for consultation synthesised from a number of decisions. These have been primarily developed through case law relating to resource consents and notices of requirement. Yet, they are equally applicable to the plan development processes, and should be understood before embarking on any consultation process.

Benefits of consultation with tangata whenua in RMA processes

Effective consultation with tangata whenua can produce better environmental outcomes.

Timely consultation is also able to reduce bottlenecks, delays and added costs that can occur if tangata whenua only become aware of proposals at the last minute and options for influencing the proposal and mitigating adverse effects are past.

Other benefits of consultation with tangata whenua include:

It is important that consultation is fully understood and properly managed to avoid:

Disadvantages can be managed if realistic expectations are set at the start of any consultation process; and if initial consultation has been undertaken to identify the most appropriate methods and processes to follow where there are no existing arrangements (such as an operational agreement) in place.

Statutory acknowledgements

Statutory acknowledgements arise from the settlement of historical claims under the Treaty of Waitangi. They are an acknowledgement by the Crown of a claimant group 's particular cultural, spiritual, historical and traditional association with specified areas. Statutory acknowledgements generally contain specific requirements for councils to follow: when dealing with resource consent applications; and in recording all areas affected by statutory acknowledgements in plans. In some cases there are even directions on how district plans need to reflect the acknowledgements.

Local Government Act 2002

The Local Government Act 2002 (LGA) contains a number of provisions that relate specifically to Maori. The LGA requires that, in order to recognise the Crown 's responsibilities, councils must take appropriate account of the principles of the Treaty of Waitangi. The LGA sets out specific requirements for councils to facilitate participation by Maori in local authority decision-making processes. The LGA requires councils to consult with persons who may be affected by or have an interest in their decisions. Iwi authorities and other representatives of Maori interests must be consulted in relation to any decision or matter of interest to Maori.

There are some clear synergies between the consultation required with tangata whenua under the LGA and RMA. The LGA provisions require councils to establish and maintain processes to provide opportunities for Maori to be involved in local government decision-making. Subject to some limitations, Clause 3C of Schedule 1 of the RMA provides for plan and policy-making consultation to be undertaken as a part of consultation under another Act, such as the LGA. The period for such consultation under other Acts, that can be used for RMA plan and policy making purposes, is now 36 months. This provides more opportunity to combine LGA and RMA consultation exercises.

Councils should explore how multipurpose consultation can be undertaken, in order to make best use of everyone 's time. See the guidance note Consultation for Plan Development for more information on integrating RMA consultation with consultation under other legislation, and also Linkages with non-RMA plans and strategies.

Determining which tangata whenua group to consult

It can be challenging to determine which iwi authority, group representing hapu for the purposes of the RMA, or other tangata whenua group to consult. This is particularly so where a number of groups overlap in interests in a particular locality within a district or region. To address this, the Environment Court has established, through case law, a set of principles to consider when dealing with mandate issues between different tangata whenua groups. In some cases, these principles may also apply to individuals within iwi authorities or tangata whenua groups.

Additionally, it is important to note that an individual or a tangata whenua group may have a range of interests in a proposal or issue and the wider environment; their concerns may need to be considered in different roles. For example, an individual or group may have interests as a landowner, or as a person or group with mana whenua, or as an iwi authority, or as a general member(s) of the public (see Auckland City approach).

Councils can assist in dealing with mandating issues by maintaining and regularly updating their s35A register and contact databases, and by recognising the different roles and interest of tangata whenua in the community. Councils should also be prepared to consult with more than one tangata whenua group in case there are overlapping interests within a particular locality within a district or region. Iwi management plans can be a useful guide for assisting councils to determine which tangata whenua group or groups to consult, as they will generally define over which particular areas a tangata group claims mana whenua. See Frequently asked questions about iwi management plans for more information.

How to facilitate consultation

This section describes the tools that councils can use to:

The key tools available to councils to facilitate consultation with tangata whenua are:

These tools help councils to build relationships with tangata whenua and establish a framework within which effective consultation can occur. In establishing a framework, it is equally important for councils to understand tikanga Maori and traditional Maori decision-making processes.

See the Resource consent consultation guidance note for specific guidance on facilitating consultation between tangata whenua and consent applicants. See Council engagement with tangata whenua - a Ngai Tahu case study for guidance on how some South Island councils facilitate consultation and wider engagement with Te Runanga o Ngai Tahu and Ngai Tahu Papatipu Runanga.

Developing relationship agreements with tangata whenua

What are relationship agreements?

Relationship agreements are high-level documents that formally acknowledge and identify the scope and extent of understandings and/or working relationships between a council and a specific tangata whenua group who may have mana whenua over a particular area, or claim ahikaa.

Relationship agreements generally do not solely focus on the RMA or the consents process, but are aimed at the wider relationship between council and tangata whenua. Relationship agreements are also known as:

For best practice examples of memoranda of understanding and charters of understanding, see the

Developing good relationship agreements

Successful relationship agreements provide recognition of the underlying Treaty of Waitangi basis, for the relationship between a council and tangata whenua. Developing relationships between councils and tangata whenua to assist in their exercise of kaitiakitanga is very important. However, relationship agreements should not be entered into simply as a means to fulfil either Treaty of Waitangi or other legislative obligations. Relationship agreements represent a formalisation of the development, fostering and nurturing of good relations between the council and tangata whenua. Such agreements must also be active and living documents.

Both elected representatives and staff have roles to play in developing and maintaining good and effective working relationships with tangata whenua and to improve tangata whenua participation. These working relationships are key to developing successful relationship agreements.

Successful relationships should be recognised through a formal document; one that is clear, keeps the parties 'honest ', and 'outlives ' the involvement of particular players. Councils using formal agreements to underpin their working relationships with tangata whenua often develop stronger and more effective working relationships.

Increasingly Treaty of Waitangi settlements are requiring/encouraging relationship agreements as part of their redress. This demonstrates the importance many tangata whenua groups place on councils, to ensure their views and concerns are considered in resource management decisions. Settlements can be viewed on the Office of Treaty Settlements website.

Best practice tips for relationship agreements

There are a number of questions surrounding a relationship that should be addressed prior to entering into any agreement. Some key points about entering into relationship agreements include:

What to cover in a relationship agreement?

The contents of an agreement can vary, but most contain some or all of the following elements:

Council consultation policies and procedures

In addition to formal relationship agreements, councils may have policy documents that provide a stated position on consultation with tangata whenua. These may include:

For an example of a tangata whenua consultation policy, see Wairoa District Council's consultation policy.

For an example of broader consultation protocols and procedures, see the Queenstown Lakes District Council best practice example.

For more information on relationship agreements, refer to the list of relevant publications at the end of this guidance note.

Developing operational agreements with tangata whenua

What are operational agreements?

Operational agreements set out all the areas of RMA operation in which the council intends to engage with tangata whenua. As such they will cover working on RMA policies and plans, dealing with resource consents including monitoring, and any arrangements for general monitoring of the environment. The use of formal and informal council committees are covered separately; these are generally outside the scope of an operational agreement.

Operational agreements are also known as service contracts or service level agreements. They outline how a particular service will be undertaken, such as:

Benefits of operational agreements

Operational agreements help provide certainty for tangata whenua, the council, resource consent applicants and the public about the processes to be followed for consultation and engagement on RMA policies, plans, resource consents and monitoring. This certainty can improve timeliness and reduce overall costs. See the Dunedin City Council best practice example.

What can be included in operational agreements?

An operational agreement can start with some general points, followed by specific aspects for policies and plans, resource consents and monitoring. General aspects could include:

Specific aspects could include:

See the Whangarei District Council Resource Consent Response Criteria best practice example.

Establishing formal and informal tangata whenua council committees

An increasing number of councils are establishing both standing (formal) and advisory (informal) tangata whenua committees. They are a means of relationship building and increasing tangata whenua participation in RMA processes and decision-making. Options to establish these include:

Under the Local Government Electoral Act 2001, councils can also chose to establish Maori wards and constituencies; these are areas in which only those on the Maori Parliamentary electoral role can vote for local government representatives. Environment Bay of Plenty has established three Maori seats on its 13-seat council.

Resourcing the participation of tangata whenua in RMA processes and decision-making

Tangata whenua groups are rarely resourced to respond to requests for consultation and participation in RMA processes. Yet, they may receive large volumes of requests by councils seeking input on plan development or lodged applications for resource consent, or from applicants seeking to consult on their proposals. The capacity and capability issues that tangata whenua face in engagement in RMA processes in responding to such requests often affect their ability to respond meaningfully, promptly, or at all. Assisting in the development of iwi management plans where none exist, or assisting with their implementation where they do, can help overcome capacity and capability issues.

Some councils have determined that, as Treaty partners, they have effectively an obligation to ensure that tangata whenua groups can actively participate in RMA processes; and not just provide opportunities, but also the resources to do so. Clause 3B of the First Schedule to the RMA expressly requires councils to consider ways to foster the capacity of tangata whenua to participate in consulting on policy statements and plans. This requirement is similar to that of the LGA regarding all decisions of significance to tangata whenua. The provision of financial support through an operational agreement can enable tangata whenua to effectively participate in the RMA process, both with applicants and the council.

Tangata whenua often have a legitimate expectation that the costs they incur in responding to requests for consultation, information or advice can be recouped from those who require this information. Having a clear contract for the service with the associated tangata whenua group to provide expert advice, such as through cultural impact assessments, can help provide clarity and determine the expectations of all parties. Resource consent applicants are often not aware of this expectation. To avoid this confusion:

For best practice examples of these approaches, see:

The arrangements for payment by councils in consulting with tangata whenua, and the communication of advice on charging to applicants, can be addressed in the operational agreements referred to above. See for example the Southland Council's best practice example for funding of Te Ao Marama Inc.

The following matters should be taken into account when considering resourcing tangata whenua consultation and wider participation in RMA processes:

Maintaining records and contact databases

Accurate and up-to-date records and contact information is fundamental to consultation with tangata whenua groups. Section 35A of the RMA requires councils to keep and maintain records about iwi authorities and groups that represent hapu within their region or district. These records are for their own consultation purposes and to provide applicants with up-to-date information on those groups that councils advise them to consult with. This can be problematic as the nominated contact can change regularly for some iwi or hapu.

It is primarily the responsibility of the Crown to provide councils with information on the contact details and areas over which one or more iwi exercise kaitiakitanga. This information is provided through the Te Kahui Mangai website administered by Te Puni Kokiri. Note that, for the purposes of the RMA, the areas of interest to iwi and hapu may in some cases be different from their traditional tribal boundaries or rohe.

Councils are expected to assist with keeping such records current, by regularly contacting the groups concerned (such as through relationship agreements). Further, the council must hold information on the planning documents recognised by each iwi authority at the council. A good working relationship (and formal relationship agreement) with tangata whenua should make this an easy task.

Information collected under ss35 and 35A on planning documents and contact details must be provided to the Minister for the Environment if requested, within a specified timeframe. This is a new provision inserted by RMAA 2009 and will be introduced as a regulation under s360(1). Refer to the Ministry for the Environment website for more information.

For examples, see

The way in which contact information is communicated to applicants can be dealt with in the operational agreements referred to above. For more information see managing contact details.

Developing plan provisions that recognise the interests of tangata whenua

District and regional plans can include clear directions to readers on where consultation with tangata whenua may be appropriate, and where they may be considered to be adversely affected for the purposes of s95E of the RMA.

Clause 3(1)(d) of the First Schedule requires that councils consult with iwi authorities, and the board of any Foreshore and Seabed Management Reserve, during the preparation of policy statements and plans. Note that at the time of writing there are no operational Foreshore and Seabed Management Reserve Boards. Through such consultation, the significant issues and interests of tangata whenua should become clear. Clause 3B of the First Schedule sets out the general principles required for this type of consultation. However, there are a number of capacity and capability barriers affecting the level of tangata whenua engagement in plan development processes.

Iwi management plans are a useful tool to assist in tailoring and targeting consultation, by providing guidance and information on particular matters that may be of concern to tangata whenua. See Assisting in the developing of iwi management plans and Frequently asked questions on iwi management plans for more information.

Plans are not an appropriate vehicle for detailed operational matters (as these are subject to change). However, they provide a good mechanism for communicating to applicants the benefits of consultation with tangata whenua on particular types of resource consent applications. Plan provisions recognising the interests of tangata whenua may also help applicants take these into account when developing their proposals; but plan provisions cannot require applicants to consult.

Plan provisions may be used to recognise tangata whenua interests by:

Care should be taken in putting provisions in plans, as the specifics of each application still need to be carefully assessed. However, where it is clear that tangata whenua would be adversely affected, such as the modification or destruction of wahi tapu, there should be adequate justification for such a provision. For example, see the Maori heritage provisions in the Auckland City Council - Hauraki Gulf Islands Proposed District Plan.

For examples of plan provisions that highlight the importance of - and need for - consultation, see the New Plymouth District Council wahi tapu and archaeological site provisions and Environment Waikato 's consultation policy.

The Environment Southland and Waikato District Council best practice plan provisions demonstrate how tangata whenua concerns are addressed in an integrated manner throughout plans.

Assisting in the development of iwi planning documents

Iwi planning documents, or iwi management plans, are a very useful tool for documenting issues of significance to tangata whenua, and must be taken into account in the plan development process. Where issues of significance are documented in iwi management plans, they can:

Councils can assist the development of iwi management plans by providing:

One of the key challenges that can be faced in preparing iwi management plans relates to the disclosure of sensitive information. Some tangata whenua may not wish to disclose the location of particularly sensitive wahi tapu; this can affect how consultation occurs both at plan development and resource consent stages. For guidance on the use of s42 to protect sensitive information, particularly around historic heritage information, see the guidance note on historic heritage.

For best practice examples of councils supporting the development of iwi management plans, see:

See Whakamau ki Nga Kaupapa - Making the best of iwi management plans under the Resource Management Act 1991 and Frequently asked questions on iwi management plans for more information.

Joint management agreements

Sections 36B to 36E of the RMA provide for a council and an iwi or a group representing hapu, to jointly manage resources under a "joint management agreement". Decisions made under such an agreement have the effect of being decisions of the council. The use of joint management arrangements under 36B between councils and tangata whenua offer an opportunity to facilitate better relationships. To date the only joint management agreement is between Taupo District Council and Ngati Tuwharetoa , who have been granted decision-making powers in resource consent decisions. The agreement establishes a joint committee in which appropriately qualified iwi appointees will join Taupo District councillors in resource consent and private plan hearings changes which apply to Maori multiple-owned freehold land.

Imposing consent conditions that recognise the interests of tangata whenua

Applications are usually granted subject to conditions imposed under s108 of the RMA. Many councils use 'standard conditions ' to deal with common situations. While caution should be exercised when using standard conditions, as the particular circumstances of each application need to be addressed, they can be a useful mitigation tool to address tangata whenua concerns or interests in a consistent manner. See Arnott v North Shore City Council A1/2000 in thecase law section of Conditions of a resource consent for more information.

Typical matters that consent conditions may refer to include:

Tangata whenua and the council should share and discuss examples of the types of conditions that may be imposed to avoid, remedy or mitigate adverse effects, particularly while developing relationship and operational agreements. This can prevent situations where tangata whenua seek the imposition of conditions that may be impractical, unenforceable, unreasonable or ultra vires ('beyond powers '). A frank exchange of such information should be seen as part of the role of the council in providing education to tangata whenua on resource management issues.

For example, see the Gore District Council standard condition and the condition imposed by the Environment Court for Project West Wind.

For more information, see the guidance note on Conditions of a resource consent.

Recognising kaitiakitanga through the monitoring of resource consent conditions

Councils should provide for tangata whenua to be actively involved in the monitoring of consent conditions, where tangata whenua have an identified interest in the outcome the condition is seeking to achieve.

Section 7(a) of the RMA requires councils to have particular regard to kaitiakitanga. Kaitiakitanga is defined in the RMA as: "the exercise of guardianship by tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources and includes the ethic of stewardship".

This ethic of stewardship often has no temporal or spatial limitations, and extends well beyond the date of the issue of any particular consent, as does the exercise of the consent itself. Tangata whenua often have an interest in the operational aspects of an activity, particularly where information on the effects of that activity may be lacking during the consenting phase, and may need to be developed over time through consent monitoring. This is particularly so where the monitoring of those activities that affect natural and physical resources, such as air and fresh or coastal waters, or heritage and archaeological sites is concerned.

Monitoring by tangata whenua can involve a range of actions:

A challenge of involving tangata whenua in the monitoring of consent conditions is who pays for their time. This needs to be addressed and resolved before the issuing of any consent, and should be addressed in any relationship agreement (in general principle) or condition of consent (for specific consents).

For an example of how kaitiakitanga can be recognised in monitoring, see the Environment Canterbury best practice example.

See the guidance note Monitoring and reporting for more information on monitoring resource consents.

Building capacity

As part of being able to engage and consult more effectively with tangata whenua, councils should consider different methods of building their internal capacity. This is a particular consideration for consultation in plan development processes. See the guidance note Plan development consultation for more information.

There are a number of initiatives that councils can employ in building capacity to address tangata whenua interests. For best practice examples of different initiatives, see:

Of the available initiatives, employing iwi liaison officers, translators and/or facilitators is a key means by which councils can build capacity to deal with tangata whenua matters:

The effectiveness of council-based iwi liaison staff in engaging tangata whenua is often related to their independence from council politics, their status in the organisation and their resourcing.

For best practice examples, see:

 

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Best practice example

Determining which tangata whenua to consult

Relationship agreements

Operational agreements

Tangata whenua council committees

Resourcing tangata whenua participation

Maintaining records and contact databases

Developing plan provisions that recognise the interests of tangata whenua

Assisting in the development of iwi management plans

Imposing consent conditions that recognise the interests of tangata whenua

Recognising kaitiakitanga through the monitoring of consent conditions

Building capacity within councils

Using liaison officers, translators and facilitators

RMA provisions

RMA provisions identified below can be viewed through the following link.

Section 2 Interpretation
Section 6   Matters of national importance
Section 7   Other matters
Section 8 Treaty of Waitangi
Section 17A   Recognised customary activity may be exercised in accordance with any controls
Section 17B Adverse effects assessment
Section 33 Transfer of powers
Section 35A Duty to keep records about iwi and hapu
Section 36B Power to make joint management agreement
Section 39 Hearings to be public and without unnecessary formality
Section 42   Protection of sensitive information
Section 61 Matters to be considered by regional council (policy statements)
Section 62 Contents of regional policy statements
Section 66 Matters to be considered by regional council
Section 74 Matters to be considered by territorial authority
Section 79A Circumstance when further review required
Section 79B   Consequence of review under section 79A
Section 85A Plan or proposed plan must not include certain rules
Section 85B Process to apply if plan or proposed plan does not comply with section 85A
Section 94B Forming opinion as to who may be adversely affected

Schedule 1; Part 1 - Preparation and change of policy statements and plans by local authorities:
Clause 2 Preparation of proposed policy statement or plan
Clause 3 Consultation
Clause 3A Consultation in relation to policy statements
Clause 3B Consultation with iwi authorities
Clause 3C Previous consultation under other enactments
Schedule 11  Acts that include statutory acknowledgments
Schedule 12 Adverse effects assessment and report and controls in relation to a recognised customary activity

The guidance note Frequently asked questions on iwi management plans contains a list of RMA provisions that recognise tangata whenua interests in resource management.

Case law

See Guidelines for consulting with tangata whenua under the RMA: an update on case law for a summary of case law on consultation up to December 2003. What follows summarises relevant case law from December 2003 to September 2008:

Waiareka Valley Preservation Society Inc v Waitaki District Council and Others(C84/2008). This case relates to the eligibility of the Waitaha Trust to be a s274 party to a proceeding. The applicant argued that it had consulted with the proper representatives of the tangata whenua (Te Runanga o Ngai Tahu); this therefore meant that the Waitaha Trust could neither have an interest greater than the public generally, nor represent a relevant aspect of the public interest in this proceeding. The applicant, and the iwi groups that provided evidence of the consultation, relied on s15 of the Te Runanga o Ngai Tahu Act 1996 as a basis for claiming that Te Runanga o Ngai Tahu represented all Maori interests in these proceeding, including those the appellant claimed to represent. The Court held that while Te Runanga o Ngai Tahu may be widely recognised as representing and being able to consult on behalf of all Ngai Tahu whanui, this did not preclude an individual hapu or member from appearing in the Environment Court. The Court also held that there can be more than one voice representing relevant aspects of the public interest and those voices may dissent from one another. The Court found in favour of the appellant.

Paihia and District Citizens Association and Others v Far North District Council (A152/2006). The Environment Court held that consultation by an applicant for consent is not a mandatory requirement of the Act; however, the process is encouraged by the Act, primarily in pursuit of adequate and accurate information about effects on the environment, and other aspects of the purpose and principles of the Act. The Court held that one possible consequence of inadequate consultation by an applicant might be, that the Court might be forced to require that further information be obtained - if necessary adjourning a hearing for the purpose. This equally applies to local authority decision-makers. The Court was also critical of the Council's previous practices in respect of consultation with tangata whenua, particularly given the applicant had not consulted with the representative then listed on the Council's iwi contact database, but rather with someone who was not listed as being representative.

Kawhia Harbour Protection Society Inc and Others v Otorohanga District Council (CIV 2006 419 1089). The Court stated its surprise that the council had accepted an assertion at face value, that an applicant was unaware of any concerns that local Maori may have in respect of the property - when the council was already aware through correspondence and communication with Maori that they did have concerns. The Court was particularly critical of the lack of consultation, given that the plan promotes consultation with iwi.

Benjiman Te Piari v Gisborne District Council (W93/2004). This case involved a complaint about a lack of consultation, and that consultation had not occurred with the correct tangata whenua group. This case provides useful guidance on mandate issues: the Court sets out in detail why it did not consider issues of who should have been consulted were relevant or within its jurisdiction, and what approach should be taken when these matters are raised. The Court held that consultation is not an end or an obligation in itself; rather, it is one possible method of gathering views from those affected so that these views can be taken account of in the decision-making process.

Horahora Marae and Others v The Minister of Corrections (A085/2004). This case gives significant guidance for those undertaking consultation, by providing a series of relative principles underlying consultation. In this case, the appellant argued there had been inadequate consultation. On examination, the Court was satisfied there had been considerable and thorough consultation in the development of the applications. The Court also noted that representatives of the appellant had exhibited closed minds and had failed to avail themselves of the opportunity to be consulted.

Ngararatunua Marae Committee v Whangarei District Council(A045/2004). This case related to appeals to the proposed district plan. The Court provided a direct reminder to the appellant that they must be open and accessible for consultation processes in respect of resource consent applications, particularly in order to foster better relations with the local community.

Ngati Rangi Trust and Others v The Manawatu-Wanganui Regional Council (A067/2004). The Environment Court said that consultation, or the need to consult, arises from the principle of partnership in the Treaty of Waitangi, which requires the partners to act reasonably and to make an informed decision.

Related guidance notes

The following guidance notes are related:

Relevant publications

Council-Maori Engagement - the Benefits of Building Good Relationships with Maori
Author: Local Government New Zealand
Date: October 2007
This fact sheet provides information on the benefits of building good relationships with Maori, statutory responsibilities, and ways of strengthening engagement to meet LGA requirements.

Frequently Asked Questions On Council-Maori Engagement - A Resource to Support Councils
Author: Local Government New Zealand
Date: October 2007
This document provides answers and information to address questions frequently asked by councils about council-Maori engagement.

Innovative: The Mana Whenua Reference Group
Author: Namouta Poutasi (Planning Quarterly)
Date: September 2007
This article provides a brief overview of the Mana Whenua Reference group, a tangata whenua group of mandated representatives formed to provide input into the New Plymouth Coastal Strategy. The group was formed of representatives from nine tangata whenua groups, the council, and independent adviser Namouta Poutasi from Beca Carter Hollings and Ferner.

Maori and Aquaculture Development
Author: Te Puni Kokiri and the Ministry for the Environment
Date: May 2007
This booklet was written by Keir Volkerling for the Ministry for the Environment, and subsequently published by Te Puni Kokiri. It discusses how tangata whenua can: engage with the planning processes for aquaculture development; develop relationships with the aquaculture industry; and implement arrangements for the allocation of aquaculture assets.

Your Rights as an 'Affected Person '
Author: Ministry for the Environment
Date: June 2006
A guide for people who have been asked to give their written approval to someone else 's resource consent application.

How an 'Historic and Probably Unique Accord ' Works
Author: Mark von Dadelszen (Planning Quarterly)
Date: June 2006
This article discusses the unique approach taken by the Hastings District Council and tangata whenua to resolving tangata whenua and community concerns about the discharge of human waste to the sea.

The Concept of Indigenous Planning as a Framework for Social Inclusion
Author: Hirini Mataunga (Planning Quarterly)
Date: June 2006
This article outlines the concept of a duel planning tradition and discusses iwi management plans as a vehicle for expressing Maori planning ideals; it provides a window into the world of indigenous planning.

Maori and Council Engagement under the Resource Management Act 1991
Author: Te Puni Kokiri
Date: February 2006
This is a report of the findings of case studies about the ways that councils and Maori are working together under the RMA. It presents what Maori and council staff consider to be the practical issues, such as capacity and capability, that affect their engagement.

Decolonising the Land - Naming and Renaming Places
Author: K J Belshaw (Planning Quarterly)
Date: December 2005
This article examines the role planners can play in building collaborative relationships with tangata whenua through the naming of places, where indigenous place names can be reintroduced.

Effective Participation in Resource Consent Processes: A Guide for tangata Whenua
Author: Ministry for the Environment
Date: March 2005
This guide aims to help tangata whenua to participate effectively in resource consent decision-making. It explains the Resource Management Act and its importance to tangata whenua; how and when tangata whenua can get involved in resource consent decision-making; what tangata whenua need to do to participate effectively; and what tangata whenua can expect and what is expected of them.

Consultation with Papatipu Runanga
Author: Tim Priddy and Miranda Barr (Planning Quarterly)
Date: December 2004
This article outlines how Opus International Consultants Limited have developed structured processes to assist Papatipu Runanga to develop their desired outcomes through interactive consultation.

Local Authority Engagement with Maori
Author: Local Government New Zealand, Te Puni Kokiri, Ministry for the Environment and Department of Prime Minister and Cabinet
Date: July 2004
This report presents the findings of a survey conducted in 2004, to identify current practices used by councils when working with or engaging Maori. It is based on, and updates, a 1997 Local Government New Zealand survey published under the title 'Liaison and Consultation with Tangata Whenua '.

Guidelines for Consulting with Tangata Whenua under the RMA: An Update on Case Law
Author: Ministry for the Environment
Date: December 2003
This paper builds on an earlier Resource Management Act working paper published in June 1995. It is targeted primarily at local authorities and iwi authorities working under the Act, and aims to assist them in understanding the principles emerging from case law. It had been updated to incorporate the Resource Management Amendment Act 2003.

Ngai Tahu Statutory Acknowledgements
Author: Ministry for the Environment
Date: December 2002
A flyer giving a brief outline of statutory acknowledgements under the Ngai Tahu Claims Settlement Act 1998, and how they may affect resource consent applicants in some areas of the South Island.

Whakamau ki Nga Kaupapa - Making the Best of Iwi Management Plans under the Resource Management Act 1991
Author: Ministry for the Environment
Date: June 2001
This guide provides a practical summary of ideas to help local authorities make the most of iwi management plans and other iwi planning documents. It provides suggestions for council staff and their consultants to work more effectively with iwi, and represent their views in district and regional planning processes using iwi management plans as a focus and starting point.

Talking Constructively: A Practical Guide for Building Agreements Between Iwi, Hapu and Whanau, and Local Authorities
Author: Ministry for the Environment
Date: May 2000
This guide is designed to be a practical summary to help iwi, hapu, whanau and local authorities to prepare for all forms of joint discussions, including mediation.

Nga Tahu Statutory Acknowledgements - A Guide for Local Authorities
Author: Ministry for the Environment
Date: May 1999
This guide provides local authorities within Ngai Tahu 's rohe with guidance on how statutory acknowledgments affect RMA processes.

Ngai Tahu Statutory Acknowledgements (PDF 377 KB)
Author: Martin Keller (Planning Quarterly)
Date: June 1999
This article reviews statutory obligations under the Ngai Tahu Claims Settlement Act 1998. The author suggests that the model adopted in the Act for the resolution of these matters could provide a model for council iwi relationships around the country.

Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates
Author: Ministry for the Environment
Date: January 1999
A good practice guide for those who are trying to site facilities that communities need but often don 't want in their backyard - projects such as residential treatment facilities, meatworks, and road upgrades. It looks at best practice in consultation and techniques for addressing community concerns. A number of case studies explore the experiences of various agencies with consultation on 'Not in my back yard (NIMBY) ' projects.

Kaitiakitanga and Local Government: Tangata Whenua Participation in Environmental Management
Author: Parliamentary Commissioner for the Environment
Date: June 1998
This study revisited an earlier investigation on guidelines for local authority consultation with tangata whenua. The report reviews progress made on tangata whenua involvement in Resource Management Act (RMA) processes. It identifies a number of areas for improvement, particularly in processes followed and relationships between iwi and councils.

He Tohu Whakamarama
Author: Ministry for the Environment
Date: January 1998
This is a report on the interactions between local government and Maori organisations in RMA processes.

Current challenges in practice

Barriers to effective engagement

There is still a general lack of effective engagement between tangata whenua and councils at the stages of RMA plan and policy statement preparation and review. Current participation in RMA processes is primarily at the resource consent stage: this is reactive and can be time-consuming if effective processes or operational agreements are not set up.

In addition, many councils are still struggling to identify who the mandated iwi or hapu are, particularly in situations where multiple iwi authorities have overlapping interests. Barriers to improving and funding Maori engagement often arise because of the turn-over of elected representatives and senior council staff. There is the potential for new staff and representative not being aware of their legislative responsibilities and of the iwi and hapu representatives who have built up a relationship with council and have an understanding of how it works. Regular turn-over brings with it the need to establish new relationships between councils and tangata whenua. Sometimes, clashes in personalities can break down relationships.

Relationship building is important to facilitate better and more effective consultation processes. Many more councils need to be actively engaged in building relationships and employ staff to specifically foster the process.

Resolving outstanding issues

It may be necessary to create or mend relationships before commencing consultation for the next generation of planning documents. Many tangata whenua may feel (as do some in the general community) that the district plan has not allowed or has prevented certain activities. For example, the ability to build or access facilities such as marae, kohanga reo or kura on tribal land, or on council or government land, may have been hindered by unfavourable zoning or lack of adequate recognition of the value of a range of uses related to papakainga provisions in the plan.

Significant time may be needed to hear about the things that did not work. Moving forward may be difficult if the relationship with tangata whenua is new. Reactions may also depend on the level of resourcing and capability of tangata whenua. This should be factored into any timetable for plan development.

Acknowledgements and editorial comments

This guidance note was prepared by Tania Richmond from Richmond Planning Limited and Mark Leggett of Enfocus in October 2004, with input from Gina Sweetman and Richard Hills from the Ministry for the Environment. It was reviewed by the Quality Planning Editorial Panel. This revised note builds on earlier work by Karen Bell of Enviro Solutions New Zealand Limited. A further review was undertaken by Gina Sweetman of Sweetman Planning Services in May 2008 and reviewed by Robert Schofield of Boffa Miskell and Hamish McGillivray of Ministry for the Environment in July 2009.

This guidance note was updated to reflect RMAA 2009 by Erica Sefton of The Project House Ltd in October 2009.

Key definitions

Ahikaa: means burning fires of occupation - historical and spiritual ties to land within a tangata whenua group 's boundaries. (Source: Maori land Court Glossary www.courts.govt.nz/Maorilandcourt/glossary.htm)

Hapu: clan, tribe, subtribe - section of a large tribe. (Source: Maori Dictionary www.maoridictionary.co.nz)

Iwi: tribe, nation, people, race. (Source: Maori Dictionary www.maoridictionary.co.nz)

Iwi authority: the authority which represents an iwi and which is recognised by that iwi as having authority to do so. (Source: s2 of the RMA)

Kaitiakitanga: the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship. (Source: s2 of the RMA)

Kaumatua: adult, elder, elderly man, elderly woman. (Source: Maori Dictionary www.maoridictionary.co.nz)

Kawanatanga: government. (Source: Maori Dictionary www.maoridictionary.co.nz)

Koha: gift, present, offering, donation or contribution. (Source: Maori Dictionary www.maoridictionary.co.nz)

Mana whenua: Traditional status, rights and responsibilities of hapu as residents in their rohe. (Source: www.pce.parliament.nz/work_programme/glossary)

Runanga: council, tribal council, assembly. (Source: Maori Dictionary www.Maoridictionary.co.nz)

Tangata Whenua: the iwi, or hapu, that holds mana whenua over a particular area. For the purpose of this guidance document, the term tangata whenua has been used to apply to both singular tangata whenua groups and multiple tangata whenua groups. (Source: s2 of the RMA)

Taonga: Valued resources, assets, prized possessions both material and non-material. (Source: www.pce.parliament.nz/work_programme/glossary)

Te Kahui Mangai: a directory of Iwi and Maori Organisations. (Source: www.tkm.govt.nz)

Tikanga: correct procedure, custom, habit, lore, method, manner, rule, way, code, meaning, reason, plan, practice, convention. (Source: Maori Dictionary www.maoridictionary.co.nz)

Tino rangatiratanga: self determination. (Source: www.pce.parliament.nz/work_programme/glossary)

Wahi tapu: special and sacred places.
(Source: www.pce.parliament.nz/work_programme/glossary)

Whanau: extended family, family group. (Source: Maori Dictionary www.maoridictionary.co.nz)

Whanaungatanga: relationship. (Source: Maori Dictionary www.maoridictionary.co.nz)