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 also generally best practice and may lead to better environmental outcomes.
Consultation requires time and commitment from all the parties involved, be they tangata whenua, politicians, council staff, or applicants. Consultation is most effective when a mutually trusting relationship is developed.
This guidance note focuses on issues specific to consultation with tangata whenua, in relation to the resource consent and plan development processes. It provides councils with practical advice and tools they can use in managing and facilitating consultation with tangata whenua under the RMA.
Those council staff involved in reviewing and changing regional and district plans may find much of the material in this guidance note to be of assistance. They should also refer to the guidance note on the consultation process for more information on general principles and tips on consultation specifically relating to the plan development process.
This guidance note is of relevance for all staff responsible for the management and/ or processing of resource consent applications as it details the types of policies and procedures that facilitate good consultation. Further information for consent processing staff on day-to-day practice issues for consultation covering all parties (not just tangata whenua) is contained in the note on consultation for resource consents that is part of the consent processing resource.
Guidance note
This guidance note is divided into four sections:
- Why consult: The legal obligations to consult, and the benefits that can arise from consultation. It outlines the general principles of consultation arising out of case law.
- Who are the parties involved in consultation: the rights and obligations of the parties involved in consultation under the RMA (councils, tangata whenua and applicants for resource consent). It provides guidance on what council staff can reasonably expect from tangata whenua, and from applicants for resource consent applications.
- When to consult: guidance on when best to engage in consultation.
- How to facilitate consultation: This section sets out the types of agreements that councils can make with tangata whenua to facilitate tangata whenua involvement in both plan-making and the consent process. It describes the sort of plan provisions that can be developed to signal the need for consultation. It discusses the importance of using and analysing iwi management plans as a basis for consultation, and in preparing plan provisions. It suggests consent conditions that can facilitate the exercise of kaitiakitanga. It also outlines the role that councils can have in training both their own staff and those within organisations representing tangata whenua, and in assisting in the development of iwi management plans.
In this guidance note, the term "tangata whenua" is used when referring to consultation with Maori. Unless otherwise specified, this should be read as being inclusive of consultation with any group that represents tangata whenua interests, be they iwi, hapu, whanau, iwi authorities, or tribal runanga.
Why Consult
The value of consultation
The value of consultation for the council is that:
The value of consultation for tangata whenua is that:
The value of consultation for a consent applicant is that:
The disadvantages of consultation can include:
Legal obligations
The Treaty of Waitangi provides for the exercise of kawanatanga (governance by the Crown), while actively protecting tino rangatiratanga (full authority) 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 (section 8). Similar obligations are imposed on councils under the Local Government Act 2002. Statutory obligations and case law developed under the RMA have helped to translate into practice how these obligations are to be given effect to. 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, Ministry of Maori Development, and are set out in principles of the Treaty of Waitangi.
Resource Management Act 1991
The RMA directs councils to either 'have regard to' or 'take into account' the principles of the Treaty of Waitangi, iwi planning documents and kaitiakitanga in their decision-making. These provisions are set out in RMA provisions.
There is no definition of "consultation" in the RMA, nor are there any specific requirements that it should occur or as to how consultation should occur. Consultation with tangata whenua is mandatory when developing plans and policy statements. The requirement and responsibilities for resource consent consultation are not clearly defined.
A considerable body of case law has developed on the principles of consultation. The leading case is Wellington International Airport v Air NZ NZLR 671 (Court of Appeal). The more recent Land Air Water Association v Waikato Regional Authority (A110/2001) decision specifically discusses the principles of tangata whenua consultation. For more information see this summary of the best practice principles of consultation distilled from case law.
Consultation demands that the parties involved act reasonably and in good faith. In practice, this means entering into the process without having first made up your mind about every aspect of your position. For a discussion on what generally constitutes "consultation", refer to the section what constitutes consultation? in the Consent Processing Resource.
For recent case law, refer to the Ministry for the Environment publication Guidelines for Consulting with Tangata Whenua under the RMA: an Update on Case Law.
The Resource Management Amendment Bill 2004 proposes changes to how and when iwi consultation occurs for plan-making and resource consent processes.
Statutory acknowledgements
Statutory acknowledgements arise from the settlement of 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.
For more information see the potential role of statutory acknowledgement.
Local Government Act 2002
The Local Government Act 2002 (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 also sets out specific requirements for councils to facilitate participation by Maori in local authority decision-making processes. A duty is imposed on 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.
These provisions require councils to be proactive in encouraging tangata whenua to be involved in decision-making at the local government level. There are some clear synergies between the consultation required with tangata whenua under the Local Government Act and Resource Management Act. Council’s need to be exploring how they can best ensure that any consultation undertaken under either Act can be used for the purpose of the other. For more information see the Local Government Act. For more information see Maori and the Local Government Act 2002.
Who are the parties involved in consultation
There are three main parties involved in the process of consulting with tangata whenua:
Each of these parties has its own rights and obligations, and reasonable expectations regarding the performance of the other parties.
The council
Councils are obliged under the RMA to consult with tangata whenua when preparing plans. There is no requirement in the RMA for either applicants or the council to consult with tangata whenua for a resource consent, however it is considered best practice to do so.
There are often advantages in the applicant undertaking consultation with tangata whenua as part of the development of their proposals, prior to lodgement with the council. However, given the need for councils to develop long-term working relationship with tangata whenua for plan-making purposes and their role in providing good, robust advice to applicants on resource consent matters, councils should take an active interest in facilitating consultation under the RMA.
Facilitation can take a number of practical forms:
Guidance on those policies, procedures and channels are provided in the section how to facilitate consultation. These policies, procedures and channels should
Find out what actions and approaches make for a good and effective working relationship between a council and tangata whenua.
Tangata whenua
Tangata whenua must be consulted for plan-making purposes and generally have an expectation to be consulted on resource consent matters that affect them. Applicants can legitimately expect tangata whenua to respond to reasonable requests for consultation and councils can expect tangata whenua to advise them as to whether they have an interest in particular proposals or issues.
Most councils have a list of iwi, hapu, whanau, iwi authority and/or tribal runanga contacts for consultation purposes. The contacts – and the groups they represent - may be dynamic and subject to change. Tangata whenua groups should ensure that they keep any councils they liaise with up-to-date with any changes to spokespersons or organisations. Councils should also ensure that their contact lists are up-to-date.
However, this is a matter better left to the tangata whenua and the courts. The council should not seek to resolve inter-iwi disputes that are for iwi to resolve themselves in their own way.
Tangata whenua groups may choose to respond to applicants or the council at an iwi, hapu or even whanau level. Larger and more financially resourced iwi may employ a person or team trained in planning and resource management to manage the consultation process. Contacts for smaller hapu and whanau are often volunteers. The ability of groups to respond to requests for consultation is often dependent on their capacity and resourcing.
- Policy and consent staff should be aware of tikanga Maori and traditional Maori decision-making processes. For more information see traditional Maori decision-making.
The applicant
There is no legal obligation for resource consent applicants to consult with tangata whenua, although applicants have a duty to report on any consultation that they have carried out when submitting their assessment of environmental effects. For more information, see how an applicant should go about consultation.
Applicants, as best practice, should undertake consultation with tangata whenua in developing their proposals, prior to the lodgement of an application. Consultation at the concept stage is more effective and less likely to lead to entrenched positions. It is also far more likely to be appreciated by the tangata whenua concerned.
Larger organisations that lodge consents regularly may have established their own agreements with particular iwi or hapu and may be well aware of consultation expectations. Telecom NZ, Transit NZ and Carter Holt Harvey are examples of such organisations.
However, the vast majority of applications are for relatively small-scale activities and are lodged by individuals who are unfamiliar with the consent process. The council can assist both applicants and tangata whenua by:
When to consult
What sorts of issues are tangata whenua generally concerned about?
Councils have the responsibility to establish what types of activity are likely to be of concern or interest to particular tangata whenua groups. This knowledge can then inform the council’s preparation of consultation programmes for plan changes and reviews, as well as the advice it gives to applicants on consulting with tangata whenua. The following provides an indicative list of activities that are commonly of interest to tangata whenua:
It is not necessarily the activities themselves that are the issue. Rather, the concern focuses on their potential impact on those things that are valued by tangata whenua. For example, consultation might be required where land disturbance is proposed on a greenfield site but not on a highly modified urban site. However, for discharge applications, particularly those involving waste to water, consultation with tangata whenua may be warranted.
In consultation with tangata whenua, and with the application of archaeological expertise, councils need to develop databases of valued places, sites, features and resources.
Iwi management plans and other iwi planning documents can assist with the identification of the types of activities of interest to tangata whenua, and the development of databases that record these.
Councils need to list the types of activities that could adversely affect tangata whenua values, and clearly link these to consent and notification requirements. Distinct lists should be created for each iwi, hapu, whanau, iwi authority or tribal runanga.
Lists can only ever be indicative in nature. A case-by-case assessment of each resource consent applications will be needed:
It may be useful to include such lists in relationship or operational agreements between councils and tangata whenua (see section on how to facilitate consultation).
When should applicants be encouraged to consult with tangata whenua?
Councils should encourage applicants to consult with tangata whenua at the earliest possible stage in the development of their proposals, where a potential need to do so has been identified.
An early approach by applicants is consistent with the principles of consultation in that it:
Any discussion that takes place between an applicant and another party after the application is lodged with the council cannot be deemed ‘consultation’ for the purposes of the assessment of environmental effects. Refer Ngati Hokopu ki Hokowhitu v Whakatane District Council (C168/2002).
The point in the resource consent process at which applicants should be directed by councils to consult with tangata whenua can be specified in relationship agreements (refer to the section how to facilitate consultation).
When should councils consult with tangata whenua?
As suggested in the section who are the parties involved in consultation, councils may have an obligation to consult with tangata whenua – over and above any consultation carried out by the applicant – where:
How should councils assess the adequacy of consultation carried out by applicants?
Guidance on how council officers can go about assessing the accuracy of an applicant’s record of consultation, and the adequacy of that consultation, can be found in the section has effective consultation been undertaken? in the guidance note consultation (part of the consent processing resource).
When should councils forward applications to tangata whenua for comment?
Many councils have arrangements with tangata whenua to send them full copies of all or some newly lodged applications and/or all notified applications and/or summarised lists of applications received. These arrangements are primarily used to identify whether the tangata whenua have any interest and/or concerns about the application(s), and whether they want to see a full copy of an application (where a list is used). Councils can choose to mail or email lists of applications, or arrange for a tangata whenua representative to review the applications at a specially convened meeting. Some councils have arrangements where a tangata whenua representative reviews new applications on a weekly basis, at the council offices.
Arrangements for distribution and review can form the basis of operational agreements between councils and tangata whenua (see how to facilitate consultation). These agreements can provide an effective ‘safety-net’, ensuring that tangata whenua are given the opportunity to have input into the resource consent process, where:
However, it is no substitute for applicants consulting with tangata whenua at the earliest possible stage prior to consent lodgement.
How to facilitate consultation
This section describes the tools that councils can use to:
The tools are as follows:
These tools help councils establish a framework within which consultation can occur. Guidance on the day-to-day business of facilitating consultation between tangata whenua and consent applicants is provided in the consultation section of the Consent Processing Resource.
Developing relationship agreements with tangata whenua
Of all tikanga Maori concepts, whanaungatanga, or relationship, is the most pervasive. It denotes the fact that in traditional Maori thinking relationships (with people, the spiritual world, and the physical world) are everything.
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 manawhenua over a particular area, or claim ahikaa (historical and spiritual ties to land within their boundaries).
Generally, relationship agreements do not focus on the RMA or the consents process, but are aimed at the wider council/tangata whenua relationship. They are also known as:
In addition to formal agreements, councils may have policy documents that provide a stated position on consultation, including:
Successful relationship agreements provide recognition of the underlying Treaty basis for the relationship between a council and tangata whenua. However, relationship agreements are not entered into simply as a means to fulfil either Treaty or other legislative obligations. Relationship agreements represent a formalisation of the development, fostering and nurturing of good relations between the council and tangata whenua.
- Successful relationships should be recognised through a formal document; one which keeps the parties ‘honest’ and ‘outlives’ the involvement of particular players. Councils that use formal agreements to underpin their working relationships with tangata whenua often have stronger and more effective working relationships that are accompanied by on-going genuine rapport between the parties.
A relationship agreement may or may not have legal status, depending on how it has been drafted. Either way, the parties should be clear on whether the agreement is intended to be legally binding. There are a number of questions surrounding a relationship that should be addressed prior to entering into any agreement. There are some key points about entering into relationship agreements:
One of the key challenges that can be faced in entering into agreements relates to the disclosure of sensitive information. Some tangata whenua may not wish to disclose the location of particularly sensitive waahi tapu, which can affect how consultation occurs both at plan development and resource consent stages. This issue needs to be addressed in any relationship agreement. For guidance on the use of s42 to protect sensitive information, particularly around historic heritage identification see guidance on historic heritage.
Refer to what should be covered in relationship agreements? for a summary of the matters that should be covered in a relationship agreement.
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
Operational agreements are also known as service contracts or service level agreements. They outline how a particular service will be undertaken, such as:
There are a number of different approaches that could be provided for in an operational agreement, some of which include:
The council and the group concerned should agree on the nature of such applications, and of the consequential advice being offered to applicants. Any such ‘shortcut’ is no substitute for applicants consulting well prior to lodgement on proposals more likely to affect the interests of tangata whenua (and applicants being advised accordingly by council staff).
Operational and relationship agreements may be contained in one document, but often the specifics of the latter are not clearly defined when the two are combined. Operational agreements may also subject to change on a more frequent basis.
A separate agreement should be entered into for operational matters such as consultation on consents.
Operational agreements are beneficial because they can provide certainty on any processes for all the parties involved. For the applicant they can help to reduce anxiety over uncertainty in the process, timeframes and financial costs. Both tangata whenua and councils can establish processes and systems on the basis of the certainty provided by operational agreements.
Operational agreement may cover a number of general and specific aspects.
General aspects:
Specific aspects covered by operational agreements:
For more information see best practice tips on each of these general and specific aspects.
For an example of an operational agreement, see the protocol agreement between Dunedin City Council and Kai Tahu ki Otago.
Resourcing the participation of tangata whenua in RMA processes and decision-making
Tangata whenua groups are often not well resourced to handle the volume of requests for consultation, be they from councils seeking input on plan changes or lodged applications for resource consent, or from applicants seeking to consult on their proposals. The difficulties that many tangata whenua groups face in responding to such requests often affect their ability to respond meaningfully, promptly, or at all.
Some councils have determined that as Treaty partners they have an effective obligation to ensure that tangata whenua groups can actively participate in processes, not just by providing opportunities, but also the resources to do so. The provision of financial support can enable tangata whenua to participate in the resource management process on an equal footing with applicants and the council.
Tangata whenua often have a legitimate expectation that the costs they incur in responding to requests for consultation can be recouped from those that consult with them. Applicants are often not aware of this expectation.
The following matters should be taken into account when considering the question of charges:
Maintaining contact databases
Contact databases are a fundamental to consultation with tangata whenua groups. Councils need to maintain databases for their own consultation purposes, and to be able to provide applicants with up-to-date information on those groups that councils advise them to consult with. For some iwi or hapu the nominated contact can change regularly.
While it is the responsibility of the council to keep such lists current, by regularly contacting the groups concerned, a good working relationship (and relationship agreement) with tangata whenua should ensure that this is an easy task.
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 required, and where they may be considered to be adversely affected for the purposes of section 94RMA.
Clause 3(1) (d) of the First Schedule requires that councils consult with iwi authorities and tribal runanga during the preparation of policy statements and plans. Through such consultation, the significant issues and interests of tangata whenua should become clear.
While plans are not an appropriate vehicle for detailed operational matters (as these are subject to change), they are a good mechanism for communicating basic consultation requirements to potential applicants.
Care should be taken in putting such 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 a waahi tapu site, there should be adequate justification for such a provision.
Plans can provide direction setting and guidance by:
Assisting in the development of iwi management plans and other iwi planning documents
Iwi management plans are a very useful tool for documenting issues of significant to tangata whenua. Where issues of significance are documented in iwi management plans, they can form a valuable reference for the development or review of plans under the RMA, help councils determine whether consultation is required in any particular instance, and inform the preparation of assessments of environmental effects. Refer to Whakamau ki Nga Kaupapa – making the Best of Iwi Management Plans Under the Resource Management Act 1991, published by the Ministry for the Environment.
Imposing consent conditions that recognise the interests of tangata whenua
Applications are usually granted subject to conditions imposed under section 108. Many councils use 'standard conditions' to deal with common situations. Caution should be exercised when using standard conditions as the particular circumstances of each application need to be addressed (refer Arnold v North Shore City Council A1/2000). However, standard conditions, if used appropriately, can be a useful mitigation tool to address tangata whenua concerns or interests in a consistent manner. See the CPR guidance note on conditions of a resource consent for more information.
Recognising kaitiakitanga through the monitoring of 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) requires councils to have regard to kaitiakitanga. 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 pieced together over time. 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 from:
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 prior to the issuing of any consent, and should be addressed in any relationship agreement.
Building capacity within councils
There is a range of methods other than operational agreements that can be used to fulfil a council’s obligations under Part II of the RMA. Adopting other methods will in fact support and enhance any operational agreements and enable each party to gain the best out of the relationship. Such initiatives can be referred to in relationship agreements between the parties.
For more information see a description of the initiatives that councils can employ in building capacity to address tangata whenua interests.
Role of liaison officers, translators and facilitators
The employment of iwi liaison officers, translators and/or facilitators is a key means by which councils can build capacity to deal with tangata whenua matters.
Best practice example
Best practice examples are woven into the text. An excellent way for councils to gain knowledge is to discuss potential options with staff of other councils with relevant experience.
RMA provisions
Clause 3 of the First Schedule of the Resource Management Act 1991 (RMA) states that local authorities may consult anyone during the preparation of a proposed policy statement or plan. There are specific requirements to consult with tangata whenua (amongst others).
There is no definition of consultation in the RMA.
There is no statutory requirement to consult in relation to resource consents but it is good practice to do so. The fourth schedule of the RMA requires an AEE to describe any consultation that has occurred with those persons interested or affected by the proposal, and any response to the views of those consulted.
There are no universal requirements in the RMA as to the form consultation must take. The extent and nature of consultation is up to those conducting the consultation such as practitioners, applicants and consent authorities. Any manner of oral or written interchange, which allows adequate expression and consideration of views, will suffice. Nor is there a universal requirement as to duration required for consultation. It could range from one telephone call to years of dialogue.
Part II of the RMA makes provisions for Maori perspectives to be considered in planning and decision-making processes of local authorities (see sections 6(e), 7(a) and 8).
The Resource Management Amendment Act 2003 replaces the term 'have regard to' in the Principal Act with 'take into account' in sections 61(2), 66(2)(c) and 74(2)(c). This has the effect of elevating the status of any relevant planning document recognised by an iwi authority (such as iwi management plans). Section 62(1)(b) is also amended. These changes mean that any planning document recognised by an iwi authority must have been taken into account in decision-making. In order to do so, consultation is required.
Local Government Act provisions
The Local Government Act (LGA) 2002 defines the powers and responsibilities of local authorities. Under the LGA councils are expected to take a broad role in promoting the social, economic, environmental and cultural well-being of communities (now and in the future); including Maori communities. This legislation codifies the principles of consultation. And readers should be aware that by 2006 councils are required to have facilitated a process of determining community outcomes and prepared Long Term Council Community Plans (LTCCP). This will involve consultation with communities (including Maori).
Case law
A very significant case in terms of consultation is Wellington International Airport Ltd v Air NZ (1991) (Court of Appeal). The elements of consultation are summarised in the consultation process guidance note. The more recent Land Air Water Association v Waikato Regional Council (A110/2001) builds on the principles of the earlier case and specifically in the context of tangata whenua consultation.
It is recommended that practitioners, applicants and council staff read and review both the cases cited above before commencing on a consultation process.
A key case considering Clause 3(1)(d) of the First Schedule of the RMA is Ngati Kahu and Pacific International Investments v Tauranga District Council (1994).
The necessity of a holistic approach to consultation is considered in Pahia v Northland Regional Council (1995), Mason-Riseborough v Matamata-Piako District Council (1997) and Tangiroa v Wairoa District Council which endorses the findings of Mason-Riseborough.
Cases focusing on resource consents and the importance of consulting beyond formal notification include Marlborough Seafoods Ltd v Marlborough District Council (1998) and Mangakahia Maori Komiti v Northland Regional Council (1996).
Cases focusing on consultation to identify waahi tapu sites and the level of consultation required include Ngati Hokopu ki Hokowhitu v Whakatane District Council (C168/02), Winstone Aggregates Ltd and Heartbeat Charitable Trust v Franklin District Council (A80/02), Sharyon Lee Beadle & Ronald Wihongi & Riana Wihongi v Minister of Corrections (A74/02) and Land Air Water Association v Waikato Regional Council (A110/2001).
Other cases of relevance in general to iwi consultation include Banks v Waikato Regional Council (1995), Berkett v Minister of Local Government (1995), Aqua King Ltd v Marlborough District Council (1995), Paul v Whakatane District Council (1995), Greensill v Waikato Regional Council (1995), Whakarewarewa v Rotorua District Council (1994), Quarantine Waste (NZ) v Waste Resources Ltd (1994), Haddon v Auckland Regional Council (1994), Gill v Rotorua District Council (1993), and New Zealand Fishing Association v Ministry of Agriculture and Fisheries (1988).
For an update on recent case law, refer to the Ministry for the Environment publication Guidelines for Consulting with Tangata Whenua under the RMA: an Update on Case Law.
Related guidance notes
The following guidance notes are related:
Relevant publications
Your Rights as an 'Affected Person'
Published by Ministry for the Environment - June 2006
A guide for people who have been asked to give their written approval to someone else's resource consent application.
Consultation for Resource Consent Applicants
Published by Ministry for the Environment - June 2006
A guide on consultation for people applying for a resource consent.
Whakamau ki Nga Kaupapa - Making the best of iwi management plans under the Resource Management Act 1991
Published by Ministry for the Environment - June 2001
Practical ideas to help local authorities make the most of iwi management plans and other iwi planning documents, with suggestions on working more effectively with iwi in representing their views.
Guidelines for Consulting with Tangata Whenua under the RMA: An update on Case Law
Published by Ministry for the Environment - December 2003
Targeted at local authorities and iwi authorities working under the RMA, to assist them in understanding the principles emerging from case law.
Talking Constructively: Guide for Iwi, Hapu, Whanau on Building Agreements with Local Authorities
Published by Ministry for the Environment - January 2000
This guide is designed to be a practical summary to help iwi, hapu and whanau and local authorities to prepare for all forms of joint discussions including mediation.
Ngai Tahu Statutory Acknowledgements (PDF 377 KB)
Published by New Zealand Planning Institute - June 1999
Reviews statutory obligations under the Ngai Tahu Claims Settlement Act 1998, suggesting that the Act's model for the resolution of these matters could be adopted for council iwi relationships.
Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates
Published by Ministry for the Environment - January 1999
A good practice guide for those trying to site facilities communities need but might not want in their backyard. Looks at techniques for addressing community concerns & explores various case studies.
Kaitiakitanga and Local Government: Tangata Whenua Participation in Environmental Management
Published by Parliamentary Commissioner for the Environment - June 1998
Reviews progress made on tangata whenua involvement in RMA processes & identifies areas for improvement, particularly in the areas of processes followed and relationships between iwi & councils.
He Tohu Whakamarama
Published by Ministry for the Environment - January 1998
This is a report on the interactions between local government and Maori organisations in Resource Management Act processes.
Current challenges in practice
Side agreements
Applicants and tangata whenua sometimes use side agreements to resolve issues that do not relate to the environmental effects of a proposal, but that may nevertheless arise during consultation between the parties over a particular application for resource consent. Side agreements may cover such diverse matters as cash including funding of resource management scholarships or community planting or restoration initiatives, or the provision of interpretive information at particular sites. Side agreements may result in tangata whenua giving their written approval to the application. Side agreements are usually kept confidential between the parties. Councils may not be aware of any side agreements.
Side agreements may be an appropriate tool in seeking to offset adverse effects of a proposal. It remains the responsibility of councils, as consent authorities, to ensure that any adverse effects associated with a proposal are adequately avoided, remedied or mitigated, irrespective of the existence of side agreements. The Resource Management Amendment Act 2003 requires that if an application is processed without notice, the adverse effects of an activity on the environment must be minor, notwithstanding any written approvals. This simply emphasises the need for council look beyond any side agreements in establishing the extent of all effects of the proposal on the environment.
Cultural impact assessments
Determining when a cultural impact report or assessment is warranted remains a challenge for many councils and tangata whenua groups. The trigger for cultural impact assessments is often dependent on the circumstances of their area, the nature and scale of the activity concerned, and the level of interest among a particular group. ‘Cultural impact assessments’ usually involve some statement of those matters of importance or interest to the tangata whenua concerned. They often provide a historical and ancestral context for those matters. While they may be ‘positional’ in nature, such assessments should also specifically address the effects of a particular proposal, explain why these effects may be of concern and, where possible, detail means by which such concerns can be addressed (e.g. through modification of a proposal, or the attachment of conditions to any consent). Often, ‘cultural impact assessments’ are simply a name for the written responses that groups make to particular proposals. In any case, they need to be specific enough to inform the applicant and consent authority. Councils can assist tangata whenua in preparing templates for drafting assessments as part of the development of relationship and operational agreements.
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.
