March 2013 Māori Law Review
Kirsten Hagan and Julia White from Buddle Findlay's environment and Māori law team review natural resource management law affecting Māori in 2012.
Looking back over 2012, the dominant theme of Resource Management Act 1991 cases dealing with Māori interests was consultation. Individually, the cases provide interesting commentary on common themes. For example the Wakatu case discussed below assesses the adverse effects of water extraction on the mauri of the Motueka River. Together the cases confirm that effective engagement with tangata whenua in relation to natural resources remains a challenge for many.
Consultation is important to assist decision-makers to make informed decisions
Even though consultation is not a mandatory requirement for resource consent processes under the Resource Management Act (with the exception of interrelated statutes such as section 62(3) of the Marine and Coastal Area (Takutai Moana) Act 2011), the Board of Inquiry appointed to hear and determine the plan changes and resource consent applications made by the New Zealand King Salmon Company (the King Salmon Inquiry) reiterated the importance of consultation in their final decision:
...it assists the consent authority and the court to understand the extent to which (amongst other things) assessment of effects on the environment might have been undertaken. That is, it assists the consent authority to decide whether it is confident that actual and potential effects are adequately understood, assessed, and dealt with...(at  citing Crest Energy Kaipara Ltd & Ors v Northland Regional Council)
Iwi consultation [in particular] is important to enable decision-makers to understand the cultural effects of an activity, particularly as regards the matters falling within sections 6(e), 7(a) and 8 of the RMA. 
The Board was clear that their assessment encompassed the physical and the spiritual:
Our task in the assessment of cultural impacts is to focus on:
[a] The breadth of meaning of kaitiakitanga as tangata whenua understand it to be in respect of the areas affected by the proposal; and
[b] The breadth of relationship of tangata whenua to the particular resources and how that relationship may be affected. 
The spiritual relationship that tangata whenua hold with their rohe moana, which includes the mauri of its waterways, is less easily assessed, and subject to varying interpretations. Where there is uncertainty about the environmental effects of the proposal, the spiritual and cultural welfare of the whanau, hapū and iwi is also at risk. [emphasis added] 
Consultation is a two way street...
In the High Court decision of Greenpeace of New Zealand Inc v Minister of Energy and Resources and New Zealand  NZHC 1422, Gendall J stated:
Consultation, and good faith listening to concerns, are a two way street, with obligations on Māori interests and the Crown. Each have obligations on the other. 
In that case (now on appeal to the Court of Appeal), Greenpeace and Te Whanau-a-Apanui sought judicial review of the Minister of Energy and Resource's decision to grant Petrobras a permit to explore for petroleum in the Raukumara Basin. One of the grounds argued by the applicants was that the Minister had not consulted adequately with Te Whanau-a-Apanui according to the principles of the Treaty of Waitangi. The Crown's response was that they had made numerous efforts over a period of time to consult with Te Whanau-a-Apanui but that Te Whanau-a-Apanui had either ignored their efforts or refused outright to engage with the Crown.
The Court took the view that the Crown had made all reasonable and good faith efforts to consult but the refusal of Te Whanau-a-Apanui to participate did not mean they could subsequently challenge the process as not dealing with their particular concerns – they should have raised their concerns in the consultation process not in the court process:
In choosing not to actively participate substantively or respond to the request to consult, it cannot complain now. 
The 'two way street' sentiment was also adopted in the King Salmon Inquiry.
What these cases show is that it is important for parties who consider themselves affected by a proposal to participate in the related consultation process (if one is available) even if they are fundamentally opposed to the proposal or would like the consultation timeframes extended.
...but it may take you down a side street if not carried out correctly...
Consultation is rarely a straightforward process but it should be kept in mind that the purpose of consultation is not to reach consensus – it is fundamentally about gathering information with an open mind to changing the proposal in light of new and relevant information. When tangata whenua are involved, an important aspect is recognising and respecting their mana.
However, even the early step of identifying who should be consulted can be challenging as the Court acknowledged in Hoete v Minister of Local Government  NZEnvC 267 where the Minister of Local Government was required to consult with the tangata whenua and the iwi authorities of Motiti Island:
...a great many people whakapapa to the Island. Although Te Patuwai and Tauwhao are two prominent groups, there are significant issues as to how wide this group of persons needs to be [for the purposes of consultation]....Overall then there is...a wide range of groups. From the Minister's point of view therefore, clarifying the group to be consulted beyond those persons registered on the titles to the property is a matter of considerable complexity..., .
In the reviewed cases, courts also tended to look at the process of consultation from the perspective of tangata whenua. In Trustees of Tūhua Trust Board v Minister of Local Government  NZEnvC 202, the Court was concerned at the Minister of Local Government's failure to consult with the Tūhua Trust Board on whether a district plan was required for Tūhua Island (the Minister was acting as the territorial authority as the Island did not fall within the boundaries of a territorial authority):
[The Court] consider[s] that the Minister failed to consult about whether a plan was required for Tūhua. We are concerned that there may have been a duty for the Minister to meet kanohi ki te kanohi (face-to-face) with the representatives for the iwi (in this case, the Trustees) at the least. We are in no doubt that the owners and trustees of Tūhua saw this failure as a slight to their mana. 
Over the course of the proceedings, the Trust Board, the plan drafters and the Department of Internal Affairs worked together to amend the plan to reflect the views of the Trust Board. By the close of the hearing, the Court recognised that the Plan had significantly improved following the Trust's involvement but ordered further minor improvements including a new introduction, preferably in te reo Māori, that clearly identified the Trustees as holding kaitiakitanga and rangatiratanga in respect of the Island. It also ordered that the Trust Board be given "the maximum level of flexibility possible commensurate with health and safety obligations". The Court ordered the Minister to consult with the Trust Board to finalise the changes and that the consultation and Court costs should be met by the Crown.
In Wakatu Inc v Tasman District Council  NZRMA 363 (ENC) the Court stated that the manner in which initial consultation had been carried out may have had adverse effects on the appellant's ability to exercise kaitiakitanga over Motueka River. Wakatu was an appeal against an application by Tasman District Council to take ground water from an aquifer connected to the Motueka River. The appellants argued that the mauri of the river would be desecrated by the transport of water away from its original catchment and this would subsequently impact the ability of tangata whenua to exercise kaitiakitanga and rangatiratanga over their resources.
The Court adopted the orthodox evidential approach in determining whether the mauri of the River would be adversely effected. This approach was set out in the Environment Court's decision in Winstone Aggregates Limited v Franklin District Council (A80/2002):
In any enquiry involving concepts of tikanga Maori there are three states of inquiry before the Court. The first is to determine, as best as we are able in the English language, the meaning of the concept. The second is to assess the evidence to determine whether it probatively establishes its existence and relevance in the context of the facts of a particular case. If so, the third is to determine how it is to be recognised and provided for.
At all stages of inquiry the decision-maker is required to consider the evidentiary basis and burden required. There is an evidentiary burden on a party who makes an allegation to present evidence tending to support the allegation. , 
This statement reaffirms the importance of probative evidence put before the decision-maker.
In Wakatu, the Court observed that in the Waihi Gold decision (EnvC A146/1998) (relied on by counsel for the appellants), the finding of more than minor adverse environmental (physical) effects enabled the concept of mauri to be weighed against positive effects. The Court found no evidence that the proposed abstraction or use of water would diminish the life supporting capacity of the River or its vitality or its ability to exist. The Court found that the biophysical effects of the proposed activity were "insignificant" and that any metaphysical effects could be remedied by imposing conditions on the consent. Accordingly, the Court approved the consent with the addition of conditions as outlined below.
The Court was critical of the initial consultation process carried out by the Council and this was compounded by a number of factors including the history of the Crown's treatment of the appellants in relation to the River. While the Court was careful to state that these failures should not result in the refusal of part of the consent as a penalty, the Court in Wakatu granted the application subject to conditions to remedy those effects, namely conditions that would ensure iwi views were "fully provided for in the implementation and monitoring of the proposal." . The Court recommended that consultation also be undertaken on the "proper kawa to be observed in implementing the scheme." .
Even where clear statutory guidance is provided, applicants can find that achieving an effective consultation process is hampered because of business factors. In the King Salmon Inquiry, the Board observed that:
The relevant provisions set out in the statutory documents [including Policy 2 of the Coastal Policy Statement] provide a clear direction around consultation and engagement with tangata whenua to ensure that consultation is early, customary values and views of tangata whenua are heard and understood and that the function of kaitiakitanga is taken into account...of particular importance is achieving engagement that is early, meaningful and in accord with the tikanga of the tangata whenua of the place. , 
Although King Salmon had rightly placed great weight on early engagement with tangata whenua, the commercial value of the proposed aquaculture sites prevented the company from revealing the exact location of the sites in their consultation process. This was clearly problematic for some of the groups who were consulted but the Board took into account the hearing process (where the sites were revealed and could be commented on) as well as the genuine efforts and early engagement from the company in finding that although the consultation process was not ideal, the Board had heard enough information about the views of tangata whenua to make an informed decision. It should not be taken from this case that commercial sensitivities would, in all cases, provide for limitations in consultation (see, for example Waikato Tainui Te Kauhanganui Inc v Hamilton City Council  NZRMA 285 where the Council's statutory obligation to consult overrode any commercial concerns it had in revealing information to Waikato Tainui ahead of public notification).
...the right map is critical to manoeuvring through consultation
These 2012 cases further illustrate what the Courts consider to be best practice consultation under the RMA.
Understanding what statutory obligations apply, whether under the RMA or associated statutory documents such as the Coastal Policy Statement, is only the first step. It is imperative for potential applicants under the RMA to develop a comprehensive consultation strategy for understanding tangata whenua views and concerns at the outset.
Early and genuine engagement with tangata whenua matters in the eyes of the court. A consultation strategy should enable the applicant to develop a robust relationship with tangata whenua well ahead of the lodging of any application (or for Councils well ahead of notifying any plan changes or variations) and lay a pathway to a smoother hearing process.
Applicants need to be informed, prepared and proactive.