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Council engagement with tāngata whenua for RMA processes - a Ngai Tahu case study

Abstract

This guidance note provides information on the ways that councils may engage with tāngata whenua in Resource Management Act 1991 (RMA) processes. The guidance is based on interviews in 2005 and 2006 with the 26 South Island councils located within the Ngai Tahu takiwa.

Some of the engagement that the councils undertake with Ngāi Tahu is mandatory, established through Statutory Acknowledgments and First Schedule requirements for RMA plan and policy preparation and review. Other areas of engagement are voluntary but, when based on best practices, can ultimately lead to better RMA decision-making. Underlying any engagement are the specific matters set out in Part II of the RMA, particularly ss6(e), 6(f), 7(a) and 8.

The best practice information within this guidance note relates specifically to the councils within the Ngai Tahu takiwa. While this is a unique situation within New Zealand (Ngai Tahu has mana whenua over most of the South Island and is the only iwi within many council areas),the tools and techniques discussed are relevant and applicable to other New Zealand councils when applied on a case-by-case basis and taking into account the variations between and within regions.

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Guidance note

 

Introduction

This guidance note is based on the findings of a series of interviews undertaken by the Ministry for the Environment with 26 South Island councils within the Ngai Tahu takiwa in 2005 and 2006. The interviews focussed on the councils ' relationships and engagement with Te Runanga o Ngai Tahu and were based on a set of qualitative questions developed as part of the Ministry's obligations under the Ngai Tahu Deed of Settlement.

This guidance note is based on the relationships and engagement that councils within the Ngai Tahu takiwa have with the iwi. It provides guidance to those and other New Zealand councils on tools and techniques to engage with tāngata whenua in RMA processes, whether mandatory or as best practice.

While this guidance focuses on examples of good practice, there is still much scope for improving tāngata whenua engagement in RMA processes. Much of the existing good practice relies on interpersonal relationships developed between council and tāngata whenua practitioners.
For the purpose of this document, iwi, whanau, hapu and runanga are collectively referred to as tāngata whenua.

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Background

Ngai Tahu

Ngai Tahu is tāngata whenua over all but the most northern part of the South Island. Ngai Tahu is made up of whanau and hapu within 18 Papatipu Runanga, who hold mana whenua over particular areas within the takiwa. For more information on Ngai Tahu, see their website.

The extent of the Ngai Tahu takiwa is defined in the Te Runanga o Ngai Tahu Act 1996 and recorded on Te W Kahui Mangai, a website directory of iwi and Maori organisations maintained by Te Puni Kokiri.

Te Runanga o Ngai Tahu was established as a body corporate under Te Runanga o Ngai Tahu Act 1996 as a legal entity that represents the tribal collective of Ngai Tahu. This Act also establishes Te Runanga o Ngai Tahu as the iwi authority for the purposes of the RMA.

As the iwi authority, Te Runanga o Ngai Tahu is required under the Te Runanga o Ngai Tahu Act 1996 (section 15) to seek the views of Papatipu Runanga and hapu. In some areas, Papatipu Runanga have formed representative bodies to assist with engagement:

  • The four Papatipu Runanga of Southland have established Te Ao Marama Inc to provide liaison between applicants for resource consents and local Papatipu Runanga.
  • The four Papatipu Runanga of Otago have established Kai Tahu ki Otago Ltd, a resource management consultancy based in Dunedin. Its clients include local authorities and applicants.
  • The Ngai Tahu Deed of Settlement and Ngai Tahu Claims Settlement Act 1998

    The Ngai Tahu Claims Settlement Act 1998 provides full and final settlement of historic Ngai Tahu Treaty claims against the Crown. This Act provides legislative means to implement the 1997 Deed of Settlement between Ngai Tahu and the Crown.

    The key element of the settlement package for RMA practitioners is the recognition of the role of Ngai Tahu in environmental management, primarily through the RMA requirements relating to Statutory Acknowledgements and the recognition of areas and species of importance to Ngai Tahu.

    Such Deeds of Settlement and associated legislation are not unique to Ngai Tahu. There are many settled treaty claims throughout New Zealand, and several more under negotiation. See the Office of Treaty Settlement website to view all the Deeds of Settlement, any associated legislation that has been entered into, and the progress of Treaty Claims negotiations between tāngata whenua and the Crown throughout New Zealand.

    Statutory Acknowledgements

    A Statutory Acknowledgement is an acknowledgement by the Crown that recognises the mana of a tāngata whenua group in relation to specified areas, particularly the cultural, spiritual, historical and traditional associations with an area. These acknowledgements are only given over Crown-owned land. 'Statutory areas ' include areas of land, geographic features, lakes, rivers, wetlands and coastal marine areas. The locations of statutory areas are shown on Survey Office plans held by Land Information New Zealand, with the text of each statement of association set out in Schedules to the Act that establishes them. There are 70 Statutory Acknowledgements contained in the Ngai Tahu Claims Settlement Act 1998.

    The Deed of Settlement and the Ngai Tahu Claims Settlement Act 1998 set out a series of requirements for councils, the Environment Court, the Historic Places Trust and the Ministry for the Environment in respect of Statutory Acknowledgements. These requirements are described below.

    See the brochure Ngai Tahu Statutory Acknowledgments: A Guide for Local Authorities for more information.

    Council Obligations for Statutory Acknowledgement areas within the Ngai Tahu Takiwa

    A Council's obligations are to:

    None of these obligations limit or affect the Council's overriding obligations under the RMA; particularly those matters contained in Part II.

    The Ministry for the Environment 's Obligations under the Deed of Settlement

    Under the Deed of Settlement, the Ministry for the Environment has an obligation to meet with all local authorities within the Ngai Tahu takiwa in order to monitor the performance of each council in implementing the Treaty provisions in the Resource Management Act 1991. This monitoring has formed the basis for this guidance note.

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    Relationship Agreements and Internal Council Policies

    There are a number of ways a council can choose or be required to engage with tāngata whenua in RMA processes. These include engagement to:

    Some of the means to ensure that such engagement occurs include:

    Relationship Agreements

    The first step in entering any formal or informal relationship agreement with tāngata whenua is to develop a good and effective working relationship. Whanaungatanga, or relationship building, is a pervasive concept of Maoritanga.  To tāngata whenua, relationships (with people, the spiritual world, and the physical world) are everything.

    Relationship agreements are documents that formally acknowledge and identify the scope and extent of understanding and/or working relationships between a council and a specific tāngata whenua group who has mana whenua over a particular area or claims ahi ka (historical and spiritual ties to land within their boundaries).

    Relationship agreements are not a mandatory requirement; however, they provide certainty to both the council and tāngata whenua of how they will work together.

    See the Facilitating consultation with Tangata Whenua Guidance Note for more information on relationship agreements.

    When entering into Memoranda of Understanding (MOU), protocols, terms of reference, or other form of relationship agreement, councils should consider:

    Some components of agreements can include:

    Internal Council Policies

    Having clear internal council policies will help the council engage with tāngata whenua by ensuring consistency in approach and awareness of tāngata whenua values and concerns. Some of the matters that policies can address include:

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    Plan and Policy Development Process

    To enable effective tāngata whenua participation, and understanding and awareness of tāngata whenua values and resource management issues in RMA plan and policy development processes, councils should:

    These methods of engaging and involving tāngata whenua in plan and policy development processes can be included as particular matters in any relationship agreement. Refer to the Environment Southland Best Practice example.

    Recognising Statutory Acknowledgements

    Along with any statutory requirements requiring that Statutory Acknowledgements be attached to any plan, councils should:

    Refer to the Waimate District Council Best Practice example.

    The Consultation for plan development, Facilitating consultation with tāngata whenua  and Writing Provisions for Regional and District Plans guidance notes provide more guidance on Statutory Acknowledgments and incorporating them into Second Generation RMA Plans.

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    Resource Consent Processes

    Section 36A of the RMA sets out that there is no duty to consult about resource consent applications and notices of requirement. However councils need to be able to determine whether there may be any potential adverse effects on tangata whenua. 

    Within the Council
    Some of the formal processes that councils can use to determine whether tāngata whenua are an adversely affected party include:

    By developing good relationships with tāngata whenua that go beyond issues formally addressed in plan rules, councils will create a broader understanding of issues of interest to iwi, and thereby enhance their ability to determine whether tāngata whenua are an adversely affected party. The Kaikoura District Council Best Practice example provides an example of a process that can be used to identify whether tāngata whenua are an adversely affected party.

    Helping Applicants

    Councils should provide sufficient information and guidance within their RMA planning documents so that applicants can determine issues or resource management activities of concern to tāngata whenua, and whether tāngata whenua may be adversely affected by a particular proposal.

    Some of the methods that councils can use to ensure that applicants are aware of issues or resource management activities of concern to tāngata whenua include:

    Conditions of Consent

    Councils should use standard conditions to address specific activities of interest to tāngata whenua. Such conditions should be prepared in conjunction with tāngata whenua, and provide for an accidental discovery protocol (refer to the Gore District Council Best Practice example).

    For more information on the resource consent process, see Consultation for resource consents, Conditions of a resource consent, To Notify or Not to Notify?  That is the Question and the Consent Processing Resource.

    Specific Requirements for Statutory Acknowledgements

    Generally, Statutory Acknowledgements will require a council to forward copies of all resource consent applications received for a specified area to tāngata whenua. Relationship agreements should include processes established between the council and the tāngata whenua to determine the extent of tāngata whenua participation in resource consent applications. Generally, this is achieved by:

    As communication, feedback and, ultimately, confidence is built between the council and tāngata whenua, then the need to send all applications through may be varied by agreement. Where agreement is reached, councils and tāngata whenua may agree that only certain types of applications and/or applications in specific areas are sent to tāngata whenua for review and input. A screening process should be used to determine the specific nature of activities that are of interest, and the frequency of delivery (refer to the Ashburton District Council Best Practice example).

    The council and tangata whenua should agree on a formal process as to when the council would consider it appropriate to deem tangata whenua an affected party under section 95E of the RMA within any Statutory Acknowledgement area. 

    Some of the methods to identify whether tāngata whenua may be adversely affected include:

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    RMA Monitoring

    Section 35 of the RMA sets out specific matters that councils must monitor within their region or district, including:

    Section 35A imposes a particular duty for councils to keep records about iwi and hapū within their region or district. Section 35A requires that councils keep a record of:

    Section 360(1)(hk) allows the Minister to make regulations requiring councils to provide information under sections 35 and 35A within a specified timeframe.

    The Crown also has obligations under section 35A of the RMA to provide councils with information on the above matters. Te Puni Kōkiri provides this information for the Crown through the website Te Kāhui Māngai.

    Iwi may have internal process or units set up to deal with resource management matters. Councils should also note these processes and include any information obtained from the relevant iwi authority or hapu in their records.

    Councils should involve tāngata whenua in their RMA monitoring duties under s35 of the RMA where appropriate. Some ways include:

    Refer to the Environment Canterbury Best Practice example.

    Specific Requirements for Statutory Acknowledgements

    A council should maintain a record of the number of resource consent applications received that affect a Statutory Acknowledgement. This information should be recorded and easily searchable from within Council's resource consents database. Councils could include a reference on the resource consent application form to identify if a Statutory Acknowledgement is affected.

    Refer to the Environment Canterbury Best Practice example, the Gore District Council Best Practice Example and the Otago Regional Council Best Practice example.

    For more information on a Council's monitoring responsibilities under s35 of the RMA, see the Monitoring and Reporting One-Stop-Shop.

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    Public and Applicant Information and Guidance

    In addition to establishing clear objectives, policies and rules within RMA planning documents relating to tāngata whenua values and concerns, councils should ensure that both the public and applicants are aware of these values and concerns, and who relevant tāngata whenua are.

    Some of the methods to achieve this include:

    Refer to the Dunedin City Council Best Practice example.

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    Best Practice Examples

    Identifying hapu / runanga and key individuals:
    Otago Regional Council contacts database and contacts procedures manual.
    Environment Canterbury 's contact information for all runanga.

    Relationship agreements between tāngata whenua and councils:
    Environment Southland, Invercargill District Council, Southland District Council, and Gore District Council's Charter of Understanding with Te Ao Marama Inc

    Iwi planning documents:
    Environment Canterbury 's approach
    Otago Regional Council's approach

    Assistance for tāngata whenua engagement:
    Environment Southland, Invercargill District Council, Southland District Council, and Gore District Council's funding agreement with Te Ao Marama Inc
    Kaikoura District Council's funding for Maori practitioners.

    Recording sites of significance:
    Kaikōura District Council's approach

    Awareness of issues and resource management activities:
    Dunedin City Council's approach

    Council staff awareness of issues of concern to tāngata whenua:
    Environment Southland 's approach 

    Use of Māori Planning Commissioners:
    Kaikoura District Council's policy on the use of Maori Planning Commissioners

    Maori protocol at council hearings:
    Otago Regional Council's information on Maori protocol

    tāngata whenua involvement in RMA plan development processes:
    Environment Southland 's approach to iwi involvement
    Queenstown Lakes District Council's approach to iwi involvement

    Identifying Statutory Acknowledgements:
    Waimate District Council's approach to identifying Statutory Acknowledgements.

    Identifying tāngata whenua as affected parties:
    Kaikoura District Council's approach

    Cultural impact assessments:
    Marlborough District Council's use of cultural impact assessments

    Applicant awareness of issues of concerns to tāngata whenua:
    Dunedin City Council brochure

    Identifying whether tāngata whenua should be notified about resource consent applications, or consulted:
    Ashburton District Council's approach

    Means of making tāngata whenua aware of consents of interest:
    Dunedin City Council's resource consent protocol

    Conditions of consent for sites of significance:
    Gore District Council's standard condition

    tāngata whenua involvement in RMA monitoring:
    Environment Canterbury 's approach

    Statutory Acknowledgement register:
    Environment Canterbury 's recording of consents affecting Statutory Acknowledgement areas.
    Gore District Council's resource consent database

    Recording Ngai Tahu as affected party within Statutory Acknowledgement areas:
    Otago Regional Council's recording system

    Public information on consultation with tāngata whenua:
    Dunedin City Council's public information

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    Case Law

    Case law on tāngata whenua engagement, both mandatory and as best practice, is still evolving. 

    The Ministry for the Environment 2003 publication, Guidelines for Consulting with Tāngata Whenua under the RMA: An Update on Case Law, provides a summary of case law on consultation with tāngata whenua, and applies it to RMA practice and processes. However, the document does not reflect s36A of the RMA that sets out that there is no duty to consult for resource consent applications or notices of requirement.

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    Related Guidance Notes

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    Relevant Publications

    Co-management: case studies involving local authorities and Maori
    Published by Local Government New Zealand, January 2007.
    This report records practices and experiences of the parties involved in co-management arrangements between local authorities and Maori. Five case studies are reported and key elements identified and discussed.

    Council-Maori engagement.
    Published by Local Government New Zealand, January 2007.
    This information sheet identifies the statutory responsibilities and benefits of council-Maori engagement, along with opportunities for strengthening engagement.

    Frequently asked questions on council-Maori engagement - a resource to support councils.
    Published by Local Government New Zealand, January 2007.
    This report answers the questions frequently asked by councils about council-Maori engagement under the Local Government Act 2002.

    Te Kotahitanga o te Whakahaere Rawa - Maori and Council Engagement under the Resource Management Act 1991
    Published by Te Puni Kokiri, 2006.
    This report documents the findings from a series of meetings about Maori involvement in RMA processes, held around the country between Maori, local government, and central government. The report identifies examples of processes and structures, with the aim of helping Maori and councils to enhance their working relationships.

    Effective participation in resource consent processes
    Published by the Ministry for the Environment, 2005.
    This document aims to help tāngata whenua participate effectively in resource consent decision-making. It explains the Resource Management Act and its importance to tāngata whenua; how and when tāngata whenua can get involved in resource consent decision making; what tāngata whenua need to do to participate effectively; and what tāngata whenua can expect and what is expected of them. Even though it predates the 2005 Amendments to the RMA, it is still of practical application to tāngata whenua.

    Maori Tribal Governance Arrangements and their relevance to local government
    Published 2005; available on the Local Government New Zealand website.
    This research paper identifies Maori tribal governance arrangements and determines their relevancy to local government.

    Local government engagement with Maori
    Published by Te Puni Kōkiri, the Department of Internal Affairs and Local Government New Zealand, 2004.
    This document presents the findings of a survey undertaken in 2004 to identify current practices used by councils when working with or engaging with tāngata whenua.

    Guidelines for consultation with tāngata whenua under the RMA
    Published by the Ministry for the Environment, 2003.
    This document provides a summary of case law on tāngata whenua consultation, and provides guidance on how the case law applies to RMA practice and processes.

    Whakamau ki Ngā Kaupapa - Making the best of iwi management plans under the Resource Management Act 1991
    Published by the Ministry for the Environment, 2003.
    This guide provides a practical summary of ideas to help local authorities make the most of iwi management plans and other iwi planning documents. It provides suggestions about how council staff and their consultants can work more effectively with iwi and represent their views in district and regional planning processes using iwi management plans as a focus and starting point.

    Māori participation in local government webpage
    Department of Internal Affairs; www.localcouncils.govt.nz.
    This web page on the Department of Internal Affairs website provides Maori with information and guidance on ways that Māori can become involved in council decision making processes.

    Ngai Tahu: Statutory Acknowledgements
    Te Runanga o Ngai Tahu and the Ministry for the Environment, 2002.
    This flyer provides general information for resource consent applications on the implications for resource consent applications arising from the Deed of Settlement and the Ngai Tahu Claims Settlement Act 1998.

    Talking constructively: A practical guide for building agreements between iwi, hapū and whānau, and local authorities
    Published by the Ministry for the Environment, 2000.
    This guide is designed to be a practical summary to help iwi, hapu and whanau and local authorities to prepare for all forms of joint discussions including mediation.

    Te Raranga a Mahi: Developing Environmental Management Plans for Whānau, Hapū and Iwi
    Published by the Ministry for the Environment, 2000.
    This manual seeks to provide whanau, hapu and iwi with tools to prepare Iwi Planning Documents.

    Ngāi Tahu Statutory Acknowledgements: A Guide for Local Authorities
    Published by the Ministry for the Environment, 1999.
    This document provides guidance for local authorities on the implications of Statutory Acknowledgements, the Deed of Settlement and the Ngai Tahu Claims Settlement Act 1998 for RMA processes.

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    Challenges in Practice

    Identification of Maori Commissioners and providing training for them. 

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    Acknowledgements

    This guidance document was prepared in 2008 by Gina Sweetman of Beca Carter Hollings and Ferner Ltd, based on interviews undertaken by the Ministry for the Environment. The document was further shaped and refined by Kate Sedgley of the Ministry for the Environment. The document was peer reviewed by Chris Rosenbrock of Kāi Tahu ki Otago Ltd.

    It was further updated to reflect the RMAA 2009, by Erica Sefton of The Project House Ltd in November 2009.

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