Facilitating consultation with tangata whenua
Statutory acknowledgements
A statutory acknowledgement is an acknowledgement by the Crown that recognises the mana of a tangata whenua group in relation to specified areas - particularly the cultural, spiritual, historical and traditional associations with an area. These acknowledgements relate to 'statutory areas ' which include areas of land, geographic features, lakes, rivers, wetlands and coastal marine areas, but are only given over Crown-owned land. See the Office for Treaty Settlements website for further information on settlements.
Locations of statutory areas in settlements are shown on the Land Information New Zealand website, with the text of each statement of association set out in Schedules to the Settlement Act that establishes them. Councils must consider statutory acknowledgements when making decisions on whom to involve in resource consents and hearings. They also help address concerns where councils have processed consent applications that relate to an area of significance for certain claimant groups, without consultation or their written approval, and where claimant groups have been adversely affected. See incorporating Statutory acknowledgements into second-generation plans from the Writing provisions for regional and district plans for more information on statutory acknowledgements.
While a statutory acknowledgement may vary for each claimant group, in essence, a statutory acknowledgement requires councils to:
- forward summaries of all relevant resource consent applications to the relevant claimant group governance entity - and to provide the governance entity with the opportunity to waive its right to receive summaries
- have regard to a statutory acknowledgement in forming an opinion as to whether the relevant claimant group may be adversely affected in relation to resource consent applications concerning the relevant statutory area
- within the claim areas, attach for public information a record to all regional policy statements, district plans, and regional plans of all areas affected by statutory acknowledgements.
None of the requirements limit or affect councils ' existing obligations under the RMA. Statutory acknowledgements can be used in submissions to consent authorities, the Environment Court and the Historic Places Trust, as evidence of a specific claimant group 's association with a statutory area.
As claims are progressively settled, more and more councils will need to comply with statutory acknowledgements. Entering into agreements on consultation on consents before the establishment of a statutory acknowledgement is a positive first step in building relationships.
For more information see Incorporating statutory acknowledgements into second-generation RMA plans.
Principles of addressing mandate issues
In Gannet Beach Adventures Ltd v Hastings DC, the Environment Court has established the following set of principles for dealing with issues of mandate between iwi authorities and different tangata whenua groups, including individuals within any iwi authority or group:
[2005] NZRMA 311, Environment Court, W090/04, 29 November 2004, Judge Thompson (35 p).
- When an iwi or hapu has a formal management body, such as a trust board, a marae committee, or something similar, it is entirely appropriate that an applicant and a local authority should consult that body as the iwi / hapu representative.
- Unless there is some extraordinary factor plainly signalling that the processes of that body are dysfunctional and cannot be relied upon, the responses given by it should be accepted as authoritatively speaking for the iwi or hapu.
- It is human nature that, in any organisation, there will be dissenting views which remain after the decision-making processes have concluded. That can be so even where, as is the custom for Maori organisations, the objective is consensus rather than a majority decision.
- The fact that individuals express dissent with an announced decision does not mean that the applicant or local authority, or the Court, cannot rely upon the decision announced by those whose positions appear to entitle them to announce it.
- The internal processes of such bodies are for the members of them to control and resolve. Outsiders have no ability to do so and no business in trying to do so.
- Unless bodies such as councils or the courts can rely upon the apparent authority of office holders to speak for an organisation, no agreement could be relied upon unless there was a referendum of every member of that organisation. That is obviously completely unworkable and unreasonable.
- If there is a serious issue within a Maori organisation, or between Maori organisations, as to who holds mana whenua or who has the right to express an authoritative view, the Maori Land Court is the appropriate tribunal to resolve it. A timely application to that Court should be made so that only the Resource Management issue, if there is one, comes before the Environment Court.
Traditional Maori decision-making
Traditional Maori decision-making is characterised by the following:
- Consensus is preferred, even if it takes time. Allow time to consult well: once a decision is made, things are actioned quickly and decisively.
- Emotion is expected, vented and tolerated especially when mana is challenged. Reconciliation is then part of the way forward to the consensus decision.
- Strategic withdrawal may occur and leave the 'take ' (the subject of discussion) on the floor. People may turn to te reo Maori and tikanga Maori in conflict situations.
- Speakers and waiata (songs) are important. Whakapapa (genealogy) determines the order of the speakers. More than one person is likely to be involved in the consultation process. You should also be prepared to sing a waiata.
- Silence is important and does not mean consent. What is not said is noted.
(Source: The Report of the Royal Commission on Genetic Modification 2001)
Council roles in facilitating good relationships with tangata whenua
Elected members have a number of important roles in facilitating good relationships. These reflect the leadership role that elected members have in their communities and include:
- providing for Maori input into governance and decision-making processes: options range from establishing advisory groups through to creating Maori wards
- building relationships with Maori at a governance level through proactive engagement with key groups at an informal or formal level
- elected members building their own awareness of Maori issues and perspectives through engagement with Maori or through more formal training opportunities
- elected members building their own capacity to interact in tikanga Maori environments through greater exposure (attendance at appropriate gatherings), or training opportunities
- developing relationships with groups or individuals who have cultural expertise to work with elected members as appropriate.
Staff roles relate primarily to the management and operational functions of council and can include:
- building relationships with Maori at policy and operational levels through proactive engagement with key groups at an informal or formal level
- implementing processes to provide more structured Maori input into the business cycle: from planning and policy development, to service delivery and evaluation
- staff building their own awareness of Maori issues and perspectives through engagement with Maori or through more formal training opportunities
- staff building their own capacity to interact in tikanga Maori environments through greater exposure (attendance at appropriate gatherings), or training opportunities
- developing relationships with groups or individuals who have cultural expertise to work with staff as appropriate.
(Source: Frequently Asked Questions on Council-Maori Engagement - A Resource to Support Councils. Local Government New Zealand, October 2007)
Good and effective working relationships between tangata whenua and council
Councils can take consider the following to develop good and effective relationships:
- The preparedness of the mayor, CEO and other councillors to meet with tangata whenua to review the nature and extent of issues that affects them. Where this occurs, it communicates the commitment of council to recognise and provide for tangata whenua involvement in the process.
- The seniority of staff involved in day-to-day contact with tangata whenua. High seniority affirms the mana and rangatiratanga of tangata whenua.
- The involvement of senior managers who can facilitate contacts within council, where different expertise is required. There is potential for managers to negotiate with managers of other sections of council to achieve a mutually beneficial outcome.
- The provision of information. This is regarded by tangata whenua as a willingness to share the benefits and status of the council in its position of senior partner.
- Staff access to and awareness of information already provided by tangata whenua. Frustration quickly sets in if council staff are clearly unaware of resolutions to previous issues and/or are obviously unfamiliar with specific reports that have canvassed the nature and extent of relationships between the parties.
- Appropriate behaviour within marae or hapu settings, with council representatives demonstrating their competence, accurate and informed positions.
(Source: Report on Business Compliance Cost Project - Consultation with Tangata Whenua under the RMA, prepared for the Ministry for the Environment, October 2003).
Improving tangata whenua participation
Key findings in developing good and effective working relationships between tangata whenua and councils:
- RMA engagement is about personalities and establishing strong personal relationships.
- Good relationships tend to be initiated and built through ongoing informal engagement, and depend on trust, transparency and goodwill.
- Documentation of formal relationship, such as memoranda of understanding, are important - primarily for confirming and clarifying what had already been created through informal engagement.
- The best examples of Maori participation are supported through strong structural arrangements.
- Successful council-Maori relationships cannot be based solely on strict adherence to legislative requirements. They require councils to appreciate both the role of tangata whenua in their community, and the value their extensive local knowledge can add to achieving positive community outcomes.
(Source: Te Kotahitanga o te Whakahaere Rawa - Case Studies into Maori and Council Engagement under the Resource Management Act 1991, Te Puni Kokiri, June 2006)
Questions that should be addressed
- How will the need to balance strong leadership and relationships with formal processes and structures be managed?
- Are the parties clear on the differences between governance, participation and consultation?
- Is there clear provision for guidance to council staff around the Council's role in relation to the Treaty of Waitangi and other legislative obligations?
- How will the agreement be monitored and reviewed on an on-going basis?
- How will any conflict between the parties be managed?
- Is there adequate resourcing within the council?
- How will council assist in raising the capacity of tangata whenua to engage with council, both financially and from a technical knowledge perspective?
- How will councillor and council staff understanding of tangata whenua issues, history, tikanga Maori and Maori social and political structures be developed and implemented?
(Source: Local Government Relationships with Maori, Local Government New Zealand and Te Puni Kokiri, July 2002)
Capacity and capability issues that tangata whenua face in engaging in RMA processes
Capacity issues:
- Basic costs frequently stand in the way of tangata whenua engagement on important issues. These include parking, petrol or bus fares, wages, stationery, office rentals, computers, reference libraries, internet access, expert advice (lawyers, planners, engineers), phones, vehicles, and licences for software.
- Many small and medium-sized tangata whenua groups do not have the administrative capacity to engage.
- Many tangata whenua groups have to be selective about which issues they engage in, due to a lack of resources.
Capability issues:
- Lack of staff with relevant technical expertise.
- Lack of strategic direction to prioritise when and what tangata whenua engage in.
- Most tangata whenua groups rely on volunteers, who cannot compete with professional planners and lawyers.
- Few tangata whenua RMA technicians have had any formal training. Some groups benefit from the expertise of members who work or have worked for councils or central government.
- Lack of young tangata whenua who are developing technical RMA expertise.
(Source: Te Kotahitanga o te Whakahaere Rawa - Case Studies into Maori and Council Engagement under the Resource Management Act 1991, Te Puni Kokiri, June 2006)
Managing contact details
The following are matters that need to be considered when managing contact details of groups that represent iwi or hapu for the purposes of the RMA:
- The Crown is required to provide records, and the RMA requires these records to be included in the information kept by the council. Many councils, through good relationships, will have a far greater amount of information than that provided by the Crown.
- As the council works with tangata whenua on issues apart from the consent process, it is logical that any contact list for tangata whenua groups is managed centrally by, for example, the iwi liaison officer or Maori unit within the council; or in smaller councils, the mayor 's office.
- Applicants should be able to rely on the council to have the most up-to-date contact details for tangata whenua groups that it suggests they should consult.
- Make sure tangata whenua have seen the information and agree with its contents.
- Any contact list needs to be readily available: located on the council website; and in a printed format for handing over the counter, for posting, and for relaying over the phone.
- Contact details must also be provided to the Minister for the Environment, if requested, within a specified timeframe (RMAA 2009).
- Consider how information on tangata whenua is best communicated to applicants. Usually, this will involve a combination of a list of contact details for each group, and an associated map showing areas of manu whenua. Maps can be either a simple diagram or part of a relatively sophisticated, layered geographic information system. The latter may be preferable in situations where areas of interest and identification overlap.
Capacity and capability barriers affecting tangata whenua engagement in plan development processes
Some of the capacity and capability issues facing tangata whenua include:
- councils not having effective processes for involving tangata whenua in planning
- distraction of more immediate developments, such as resource consent applications, Treaty of Waitangi claims; and negotiations or political issues such as the recent foreshore and seabed legislation
- scepticism from tangata whenua, based on past experiences, that their efforts to participate will not lead to significant results
- insufficient resources of tangata whenua groups and some councils
- lack of tangata whenua planners
- lack of tangata whenua in senior levels of council
- cost, length and complexity of the planning process
- overall lack of understanding among tangata whenua of the impact of council planning on their interests
- difficulty in translating tangata whenua values and customary concepts into technical planning, policy and rules
- lack of strategic direction and iwi management plans
- lack of effective direction and resources from central government.
(Source: Te Kotahitanga o te Whakahaere Rawa - Case Studies into Maori and Council Engagement under the Resource Management Act 1991, Te Puni Kokiri, June 2006).
Examples of council capacity- building initiatives
The following are examples of capacity-building initiatives commonly employed by councils in response to Treaty of Waitangi obligations, and to foster good working relationships with tangata whenua:
- establishing a tangata whenua liaison unit or employing iwi liaison officers, translators or facilitators to provide a central point of contact
- providing staff training on Treaty obligations and the means by which these obligations are addressed
- providing staff training in consultation practice, te reo, tikanga Maori, and the history and tikanga of the local iwi / hapu
- establishing funding programmes for environmental monitoring programmes, and making this funding available to tangata whenua groups
- making arrangements for tangata whenua representatives to observe the work of council consent teams, or secondment of representatives into those teams, where resources allow
- arranging reciprocal opportunities, whereby council staff spend time with tangata whenua groups, familiarising themselves with the working environment
- providing training to tangata whenua on resource consent processes including notification, consideration of applications and consent conditions
- providing a scholarship for Maori studies in relation to resource management.