March 2018 Māori Law Review

Māori interests in natural resource management: 2017 in review

Anna Brenstrum, Annie O'Connor and Dave Randal from Buddle Findlay review legal developments from 2017 relating to Māori interests in natural resources.

Overview

2017 was another eventful year in the resource management field, with a number of notable developments regarding Māori interests in natural resources.

Looming large over the Environment Court jurisdiction has been the RJ Davidson Family Trust case, which is currently before the Court of Appeal.  The case goes to the heart of the Resource Management Act 1991 and the way in which planning instruments implement the RMA's purpose and principles in Part 2, which include a number of matters that are fundamental to Māori interests in natural resources.

Other cases of note have explored the interplay between the RMA and fisheries legislation, and commented on the Environment Court's jurisdiction over Māori customary land.

The general election had a strong focus on the environment, and was preceded by legislation amending the RMA and implementing Treaty settlements.  The Waitangi Tribunal continues to inquire into Government proposals to recognise and provide for Māori rights and interests in fresh water

This article summarises these and other recent happenings, and notes a number of developments to watch for during the year ahead.

Discussion

Planning processes – their continuing importance following the decision in RJ Davidson Trust

Introduction

We discussed in our review of 2016 how RMA planning instruments have taken on ever-increasing importance since the Supreme Court's decision in Environmental Defence Society of New Zealand v The New Zealand King Salmon Company Ltd [2014] NZSC 38.

As many readers will be aware, Part 2 of the RMA contains a compelling suite of considerations relating to Māori interests, including:

  • section 6(e), which requires persons exercising functions and powers under the RMA to recognise and provide for the relationship of Māori "and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga", as a matter of national importance;
  • section 7(a), which requires "particular regard" to be had to kaitiakitanga;
  • section 8, which requires the principles of the Treaty of Waitangi / Te Tiriti o Waitangi to be taken into account; and
  • section 5, the "sustainable management" purpose of the Act, which has at its core the objective of enabling people to provide for their social and cultural well-being.

Before King Salmon, decision-makers on plans commonly took the provisions of Part 2 directly into account in their decisions, even where a higher-level planning instrument (which had to be "given effect" in the plan decision) was clear as to how Part 2 matters should be addressed.

King Salmon brought an end to that practice; the Supreme Court instead affirmed that planning instruments under the RMA sit within a hierarchy, and that the collective role of those instruments is to give expression to the RMA (including the directives in Part 2).  As such, deciding on a lower-order plan does not usually require an evaluation of possible objectives, policies, or rules against Part 2 directly (unless one of a limited number of exceptions applies); higher-order planning instruments usually give sufficient guidance on how Part 2 should be reflected in the plan(s) below.

King Salmon has also led to a more forensic approach to interpreting the words used in plan provisions, as a means of resolving potential conflicts between policies.  As the majority in King Salmon stated (at [129]):

When dealing with a plan change application, the decision-maker must first identify those policies that are relevant, paying careful attention to the way in which they are expressed.  Those expressed in more directive terms will carry greater weight than those expressed in less directive terms.  Moreover, it may be that a policy is stated in such directive terms that the decision-maker has no option but to implement it. So, "avoid" is a stronger direction than "take account of".  That said however, we accept that there may be instances where particular policies in the [higher-order instrument] "pull in different directions".  But we consider that this is likely to occur infrequently, given the way that the various policies are expressed and the conclusions that can be drawn from those differences in wording.  It may be that an apparent conflict between particular policies will dissolve if close attention is paid to the way in which the policies are expressed.

Since King Salmon there has been considerable debate about the implications of the case for decisions on resource consent applications, which are expressed to be "subject to Part 2".  In early 2017 the High Court in RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52 held that, when determining applications for resource consent, the Court:

[I]s not required to consider Part 2 of the RMA beyond its expression in the planning documents, as the [Environment Court below] correctly applied the Supreme Court's decision in King Salmon to this s 104 RMA application.

The case is currently being considered by the Court of Appeal.  In the meantime, the effect of the High Court's decision is that objectives, policies, and rules in plans are likely to carry significant weight in decisions on resource consent applications.  There is limited scope for a decision-maker to go back to first principles, irrespective of the words in plans, and test whether a proposal would promote the sustainable management purpose of the Act.

For Māori, the decisions in King Salmon and Davidson are particularly significant.  There is clearly risk in the decisions in the sense that, notwithstanding the very strong obligations in Part 2 on decision-makers to provide for Māori interests and values, there is now more reliance than ever on councils to fulfil those obligations by reflecting them faithfully in their own plans.  A recent illustration is the resource consent granted, on a non-notified basis, for a mountainbike trail on Te Mata Peak – a landmark of deep significance to tangata whenua that was nonetheless not identified as a wāhi taonga in the Hastings District Plan.

As a result, at least for now (pending the Court of Appeal's decision), it is critical for Māori to ensure that relevant plans promote (or at least do not hinder) the outcomes they wish to achieve.

Against that background, a number of decisions were issued in 2017 that illustrate the potential challenges for Māori (and councils) in setting a plan framework that appropriately recognises Māori interests.

Independent Māori Statutory Board v Auckland Council [2017] NZHC 356

The Independent Māori Statutory Board, a statutory body advising Auckland Council on various matters relating to mana whenua and mataawaka, appealed the decision of Auckland Council on the proposed Auckland Unitary Plan as it related to sites of value for mana whenua (described in the decisions as "SVMWs").

Auckland Council was established in late 2010 and embarked on the enormous task of developing a unitary plan – comprising a Regional Policy Statement, Regional Plan (including a Regional Coastal Plan), and a District Plan for the new 'super city'.

The Plan (as notified) included specific objectives, policies, and rules for 61 sites and places of significance to mana whenua and, more controversially, separate provisions, an overlay, and an accompanying schedule detailing around 3,600 SVMWs.  The proposed overlay rules required (among other things) resource consent to be obtained, on a 'restricted discretionary' basis, for earthworks on or within 50m of a scheduled SVMW (with some exceptions).

After the Plan was notified the Council undertook further processes (desktop audits and screening by mana whenua representatives) in order to understand better the location and attributes of the sites.  The upshot was that the Council initiated the withdrawal of a number of sites, and ultimately recommended that the independent hearings panel approve a scaled-down schedule of sites.

In its recommendation the panel endorsed the two-tier approach for protecting sites (i.e. the distinction between sites and places of significance to mana whenua and SVMWs) and left in place the Regional Policy Statement framework for identifying, evaluating, and scheduling SVMWs, but recommended removal of the entire schedule of SVMWs.  The panel's recommendation contemplated the Council initiating a plan change in future, following further assessment work, to introduce a revised schedule of sites.  The Council adopted the panel's recommendations.

On appeal, the High Court endorsed the Council's decision and, by extension, the panel's recommendation and reasoning.

The Court observed that the New Zealand Coastal Policy Statement ("NZCPS") was the only relevant higher-order planning instrument, in the King Salmon sense discussed above, and only in relation to SVMWs in the coastal environment.  The Court found that the objectives and policies in the NZCPS relating to Māori values did not provide strong guidance for the panel's recommendation, and indeed are less "forcefully expressed" than the directives relating to Māori values in Part 2 of the RMA.  The Court observed that the relevant NZCPS policies are "not particularly directive", "framed at a high level of abstraction", and "not directed specifically to decision-makers; they do not require decision-makers to "avoid" certain matters".

In ruling more generally on whether the panel's recommendation properly applied the provisions of Part 2, the Court found it "necessary to consider the overall policy framework and all of the various provisions seeking to protect Maori cultural heritage in the Proposed Unitary Plan".  The Court emphasised the inclusion in the Plan of numerous references to mana whenua values and cultural heritage in each of the Regional Policy Statement, Regional Plan / Regional Coastal Plan, and District Plan sections, and held that deleting the SVMW overlay and associated provisions had not compromised, and did not have "the potential to compromise, the Council's compliance with the various statutory obligations imposed on it by the Resource Management Act".

The Court also observed that the SVMW overlay had been advanced on a precautionary basis, to protect sites that "might be of value to mana whenua" until such time as it was finally determined whether or not each site did have ongoing value to mana whenua.  In doing so, the panel and Council had to balance the potential adverse effects on mana whenua values against the restrictions which would be imposed on landowners if the overlay and its associated restrictions were approved.  The Court held that it was open to the panel, on the evidence before it, to conclude that there was not a robust evidentiary basis for the overlay and the schedule of SVMWs.

Te Rūnanga o Ngāi Tahu v Christchurch City Council [2017] NZHC 541

Running almost in parallel to the Auckland Unitary Plan process was a similarly intensive process to establish a Christchurch Replacement District Plan.  Te Rūnanga o Ngāi Tahu appealed one aspect of the independent hearings panel's decision to the High Court.  The Court's judgment provides an interesting contrast, albeit in very different circumstances, to the Auckland case discussed above.

This appeal by Te Rūnanga was limited to one rule of the plan, which provided that earthworks of less than 0.6m in depth within wāhi tapu/wāhi taonga sites of Ngāi Tahu cultural significance (and on Kaitorete Spit) would be permitted activities.

Te Rūnanga reached an agreement with the other parties to the appeal, namely Christchurch City Council and Federated Farmers, that that exemption should not apply within wāhi tapu/wāhi taonga sites and Kaitorete Spit, for reasons that will be obvious to readers.  A replacement provision was agreed, which included exemptions for certain low-impact farming practices, and that agreed position was put before the Court for its endorsement.

The Court duly allowed the appeal, and in doing so accepted the following propositions put forward on behalf of Te Rūnanga:

  • permitting earthworks to a depth of 0.6m within wāhi tapu/wāhi taonga sites was "erroneous in law, as the effect of the exemption is contrary to the statutory obligations imposed on all persons exercising functions and powers under the RMA, as set out in ss 6 – 8, (…) Part 2 of the RMA";
  • relevant principles in Te Tiriti o Waitangi include the duty of active protection of taonga and the duty to make informed decisions where Māori interests are concerned; and
  • permitting those earthworks within wāhi tapu/wāhi taonga sites in the coastal environment "fails to give effect to the relevant requirements of both the NZCPS [ie Objective 3 and Policy 2(f) and (g), which were also discussed in the Auckland case above] and [the Canterbury Regional Policy Statement]".

While the Court did not hear full argument on those issues, which is an important rider on the decision, the case may support endeavours to put in place appropriate protections for wāhi tapu and other sites of significance to Māori.

Western Bay of Plenty District Council v Bay of Plenty Regional Council [2017] NZEnvC 147

In terms of RMA case law, a lot has been happening in the Bay of Plenty region in recent years.  As well as a resource consent process in respect of the wreck of the MV Rena, discussed below, in 2015 the Bay of Plenty Regional Council released decisions on its proposed Regional Coastal Environment Plan ("RCEP").  Sixteen appeals on the RCEP were lodged with the Environment Court. These appeals have since been working their way through the system.  Several inter-related decisions of the Environment Court and High Court are discussed below.

This first case related to a proposed extension of an Outstanding Natural Feature – a forested sand barrier on Matakana Island – in the RCEP.  The sand barrier is the largest in New Zealand, being approximately 25km long and 4,300 hectares in area, and is an area with many significant cultural and spiritual connections, as well as extensive production forestry that provides a source of income for Māori landowners and others.

Whether or not an area is an "outstanding natural landscape" ("ONL") or "outstanding natural feature" ("ONF"), and therefore meriting protection under section 6(b) of the RMA, is essentially a question of fact that relies on expert evaluations by landscape architects.  Accordingly, the case traversed in detail past Environment Court decisions regarding the correct approach to evaluating ONLs and ONFs (together, "ONFLs").

The key aspect of that analysis relevant to this article is the Court's discussion about the place of tangata whenua values and relationships in assessments of ONLs and ONFs.  The Court described the sub-issue as follows:

Whether the relationship of tangata whenua to the island should be considered as part of the assessment for the purposes of s 6(b) or whether it should be excluded from such consideration because it could be considered under either s 6(e) or s 6(f) [regarding protection of historic heritage] or both.

The Court's conclusion on this sub-issue was unequivocal (at [148]):

It is well settled that the values of a place to tangata whenua form a central part of the shared and recognised values, including memories and associations, which are at the heart of the cultural conception of a landscape.  It is of course possible that there may be more than one method of recognising and providing for the protection of an ONFL at the same time as the relationship of tangata whenua with that land, but that is an issue of method rather than of identification.

The Court found that the evidence of the hapū concerned "strongly demonstrates very longstanding connections which make the shared historical associations of tangata whenua a significant component of the way in which the sand barrier is perceived".  The Court also held that the criteria in the RCEP for assessing Māori values and historical associations:

[M]ust form part of any assessment for the purposes of s 6(b) RMA.  It might result in the conclusion that the sand barrier warrants recognition and provision in other parts of the RCEP which are designed specifically to address those matters of national importance, but even if that were the present situation it ought not to impede whatever provision is justified as appropriate under another element of s 6.

Again, this decision highlights the importance of a plan containing appropriate guidance for assessing and protecting Māori interests and values – not only in order to recognise and provide for the relationship of Māori with taonga directly (i.e. section 6(e) matters), but also to tie into other protections in Part 2 relating to ONFLs and historic heritage.

Ngāti Mākino Heritage Trust v Bay of Plenty Regional Council [2017] NZEnvC 72

This decision particularly concerned the most appropriate provisions in the RCEP to respond to the Part 2 provisions relating to Māori interests; that is, to recognise and provide for the relationship of Māori with their culture, traditions, ancestral lands, water, sites, wāhi tapu, and other taonga, their kaitiakitanga role, and the principles of the Treaty.  As the Environment Court observed, in light of King Salmon the appropriate provisions are guided by the settled objectives and policies of the Plan and the higher-order planning instruments, namely the Regional Policy Statement ("RPS") and the NZCPS.

Specifically, this appeal focused on whether or not an additional area should be recognised as an "area of special cultural value" ("ASCV"), both within the coastal marine area and the coastal area, in relation to Ngāti Mākino and, if so, what control mechanisms should apply.  The Court had made observations in a related decision, regarding Infrastructure within 'Indigenous Biological Diversity Areas A', that further controls might be necessary and appropriate to provide for Māori interests in those areas (Royal Forest & Bird Protection Society Inc v Bay of Plenty Regional Council [2017] NZEnvC 045).  (Note that the High Court has since upheld an appeal of that decision, in Royal Forest & Bird Protection Society Inc v Bay of Plenty Regional Council [2017] NZHC 3080, which also underscores the key findings of King Salmon.)

In respect of Ngāti Mākino's appeal, and in another interesting counterpoint to the Auckland Unitary Plan case discussed above, the Regional Council's position was that it was still undertaking a process to recognise properly and provide for the relevant RPS, NZCPS, and Part 2 matters.  The Council argued that acknowledging that further work was required by the Council was "not tantamount to a breach of its obligations or a fundamental failure of the plan".  For its part, Ngāti Mākino appears to have accepted that any new rules framework for ASCVs would require further consultation and a separate plan change process.

Identification and mapping of ASCVs, however, was an issue for the Court to determine.  One question of particular note was whether an ASCV could recognise particular assertions of interest by a hapū (or other group), and whether in doing so there was some assertion (or acknowledgement) of mana whenua status.  Te Runanga o Ngāti Whakaue ki Maketū strongly opposed a new ASCV on the basis that it might be seen to be usurping their own mana over the area in question.

The Court found on the evidence that the relevant area was of significant interest to a number of iwi, hapū, and marae, but the Court was not convinced that the ASCV should be extended southwards towards Matatā.

The Court examined the objectives and policies of the RCEP and the RPS and concluded that changes were required to the rules and methods to address Māori interests appropriately.  The Court acknowledged that some changes were beyond the scope of the current appeal and would need to be the subject of the further review proposed by the Council.

Other changes, however, were held to be within scope.  In particular, the Court signalled, on an interim basis, that it was desirable for the RCEP to have a very limited range of permitted activities within ASCVs, requiring as a permitted activity standard a written assessment of potential effects on cultural values ("to the extent reasonable in the circumstances") and, where resource consent is required for an activity, incorporating criteria explicitly requiring the cultural provisions in the RCEP to be considered.  The Court directed a process for the parties to consider appropriate wording and report back.

Interplay between the Fisheries Act 1996 and the RMA

Also in the context of the RCEP, a pair of High Court decisions considered the relationship between the Fisheries Act 1996 ("FA") and the RMA, in the context of proposed controls on fishing to maintain indigenous biodiversity and to provide for the relationship of Māori with their taonga.

In Attorney-General v The Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429, the Court considered an appeal by the Attorney-General regarding the boundary between powers conferred to regional councils under the RMA and the FA.  At issue was the ability of regional councils to impose controls on fishing techniques and activities in the coastal marine area.

A dispute over this function arose from interpretations of the relevant provisions in the RMA; section 30 of the RMA grants regional councils, for the purpose of giving effect to the RMA, control over land, the occupation of space in the coastal marine area and activities in relation to the surface of water.  Under section 30 regional councils also have the function of establishing, implementing and reviewing objectives, policies, and methods for maintaining indigenous biological diversity.  However, regional councils are expressly limited in section 30(2) of the RMA from exercising those functions to control the taking, allocation, or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources that are controlled under the FA, which contains a comprehensive scheme for maintaining and controlling fisheries.

The Environment Court had issued a declaration which confirmed regional councils' abilities to make some regulations regarding fishing, which the Attorney-General now appealed.

The dispute arose in the context of an application by the Trustees of the Motiti Rohe Moana Trust to introduce controls over fishing to maintain indigenous biodiversity and to provide for the relationship of Māori with their taonga in the Bay of Plenty Regional Coastal Plan, in particular for the Motiti Natural Environment Management Area.  However, the Attorney-General (and fishing industry parties) argued that section 30(2) prevented regional councils from implementing controls to manage fishing or fisheries resources, except where the controls were incidental to provision for other activities in the coastal environment.

The Court considered the purposes and principles of the statutes.  Although both statutes were concerned with sustainability of resources, the focus of the FA was much narrower.

His Honour Justice Whata found that the sustainability function under the FA was confined to biological sustainability of the aquatic environment as a resource for fishing needs.  In contrast, the purpose of the RMA was the sustainable management of all natural and physical resources and applied more widely to include ecosystems and their constituent parts (including people and communities). Therefore, the statutes could be reconciled by affording primacy to the FA over:

  • sustainable utilisation of fisheries resources now and in the future; and
  • the effects of fishing on the biological sustainability of the aquatic environment as a resource for fishing needs.

On this interpretation, regional councils remained tasked with the management of the effects of the "externalities" of fishing on the wider environment, as defined by the RMA.  These "externalities" could include intrinsic values, wāhi tapu, navigation, natural landscape, and non-fishing commercial or recreational activity.  In terms of Māori values under the legislation, the Court found that the FA and RMA were largely complementary, but where in conflict the more specific provisions of the FA prevailed.  The FA provided for Māori interests in making special provision for iwi rights, some aspects of rangatiratanga and regulating customary fishing, and contains special coverage of Treaty settlements.  In contrast, the RMA Maori provisions were more general and, the Court held, "controls must be developed in light of, among other things, provisions for ensuring sustainability, including regulations relating to taiapure".

Further, as both Acts seek to recognise and provide for Māori interests, the Court considered that "an interpretation which affirms rather than diminishes that recognition, consistent with the principles of the Treaty of Waitangi, is to be preferred."  As a result, it was held that regional councils may exercise their functions in respect of Māori interests, provided they do not impose controls that are inconsistent with the special provision made for Māori under the FA.   In the case before it, the Court agreed to set aside the Environment Court's declaration as it "made no limit on the extent to which a regional council may control fishing [for several purposes listed in the declaration]".

In a second judgment, Attorney-General v The Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1886, after hearing submissions on the matter the Court declined to issue a formal declaration as to the scope of the functions and limitations under section 30 of the RMA.  Whata J considered that "any final declaration on the broad, essentially hypothetical" question ran the risk of "overreach or oversimplification".  Justice Whata confirmed that the RMA and FA envisage overlapping control of fishing and the effects of fishing, but that the legality of controls in disputed areas would need to be worked out at a finer grain, including in respect of Māori matters and interests.

Consenting decisions

While RMA practitioners and judges seem to have spent much of 2017 ruminating on plans – the appropriateness of objectives, policies, and rules, and the meaning of the words contained therein – some significant cases also determined consent applications in which Māori considerations were at issue.

Those cases largely turn on their facts, but will be of broader interest to practitioners to the extent that they encounter similar situations and issues in the future.

For example, in Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169, the Environment Court granted consent (on conditions) to abandon the wreck of MV Rena on Ōtāiti (a reef), despite tangata whenua explaining the deep significance of the reef and surrounding area and the enduring cultural offence being caused by the wreck.  The case provides an interesting examination of the Court's jurisdiction and approach where consent is being granted retrospectively for an activity that is very difficult to reverse.

Yet another decision originating in the Bay of Plenty was Envirofume Limited v Bay of Plenty Regional Council [2017] EnvC 12, in which the Environment Court confirmed the Council's earlier decision to decline resource consent regarding fumigation at Tauranga's port using methyl bromide, including because of cultural concerns.  The decision is of note because the Court placed considerable weight on the Tauranga Moana Iwi Management Plan, which expressed a preference for the use of methyl bromide to be prohibited; the Court noted that such documents were acknowledged in the RPS and the RCEP as being relevant to decisions on resource consent applications.

In a very different context, numerous groups with mana whenua in Tāmaki Makaurau have a keen interest in the NZ Transport Agency's East West Link proposal, which would entail a large coastal reclamation and works within a significant cultural landscape that includes the Te Hōpua a Rangi volcanic tuff ring, the Māngere Inlet, and the wider Manukau Harbour.  The proposal was lodged with the Environmental Protection Authority ("EPA") and, as a nationally significant proposal, decided by a Board of Inquiry.

Key drivers for mana whenua participants – some of whom ultimately supported the project, while others maintained their objection – included ensuring that the project would not impact on mana whenua rights under extant Te Tiriti o Waitangi claims and settlement negotiations relating to the Manukau Harbour, the protection of the Manukau Harbour and waahi tapu, and avoiding, remedying, or mitigating other environmental effects of the project (including appropriate monitoring of effects).

The Board of Inquiry granted the consents and designations sought by the NZ Transport Agency and, in doing so, found on the evidence that the proposal would appropriately provide for Māori interests.  The Board noted in particular the way in which the project would enhance the mauri of the Manukau Harbour (and other environmental outcomes) by addressing historical groundwater/leachate issues and providing enhanced stormwater treatment, thus significantly reducing the level of contaminants discharging to the inlet.  The decision is currently under appeal to the High Court by a number of submitters, including by Ngāti Whātua Ōrakei Whaia Maia Limited.

One other consenting case of note in 2017 was the decision of the EPA to grant marine consent to Trans-Tasman Resources Limited to mine ironsands from the seabed in the South Taranaki Bight, despite opposition by a number of iwi, including Ngāti Ruanui, Te Kaahui o Rauru, and Ngāruahine.

The proposed activity is beyond the 12-nautical-mile limit of the RMA's jurisdiction, within New Zealand's exclusive economic zone.  Activities in that area are regulated by the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the "EEZ Act") – legislation that is similar in some respects, and quite different in others, to the RMA.

It is difficult in a case law overview such as this to give a full enough summary of the ways in which the EEZ Act provides for Māori interests; suffice to note that the legislation focuses the EPA (as decision-maker on an application for marine consent) on effects on the "environment" (defined differently than in the RMA) and "existing interests", which include interests in Treaty settlements or a protected customary right or customary marine title recognised under the Marine and Coastal Area (Takutai Moana) Act 2011.  The EEZ Act also provides for input into consenting processes by a Māori advisory committee of the EPA, Ngā Kaihautū Tikanga Taiao.

In granting consent, the EPA imposed numerous conditions to mitigate the effects of the activity on the environment and existing interests, and conditions requiring Trans-Tasman Resources Limited to continue engaging with and informing tangata whenua about its activities.  The EPA's decision is currently under appeal to the High Court, including by Ngāti Ruanui and Te Kaahui o Rauru.

Jurisdiction of the Environment Court to make enforcement orders in relation to Māori customary land

The decision in Thames-Coromandel District Council v Pemberton [2016] NZEnvC 221 affirmed that the RMA applies in respect of Māori customary land.

Thames-Coromandel District Council applied for enforcement orders against Mr and Ms Pemberton in relation to activities they were alleged to have undertaken.  The Pembertons challenged the Court's jurisdiction to make the orders sought, based on the land being Māori customary land and therefore not subject to the RMA and its processes.

The Court found that the status of the land and ownership is irrelevant to the activities undertaken on that land, which are subject to the RMA.  Accordingly the Court had jurisdiction to hear and determine the enforcement proceedings brought by the Council.

Legislative developments

In 2017, there were a range of legislative developments that will impact on Māori legal interests.

The Resource Legislation Amendment Act 2017 ("RLAA") amended the RMA in a number of ways that are significant to Māori.  One key development is the addition of the Mana Whakahono a Rohe: iwi participation arrangements provisions ("MWR provisions"), which came into force in the first wave of amendments in April 2017.  The MWR provisions have introduced a mechanism by which iwi and local authorities can enter agreements on ways tangata whenua may participate in RMA decision-making, and to assist councils with their statutory obligations to tangata whenua under the RMA.

Under the provisions, an iwi authority representing tangata whenua may invite a local authority to enter a Mana Whakahono a Rohe ("MWR").  The recipient local authority must then convene a hui with the initiating iwi authority to discuss how they will develop a MWR.  MWRs must include discussion relating to the following matters: how iwi will participate in plan making processes; how consultation with iwi required under the RMA will be undertaken; how iwi may participate in the development of monitoring methodologies; how any relevant Treaty settlements will be given effect to; and a process for managing conflicts of interest.  The impact of the MWR provisions is not yet clear, and will largely depend on the content of individual MWRs.

Other amendments made by the RLAA include:

  • requiring councils to provide a provide a copy of any draft policy statement or plan, once prepared but before it is notified, to any iwi authorities who were consulted; allow adequate time and opportunity for those iwi authorities to consider the draft and provide advice back to the council; and have particular regard to any advice received from those iwi authorities before notifying the plan;
  • requiring councils to include, in any evaluation reports about proposed policy statements, plans or plan changes: all advice received from iwi authorities on the proposal; and how the proposal responds to that advice, including reference to any proposed provisions that are intended to give effect to the advice; and
  • requiring councils, when appointing commissioners for plan or policy statement hearings under section 34A, to consult iwi authorities about the appropriateness of appointing a commissioner who understands tikanga Māori perspectives of local iwi and hapū; and if the council considers it appropriate, appointing at least one commissioner who understands these matters, in consultation with the relevant iwi authority. Other processes apply for collaborative and streamlined planning processes.

The Te Ture Whenua Māori Bill was withdrawn from the Committee of the Whole House stage on 20 December 2017, following the recent change in Government.  The Bill and its progression through Parliament (up to that point) was discussed in more detail in the September 2017 issue (see (2017) September Māori LR).

A number of settlements of historical Treaty claims progressed over 2017.  The following Treaty settlement legislation came into force:

  • Te Awa Tupua (Whanganui River Claims Settlement) Act 2017;
  • Rangitāne Tū Mai Rā (Wairarapa Tamaki nui-ā-Rua) Claims Settlement Act 2017;
  • Ngāti Pūkenga Claims Settlement Act 2017; and
  • Ngatikahu ki Whangaroa Claims Settlement Act 2017.

Other legislative steps forward were taken for various Treaty settlements, including:

  • Ngāti Tamaoho Claims Settlement Bill, which passed its first reading on 5 July 2017;
  • Ngāi Tai ki Tāmaki Claims Settlement Bill, which passed its first reading on 15 August 2017;
  • Heretaunga Tamatea Claims Settlement Bill, which passed its first reading on 15 August 2017;
  • Ngāti Tūwharetoa Claims Settlement Bill, which passed its first reading 19 December 2017;
  • Iwi and Hapū of Te Rohe o Te Wairoa Claims Settlement Bill, which passed its second reading on 19 December; and
  • Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill, which had its select committee report released on 3 March 2017.

See (2017) December Māori LR for a detailed review of settlement legislation.

Waitangi Tribunal activities in 2017

The Waitangi Tribunal had another eventful year, working towards completing district and historical inquiries and commencing kaupapa inquiries.

Of particular relevance to this review is that the Tribunal concluded two further hearing weeks in Stage 2 of its National Fresh Water and Geothermal Resources Inquiry (WAI 2358). Readers will recall that the Tribunal is inquiring into whether legislative reforms relating to water are Treaty-compliant.  A third week of hearing, scheduled for October, was postponed to allow the new Government time to consider its position.

Developments to watch for in 2018

2018 is likely to be an eventful year for Māori in resource management law.

The Waitangi Tribunal will continue to progress Stage 2 of the National Fresh Water and Geothermal Resources Inquiry (WAI 2358). There may be further developments for the Trans-Pacific Partnership Agreement Inquiry (WAI 2522).  Hearings will continue for other inquiries.

A number of other Treaty settlements are likely to enter or progress through legislative stages in 2018.

The impact of the Resource Legislation Amendment Act 2017 reforms will continue to be realised.  Of particular interest for Māori will be the implementation of the new iwi participation provisions, which have the potential to improve accessibility for tangata whenua to RMA decision-making processes.

In terms of case law, further developments are likely afoot. We await decisions on appeals of RJ Davidson Trust (relating to the primacy afforded to Part 2 considerations in resource management decisions) as well as various consenting decisions discussed above.

Note

Follow the links below for previous reviews of Māori interests in natural resource management (2013) March Māori LR 9-13(2014) March  Māori LR(2015) March Māori LR(2016) April Māori LR; and (2017) April Māori LR.

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Author: Anna Brenstrum

Anna Brenstrum is a solicitor with the Wellington office of Buddle Findlay and a past winner of the Sir Edward Taihakurei Durie essay competition published by the Maori Law Review.