Consultation process

Abstract

Consultation is a process that involves listening as well as talking and providing information. It is a requirement under the Resource Management Act 1991 (RMA). Even when not mandatory, consultation is good practice as a means of identifying/clarifying issues and potentially resolving them early in the process.

Consultation takes time. It can be hard work and cause costly delays. It requires commitment to communicate effectively with a large community of individuals and groups with different values and concerns. But if done well, consultation will improve the quality of the plan, lead to more community buy-in to the plan and may mean fewer disputes and references in the long term.

Note: It is a statutory requirement to consult with tangata whenua in relation to particular planning processes. Refer to the guidance note consultation with tangata whenua for further information.

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Guidance note

Your existing knowledge about planning will help you design and implement a successful consultative process.

• Develop a consultation plan
• Ensure consultation is an ongoing process
• Integrate with LTCCPs
• The role of planners
• The role of councillors
• Third party facilitation
• Technical experts
• Know your audience
• Be clear about the purpose of your consultation
• Communicate effectively
• Consult different stakeholders
• Consultation with tangata whenua
• Communicate in a variety of ways - a 'little often' works well

Develop a consultation plan

• Planning is the key to good consultation
• Tailor consultation to available resources (time and budgets). Involve people who are committed, and able to listen and talk effectively
• Allow adequate time. Rushed processes rarely work, and people notice if consultation has been a last-minute consideration
• Prepare a consultation and communications plan.
• Have consultation objectives and communicate these to those consulted. Focus on the key issues and desired outcomes
• Be prepared to change the consultation approach as required
• Have a strategy to manage media involvement in consultation

Ensure consultation is an ongoing process

Make sure consultation is an ongoing process, not a one-off event or series of disjointed encounters. Some ideas to help guide the process are provided in the following diagram:

• Put as much effort as possible into consulting before the plan is recommended to councillors for adoption and notification
• Consider what form consultation could take at the different stages of the planning process. These stages may include:
  • pre-plan leading up to a draft
  • after the draft and before notification
  • during the submissions and further submissions process
  • at the time of references
  • when the plan is made operative
  • while the plan is being monitored and evaluated
• The pre-plan, pre-draft stage might involve discussing:
  • the meaning of sustainable management for the particular region/district/topic area
  • key issues that will be included in the plan
  • objectives, policies & anticipated environmental outcomes
  • the implications of various options for particular areas, eg methods & spatial dimensions (mapping approach/zoning)
• At the pre-draft stage you could:
  • Step 1 - Capture interest. Use colourful, catchy media promotions such as newsletters, cards, and brochures
  • Step 2 - Hold introduction workshops and seminars. Think about using existing community groups and local personalities to help you. Topics could include:
    1. introducing the RMA and how it affects your area
    2. introducing plan development, or planning for our future
    3. what could change and what is not likely to
  • Step 3 - Hold workshops:
    1. to find out how to consult with the community. Ask people to identify issues and write sample objectives & policies
    2. possibly contract some groups to provide input
    3. find out who is interested and in what parts of the plan
• Consider how much of your plan to use and present as part of the consultation process i.e. will you circulate a full draft plan as part of the consultation process?
• After plan notification:
  • continue talking to people. Tell them what's happened with their submission, ideas or input
  • if possible tell people how their views were taken into account
• Do not forget the internal council audience. They are also key stakeholders. It is important that all council sections, staff, management and councillors 'sing the same tune' about the purpose of consultation
• Allow plenty of time for feedback from all people involved in the consultation process

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Integrate with LTCCPs

• Consult as part of the process of developing a Long Term Council Community Plan (LTCCP)
• The following councils have developed or indicated they will develop LTCCPs in 2003-2004 and could be contacted and asked to share their experiences: Dunedin City Council, Greater Wellington Regional Council, Hutt City Council, Manukau City Council, Masterton District Council, Wellington City Council, and Western Bay of Plenty District Council
• Build on examples of what others have done, such as the winter series of workshops and meetings held by Kapiti Coast District Council.

The role of planners

• Planners should consider their role in consultation and define it clearly in light of their technical role in plan writing. Different roles include:
  • facilitator of the process
  • recorder of the views expressed during consultation
  • participant in consultation as an involved party
  • or a combination of the above, at different stages
• Whatever your role, ensure you have a clear role and are briefed

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The role of councillors

• Gain councillor buy-in to consultation processes. If possible complete consultation within one electoral cycle to avoid political change
• Councillors should play a positive role in consultation. There could be value in having a champion (councillor) who secures resources and speaks with the community. Politicians can then get to know the parties and issues early on
• Keep councillors up to date with the results of consultation

Third party facilitation

• Consider using trained professionals, such as facilitators, who can ensure a fair/efficient process. Independence is useful if:
  • a neutral position is preferable
  • council staff wish to listen and not appear to be leading the process and doing all the talking
  • there are difficulties in the relationship and/or other problems
• Consider having an ongoing 'Consultee Group' who are paid for their time and input
• Independent facilitators could run consultation meetings without staff involvement. These would maintain focus and momentum when staff are busy and feed results back to staff.

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Technical experts

• Consider using technical experts (eg landscape architects) and technical working groups (with a range of people)
• Technical experts could assist consultation and staff/facilitators by:
  • educating the community on technical matters and options
  • offering potential solutions to problems
  • providing independent or alternative views
  • identifying constraints to various approaches
  • assisting with the consultation process
• This may be costly but could promote community understanding and prove cost-effective in the longer term

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Know your audience

• Identify key audiences and stakeholders early on, eg residents' associations, tangata whenua, government agencies, other local authorities, utilities, industry/business, professional associations, environmental groups, local residents, etc
• Be inclusive
• Develop consultation objectives and actions for each group. Assess different groups' levels of understanding and needs. Tailor your objectives accordingly
• Think about the values, views and agendas of various audiences. Devise strategies to deal with this. For example:
  • meet Maori on a marae
  • time meetings to suit audiences such as businesspeople
  • communicate appropriately (eg with youth and the elderly)
  • hold facilitated meetings involving tangata whenua and Pakeha
  • be prepared to break into smaller groups to discuss important values
• Provide options that meet people's needs for involvement, eg site- or property-specific, rather than the broader picture
• Use relevant examples for the people being consulted, eg local residents are interested in local matters, so broaden issues later
• Get people involved by:
  • Developing a database of interested people. Some people will wish to actively participate in consultation and others will just want to be kept informed. Perhaps arrange the list around issues, localities, functions etc
  • Advertising in the newspaper (ie providing more than the required statutory notice)
  • Possibly using professional media (and/or marketers) to get the plan in an accessible and readable form (but manage any media input carefully)
• Don't forget to keep people within the council informed/involved

Be clear about the purpose of your consultation

• Be clear about why you are consulting. The purpose could be to:
  • plan to represent the community's concerns and needs
  • communicate the process and key messages
  • identify issues and resolve them
  • identify community priorities
  • ascertain community views and opinions in order to achieve better results. See Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates.
  • meet Treaty obligations to consult Maori
  • meet obligations to consult government agencies (eg promoting consistency among policies and plans) and adjoining local authorities (eg cross-boundary issues)
  • manage community fall-out over plan provisions
• Ascertain community views and opinions in order to achieve better plans. This principle applies particularly to your choice of methods and their acceptability
• Increase awareness of the role of councils. This may not be known, which stops/slows you in achieving your purpose
• Be clear whether you are engaging in consultation (a two-way process) or a public participation process (which may not have a flexible outcome). There is a difference
• Show people what the plan approach is designed to do to achieve desired environmental outcomes

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Communicate effectively

• Be proactive and positive
• Listen. Consultation is a two-way process
• Avoid jargon and acronyms
• Get to know people. Treat them as you would like to be treated
• Respect tikanga Maori
• Draw your audiences in slowly. For example, where possible, only give people summary information at the initial stage
• Be as dynamic as possible to engage people
• Be interactive and responsive. For instance, follow through on sending out any promised information. Respond to phone calls and give people feedback on their comments if possible
• Do not raise unrealistic expectations

Consult different stakeholders

• At some stage in the consultation process bring together people with different (possibly conflicting) expectations about the plan, so different views can be discussed
• This allows various stakeholders to be educated about others' views. It may also provide for some negotiation on particular issues or proposed provisions
• This may also enable some compromises to be agreed on
• Engage tangata whenua in discussions with other stakeholders about things such as sites of cultural significance, so people understand the issues that may affect them. For example, run focus groups on specific issues for tangata whenua. Then integrate these discussions back into the main consultation process

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Consultation with tangata whenua

Assume that Maori will be interested in resource management plan development. Consulting with tangata whenua is a statutory requirement. Tips for consulting constructively include:

• Develop good working relationships with tangata whenua
• Listen and try to understand the key issues
• Inform tangata whenua of your ideas and resource management issues as early in the process as possible
• Provide as much support as possible
• Work on ideas of agreement
• Consult face-to-face in an environment tangata whenua are comfortable with
• Respect and follow tikanga Maori
• Provide sufficient resourcing for tangata whenua input
• Be flexible and respectful of cultural differences
• Continually work on building relationships with tangata whenua
• Be consistent in approach. Preferably develop a formal relationship or protocol for consultation
• If there is a hapu, runanga or iwi management plan take it into account in the preparation of the district/city/regional plan

Communicate in a variety of ways - a 'little often' works well

• Don't overload people. Give enough information so they can form ideas and opinions (bite-sized chunks work well)
• Be aware of people's literacy levels. Keep written information concise and easy to read
• Use a variety of approaches to consult eg meetings, phone calls, visits, hui, emails, newsletters, seminars and workshops
• Consider the following approaches:
  • running interactive workshops or meetings that provide space for open-ended and open-minded discussions
  • meetings of special interest groups
  • asking people simple questions such as 'what do you like/not like,' 'what do you want to change' (eg Waimakariri District Council and Waitakere City Council)
  • perception or satisfaction surveys and interviews (eg like Environment Waikato, Taranaki Regional Council, Christchurch City Council and others)
  • charrettes - a charrette is a workshop for the community to document and record their visions for their area (eg Waitakere and Christchurch City Councils)
  • taking photographs and keeping visual records (eg Waimakariri District Council)
  • Participatory Appraisal processes (eg Rotorua District Council). Participatory Appraisal emphasises giving all members of the community equal opportunity to record their knowledge, ideas and opinions in a non-confrontational environment. The aim is to gain input (using visual stimulus and face-to-face interviews) from interested parties who may typically be excluded by other consultation processes
  • the use of interactive websites

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Best practice examples

The following examples illustrate best practice in particular aspects of plan preparation, as described in the guidance note.

A regional council consultation process example [Reveal/Hide]

Have clear consultation policy and principles [Reveal/Hide]

Setting up good processes for consultation [Reveal/Hide]

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RMA provisions

There are specific requirements to consult with

• the Minister for the Environment;
• other Ministers of the Crown;
• local authorities; and
• tangata whenua

under Clause 3 of the First Schedule of the Resource Management Act 1991 (RMA). This clause also states that local authorities may consult anyone during the preparation of a proposed policy statement or plan.

There is no definition of consultation in the RMA.

There are no universal requirements in the RMA as to the form consultation must take. Any manner of oral or written interchange which allows adequate expression and consideration of views will suffice. Nor is there a universal requirement as to duration required for consultation to be adequate. Consultation could range from one telephone call to years of meetings and dialogue.

Local Government Act

The Local Government Act 2002 defines the power and responsibilities of local authorities. Under the LGA councils are expected to take a broad role in promoting the social, economic, environmental and cultural well-being of communities (now and in the future). This legislation codifies the principles of consultation. And readers should be aware that by 2006 councils are required to have facilitated a process of determining community outcomes and prepared Long Term Council Community Plans (LTCCP). This involves consultation with communities.

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Case law

The Wellington International Airport Ltd v Air NZ (1991) (Court of Appeal) case is significant in terms of consultation. The elements of consultation can be summarised as including, but not limited to, the following:

• Consultation is the statement of a proposal not yet finally decided upon
• Consultation includes listening to what others have to say and considering responses
• Sufficient time must be allowed and a genuine effort made
• The party obliged to consult must make available enough information for the consultee to be adequately informed and able to make intelligent and useful responses;
• The party obliged to consult must keep its mind open and be ready to change and even start afresh. However, they are entitled to have a working plan already in mind
• Consultation is an intermediate situation involving meaningful discussion
• The party obliged to consult holds meetings, provides relevant information and further information on request, and waits until those being consulted have had a say before making a decision

Consultation is not:
(a) merely telling or presenting; or
(b) intended to be a charade; or
(c) the same as negotiation, although a result of consultation could be an agreement to negotiate.

It is recommended that practitioners read and review the Court of Appeal case cited above before commencing on a consultation process.

Ngati Kahu and Pacific International Investments v Tauranga District Council (1994) is another significant case about consultation. This case is about Clause 3(1)(d) of the First Schedule to the RMA. The clause requires local authorities to consult with tangata whenua of the area who may be affected when preparing and changing policy statements and plans. This is therefore a statutory requirement.

Recent consultation case law includes:

Friends and Community of Ngawha Inc v The Minister of Corrections (2002)

This High Court case relates to the proposed prison at Ngawha, in Northland, 5km NE of Kaikohe. The Environment Court heard three appeals relating to this case between September 2001 and January 2002. This decision was heard by the High Court in June 2002. Five grounds of appeal were advanced:

• The cost of developing the site;
• Failure to recognise and provide for the relationship of Maori and their culture and traditions;
• Failure to have particular regard to kaitiakitanga;
• Inadequate consultation; and
• Failure to have regard to mana, wairua and mauri.

The grounds relating to inadequate consultation did not succeed as they amounted to a challenge of the Environment Court's factual findings based on the evidence it heard. As there was no evidence before the High Court, it could not determine whether the grounds raised any point of law. None of the five grounds of appeal succeeded and the appeal was dismissed.

New Zealand Vegetable and Potato Growers Federation Inc v Director-General of the Ministry of Agriculture and Forestry (2002)

This High Court case relates to pest control/biosecurity and consultation. VegFed claimed that MAF was acting unlawfully in relation to alteration of an import health standard which controls the importation of Australian tomatoes into New Zealand. VegFed was concerned about the Queensland Fruit Fly gaining a foothold in New Zealand. VegFed claimed MAF had failed to adequately consult and had acted irrationally. Although the Court was not required to come to a final decision on these matters (as it was an interim relief application), it expressed a preliminary view. The Court was inclined to agree that the consultation that occurred went well beyond what is required by law.

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Related guidance notes

The following guidance notes are related:

• Consultation process
• Consultation with Tangata Whenua
• Alternative dispute resolution
• Land transport
• Non-residential activities in residential areas
• Private plan changes
• Radiofrequency
• Section 32 - Methods of implementation
• Submissions on a plan

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Work in progress

The Ministry for the Environment encourages effective public participation under the RMA and continues to respond to requests from people wanting to better understand the legislation and get involved in resource management decision-making.

The interface between the RMA (as amended in 2003) and the LGA 2002 has been the subject of workshops around the country. Key contacts are:

• Fiona Illingsworth at Department of Internal Affairs: fiona.illingsworth@dia.govt.nz or
• Leslie Woudberg at Ministry for the Environment: leslie.woudberg@mfe.govt.nz

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Relevant publications

Agreements Between Maori and Local Authorities
Published by Indigenous Peoples and the Law - February 2000
Manukau City Council have written a useful article on what other councils have done in relation to dispute resolution.

Good Practice Participate
Published by Ministry of Social Development - June 2002
This website has been designed to provide information, advice and tips to public servants on how to consult and engage with the community, voluntary, iwi and Maori organisations.

Creating Great Places to Live + Work + Play: Liveable Urban Environments: Process, Strategy, Action
Published June 2002
This Urban Amenity Guide includes a summary document and CD Rom with examples and templates that could assist with consultation processes with communities.

Getting in On the Act
Published by Ministry for the Environment - June 2006
A short, simple guide on how the Resource Management Act works and how it might affect users.

Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates
Published by Ministry for the Environment - January 1999
A good practice guide for those trying to site facilities communities need but might not want in their backyard. Looks at techniques for addressing community concerns & explores various case studies.

Public Consultation: a vital element in the consents process (PDF 1 MB)
Published by Resource Management Law Association of New Zealand Inc - January 1998
Discusses benefits of committing to a rigorous consultation process, as these can outweigh the risk of taking a "paper trial" approach.

Kanohi Ki Te Kanohi - Consulting with Maori (PDF 378 KB)
Published by New Zealand Planning Institute - December 1997
Answers common questions relating to consultation with tangata whenua, as anecdotal evidence suggests that while judiciary has outlined when & how to consult, this process has often been ineffective.

Public Participation from a Resource User's Perspective (PDF 152 KB)
Published by Resource Management Law Association of New Zealand Inc - February 1997
This article is a response by Katie Mayes, Environmental Resource Manager, Ernslaw One Ltd to KJ Grundy's article "Empty Promise? Public Participation Under the RMA."

When Should People be Paid to Participate in Planning Matters (PDF 161 KB)
Published by Resource Management Law Association of New Zealand Inc - February 1996
Discusses how financial pressures affect community groups' participation in planning issues, including pros and cons of paying them to participate and guidance on deciding if payment is warranted.

Public Participation - Who Pays the Piper (PDF 2 MB)
Published by Resource Management Law Association of New Zealand Inc - January 1996
This paper deals four issues relating to consultation. Specifically, What is consultation?, the benefits of consultation, the key success factors and the barriers to effective consultation. It is concluded that consultation offers enormous opportunities to developers, regulatory authorities and the public.

Demands and Principles of Consultation (PDF 208 KB)
Published by New Zealand Planning Institute - March 1995
This article discusses how consultation with the public or other interests is becoming a way of life for New Zealand's resource management.

It Pays to Advertise (PDF 263 KB)
Published by New Zealand Planning Institute - June 1993
This article describes how public participation was encouraged in the early stages of the Lower Hutt City's district plan. This was through a carefully crafted and exhaustive campaign. The article looks at the components of a major public consultation and participative programme; undertaken after collecting an extensive data base.

Open Approach Gets Results-Two Landfill Success Stories (PDF 183 KB)
Published by New Zealand Planning Institute - September 1992
This article looks at two landfill success stories where the respective councils involved took an approach based on the concept of partnership with the community. One case relates to a new landfill being established in the Bay of Plenty while the other relates to the seeking of consents to continue using an existing landfill in Manukau City.

Pre-Hearing Meetings: A Practical Guide for Councils
Published by Ministry for the Environment - March 1999
A guide for council staff developing procedures for pre-hearing meetings, which are a useful tool to clarify issues and resolve disputes in relation to resource consent applications.

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Current challenges in practice

Efficiency and effectiveness - how can it be measured?

Consultation is an uncertain process. Results are not always directly linked to the effort and care taken to communicate and consult with the community. It is a challenge to know who and when to consult and to manage the risks of consulting as opposed to not consulting.

How to consult

There are a variety of views on how to effectively consult. Some practitioners have experienced difficulty getting the public and interested parties involved in the draft plan stage. The public may not understand why they should be involved in plan development until it is too late, ie resource consent stage. Hence it is important to match the type of process to the needs of the parties.

Links between the RMA and LGA interface

The requirements of the RMA for consultation have been in place for over ten years. The requirements of the LGA 2002 are fairly new but significant in terms of consultation process. The interface between the RMA and LGA potentially provide a tension and challenges in practice for practitioners because the RMA focuses on promoting the sustainable management of natural and physical resources and the LGA focuses on broader sustainability objectives. There are also differences in terms of requirements to consult with Maori (as in the LGA) and tangata whenua (as in the RMA).

Consulting with tangata whenua

Which Maori to consult is an often raised issue. Effective consultation with tangata whenua can be resource-hungry (time-consuming, protracted and expensive). It may also be frustrating for Maori and practitioners because of the lack of clarity surrounding Treaty issues, including ownership and control of resources.

There may be fear about consultation with tangata whenua blowing up and becoming political and confrontational, as has occurred in some instances. The local government sector has also questioned how effective councils can be in consulting tangata whenua, as they are not the Treaty Partner. But councils must recognise their obligations under the Treaty of Waitangi and the Resource Management Act.

Governance issues

Consulting effectively with tangata whenua and other cultures and stakeholders is a challenge. How will tangata whenua be engaged in relation to the other parties being consulted? How will a consensus be reached on what will be included in the plan (eg sites of cultural significance) when there are conflicting views on resource use/protection? The LGA 2002 provides a subtle difference in terms of councils relationship and consultation requirements with Maori.

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Acknowledgements and editorial comments

This guidance note was prepared by Karen Bell of Enviro Solutions New Zealand Ltd, February 2002, and updated in August 2003.

This guidance note was prepared in August 2003