RMLA News

Resource Management Review Panel Report – Te Tiriti o Waitangi me te ao Māori

 

Authors – Horiana Irwin-Easthope and Maia Wikaira, Mātauranga Knowledge Hub Co-Leaders

The purpose of this note is to briefly summarise the Resource Management Review Panel’s (the Panel) recommendations with respect to Te Tiriti o Waitangi me te ao Māori.[1]

The Panel’s Report is comprehensive and recommends major reform to the current system, including with respect to Te Tiriti o Waitangi, the “multi-dimensional Maori provisions”[2], how tikanga Māori is reflected, and how Māori will engage with the proposed new framework.  As a result, if enacted as currently proposed, the implementation of the new framework will require a different approach and will likely lead to different environmental outcomes.  The Panel’s view is that their recommendations will “set the clear direction needed both for the greater recognition of Te Tiriti and for better aligning the system with te ao Māori.”[3]

Issues identified

At the outset, the Panel recognises that the Resource Management Act 1991 (the RMA) has been found by the Waitangi Tribunal to have not lived up to its promise for Māori and their relationship with the environment.  The Panel quotes the Tribunal in Ko Aotearoa Tēnei noting “[N]early 20 years after the RMA was enacted, it is fair to say that the legislation has delivered Māori scarcely a shadow of its original promise …”[4]

The Panel’s identified the following issues in the resource management system:

  • Lack of recognition and provision for te ao Māori in the purpose and principles of the resource management system. This also includes issues with the Tiriti clause in section 8 of the RMA.
  • Limited use of the mechanisms for mana whenua involvement in the RMA.
  • Māori involvement in the resource management system has tended to be at the later stages of resource management processes, and there is an opportunity in a new system to provide for a greater role for Māori at the strategic end of the system.
  • Lack of monitoring central and local government Tiriti performance.
  • Capacity and capability issues for both government (central, regional and local) and Māori to engage on resource management issues, and lack of funding and support to address these issues.
  • Local authorities and applicants for resource consents can find it difficult to know who is mana whenua in an area and therefore which mana whenua groups to engage with.

Recommendations

To address these issues, the Panel has recommended the following:

  • The concept of ‘Te Mana o te Taiao’, should be introduced into the purpose of the Natural and Built Environments Act to recognise our shared environmental ethic.
  • Specific outcomes should be provided for ‘tikanga Māori’, including for the relationships of mana whenua with cultural landscapes.
  • The current Treaty clause should be changed so that decision-makers under the Act are required to ‘give effect to’ the principles of Te Tiriti o Waitangi.
  • A national policy statement should be required on how the principles of Te Tiriti will be given effect through functions and powers exercised under the Act.
  • A more effective strategic role for Māori in the system should be provided for, including representation of mana whenua on regional spatial planning and joint planning committees.
  • A National Māori Advisory Board should be established to monitor the performance of central and local government in giving effect to Te Tiriti and other functions identified in the report.
  • The current Mana Whakahono ā Rohe provisions should be enhanced to provide for an integrated partnership process between mana whenua and local government to address resource management issues.
  • The current legislative barriers to using the transfer of power provisions and joint management agreements should be removed and there should be a positive obligation on local authorities to investigate opportunities for their use.
  • The current definitions of the terms ‘iwi authority’ and ‘tangata whenua’ should be replaced with a new definition for ‘mana whenua’.
  • Provision should be made for payment of reasonable costs where Māori are undertaking resource management duties and functions in the public interest.
  • The funding and support options recommended by the Panel should be implemented.

In terms of next steps, the Panel has anticipated a further process of engagement noting Cabinet’s direction “that the Minister for the Environment will direct officials to look for appropriate opportunities to collaboratively refine and co-design policy options with Māori during the next phase of the review in line with Cabinet’s agreed Guidelines for Engaging with Māori.”[5]

He whakaaro whakakapi – some concluding thoughts from the authors

                                                          E kore au e ngaro; te kākano i ruia mai i Rangiātea

                           I shall never be lost; for I am the seed which was sown from Rangiātea[6]

This whakatauākī (proverb), illustrates the importance of the connection Māori have with the environment.  This connection is based on whakapapa (genealogy).  It is one that cannot be severed.  Different hapū and iwi have their own histories and whakataukī that speak to their respective connections to the environment and their taonga.  It will be important that any reform to the RMA squarely recognises these connections and the obligations that stem from them.

Whilst some recommendations seem to be based on previous Waitangi Tribunal recommendations[7], others are not.  For example, the recommendation to introduce the concept of ‘Te Mana o te Taiao’, seems to be drawn from the concept of ‘Te Mana o te Wai’ from the NPS-FM.  The introduction of ‘Te Mana o te Taiao’ has the potential to be a game-changer, as it is hoped Te Mana o te Wai will be for our waterways through the new NPS-FM processes.  However, unlike the extensive work that was completed prior to the introduction of the RMA in relation to the Māori provisions (largely led by Rev. Māori Marsden), the Panel’s work has been completed in a relatively truncated time-period.  In that regard, it is the authors’ view that further engagement with Māori groups and a co-design process is critical to ensure that the Panel’s recommendations are discussed and tested with Māori communities.

Ultimately, it is widely accepted in Māori communities that reform to the RMA is urgently needed.  With appropriate engagement and further discussion about what reform will lead to better outcomes for our taiao (our environment), there appears to be a real opportunity now for positive change.

Footnotes:

[1] This material is largely included in Chapter 3 of the Panel’s Report entitled “Te Tiriti o Waitangi and te ao Māori”.

[2] Williams J. 2013. Lex Aotearoa: An heroic attempt to map the Māori dimension in modern New Zealand law. Waikato Law Review 21: 1–34; p 18.

[3] Panel Report, p.115 at [155].

[4] Waitangi Tribunal. 2011. Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity: Wai 262, vol 1. Wellington: Waitangi Tribunal; p 285.

[5] Cabinet. 2019. Minute of Decision. Comprehensive Review of the Resource Management System: Confirming the Scope and Terms of Reference.

[6] Hirini Moko Mead and Neil Grove Ngā Pepeha o ngā Tīpuna — The Sayings of the Ancestors (Victoria University Press, Victoria University of Wellington, 2004) at 30.  This whakatauākī is attributed to Titokowaru. It has been translated to mean “[I] shall never be lost; for I am a seed which was sown from Rangiatea”. It is often used by Māori to describe the intrinsic connection provided by whakapapa (genealogy) between the past, the present and the future. However, it can also be thought about in the context of the place of mātauranga Māori (Māori knowledge), including te reo and tikanga Māori, in Aotearoa and the inherent connection to the environment through whakapapa.

[7] Such as the recommendation to “give effect to” the principles of Te Tiriti.