Notification of resource consent applications - decision-making in breach of Te Tiriti o Waitangi

Reto Blattner de-Vries

Reto Blattner de-Vries discusses discretionary decision-making around notification provisions under the Resource Management Act 1991 in contexts where a taonga resource of historical and cultural importance to tangata whenua is identified.

Introduction

The resource consent associated with the operation of the Opononi/Omapere Wastewater Treatment Plant (the Consent) expired on  31 August 2020 and renewal is currently under consideration. The Far North District Council (FNDC) applied to renew the consent under the Resource Management Act 1991 (RMA) to continue to discharge treated wastewater into the Hokianga Harbour while simultaneously occupying the bed of the Hokianga Harbour for an existing wastewater pipeline. The statutory renewal process requires the Northland Regional Council’s (NRC) resource consent team to decide whether and how to notify the application. The hapū of Ngāti Korokoro, Ngāti Wharara and Te Poukā and Te Rarawa and Te Roroa iwi are recognised as tangata whenua in the Hokianga Harbour.[1]

This article uses the Consent renewal as a case study to demonstrate a regional council’s discretion to notify a resource consent application is contrary to Māori interests and in breach of the Treaty of Waitangi. While the legislative framework attempts to include Māori in decision-making, it proves insufficient because it relies upon the individuals exercising discretion under the RMA to have an understanding of te ao Māori. Section two of this article details the legislative framework. Section three discusses the Māori worldview. Section four analyses the effectiveness of the legislation to incorporate the Māori worldview. Section five suggests mechanisms to address the legislative insufficiency. Finally, section six provides insight into what the article’s findings indicate about the recently proposed RMA reforms.

Discussion

Legislative Framework

Functions under the RMA are divided between central government, regional councils and territorial authorities.[2] Regional councils control matters relating to water, including the discharge of contaminants into water. Regional councils also assume primary responsibility over the coastal marine area and are required at all times to have a regional coastal plan that sets out the relevant rules for a coastal marine area.[3]

The Hokianga harbour is within Northland’s coastal marine area[4], which is governed by the Northland Regional Coastal Plan (NRC Plan). The NRC Plan determines the level of regulation and establishes what consent type is required for particular activities within the area. This NRC Plan categorises the discharge of treated wastewater into coastal water as a discretionary activity,[5] which means the consent authority may decline the consent or grant the consent with or without conditions.[6]

Notification of a resource consent application enables a consent authority, applicant and submitters to discuss particular issues a submitter has with the consent application[7]. The RMA currently prescribes three standards of notification; public, limited and non-notification. Prior to 2009 there was a statutory presumption in favour of public notification, which reflected the policy intent that resource consent processes should be public and participatory.[8] When a resource consent is publicly notified, anyone is able to submit on the application and apply to the Environment Court. For limited notification, only ‘affected parties’ are given the opportunity to lodge submissions and appeal to the Environment Court. A person is an affected person if the consent authority decides the activity’s adverse effects will have a minor or more than minor effect on the person.[9] Determining whether someone is an affected person is a discretionary assessment which is guided by several factors, including statutory acknowledgements in Treaty of Waitangi settlement legislation.[10]

The 2009 Amendment Act replaced this statutory presumption with a discretionary power allowing a consent authority to grant public or limited notification (or non-notification) subject to provisos.[11] The issue of whether to notify applications has been described as the most vexed issue arising from the RMA, because once a consent is determined to proceed on a non-notified basis, there is no ability for other persons to lodge submissions. There exists no right of appeal to the Environment Court of a decision not to notify and the only route available is that of judicial review which becomes a High Court matter. Judicial review is very expensive and the grounds of challenge are limited to strictly legal grounds, not factual ones, meaning that there is no assessment of the weight which council officers place on particular factors.[12] Additionally, because an application seeking judicial review coincides with the particular development that is about to commence or is already underway (because the council officer did not grant notification), an injunction is required in order to stay the consent. This demonstrates the importance on relying on council officers to get notification decisions correct in the first instance because the ability to overturn the decision at the High Court becomes very difficult.

Te ao Māori and the discharge of sewage

Te Ao Turoa and taonga tuku iho describes a desire for intergenerational equity for natural, treasured resources passed from one generation to the next in the same condition as was present in the previous generation.[13] This desire reflects the intimate connection that exists between Māori and the environment due to the core customary concept of whakapapa.

Every individual is a beneficiary of two whakapapa lines (the mother and father). These two lines establish (subject to conditions) eligibility to interests in tribal lands and establishes a person’s connection and relationship with the rivers, lakes, mountains, harbours and all elements of the natural environment within the territory of your iwi.[14] This is reflected in the hapū plan (HMP), which states that:[15]

Ngāti Korokoro, Ngāti Wharara and Te Poukā hapū have had a long association with the land, waterways and sea based on the genealogy relationship (whakapapa) and the binding concepts from within. It is through this relationship that embodies the hapū with the environment, and vice versa confirms our Tangata Whenua status as the people who descend from the land and environment.

To Māori, the discharge of sewage into a body of water is a highly prohibited activity, which encroaches on the mauri of the waterbody.[16] While mauri is often referred to as the life essence of an entity, the concept contains two distinct dimensions; the life principle or the essential quality of an entity, and a tangible object to which the life essence can be attributed.[17] This is reflected in the HMP, which states that “[g]enealogy states that the life force (mauri) and role of all water bodies is to provide life, sustenance, health and to heal. Tradition states that any discharge of human waste of any form to water is a direct violation to the lineage, presence and the regenerating powers of both Ranginui and Papatūānuku.”[18]

The concerns of such discharges have actively been expressed by Māori in the Hokianga such as kaumātua John Klaricich who stated that of great concern to them “is the use of the surface of the sea at Waiarohia to carry away the treated community wastewater. The practice is contrary to and offends our customs for the sea. What foundations beyond statutory measures actually hold together people’s sense of care and respect for the sea?”[19]

The HMP clearly identifies the Hokianga hapū whakapapa as well as that the discharge of waste into the Harbour is something that diminishes its mauri.

The effectiveness of the legislation

This section examines the extent to which the RMA empowers Māori communities with authoritative decision-making roles in the natural environment.

Despite the potential of the legislation to consider Māori as ‘affected persons’ for the purposes of s 95B, the effects that a resource consent has on Māori are very rarely considered to be ‘more than minor’. This determination is likely due to consent specialists lacking an understanding of te ao Māori. This same lack of understanding means that statutory acknowledgments are not properly accounted for. By referring to case law and the opinions submitted by the FNDC in the application for consent, this section illustrates how a lack of understanding of te ao Māori leads to decisions that have rarely accounted for Māori worldviews and therefore have rarely recognised Māori interests. While we are seeing a shift in case law considering the Treaty relationship within the wider environmental space, there is still a considerable amount of work to do.

In Kawhia Harbour Protection Society Inc v Otorohanga District Council [20], the Kawhia Protection Society sought judicial review of a decision to permit land overlooking the Kawhia Harbour to be subdivided into five lifestyle blocks.  Resource consent to subdivide the land was granted on a non-notified basis, and the plaintiffs challenged both the decision to proceed on a non-notified basis and the subdivision consent itself.[21]

The plaintiffs were successful as the High Court found that the consent application should have been publicly notified by the Council.[22] It was clear there was strong opposition by the plaintiffs to the subdivision on a number of grounds including the preservation of the coastal environment, the relationship of Māori and their culture and traditions with their ancestral lands, waahi tapu and other taonga.[23] The evidence before the Court confirmed that there were genuine issues to be explored and resolved through the public notification process and therefore it was not open to the Council to be satisfied that the adverse effects of the subdivision would be minor.[24]

The Court found the Council’s statement that “the proposed subdivision does not afford additional public access to the coastal marine area over and above that which currently exists by the presence of the unformed public road” was a thoroughly inadequate response to iwi who were concerned that the subdivision should not adversely affect the relationship of Māori with their ancestral lands water sites, waahi tapu and other taonga. According to the Court, these were not matters that the Council was entitled, without further enquiry, to summarily dismiss.[25]

This case demonstrates how a lack of understanding of the Māori worldview (or lack of engagement with those views) leads to an incorrect decision by a council. Such a conclusion is one which continues the trend of RMA cases concerning Māori and water, which very rarely result in clear wins for Māori.[26]

In Ngāti Tama ki Te Waipounamu Trust v Tasman District Council,[27] Ngāti Tama judicially reviewed a decision by the Tasman District Council (TDC) to extend the lapse date of a water take consent.[28] Ngāti Tama were unsuccessful because the TDC found Ngāti Tama was not adversely affected by the extension due to the lack of physical connection between the point of take and Tewaikoropūpu Springs, which entitled TDC to disregard any potential spiritual or cultural effects resulting from the extension.

The High Court held that the TDC’s finding that there needed to be physical proximity to enable consideration of any cultural and spiritual effects was erroneous as it precluded the assessment as to the ways in which Ngāti Tama may have been affected by the extension.[29] The conclusion reached by the TDC ignored the interrelated concepts of whakapapa and kaitiakitanga which stipulate that it is all natural elements that are within the iwi’s territory which Māori have rights in relation to and obligations towards.

Interestingly, this case gives rise to another issue that has recently been addressed in the High Court decision in Ngāti Whatua Ōrakei Trust v Attorney-General [2020] NZHC 2768. Ngāti Tama originally approved the water take but subsequently changed their mind:

[6] KVW (the applicant for the take) finds itself in a somewhat difficult position because it is seeking to develop a relationship with Ngāti Tama. It is a limited liability company and a Māori-Pakeha joint venture with two iwi, Ngāti Rarua and Te Atiawa, being shareholders. Both iwi have a special interest in Golden Bay and Te Waikoropupū Springs. KVW notes that Ngāti Tama has been invited to take up shares in KVW and the invitation remains open

---

[7] KVW does, however, say it had acted throughout on the basis it has a valid Consent through to 2019, which was approved by all relevant interested parties, including Ngāti Tama, when the period sought in the application for the Consent was to 2034.

What this highlights is that councils must now be alive to the fact that there may be multiple iwi/hapū groups involved in such applications. In these circumstances, there is a question of how exactly councils step through the process of determining which of the groups' approval takes precedence in situations where multiple groups have ancestral links to the relevant resource relating to the decision. Establishing such a process means that councils will need to turn their minds to the question of whose mana whenua should be recognised, and whether a particular group has sufficient ancestral links to put an application on hold.

The submissions by the FNDC

The FNDC relied on the HMP to state that it is reasonable to conclude that the continued discharge of wastewater into the harbour will have a less than minor effect on hapū cultural values and therefore Hokianga hapū cannot be considered affected persons.[30] However, it is not clear how the FNDC came to this conclusion given that the HMP expressly provides that the hapū never authorised the discharge, discharge to water in this way is culturally offensive and degrading, and most significantly, the long-term impact of the discharge will mean that water will be unable to provide life, sustenance, and health, which will directly impact the whakapapa of the hapū.[31] Further, the Hokianga waters are used by whānau, marae and hapū for food gathering, planting, replenishing, rongoā, spiritual and cultural practises and states specifically that “[t]he customary, community and public right is constantly threatened by sewage discharge from failing sceptic systems or from the public wastewater systems at Opononi/Omapere.”[32]

It seems that the FNDC has simply taken a broad interpretation of the words ’proactive partnership’ to imply something analogous to ’reluctant acceptance of the discharge’ whereas the HMP clearly identifies contempt for such discharge methods while also embracing the maintenance of relationships for the provision of utilities.[33]

FNDC has reserved the right for Te Rarawa to be heard, noting that due to the absence of an iwi management plan, they have been unable to assess the effects of the discharge on cultural values.[34] The requirement from the FNDC for an explicit statement from Te Rarawa on sewage discharge, when the  Te Rarawa Claims Settlement Act notes in the form of a statutory acknowledgement that cultural, spiritual and traditional association with the Hokianga Harbour is to be recognised,[35] highlights the ineffectiveness of statutory acknowledgements as an aid to interpretation. If part of the Te Rarawa Claims Settlement Act’s purpose is to record acknowledgments by the Crown in relation to specific areas,[36] then these acknowledgements mean very little if decision makers do not actually refer to them or understand their content.

As the notification decision is made by the NRC by virtue of s 124(3), the discretion to give public, limited or non-notification falls to discretionary decision-making by individual consent specialists. While the FNDC has actively requested to hear an opinion from Te Rarawa before making a decision,[37] the ability for Māori who have not yet expressed an opinion or wish to express an opinion in the future hinges entirely on consent specialists situated within the NRC in Whāngarei – a regional centre 140 kilometres south east from the Hokianga.

Further, the decision to focus on hapū from the Opononi/Omapere rohe suggests the impact of a discharge of sewage into the Hokianga Harbour at the Opononi/Omapere exit points can be viewed in isolation from the connection the Harbour creates with surrounding rohe. The Hokianga Harbour not only weaves itself around the circumference of adjacent land but imbues itself into the heart of the whenua. Te Mauri o Te Wai spokeswoman and resident of Omanaia, Dallas Williams, (Ngāti Hau, Ngāti Kaharau) states that "the harbour is not just the harbour, it's our pantry, it's a part of my identity."

Therefore, discharge into a specific part of the Harbour cannot be viewed as isolated from the points to which the Harbour’s arms stretch. Isolating Opononi/Omapere hapū as possessing the mandate to voice their opinion for the purposes of resource consent renewal, is too narrow an approach and demonstrates a fundamental misunderstanding of te ao Māori. Therefore, again, the ability for Māori to voice their concerns over the impact of a discharge, notwithstanding that they are not from the particular rohe where the point of discharge is occurring, is dependent on the council’s discretion. The fact that there are multiple hapū with an interest in the Hokianga harbour brings into existence the issue alluded to in Ngāti Tama, in that councils are going to  need to discover processes to determine the precedence of iwi/hapū should different groups with whakapapa to the resource disagree as to whether a particular application should be approved.

Te Tiriti o Waitangi

Rangatiratanga and partnership

While these principles are distinct concepts, for the purposes of this essay the principles have been combined based on the perception at the time of signing Te Tiriti that a partnership relationship between Māori and the Crown existed, whereby one party was not subordinate to the other, but each respecting the status and authority in all walks of life.[38] Te Whānau o Waipereira Trust Chief Executive John Tamihere has stated that “it is about our right as a pan-tribal whānau in the urban area to be acknowledged as a treaty partner and our right as urban Māori to organise ourselves in accordance with our own tikanga to address our problems our own way.”[39]

The rangatiratanga-partnership relationship maintains that Māori should control their own taonga and be given the power to dictate their own policies and manage their own programmes.[40] The Hokianga Harbour is a taonga to the people of Hokianga. It was on Hokianga waters that Rāhiri the founding ancestor of Ngāpuhi arrived.[41] The whare of Ruanui, captain of Māmari waka was built at Arai-te-Uru located at the south head of the Harbour. Te Waianga, a direct descendant of Rāhiri was a recognised kaitiaki of the entrance to the Hokianga Harbour. Descendants of Te Waianga continue to use tikanga Māori concepts such as rāhui and tapu in protecting the regulation of shellfish and by doing so, upholding the kaitiaki roles inherited from their ancestors.[42]

Developments in government policy in various areas demonstrate that recognition of Tiriti-guaranteed rangatiratanga is increasing. For example, the Whānau Ora initiative seeks to enable Māori to be self-managing. This initiative has delivered positive outcomes for many Māori.[43] Further, the Matariki Court in Kaikohe, which allows offenders to participate in cultural rehabilitation programmes by working with wider whānau, has also seen great success.[44] However, this trend has not extended to the environmental law space. While mechanisms addressing this issue have been created within the RMA itself, there exists a disjunct between the intention behind implementation, and its actual effect in practice. For example, while joint management agreements were enacted by Parliament to allow for the joint performance of any local authority’s functions, powers, or duties under the RMA,[45] the provision has only been used once in its first six years of operation, with the Waitangi Tribunal noting the predominant reason for its lack of use was due to its application being limited to notified resource consents. This means joint management agreements can only be used in instances where the discretionary power to decide an application should be notified has been exercised.[46] Section 7 of the RMA follows a similar trend, with kaitiakitanga being a matter that local authorities must only have ’particular regard to’.[47] The FNDC actually omitted any discussion of kaitiakitanga in the section of its application dealing with s 7 in its report[48], reinforcing the general lack of knowledge of te ao Māori and specifically Hokianga tikanga.

The Waitangi Tribunal's Radio Spectrum Report considered the Crown entitled to use its Tiriti-derived kāwanatanga to manage resources for the public interest, but not being entitled to disregard rangatiratanga.[49] While the Crown has created mechanisms to provide for rangatiratanga under ss 36B-36E, they have rarely been used and are therefore largely ineffective.[50] There exists an implicit denial of rangatiratanga which is fuelled by a lack of understanding of te ao Māori. This needs to be improved in order to respect iwi and hapū status and authority as Tiriti partners.

Proposals for progression

The Waitangi Tribunal's Ngāwhā Geothermal Resource and Ko Aotearoa Tēnei reports provide suggestions for progressive realisation of the exercise of rangatiratanga in resource management.

Strengthen regional plans so that discretion to notify is almost always exercised

By strengthening the rules contained in regional plans, and the considerations for a council officer to take into account when exercising discretion (such as Treaty settlement legislation and related statutory acknowledgments), it would become almost inevitable for council officers to use their discretion to notify iwi concerning applications for consent.

Enhanced iwi management plans

Unless kaitiaki can compel the statutory participants who have power under the RMA to engage with them, their ability to exercise control, partnership and influence will always be limited.[51] It was on this basis that enhanced iwi management plans (IRMP) were proposed. These plans are prepared by iwi in consultation with local authorities and would establish the iwi’s priorities in respect of taonga and other resources within their area.[52] Once the IRMP has been finalised, negotiation takes place between iwi and a local authority, allowing compromises to occur. In the event the parties cannot agree, the matter can be referred to the Environment Court for formal mediation or final determination.[53]

Although strengthening the role for iwi, IRMP do not account for circumstances where hapū are not unanimous. Not only is it reasonable to expect hapū to take time when forming decisions, but it is also reasonable to expect the negotiation process between iwi and local authority to take time, particularly if they are aware their disagreement will lead to court action. Furthermore, if IRMP are envisaged to possess the same status as district plans,[54] then iwi may need access to lawyers, scientists and engineers which is costly.

These enhanced plans could set out when iwi must be notified about applications for resource consents that affected taonga of importance to the iwi.

Amend the RMA to allow for ordinary appeals on notification

Such a decision would mean that the Environment Court would hear appeals on the basis of law and fact. It would therefore be open to an iwi to argue that the wrong weight was afforded to their concerns, and that council officers did not appropriately take into account relevant factors.

Amending the RMA in this way recognises that council officers can make incorrect decisions regarding notification, and that the decision should be capable of remedy if the appropriate weight to specific considerations were not given.

Amend the RMA to remove discretion when considering a taonga of interest to iwi

In giving evidence to the Waitangi Tribunal, Morris Love has proposed a dual decision-making system whereby iwi would be given the sole right to determine use of a particular resource.[55] This means that two permits would be required, one from the iwi for the right to use the resource, and one from the regional council for a resource consent which would evaluate the external effects of the resource development.[56]

In the Ngāwha Report, the Tribunal dismissed the proposal on the basis that claimed rangatiratanga over the whole of Ngāwha’s geothermal resource had not been substantiated.[57] Notwithstanding the potential difficulty in establishing rangatiratanga in relation to a given natural resource, the proposal has the great advantage of creating an environment whereby the Crown and Māori are forced to depend upon each other when making decisions. The Crown would be unable to enforce decisions without Māori approval, and Māori would be unable to benefit economically without the Crown’s proposals for development.

This system provides a constitutionally novel solution to reconciliation between the rangatiratanga and kāwanatanga elements of Te Tiriti o Waitangi. The disadvantage of this proposal is that Crown recognition of rangatiratanga over natural resources within New Zealand will take a substantial amount of time. Nevertheless, this proposal should be something to aspire to.

While these types of reforms have yet to be actively considered by the government, there are some current proposed RMA reforms that might be adapted to make better provision for notification.

Proposed RMA reforms

The RMA is currently under reform and an RMA Review Panel was established in order to improve environmental outcomes and to enable industrial development within environmental limits.[58] In June 2020 the Review Panel released a report summarising their key recommendations, which include, amongst other recommendations, a requirement to give effect to the principles of Te Tiriti and the establishment of a Māori advisory board to monitor the performance of central and local government in giving effect to Te Tiriti.[59] The Review Panel essentially seeks to create a new system that functions externally from the RMA.

Operating independently to the work of the Panel is the Resource Management Amendment Act 2020.[60] The Act makes a number of reforms within the existing framework of the RMA which are relevant to the Consent application discussed in this paper, in particular, the freshwater management reforms.

Freshwater management reform

The novel planning process for freshwater management establishes a Chief Freshwater Commissioner (Commissioner) who convenes freshwater hearings panels (Panels).[61] Regional councils would be required to prepare regional planning documents, notify and call for submissions on their freshwater planning instruments which are referred to the Commissioner and in turn to the Panels to make recommendations. The regional council would then make the final decision in light of these recommendations.[62]

Importantly, the Panels comprise two freshwater hearing commissioners, two local councillors and an accredited person with an understanding of tikanga Māori and mātauranga Māori.[63] Furthermore, when convening a freshwater hearings panel, the Chief Commissioner must consider the need to collectively have knowledge of and expertise in tikanga Māori and mātauranga Māori.[64] Hopefully, these panels will ensure that regional planning documents make it almost obligatory to notify iwi of all applications for resource consents affecting waterways important to them.

While these reforms are significant in the way they require decision-makers to have (hopefully sufficient) knowledge of te ao Māori, it seems short-sighted that these reforms are limited to freshwater matters and not incorporated more broadly in the resource estate (i.e., by encompassing all taonga regardless of the particular nature of the natural resource). Requiring decision-makers to understand key Māori concepts should not be limited to matters of freshwater management, but instead be expanded to other areas such as land or coastal marine areas. The limited nature of the changes does not recognise the inherent ecological links between eco-systems.

Conclusion

The notification provisions within the RMA are problematic because when a taonga of historical and cultural importance is identified, there is merely a discretionary ability to involve tangata whenua in discussions concerning the resource. When a taonga exists in a particular area within the natural environment, and a kaitiaki relationship can be attributed to that resource, notification should be compulsory.

While a dual decision-making model system should be aspired to as a long-term goal, the amendment of the notification provisions in this way provides an easy to implement, yet meaningful change to the legislative framework, resulting in decision-making which better reflects Te Tiriti. However, there is also a need to ensure that people in decision-making roles possess adequate knowledge of te ao māori, because even if notification becomes compulsory, there is no guarantee that those receiving submissions will understand their substantive content.

Alternatively, the work of the RMA Review Panel provides the opportunity to devise a new system which addresses these issues and incorporates similar changes from the outset.

Acknowledgements to Jessie McVeagh and Wendy Henwood (Te Rarawa) who provided invaluable advice, and are continuing to work with the Council over this issue. Special thanks to Toni Love for all her support and encouragement in assisting with the writing of this article.

Notes

[1]     Ngāti Korokoro, Te Poukā, Ngāti Wharara, Hapū Environmental Management Plan (2008); Te Rarawa Claims Settlement Act 2015; Te Roroa Claims Settlement Act 2008.

[2]     Derek Nolan Environmental and Resource Management Law Online (6^th ed, LexisNexis, Wellington, 2017) at [3.15].

[3]     At [3.86].

[4]     Northland Regional Council A9 Map: Hokianga Harbour (Northland Regional Council, November 2003).

[5]     Northland Regional Council Regional Coastal Plan for Northland (Northland Regional Council, May 2016) at 279.

[6]     Resource Management Act 1991, s 104B.

[7]     Derek Nolan Environmental and Resource Management Law Online, above n 2, at [4.59].

[8]     “When are applications notified?” (5 January 2018) Environment Guide <http://www.environmentguide.org.nz/rma/resource-consents-and-processes/notification-of-resource-consent-applications/when-are-applications-notified/>.

[9]     Resource Management Act 1991, s 95E.

[10]     Derek Nolan Environmental and Resource Management Law Online, above n 2, at [4.56].

[11]     Derek Nolan Environmental and Resource Management Law Online, above n 2, at [4.50].

[12]    Derek Nolan Environmental and Resource Management Law Online, above n 2, at [4.58].

[13]     Garth Harmsworth and Shaun Awatere “Indigenous Māori Knowledge and Perspectives of Ecosystems” in Dymond JR (ed) Ecosystem services in New Zealand – conditions and trends (Manaaki Whenua Press, Lincoln, New Zealand, 2013) 274 at 276.

[14]     He Hinātore ki te Ao Māori: A glimpse into the Māori world (Ministry of Justice, March 2001).

[15]     Ngāti Korokoro, Te Poukā, Ngāti Wharara, Hapū Environmental Management Plan (2008) at 37.

[16]     At 37.

[17]     Richard Benton, "Te Matapunenga as a compendium of the history of ideas" Yearbook of New Zealand Jurisprudence 38 (2011): 13-14 at 38.

[18]     Ngāti Korokoro, Te Poukā, Ngāti Wharara, Hapū Environmental Management Plan (2008) at 37.

[19]     John Klaricich evidence Waitangi Tribunal Second Statement of Evidence of John Klaricich at 20.

[20]     Kawhia Harbour Protection Society Inc v Otorohanga District Council (2007) 13 ELRNZ 296.

[21]     At [1].

[22]     At [44].

[23]     At [46].

[24]     At [50].

[25]     At [46].

[26]     Jacinta Ruru “The failing modern jurisprudence of the Treaty of Waitangi” in Mark Hickford and Carwyn Jones (ed) Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Taylor and Francis Group, 2018) 127 at 135.

[27]     Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2017] NZHC 1081.

[28]      At [1].

[29]     At [93].

[30]     Far North District Council Application to renew resource consents for the Opononi Wastewater Treatment Plant (Far North District Council, 17 May 2019) at 56.

[31]     At 37.

[32]     Ngāti Korokoro, Te Poukā, Ngāti Wharara, Hapū Environmental Management Plan (2008) at 37.

[33]     Joseph Williams, "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" Waikato Law Review 21 (2013): 1-34 at 4.

[34]     Far North District Council Application to renew resource consents for the Opononi Wastewater Treatment Plant, above n 30, at 55.

[35]     Te Rarawa Claims Settlement Act 2015, sch 5.

[36]     Te Rarawa Claims Settlement Act 2015, s 3.

[37]     Far North District Council Application to renew resource consents for the Opononi Wastewater Treatment Plant, above n 30,  at 55.

[38]     Waitangi Tribunal Te Whanau O Waipareira Report (Wai 414, 1998) at xxvi.

[39]     Waitangi Tribunal Te Whanau O Waipareira Report (Wai 414, 1998) at xxvi.

[40]     Waitangi Tribunal Te Whanau O Waipareira Report (Wai 414, 1998) at xxv.

[41]     Rāwiri Taonui “Ngāpuhi – Ancestors” (3 March 2017) Te Ara – the Encyclopedia of New Zealand < https://teara.govt.nz/en>.

[42]     Northland Regional Council Te Ture Whakamana ngā Iwi o Taitokerau (Northland Regional Council, September 2017) at 18.

[43]     Te Puni Kōkiri “Our Whānau Ora Stories” https://www.tpk.govt.nz/en/whakamahia/whanau-ora/our-whanau-ora-stories>.

[44]     Ministry of Justice Justice: our people, our communities (2017) at 72.

[45]     Resource Management Act 1991, s 36B.

[46]     Waitangi Tribunal Ko Aotearoa Tēnei (Wai 262, 2011) at 114.

[47]     Resource Management Act, s 7.

[48]     Far North District Council Application to renew resource consents for the Opononi Wastewater Treatment Plant, above n 31, at 105.

[49]     Waitangi Tribunal The Radio Spectrum Management and Development Final Report (Wai 776, 1999) at 39.

[50]     Waitangi Tribunal Ko Aotearoa Tēnei (Wai 262, 2011) at 114.

[51]     At 116.

[52]     At 116.

[53]     At 117.

[54]     At 117.

[55]     Waitangi Tribunal The Ngāwha Geothermal Resource Report (Wai 304, 1994) at 146.

[56]     At 146.

[57]     At 146.

[58]     New Directions for Resource Management in New Zealand (Resource Management Review Panel, June 2020) at 8.

[59]     New Directions for Resource Management in New Zealand (Resource Management Review Panel, June 2020) at 8.

[60]     Resource Management Amendment Act 2020.

[61]     Resource Management Amendment Act 2020, sch 1 cl 38.

[62]     Resource Management Amendment Act 2020, sch 1, cl 39.

[63]     Resource Management Amendment Act 2020, sch 1, cl 59.

[64]     Resource Management Amendment Act 2020, sch 1, cl 59(6)(d).

Author: Reto Blattner de-Vries

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