Section 36A of the RMA specifically states that there is no duty under the RMA to consult any person, including tangata whenua, about resource consent applications. However, the tangata whenua interests recognised in ss6(e), 6(f), 6(g) ,7(a) and 8 of the RMA are required to be considered when making decisions on resource consent applications. These interests can be more readily identified and addressed in applications through consultation with tangata whenua. The duty of early consultation with tangata whenua has also been identified by the Court of Appeal as one of the principles of the Treaty of Waitangi .
It is best practice for applicants to undertake consultation with tangata whenua when developing proposals that are within an area of interest to tangata whenua, or involve resources of particular interest to tangata whenua. Councils can assist this process by identifying the relevant iwi authorities and/or hapu, the areas in which they may be interested, and the issues that tangata whenua are generally concerned about.
Where councils have identified that tangata whenua may be affected by a proposal, applicants should be encouraged to consult with tangata whenua at the earliest possible stage in the development of their proposals. This is particularly important when the proposal will clearly affect a known waahi tapu, or sites or species of importance to tangata whenua. Early consultation is also far more likely to be appreciated by the tangata whenua concerned.
Larger organisations who lodge consents regularly may have established their own agreements with particular iwi or hapu on how they will consult; they will be well aware of consultation expectations.
Tangata whenua groups may be interested in a proposal for a number of different reasons, including their historical association with a particular area; and/or quite differently, as neighbours or landowners. Individuals within tangata whenua groups may also be interested in an application as general members of the public. This means it is important to make it clear from the outset why consultation is being undertaken and how the tangata whenua groups consulted may be affected.
If a council has entered into a Mana Whakahono ā Rohe (iwi participation arrangement) with an iwi authority (under s58L), the arrangement may explicitly define the way in which consultation must be undertaken with the relevant iwi on resource consent proposals. If this is the case, any consultation must be undertaken in accordance with this iwi participation arrangement. Even if there is not a Mana Whakahono ā Rohe iwi participation arrangement in place, tangata whenua groups may have different ways in which they would like to be consulted or engaged. For example, some tangata whenua groups have specific resource management advisors who are authorised to speak on their behalf on some issues but must go back to the iwi or hapu on others. Some tangata whenua groups may also expect payment for their time spent in consultation exercises.