Collaboration with Iwi in the Post-Treaty Settlements Era. Vivienne Holm, Rob Enright. Senior Associate and Partner (respectively), DLA Phillips Fox

Transcription

1 Collaboration with Iwi in the Post-Treaty Settlements Era Vivienne Holm, Rob Enright Senior Associate and Partner (respectively), DLA Phillips Fox From the perspective of many Māori, the RMA has not delivered on its promise of enhanced participation in planning and consenting processes. As a result, many Treaty of Waitangi settlements have included bespoke measures, designed to ensure that iwi and hapū are more closely involved in decision making. These range from the establishment of new joint committees and advisory boards through to extensive new planning documents for resources of special significance to claimant groups. These settlements call for a paradigm shift in natural resource management. Rather than simply requiring consultation with iwi, many of the settlements will involve active and on-going collaboration. Further, in some cases, local authorities will need to implement a range of markedly different settlements, while ensuring overall fairness between iwi and hapū in their region or district. This presentation will: Outline the range of redress mechanisms emerging from recent settlements; Identify the key challenges for planners involved in implementing them, including with respect to engagement; Suggest practical ways of meeting those challenges, and of ensuring fairness as between iwi and hapū with differing redress; Briefly touch on other flow on effects of settlements, including the increased financial resources of settled iwi, and their consequent interest in exploring development opportunities. This will include explaining the implications of the decision in Waikato Tainui te Kauhanganui Inc v Hamilton City Council, which established that the obligation to consult iwi authorities under the First Schedule can extend to situations involving a primarily commercial interest. Cabinet Guidelines for Natural Resource Management Redress Cabinet Decisions made in 2010 set out guidelines for determining the appropriate form of natural resource management redress in Treaty settlements, and provide for two 'standard arrangements', being an advisory board and a joint committee. Any non-standard redress must be agreed by Cabinet. Notably, a key tenet of the Cabinet Guidelines is that local authorities should, 'retain final decision making rights over natural resource management to maintain local democracy'. Nevertheless, it is only 'preferable' for local authorities to agree to proposed arrangements before they are finalised. Redress Mechanisms used in Recent Settlements Uptake of the standard arrangements has been fairly low. One reason for this is that a settlement that is perceived to involve a 'paint by numbers' arrangement is unlikely to enhance the mana of the claimant group, or be adequate to address the particular importance of certain places and taonga. C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc

2 Some of the mechanisms used in recent settlements include: Advisory Committees The very recent settlement with Ngāti Tama ki Te Tau Ihu is one example of an advisory board. The advisory board comprises members appointed by the eight iwi, and is intended to operate on a collaborative basis. Its role relates primarily to the management of rivers and fresh water and extends to providing advice on plan making on invitation from specified local authorities. Where advice is invited, the local authority must have regard to it. The local authorities also have obligations relating to provision of information and attendance at advisory board meetings on request. Mandatory Joint Management Agreements There are several barriers to the uptake of JMAs to enhance Māori participation under the RMA itself. Among other things, a JMA can be terminated at any time, by either party. This creates risk around the investment needed to establish good systems and build capability. One key feature of JMAs under Treaty Settlements is that they remove the ability for one party to terminate the arrangements without the other's agreement. JMAs have been used to clarify expectations and formalise arrangements on monitoring, consenting, and plan making. For example, a JMA may require the establishment of a panel of commissioners nominated by an iwi, and stipulate the types of resource consent applications they must be involved in. To date they have reflected the requirement to maintain local authorities' final decision-making powers. However, the permanence of the arrangements creates a strong incentive to work collaboratively. Permanent Joint Committees The approach of involving iwi in a joint committee was pioneered by Greater Wellington, acting on its own initiative. More recently, the Hawkes Bay Regional Council has taken the concept further as the result of a suggestion that came out of Treaty negotiations in that region. As with JMAs, joint committees are normally able to be disestablished by the local authority involved (refer Schedule 7 of the Local Government Act 2002). However, the Regional Planning Committee established by the Hawkes Bay Regional Council sets a new precedent in that regard, since Treaty Settlements legislation will be used to make it permanent. The Committee is responsible for preparing regional instruments, and recommending that they be publicly notified. It includes an equal number of Council-appointed members and tangata whenua members. The agreement of 80% of all members is required to any decision, and best endeavours must be used to achieve consensus (this approach of course accords with tikanga). If the Council does not adopt a recommendation made by the Committee, it must refer the matter back to it for further consideration. In other words, the Council cannot make a final decision that departs from the Committee's recommendation. One advantage of the Hawkes Bay and Greater Wellington arrangements is that iwi and hapū input is much more direct than under other settlements (whereby any influence is by way of a C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc 2

3 'trickle down' effect, resulting from more direct input on the content of a RPS, or a requirement that local authorities recognise and provide for other planning documents as explained below). Planning Documents A number of recent settlements provide for planning documents specific to valued places or resources (eg, Te Hiku, Ngāti Manawa, Ngāti Whare, Tauranga Moana, Ngāti Rangiwewehi and Tapuika). It is now commonplace for local authorities to be required to 'recognise and provide for' the provisions of a planning document, or the matters it identifies, in their RMA instruments. On the face of it, this would seem to be inconsistent with the requirement under the Cabinet Guidelines for local government to 'retain final decision making rights over natural resource management'. However, the practical effect of the obligation will depend on the detailed design of the redress, including o o The scope of the planning document (this is often limited to objectives, policies and desired outcomes, rather than rules, to leave local authorities with more 'room to manoeuvre' in terms of how the matters they address are recognised and provided for); Any provisos to the obligations (commonly, the obligations to recognise and provide for a planning document only applies to the extent that doing so will achieve the purpose of the RMA). Nevertheless, these settlements will require true collaboration between Māori and planners on the planning documents (if not the subsequent amendments to related RMA instruments). They are normally prepared and finalised by a decision making body with both Māori and local authority members. The relevant settlements create an expectation, if not a requirement, that members will strive to make decisions by consensus. Indeed, one purpose of the planning documents is to facilitate dialogue between iwi and hapū and local government on important issues, on a more equal footing. The forthcoming Deed of Settlement for the Whanganui River, due to be signed in August, is expected to go even further and require a collaborative effort on the part of all submitters as well. That approach provides opportunities for the iwi to build a deeper understanding of its world view than can be achieved by way of the standard RMA submissions process (whereby submitters often develop their views in a silo). Summary A theme running through these settlements is that Māori not only want an 'equal say' in natural resource management, but also to influence the way decisions are reached. The arrangements are focussed on driving a more collaborative dynamic. This will in turn help achieve a shared understanding of issues, and ultimately a consensus about how to address them. The Māori proverb He Muka no te Taura Whiri encapsulates this approach. A tightly bound rope functions far more effectively and cohesively than one that has unravelled into separate strands. The Practical Effects of Financial Settlements It is also important to emphasise that the impact of settlements on RMA decision making is not limited to the changes made by natural resource management redress. C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc 3

4 The increased economic clout of settled iwi and hapū will also affect the way planners interact with them. Rather than focussing on collaboration designed to restore or protect natural resources, planners will also need to think about collaborating on development. The range of situations where consultation with iwi will be required has widened, as has the nature of the discussion. As an example, the 2010 High Court decision in Waikato Tainui Te Kauhanganui Inc v Hamilton City Council established that the duty to consult iwi on the preparation of planning instruments when they are 'affected' applies where the impacts relate to an iwi's development aspirations. To know when the obligation applies, planners will need to familiarise themselves with the development aspirations of iwi and hapū. The Challenges Involved in Implementing Settlements Moving towards a more collaborative approach to Māori participation has its challenges: Collaboration takes time, while the RMA timeframes have become tighter; Past interactions between local authorities or developers and iwi an hapū may have created a legacy of mistrust, or scepticism; The Crown's treaty negotiation processes (including with respect to establishing mandates and overlapping claims) can create or heighten friction between different iwi and hapū, as well as within the same group; 'Settled' groups may have better access to resources than 'unsettled' groups. In either case, iwi and hapū may not have much experience with planning; Effective Māori participation requires a 'multi-faceted' approach, and proper followthrough (as explained below). Some settlements do not address the full range of initiatives required to meet the expectations they raise; Differing redress could create logistical difficulties, and potentially a perception of unequal treatment between different iwi and hapū. Achieving Successful Collaboration There are a range of steps that can be taken to provide a platform for successful collaboration, including: Respect for Protocol and Building Capacity It goes without saying that planners should educate themselves on marae and meeting protocol. Capacity building may be required on both 'sides', in terms of Te Ao Māori, and planning practice. Mana to Mana Engagement C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc 4

5 It is important for planners representing both local authorities and developers to ensure that engagement includes the right people. The representatives on both 'sides' need to share a similar degree of mana. The Settling In Phase As with many dispute resolution processes, co-governance or co-management arrangements can benefit from a phased approach. Where iwi and hapū have had negative experiences in the past, it can be valuable to recognise that at the outset, and allow representatives to express their frustration or grievances before moving forward to address current issues. The Timing of Engagement One of the key ways the RMA has failed Māori is in terms of the timing of engagement. Even where consultation occurs, it usually involves providing iwi and hapū with opportunities to respond to proposals developed by other people, rather than to help shape them. Iwi and hapū should be given a heads up about projects at the earliest possible stage. In many cases, they want to set the agenda and work programme for local authorities, or help design developers' proposals. They do not want to be given a purely reactive role. In some cases, meetings may not be very fruitful where neither party has a well-formulated proposal to put forward for discussion. A simple heads up about what is coming can be enough in those situations. This provides iwi or hapū with enough time to line up their resources, and to hold hui to get input from other members before engaging with other stakeholders. On a practical note, is important to remember that iwi and hapū representatives may have work commitments, or live out of town. Allowing enough time for proper engagement is key. Covering all the Bases As noted above, a patchy or sporadic approach to engagement does not facilitate effective Māori participation. Instead, it can raise expectations which aren't met, leading to frustration. To get results, iwi and hapū need to: Provide input on state of the environment reporting and monitoring so that it incorporates local iwi and hapū values and priorities. They also need to be advised of the results; Have opportunities to clarify their 'internal' goals and priorities in light of that information. Representatives need to know what their wider communities are seeking. Iwi management plans are one way of providing representatives with a clear mandate and programme of work. This in turn enables iwi and hapū to clearly describe the outcomes they seek to developers and local authorities; Provide input on the work programmes of local authorities, and on the scope and content of planning instruments before they are notified. Joint committees and advisory boards are helpful in this regards, as is early consultation; Have an advocacy role by way of the consultation and submissions process; C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc 5

6 Have input on who makes decisions, to ensure that informed decisions are made and nothing gets 'lost in translation'. Its important for iwi and hapū representatives (and their constituencies) to be clear on the constraints that apply to some roles. For example, a representative of a joint committee will be limited in terms of his or her ability to advocate for the iwi or hapū in some situations (eg when a decision is being made on whether to notify a request for a private plan change). Conflict between Iwi and Hapū The Crown has often been criticised for creating or exacerbating tension between iwi and hapū in the course of negotiating settlements. Respected commentators have said that the Crown sometimes 'picks winners', and also that there can be a tendency to 'dumb down tikanga' (in terms of the way interests in land operate) in order to create simple arrangements. One option for local authorities or others feeling caught in the middle of a conflict over status is to seek a ruling from the Māori Land Court. However, while this might provide certainty, it will not necessarily resolve the underlying tensions, and will involve a time delay. Arrangements like the Hawkes Bay Regional Planning Committee, which bring a number of iwi and hapū to the same table to address region-wide issues on an integrated basis, can provide Māori with input in a way that does not depend on ascertaining the precise boundaries of their rohe or other areas of interest. Navigating Variable Settlement Requirements Finally, planners should be mindful of the fact that treaty settlements do not replace the wider treaty obligations of the Crown. The fact that a particular settlement does not provide for some form of redress does not preclude a local authority from taking the initiative and putting it in place itself. Guidance on Collaborative Processes in General We also recommend that planners consider the recommendations made by MfE in its paper on Collaborative Action Success in New Zealand (November 2012) available at: DAQFjAA&url=http%3A%2F%2Fwww.mfe.govt.nz%2Fpublications%2Fenvironmentalgovernance%2Fcollective-action-success-in-new-zealand%2Fcollective-action-success-innz.doc&ei=URduUZzXB-q5iwKhr4CYCg&usg=AFQjCNHEjxSpzg8UCKtmmLhCVbBd- D53jw&sig2=CiDCAimX9kXdaf6N7rZ9gw&bvm=bv ,d.cGE The paper provides some practical guidance on success factors that is not specifically targeted at Māori participation, but is still useful in that context. C:\Users\vivienne.holm\AppData\Local\Temp\tmpE995.tmp\918277_1.DOC.doc 6