Draft Plan Change 94B Papakāinga - Methods and Rules

Draft Plan Change 94B Papakāinga - Methods and Rules September 2014 0 P a g e

PAPAKĀINGA METHODS & RULES - PLAN CHANGE 94B DISCUSSION DOCUMENT INTRODUCTION Māori Land Māori Land owners are part of a complex land system that owners of General Land are not. The complexity of the Māori Land system is a product of history arising from the efforts of past governments to reconcile customary Māori communal ownership of land with an individual title system based on British land laws. Māori Land generally has multiple owners. As owners die and their descendants inherit their interests which can only be achieved by applying to the Māori Land Court Te Kooti Whenua Māori the number of owners of Māori Land increases and the fragmentation of Māori Land ownership continues. Multiple ownership makes administration of the land problematic, and has inherent costs that increase over time. Māori Land Court The Māori Land Court is the only Court with specific jurisdiction over Māori Land, as conferred by Te Ture Whenua Māori Act 1993 (TTWM Act) also known as the Māori Land Act 1993. Owners of Māori Land must apply to the Māori Land Court if they want to administer their land. This is different to General Land where, for example, a person does not need to apply to a Court to succeed to land interests left to them. The passage of TTWM Act represented the end of lengthy discussions within the Māori community on how to balance the often competing objectives of retaining Māori Land in Māori ownership with development of the land. The TTWM Act remains the Māori Land Court s guiding legislation, and it directs that the Act be interpreted in a manner that best furthers the principles set out in the Preamble: Whereas the Treaty of Waitangi established the special relationship between the Māori people and the Crown: And whereas it is desirable that the spirit of the exchange of kāwanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whānau, and their hapū, and to protect wāhi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whānau, and their hapū: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Māori people to achieve the implementation of these principles. Section 2(2) of the TTWM Act states: it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and 1 P a g e

promotes the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whanau, their hapu, and their descendants. Types of Māori Land For the purposes of TTWM Act, all land in New Zealand has one of the following statuses: Māori Customary Land Māori Freehold Land General land owned by Māori General land Crown land Crown land reserved for Māori land that is held by Māori in accordance with tikanga Māori land, the beneficial ownership of which has been determined by the Māori Land Court by freehold order land (other than Māori freehold land) that has been alienated from the Crown for a subsisting estate in fee simple, where that estate is beneficially owned by a Māori or by a group of persons of whom a majority are Māori land (other than Māori freehold land and General land owned by Māori) that has been alienated from the Crown for a subsisting estate in fee simple land (other than Māori customary land and Crown land reserved for Māori) that has not been alienated from the Crown for a subsisting estate in fee simple land (other than Māori customary land) that has not been alienated from the Crown for a subsisting estate in fee simple but is set aside or reserved for the use or benefit of Māori Common Management Structures As owners die and their descendants succeed to their interests, the number of owners of Māori Land increases and the fragmentation of Māori Land ownership continues. Multiple ownership has increased the administrative costs for Māori Land owners because of the need to keep track of the identity and location of a growing number of beneficiaries especially as a majority of owners is required to make decisions about the land. The Māori Trustee, for example, now records ownership interests to eight decimal places because some shares in Māori Land have become so fragmented. The fragmentation of ownership interests makes record-keeping more complex than if each piece of land had only one owner. Contacting owners, paying out funds, and generating consensus for decisionmaking are all complicated by the fragmentation of ownership. To resolve some of the complexities of multiply owned Māori Land, the owners can apply to the Māori Land Court to establish a management structure for the land. A trust is a group of people nominated by the landowners / shareholders to manage their land block or shares in a trust. Under Te Ture Whenua Māori Act 1993, there are five types of trusts: Ahu whenua trust Whenua topu trust This is the most common Māori land trust. The purpose of an Ahu whenua trust is to promote the use and administration of the land in the interest of the landowners. These trusts are often used for commercial purposes. This is a land management trust and involves whole blocks of land. This is an iwi or hapū based trust. It is designed to facilitate the use and administration of the land in the interest of the iwi or hapū. This type of trust is 2 P a g e

Whānau trust Putea trust Kai tiaki trust used for receiving Crown land as part of any settlement. This is a land management trust and involves whole blocks of land. This is a whānau oriented trust. It allows the whānau to bring together their Māori land interests for the benefit of the whānau and their descendants. This is a share management trust and relates primarily to specified shares in land. A putea trust allows the landowners of small and uneconomical interests to pool their interests together. This is a share management trust and relates primarily to specified shares in land. A Kai tiaki trust relates solely to an individual who is a minor or has a disability and is unable to manage their affairs. This trust can include all of an individual's assets. Other forms of management structure that can be adopted to mitigate the effects of multiple ownership include: Māori reservations Māori incorporations A Māori reservation can be set aside on any Māori freehold land, General land or Crown land. It is possible to establish a Māori reservation over part of a block and it can be for a number of purposes. A Māori incorporation is a structure similar to a company. Its purpose is to facilitate and promote the use and administration of Māori freehold land on behalf of the owners. Māori incorporations are designed to manage whole blocks of land and are the most commercial of all Māori land management structures. A Māori incorporation can include one or more blocks of Māori freehold land, if at least one of the blocks has more than two owners. THE CONTEXT FOR THIS PLAN CHANGE Continuation of Phase 1 The Whangārei District Plan's Papakāinga policy became operative on 28 April 2011. That Plan noted that the " papakāinga housing provisions are being developed in two phases. Phase One relates to the objectives and policies, while Phase Two includes the development of guidelines and standards for the Papakāinga Development Plan process. The Papakāinga Development Plan is intended to facilitate subdivision and development in a flexible manner while ensuring the sustainable management of natural and physical resources in an integrated way, similar to that of the management plan technique." The policy indicated that Phase 2 of the papakāinga housing provisions would be introduced by way of a further plan change. In the interim, applications were to be considered on a case by case basis as discretionary activities, assessed against the objectives and policies of the District Plan. As Phase 2 of the papakāinga housing provisions advanced, it became evident that setting out detailed procedures and requirements did not facilitate the better utilisation of Māori land. Instead, a more fluid consenting process was adopted, based on a 'narrative planning process' that focused on the gathering of information, knowledge, understanding, and ultimately the intergenerational wisdom that would be necessary to achieve sustainable management. In the period immediately following the completion of 3 P a g e

Phase 1, the Office of the Auditor General released their audit on Government planning and support for housing on Māori land (ISBN 978-0-478-38311-9). Giving effect to recommendations of Auditor General The Auditor General's report poses a challenge for government agencies to seriously address the issues identified in particular, variable service delivery and organisational responses experienced by Māori who wish to build houses on their own land. Māori are disproportionately represented on state housing waiting lists. They are more likely to live in housing of poor condition compared with the rest of the population. Māori are also less likely than non-māori to own their own house. The Ministry of Business, Innovation and Employment (MBIE) has identified that there is already a significant undersupply of affordable housing. Because Māori have disproportionately low incomes, they are likely to struggle more to find affordable housing. This is particularly true in areas where the Māori population is predicted to grow at a rate higher than that of the general population (such as Northland and the Bay of Plenty). To address the housing needs of Māori, and to unlock the resource potential that exists within whānau, hapū, and iwi, requires tailored support and focus by the relevant public entities. They must consider how to foster the development of Māori capacity to contribute to the decision-making processes of local and central authorities. The recommendations of the Auditor General's report that are directly relevant to the District Plan and Council regulatory framework are: 1. That the agencies involved in providing advice and support co-ordinate what they do locally by: having one organisation act as a single point of contact for Māori who want to build housing on their land; agreeing a shared process that sets out who will work with Māori who want to build on their land and when; and having staff with the relevant expertise and knowledge available to provide highquality information and advice. 2. We recommend that local authorities build appropriate flexibility into their district plans to allow housing to be built on Māori land. 3. We recommend that local authorities identify and work with landowners who have particularly suitable land blocks and who want to build housing on Māori land. The approach being taken by Whangarei District Council's to develop a joint papakāinga process with the Māori Land Court was cited by the Auditor General as an example of good practice in providing information and advice. Whangarei [District] Council and the Māori Land Court have met to inform each other of the processes and policies they have and to consider how they can streamline the advice and guidance they provide to owners of Māori land. Communicating more effectively has helped both agencies improve the services they offer. 4 P a g e

Giving effect to the Resource Management Act 1991 (RMA) Mātauranga Māori (Māori worldviews) & Sustainable Management 1 Each culture has values, traditions and experiences that shape their world views and the laws which govern their respective communities & nations. Mātauranga Māori, or Māori world views, are views based on the values, traditions and experiences of Māori over time (ERMA, 2004, p 15) 2 : The framework for identifying and characterising mātauranga Māori (Māori worldviews and perspectives) is based on an analysis of the traditional practices of Māori society. These traditional practices were and continue to be developed as tools controlling behaviour, particularly in regard to sustainable management of the environment in which Maori live. Mātauranga Māori is essentially a system of knowledge and understanding about Māori beliefs relating to creation and the relationship between atua (supernatural guardians) and tāngata (mankind). This relationship or whakapapa (genealogy) determines the way people behave in the context of their environmental ethical practices. Understanding Māori beliefs, values and the relationship of those to the natural world requires an understanding of traditional expressions including those portrayed in waiata (song) and pepeha (proverbs). An appreciation of Māori spiritual and metaphysical values is not only important as a means to understand mātauranga Māori, it is also important for RMA decision-makers, as these values are cultural beliefs which form part of the cultural and social wellbeing considerations under section 5 of the RMA, and are protected as matters of national importance under section 6(e) of the RMA. Māori have intergenerational responsibilities, such as kaitiakitanga for the interrelated and connected elements of their cultural and spiritual world. Mātauranga Māori also recognises the need for people to use natural resources to provide for their wellbeing. Indeed, this use element is a primary basis for many concepts, such as mana whenua and ahi kā, among others. The RMA provisions require substantive and procedural recognition of Māori values. The substantive provisions (such as Part 2) recognise that Māori values and world views will influence the outcome of RMA decisions and are to be given practical effect in policy and planning instruments and consenting processes. Procedural requirements include, for example, the need to respect Māori customs and the use of Māori language, and the need to notify iwi or hapū of matters that may affect them or sites of significance to them. In many cases substantive recognition will require substantial procedural input. Recognising the cultural difference and potential issues arising where non-māori are interpreting Māori concepts, section 253(e) of the RMA provides for the appointment of commissioners who possess a mix of knowledge and expertise including matters relating to the Treaty of Waitangi and kaupapa Māori. This is an example where the procedural and substantive provisions connect to achieve the RMA directives. While section 253(e) concerns Environment Court commissioners, this principle is equally applicable to council decision-making, and many councils appoint commissioners with knowledge and expertise of tikanga Māori at local authority hearings. 1 Excerpts from Part D from the Making Good Decisions Workbook ME 679, Ministry for the Environment 2010 2 ERMA New Zealand Policy Series: Protocol 1. November 2004 ER-PR-01-02 11/04 5 P a g e

These provisions, and others, seek to ensure that decision-makers have the necessary tools to effectively integrate mātauranga Māori into RMA processes and decision-making. The RMA defines tangata whenua as meaning: in relation to a particular area, means the iwi or hapū that holds mana whenua over that area And, defines mana whenua as meaning: customary authority exercised by an iwi or hapū in an identified area. As a general approach, the Environment Court avoids making determinations of mana whenua between competing Māori interests, and has consistently stated that the appropriate forum for such determinations is the Māori Land Court 3. Effective integration of Māori values into the administration of the RMA requires integration of Māori values across all aspects of the RMA regime, and a balanced approach to Māori aspirations, reflecting the enablement of economic, social and cultural aspirations of Māori, as well as the need to protect matters of significance to Māori. Section 33 of the RMA provides the ability for a local authority to transfer its functions to another public authority, which includes an iwi authority. Such transfer must occur by agreement and the Environment Court does not have jurisdiction to direct a council to transfer planning functions to Māori. Before such transfer can occur, the relevant council must satisfy the administrative requirements set out in section 33(4), including: The local authority must use the special consultative procedure set out in the Local Government Act 2002. The respective authorities agree to the transfer. The authority to which the transfer is made represents the appropriate community interests. Efficiency, and technical or special capability or expertise of the authority. This provision provides for real practical effect to be given to tangata whenua values and interests, particularly kaitiakitanga, in respect of resources that they have a strong relationship with. However, to date, this provision has not been used to transfer powers to tangata whenua. New Zealand Coastal Policy Statement 2010 The New Zealand Coastal Policy Statement 2010 (NZCPS) recognises the significance of the coastal environment to Māori through Policy 2. Policy 2: The Treaty of Waitangi, tangata whenua and Māori In taking account of the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), and kaitiakitanga, in relation to the coastal environment: 3 Luston v Bay of Plenty Regional Council A 49/94; Paihia v Northland Regional Council A77/95 (EC); Tawa v Bay of Plenty Regional Council A18/95 (EC); Te Pairi v Gisborne District Council W93/04 (EC). 6 P a g e

a. recognise that tangata whenua have traditional and continuing cultural relationships with areas of the coastal environment, including places where they have lived and fished for generations; b. involve iwi authorities or hapū on behalf of tangata whenua in the preparation of regional policy statements, and plans, by undertaking effective consultation with tangata whenua; with such consultation to be early, meaningful, and as far as practicable in accordance with tikanga Māori; c. with the consent of tangata whenua and as far as practicable in accordance with tikanga Māori, incorporate mātauranga Māori 1 in regional policy statements, in plans, and in the consideration of applications for resource consents, notices of requirement for designation and private plan changes; d. provide opportunities in appropriate circumstances for Māori involvement in decision making, for example when a consent application or notice of requirement is dealing with cultural localities or issues of cultural significance, and Māori experts, including pūkenga 2, may have knowledge not otherwise available; e. take into account any relevant iwi resource management plan and any other relevant planning document recognised by the appropriate iwi authority or hapū and lodged with the council, to the extent that its content has a bearing on resource management issues in the region or district; and i. where appropriate incorporate references to, or material from, iwi resource management plans in regional policy statements and in plans; and ii. consider providing practical assistance to iwi or hapū who have indicated a wish to develop iwi resource management plans; f. provide for opportunities for tangata whenua to exercise kaitiakitanga over waters, forests, lands, and fisheries in the coastal environment through such measures as: i. bringing cultural understanding to monitoring of natural resources; ii. iii. providing appropriate methods for the management, maintenance and protection of the taonga of tangata whenua; having regard to regulations, rules or bylaws relating to ensuring sustainability of fisheries resources such as taiāpure, mahinga mātaitai or other non commercial Māori customary fishing; g. in consultation and collaboration with tangata whenua, working as far as practicable in accordance with tikanga Māori, and recognising that tangata whenua have the right to choose not to identify places or values of historic, cultural or spiritual significance or special value: i. recognise the importance of Māori cultural and heritage values through such methods as historic heritage, landscape and cultural impact assessments; and ii. provide for the identification, assessment, protection and management of areas or sites of significance or special value to Māori, including by historic analysis and archaeological survey and the development of methods such as alert layers and predictive methodologies for identifying areas of high potential for undiscovered Māori heritage, for example coastal pā or fishing villages. 7 P a g e

Policy 2 affirms the role of tangata whenua as kaitiaki and requires as far as practicable in accordance with tikanga Māori, mātauranga Māori to be incorporated in district plans. Operative Regional Policy Statement When the District Plan was first proposed, the RMA required that it was "not inconsistent with" the provisions of the relevant Regional Policy Statement (RPS). Subsequent changes in the Act now require that District Plans must "give effect to" the Operative Regional Policy Statement. The use and development of Māori land requires the effective coordination of multiple agencies and non-government organisations. In respect of integrated management of natural and physical resources, the RPS includes the following objective: 12.3 Objective 1. The integrated and co-ordinated management of natural and physical resources, and associated decision making processes, that enable their protection, use and development at both the regional and district level. Explanation: It is a legislative purpose of the Regional Policy Statement to provide policies and methods to achieve integrated management of natural and physical resources. A major aspect of achieving integration is the need for co-ordination in decision making by management agencies. One of the methods for achieving integrated management, and to optimise efficiency & effectiveness, is through the transfer or delegation of functions, powers and duties. Policy 12.4 of the RPS states: 12.4 Policies and Methods of Implementation... (d) TRANSFER AND DELEGATION OF FUNCTIONS, POWERS AND DUTIES Policies 1. When considering methods of implementation in policy and plans, or any function, or duty or power under the Resource Management Act 1991, to assess which public authority represents the most appropriate community of interest and could most efficiently and effectively carry out that function and to promote the transfer and/or delegation of suitable functions, powers or duties where appropriate.... Method of Implementation 1. Utilise the provisions in Sections 33 and 34 of the Act relating to the transfer and delegation of functions as appropriate. (Regional Council and District Councils) Explanation: Many agencies including the Regional Council, District Councils, Government Departments and agencies, and iwi authorities either are or could be actively involved in resource management. The work of all these agencies needs to be co-ordinated to provide for efficient and effective resource management, and in some areas possible delegation and transfer of functions may assist in this regard. 8 P a g e

(e) DUPLICATION OF CONSENT REQUIREMENTS Policy 1. To avoid duplications or inconsistencies in the consent requirements of the Regional Council, District Councils and other resource management agencies for any activity or aspect of any activity. Method of Implementation 1. Regional Council to consult and where appropriate, make submissions on Regional Policy Statements and Plans of adjoining regions, and District Plans and other resource management mechanisms under its jurisdiction. 2. To promote consultation (formal and informal) between district councils and between the District and Regional Councils to integrate the resource consent requirements of affected parties. Explanation: Any requirement for consents provided for in regional and district plans should not overlap or be contradictory. Applicants should not be required to submit consents to different local authorities for the same aspect of the proposed activity. The Auditor General highlighted that government agencies are not working together in a co-ordinated way, which makes it hard for Māori to get effective advice and guidance to help them build housing on their land. Local authorities, in particular, are well placed to co-ordinate a more-aligned support structure for people who want to build housing on Māori land. They have a valuable knowledge of growth, spatial planning, and land-use strategies as well as awareness of some of the local barriers to developing Māori land for housing. The RPS recognises that it is desirable for councils to actively consider the transfer or delegation of functions to the public authority represents the most appropriate community of interest and could most efficiently and effectively carry out that function. In relation to the role of Māori in sustainable management, the RPS includes the following issues, objectives and policies: 13.2 Issues 5. The limited community understanding of the cultural and spiritual affinity that the Tangata Whenua have with natural resources and the environment. 13.3 Objectives 1. The informed participation of the community in the management of the natural and physical resources of the region. 2. Individual and community stewardship of the natural and physical resources of the region. 3. Greater public awareness and understanding of Maori cultural and spiritual values associated with natural and physical resources. Explanation: Community awareness and involvement and the better appreciation of Maori values in the care of natural and physical resources should lead to significant reductions in pollution and other avoidable adverse effects on the environment. The success of promoting sustainable management in the region will depend heavily on 9 P a g e

community ownership of resource management problems and community acceptance and involvement in solutions. 14.3 Objective 1. Involvement of Tangata Whenua in the management of the natural and physical resources of the region in a manner that recognises and respects Tangata Whenua and Ahi Kaa as kaitiaki o nga taonga tuku iho (guardians of the treasures of their ancestors, as handed down). Explanation: Tangata Whenua are the kaitiaki of their traditional taonga and the Regional and District Councils have delegated authority from the Crown to manage the natural and physical resources of the region. In keeping with the partnership principles of the Treaty of Waitangi and the Resource Management Act 1991 (Section 6(e), 7(a) and 8), councils must provide for Tangata Whenua involvement in resource management, particularly where it affects their taonga. Councils have a duty to protect and provide for the sustainable management of their taonga. 14.4 Policies and Methods of Implementation (a) CONSULTATION - GENERAL Policy 1. To ensure that consultation with Tangata Whenua is undertaken over any matters specified within the Act that may affect their taonga or their use, development and protection of natural and physical resources. (b) CONSULTATION - CONSENTS Policies 1. For the purposes of notifying and processing resource consents, define the circumstances under which tangata whenua will be considered an affected party. 2. To encourage applicants for consents to consult the appropriate Tangata Whenua groups prior to submitting their application for a resource consent. 3. To encourage applicants for notified consents for activities that may have an adverse effect on the taonga of Tangata Whenua, to consult with Tangata Whenua; with the council to ensure that consultation has occurred prior to a decision being made on their application. 4. Encourage the development by the Tangata Whenua of a transparent and accountable procedure for the identification of taonga. The papakāinga housing provisions of the District Plan are fundamental to the wellbeing of tangata whenua, and the methods proposed in this plan change have placed significant emphasis on giving effect to the objectives and policies of the operative RPS. 10 P a g e

Proposed Regional Policy Statement The Proposed Regional Policy Statement for Northland (PRPS) has been recently reviewed. It has completed the submission and hearing process, and the Northland Regional Council (NRC) has released its decisions on submissions. Some parts of the PRPS are subject to appeal, and the appeal resolution process has commenced in respect of these appeals. In this regard, the provisions of the PRPS may be considered to have significant weight when considering the extent to which they must be given effect to when preparing a plan change. 3.12 Tangata whenua role in decision-making Tangata whenua kaitiaki role is recognised and provided for in decision-making over natural and physical resources. Explanation: Tangata whenua are the kaitiaki of their traditional taonga, while the regional and district councils have delegated authority from the Crown to manage Northland s natural and physical resources. In keeping with the partnership principles of the Treaty of Waitangi and the Resource Management Act 1991 (sections 6(e), 7(a) and 8), the regional and district councils must provide for tangata whenua involvement in resource management, particularly where it affects their taonga. Tangata whenua involvement in resource management can also add value to resource management. For example, it can help to build relationships, provide different sources of information and knowledge, and provide a longer term perspective of resource management. As emphasised in the preamble of TTWM Act land is a taonga tuku iho of special significance to Maori people. That Act states that it is the intention of parliament that powers, duties, and discretions shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whanau, their hapu, and their descendants. The PRPS requires that the councils must provide for tangata whenua involvement in the decision making over their land. 3.15 active management Maintain and / or improve; (a) (b) (c) (d) (e) The natural character of the coastal environment and fresh water bodies and their margins; Outstanding natural features and outstanding natural landscapes; Historic heritage; Areas of significant indigenous vegetation and significant habitats of indigenous fauna (including those within estuaries and harbours); Public access to the coast; and 11 P a g e

(f) Fresh and coastal water quality by supporting, enabling and positively recognising active management arising from the efforts of landowners, individuals, iwi, hapū and community groups. Explanation: Rules can be effective in protecting these resources from the adverse effects of inappropriate subdivision, use and development. However, rules are less effective for remedying or preventing other adverse effects not associated with development, such as those from pest plants and animals. The management of these effects is often best done through the work of individuals and communities. Landowners and community groups are generally best placed to undertake active management because: While rules may go some way to maintaining special areas, maintenance enhancement cannot be compelled by rules and relies on motivated people; Landowners have the ability to make decisions on how to use their land; Landowners, iwi, hapū and communities are better placed to use local knowledge, networks and resources; and Communities and iwi, hapū have a better idea of what they want and / or need regarding the matters listed. The PRPS provisions relating to active management of natural resources recognise the role of landowners, individuals, iwi, and hapū in the protection of these resources. It is recognised that in many instances that the landowners, iwi, and hapū are better placed to use local knowledge, networks and resources, and have the motivation to do so. 4.4.2 Policy Supporting restoration and enhancement Support voluntary efforts of landowners and community groups, iwi and hapu, to achieve Objective 3.5. Explanation: Regulation under the RMA only plays a partial role in safeguarding and enhancing the ecological integrity of indigenous ecosystems. Policy 4.2 recognises that the stewardship of landowners and community groups is vital for achieving the objective. The above policy confirms that the kaitiakitanga role of tangata whenua is vital for achieving the objectives of the PRPS. Further policies of the PRPS note that the efforts of landowners, iwi & hapū can come at a cost for what is in effect a wider public benefit, so these efforts should be supported: 4.7.2 Policy Supporting landowner and community efforts Except for the areas or circumstances in Policy 4.6.1(3) support landowners, iwi, hapu, and community efforts to actively manage or improve key aspects of the environment especially where there is willing collaboration between participants and those efforts are directed at one or more of the activities in Policy 4.7.1. 12 P a g e

Explanation: The policy seeks to promote the active management of key resources that occurs outside the Resource Management Act (RMA) process and does not arise through plan provisions or resource consent or plan change processes. This tends to rely on voluntary efforts by motivated landowners, iwi / hapū and community groups. The activities identified in Policy 4.8.1 are those that contribute to the unique character of Northland or are attributed particular weight under the RMA. These areas are targeted because they tend to be those most valued by the public and resources should be concentrated to areas where public benefit is maximised. The policy recognises that protection and enhancement efforts can come at a cost to individual landowners, tangata whenua and communities for what is in effect the wider public benefit. While the RMA provides for the control of use of land to protect or provide for areas identified in the policy (that is, rules in plans or as conditions of consent), in many cases protection and particularly enhancement requires active management that cannot be compelled by regulation. The PRPS advocates a 'sparse' use of regulation, and seeks to minimise the cost of compliance through the use of self-management and an 'ownership' of environmental performance: 6.1.1 Policy Regional and district plans Regional and district plans shall: (a) (b) (c) (d) (e) (f) (g) Only contain regulation if it is the most effective and efficient way of achieving resource management objective(s), taking into account the costs, benefits and risks; Be as consistent as possible; Be as simple as possible; Use or support good management practices; Minimise compliance costs and enable audited self-management where it is efficient and effective; Enable subdivision, use and development that accords with the Regional Policy Statement; and Focus on effects and where suitable use performance standards. It is the intention of the PRPS that best practice can be achieved through non-regulatory tools, including performance standards, codes of practice, audited self-management and certification. The use of best practical environmental options seeks to avoid the problems associated with regulation becoming out of date and reduce compliance costs. The PRPS suggests that subdivision, use and development is "enabled" through permitted or controlled activity status, limiting the notification of resource consent applications, and setting out resource consent application information requirements. A further outcome of this policy is to encourage innovation and adaptability of resource management plans. 13 P a g e

6.1.3 Policy Transferring council functions Transfer and delegate regional and district council functions (as provided by sections 33 and 34 of the Resource Management Act 1991(RMA)) where it would result in increased efficiencies and / or effectiveness in achieving resource management objectives. Explanation: Section 33 of the RMA allows regional and district councils to transfer any one or more of their functions, powers or duties to another public authority (including an iwi authority) which is not part of the local council (that is, not a committee within the council structure). Section 34 of the RMA allows regional and district councils to delegate RMA functions to a council committee. Many agencies including the regional council, district councils, government departments and agencies, and iwi authorities either are or could be actively involved in resource management. The work of all these bodies should be co-ordinated to provide for efficient and effective resource management and in some areas, delegation and transfer of functions may assist this. Particular situations where the transfer or delegation of functions should be considered include cross-boundary situations, the same activity requiring resource consent from two or more councils, and where iwi authorities have the will and capacity. Again the PRPS points out that the transfer or delegation of functions to another public authority (including iwi authority) may in some instances provide for more efficient and effective resource management. This expressly provides the opportunity for councils to enable tangata whenua to exercise kaitiakitanga in respect to their land as taonga tuku iho in accordance with mātauranga Māori. The use, development and control of Māori land in accordance with the TTWM Act and RMA can be further 'enabled' and 'promoted' by providing greater opportunity for streamlined and flexible processes and the removal of unnecessary regulation: 6.1.4 Method Statutory plans and strategies The regional and district councils, when reviewing their plans, considering options for plan changes, or replacement of an entire plan, shall: (a) (b) (c) (d) (e) Demonstrate how Policy 6.1.1 is given effect; Consider: removing unnecessary regulation; opportunities for streamlined, efficient processes; increasing flexibility, certainty, confidence and consistency; and taking a riskbased approach; Consider the benefits, costs and risks of combining planning documents and joint plan changes, in part or in total, including on specific resources or geographical areas; Consider the use of good management practices (including environmental best practice guidelines, and codes of practice); and Consider the use of audited self-management. 14 P a g e

In keeping with the partnership principles of the Treaty of Waitangi and the Resource Management Act 1991 (sections 6(e), 7(a) and 8), tangata whenua may equally accept responsibility for achieving sustainable management, particularly where it affects their taonga. The following selection of policies from the tangata whenua section of the PRPS further recognise and emphasize the desirability of this approach of enabling Māori to assume responsibility for resource management of their land: 8.1.1 Policy Tangata whenua participation The regional and district councils shall provide opportunities for tangata whenua to participate in the review, development, implementation, and monitoring of plans and resource consent processes under the Resource Management Act 1991. 8.1.2 Policy The regional and district council statutory responsibilities The regional and district councils shall when developing plans and processing resource consents under the Resource Management Act 1991 (RMA): (a) (b) (c) Recognise and provide for the relationship of tangata whenua and their culture and traditions with their ancestral land, water, sites wāhi tapu, and other taonga; Have particular regard to kaitiakitanga; and Take into account the principles of the Treaty of Waitangi including partnership. 8.1.3 Policy Use of Mātauranga Maori The regional and district councils shall provide opportunities for the use and incorporation of Mātauranga Maori into decision-making, management, implementation, and monitoring of natural and physical resources under the Resource Management Act 1991. Explanation: This policy recognises that Mātauranga Maori has a role to play in resource management, and therefore councils should make an active effort to provide opportunities for its inclusion in resource management processes. 8.1.4 Policy Maori concepts, values and practices Relevant Maori concepts, values and practices will be clarified through consultation with tangata whenua to develop common understandings of their meaning and to develop methodologies for their implementation. Explanation: A common understating of Maori concepts, values and practices between tangata whenua and councils will assist in integrating kaitiakitanga into Resource Management Act processes. 8.1.5 Method Statutory plans and strategies The regional and district councils shall: (a) Engage with iwi authorities at the earliest possible stage of any review and / or change to plans developed under the Resource Management Act 1991(RMA) to agree appropriate mechanisms for tangata whenua participation and consultation; and 15 P a g e

(b) Include an analysis of the effects of any resource consent application on tangata whenua and their taonga, including details of any proposed measures to avoid, remedy, or mitigate effects and consultation undertaken, in all regional and district council reports on resource consent applications. Much of the above provisions of the PRPS reiterate the emphasis placed by the RMA on the role of tangata whenua as kaitiaki of the whenua. It recognises that this role cannot be satisfied unless tangata whenua are active participants in the RMA processes. 8.3.1 Policy Kaitiaki role The regional and district councils shall support tangata whenua to have a kaitiaki role in the management of their land, resources, and other taonga. Explanation: Tangata whenua have a special relationship with their ancestral lands. Supporting tangata whenua, as kaitiaki, to identify appropriate practices and customs for the care of their lands, waters, treasures, wāhi tapu, and other taonga is important for sustainable management in Northland. This may include assisting with recording sites of significance to tangata whenua, collaborating with tangata whenua to identify high value natural and physical resources, and providing resources to assist with environmental monitoring. The PRPS was publicly notified after the papakāinga housing policy had been developed and included within the Whangarei District Plan. The policies therefore recognise the difficulties that are inherent in the tenure and administration of Māori land. The PRPS requires that councils are mindful of these limitations and enable the ongoing use & development of land, marae, and papakāinga: 8.3.2 Policy Marae and Papakāinga The regional and district councils shall recognise the historical, cultural, and social importance of marae and papakāinga, and enable their ongoing use and development in regional and district plans. Explanation: Development of a policy framework for the use of Māori land will support tangata whenua to sustainably use and develop their land, marae and papakāinga. This is important as Māori land can have constraints on its use and development including multiple ownership, access and regulation when the land has been notated as having high values (such as landscape) in regional or district plans The Auditor General noted that Local authorities, in particular, are well placed to co-ordinate a more aligned support structure for people who want to build housing on Māori land. They have a valuable knowledge of growth, spatial planning, and land-use strategies as well as awareness of some of the local barriers to developing Māori land for housing. This sentiment is repeated in the PRPS, which directs that councils provide information and analysis of the plan provisions when requested by iwi authorities: 8.3.3 Policy Provision of information The regional and district councils shall, when requested by iwi authorities, provide information, analysis of regional and district plan provisions, and advice during and after the Treaty 16 P a g e

settlement processes to enable tangata whenua to identify potential land use opportunities and constraints associated with returned assets. Explanation: The provision of information, analysis of regional and district plans and advice will enable tangata whenua to ensure, during the Treaty settlement negotiation process with the Crown, that the returned Treaty settlement assets are appropriate for the intended redress. This is important if tangata whenua are to realise the full intent of the settlement legislation and provide for their social, cultural, and economic wellbeing. 8.3.4 Method Statutory plans and strategies The regional and district councils shall, as soon as practicable after the Regional Policy Statement becomes operative, initiate a joint review of regional and district plans to identify and implement agreed opportunities to improve the ability of tangata whenua to develop marae and papakāinga, and achieve greater consistency in management approaches. Explanation: Marae and papakāinga developments are important to tangata whenua culture and traditions and their ongoing use and development is critical to their wellbeing. It is appropriate to investigate and implement agreed opportunities to achieve greater consistency between district plans and ensure provisions in regional and district plans do not unnecessarily compound limitations on Maori land imposed by the Maori Land Court under the Te Ture Whenua Maori Act 1993, and are efficiently integrated with the Maori Land Court process. The recurring theme that is consistently raised by all agencies, is that the existing processes are laden with duplication that is both onerous and unnecessarily complex. All documents that make up the regulatory context for the management of Māori land reinforce the preamble of TTWM Act, by "enabling" and "facilitating" the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whanau, their hapū, and their descendants. The regulatory methods to give effect to the settled objectives and policies of the District Plan relating to papakāinga housing should therefore promote an 'enabling' regime commensurate with the level of responsibility assumed by tangata whenua as kaitiaki. EXISTING IWI MANAGEMENT PLANS There have been three Iwi Management Plans received within the Whangarei District since the RMA was enacted: Te Iwi o Ngātiwai Environmental Policy Document 2007 Ngā Tikanga mo te Taiao o Ngāti Hine: Ngāti Hine Iwi Environmental Management Plan 2008 Patuharakeke Te Iwi Trust Board Environmental Management Plan 2007 The Phase One Plan Change 94 was prepared and consulted on subsequent to the iwi management plans being received, and the objectives and policies of the papakāinga provisions took these plans into account. The process for preparing the previous plan change included extensive consultation with all iwi and hapu groups in the district, to the extent that the plan change was ultimately adopted without the 17 P a g e

need for a hearing. This Phase Two of the Plan Change (94B) is a continuation of the policy direction set out in the operative provisions, which have taken into account the iwi management plans. The methods proposed in Plan Change 94B are consistent with and in many respects seek to give effect to the outcomes sought though each of the above plans. In addition to the consultation to be undertaken with all tangata whenua in the district, it is envisaged that these iwi particular are directly consulted to confirm the compatibility of the plan change with their stated vision. OPERATIVE DISTRICT PLAN (SETTLED OBJECTIVES & POLICIES PLAN CHANGE 94) The existing objectives and policies of the District Plan in Chapter PKH for Papakāinga Housing are operative, having been settled through the Plan Change Process of the First Schedule to the RMA. These settled objectives and policies are not the subject of this plan change, which seeks only to introduce further methods to more efficiently and effectively implement the policies. The methods proposed take into account the direction provided through the operative and proposed higher order planning documents. They also seek to implement the recommendations and findings resulting from more recent reports and studies from central government agencies. Because the operative papakāinga policies and objectives significantly post-date the other more generic district wide objectives and policies of the District Plan, the proposed methods have been tailored to fit within the a more modern and adaptive regulatory environment. The methods being introduced through Plan Change 94B recognise both the site specific nature and cultural significance of the whenua and its relationship with its people. In the respect it is appropriate that the more generic objectives and policies that have been applied on a district wide basis be given lesser consideration. PROPOSED PLAN CHANGE 94B - PAPAKĀINGA METHODS & RULES The methods, rules, and supporting processes proposed through Plan Change 94B have been framed to achieve the following outcomes: 1. ENABLING & FACILITATING PAPAKĀINGA 2. AVOIDING PROCESS DUPLICATION & OVERLAP 3. CREATING SIMPLE & FLEXIBLE PROCESSES 4. ASSIGNING ROLES & RESPONSIBILITIES The following diagram forms the basis for the level of intervention required by the councils relative to the extent to which the Māori land court (MLC) has already exercised their judicial oversight of the land. In situations where the MLC has appointed trustees or an incorporation with governance responsibilities in accordance with tikanga Māori, then the council involvement should be limited to an advisory role and provider of information to assist with the MLC's decision making. Where the MLC has had limited contact or oversight of Māori land, the Council will exercise a greater role in overseeing the establishment of a governance structure for the land to ensure the integrated 18 P a g e

management of resources. As the influence of the MLC diminishes, the activity status of papakāinga housing moves from permitted through to discretionary, depending on the legal status of the land under TTWM Act. It is also proposed that the decision making responsibilities are apportioned between the MLC, iwi authorities, and independent commissioners as appropriate. The role and influence of third parties (via affected party status) is also brought into line with the provisions contained in TTWMA. OVERALL SUMMARY OF WHAT IS PROPOSED The Māori Land Court (MLC) has ultimate jurisdiction for oversight of Māori Land in accordance with Te Ture Whenua Māori Act 1993. The preamble of TTWM Act provides the framework and parameters for administration and utilisation of the whenua in accordance with tikanga. The TTWM Act recognises the role of mana whenua as having responsibility for well being of the whanau and of the whenua as a toanga tuku iho. Māori land has significant cultural and social value, and the desire to live on the land is often described in terms of fostering well-being for the community and as a source of mana. Māori have intergenerational responsibilities, such as kaitiakitanga for the interrelated and connected elements of their cultural and spiritual world. Mātauranga Māori recognises the need for people to use natural resources to provide for their wellbeing, and this is a primary basis for many concepts, such as mana whenua and ahi kā. These responsibilities manifest in the way in which Māori land is administered under New Zealand law. Māori land is subject to a different regime of ownership and utilization, so it is appropriate that it is considered under a different consenting regime than general land not owned by Māori. 19 P a g e

It is the role of the MLC to oversee administrative functions relating to Māori land, and the MLC process provides a framework for assisting with the decision making. The MLC has responsibility to manage records of adminstrative responsibilities, and has broad all encompassing powers including the establishment of trusts and appointment of trustees. This includes the power of enforcement, and may require at any time require trustees to file a report or appear before the court for questioning on any matter related to the administration of the trust or performance of duties 4. Obligations of trustees may be enforced by the MLC at any time by way of injunction or otherwise. The stated purpose of the Resource Management Act 1991 (RMA) is to promote the sustainable management of natural and physical resources. All persons exercising powers and functions under the RMA must abide by its purpose & principles. It is a matter of national importance (s6) that the relationship of Māori with their ancestral lands, water, sites, waahi tapu & other taonga are recognised and provided for. All persons exercising powers & functions under the RMA shall have regard to kaitiakitanga, and take into account the principles of Te Tiriti o Waitangi. For the purposes of resource management, the function of District Council is to: a) establish, implement, & review objectives & policies and methods to achieve integrated management of resources; b) control of effects of land uses, particuparly hazardous effects; d) control of noise; e) activities on the surface of water; f) as otherwise specified in the Act; Including the control of land subdivision Council has the ability to transfer functions and powers to another public authority (including iwi authority) under s33 of the RMA. Under s34, Council has the power to delegate functions, powers, or duties under the Act. The New Zealand Coastal Policy Statement (NZCPS) makes specific provision for papakainga, and recognises Mātauranga Māori within Policy 2. This Māori world view and the significance of land as a taonga tuku iho for tangata whenua is recognised and provided for in both the Operative and Proposed Regional Policy Statements for Northland. The RPS makes provision for the transfer of resource management responsibilities to tangata whenua, and further reinforces this approach through the new PRPS. The Operative District Plan in the Tangata Whenua chapter seeks to enable tangata whenua to use, develop and protect their lands in accordance with their cultural preferences, consistent with the purpose of the RMA. The Sustainable Futures 30 50 Spatial Plan and supporting iwi/hapu report reiterates this enabling approach. 4 http://www.legislation.co.nz/act/public/1993/0004/latest/dlm292129.html 20 P a g e

Auditor General's Report on Government planning and support for housing on Māori land recommends simplification and facilitation of the process through the agencies cooperating and providing a consistent level of support to Māori landowners. When viewing the legislative and regulatory framework that underpins the administration of Māori land, there is overwhelming justification for Māori to be given responsibility for exercising Mātauranga Māori in relation to their land. The simplest, most efficient and effective way to achieve this is to trust tangata whenua, their tikanga, and the MLC to promote sustainable management of their ancestral land and resources. The MLC will facilitate the occupation, development, and utilisation of that ancestral Māori land for the benefit of its owners, their whanau, and their hapu. The MLC have the judicial power to grant administrative rights and responsibilities in relation to the use and development of land without reference to any third parties. The MLC also has broad powers to call in other stakeholders where appropriate, and overall has more far reaching powers of enquiry and enforcement than councils. The District Council retains a responsibility for ensuring that buildings are safe and sanitary through Building Act, and the Regional Council retains control over effluent disposal, earthworks, and hazard management through the provisions of the Regional Plan. Enabling and facilitating papakāinga on ancestral Māori land will have a positive effect on the people and communities of the district, and strengthening social and economic wellbeing. Any potential adverse effects on the environment resulting from land use change would be significantly less than many of the primary industry based activities that are permitted by the District Plan with minimal (or industry based) oversight. The Regional Policy Statement obliges councils to provide information and assistance to Māori, and it is a requirement of the Māori Land Court process that consultation with territorial authorities is carried out as a prerequisite an application being received. The existing procedure provides the opportunity for councils to share information (along the lines of a LIM report) or make recommendations on the proposed use of the site for consideration by the decision makers. The scenario where councils adopt the role of information provider and non-regulatory adviser is the most effective and efficient means of achieving sustainable management, but it is reliant on there being a capable governance structure in place for the whenua. This is true for situations where the land is held in a trust, incorporation, or reservation under TTWM Act, and it is appropriate that the council enable this to occur by way of a permitted application status for papakāinga. In situations where the land remains in multiple ownership, it still requires oversight by MLC, but the integrated management of the environment is reliant on the capacity of the owners to establish a common vision for the land and adhere to Mātauranga Māori. Under this scenario it is appropriate that papakāinga proposals are considered in the context of vision of the wider iwi and hapū. 21 P a g e

The situation differs from the permitted scenario only to the extent that an additional layer of controls (akin to those that the MLC can direct through trust orders) need to be established and it is over those matters that the control should be reserved. Controlled activity status is appropriate in this situation, because the purpose of the consent process is to provide opportunity to seek further information and impose conditions in respect of issues of governance capacity (to achieve Mātauranga Māori or environmental compliance). It is further proposed that the most appropriate authority to consider such proposals is the relevant iwi or hapū authority, because expertise in tikanga and kaupapa Māori is important, and that the Council should seek to transfer this function accordingly. The information (LIM based) report prepared by the Council can be adopted for this process, although the requirements of s42a would need to be fully considered by the decision maker. A similar procedure to that used by MfE for called in applications, or the process of direct referrals could form the model for such a process, both of which address the interface with Council staff and integration into the compliance and monitoring databases. The s42a report could be prepared by a reporting officer employed by the iwi authority as part of the transfer of functions, or the report and recommendations could be prepared by a Council officer who has the necessary competencies in relation to tikanga and resource management. To provide guidance, and thereby promote greater consistency of decision making, and uniformity of monitoring and reporting measures, it is recommended that non-statutory guidance material forms the framework for information requirements and assessment criteria for consent applications. It is a directive of both statute and regional policy however, that these be co-created and developed with iwi and hapū. In situations where an application has already been lodged with the MLC, including situations where the whanau wish to advance their papakāinga proposals in advance of the MLC determination, then the process should be advanced on a collaborative and cooperative basis. Because in this situation the MLC has not finalised its view or made determinations, a greater degree of flexibility and adaptability is required so as not to compromise or predetermine any particular outcome. In the event that the majority of owners have no reached a consensus, there needs to be sufficient mechanisms in place to integrate the decision making process, including a right of refusal. In all other respects this scenario follows the same consideration and evaluation process as that for a controlled activity. This also avoids a situation occurring whereby the Council is compelled to approve something that has not been settled through the MLC, it is appropriate that such proposals are discretionary. While in time this may also be transferred to the iwi authority, such applications may be considered by an independent Māori commissioner familiar with Mātauranga Māori under authority delegated by the Council. A further scenario is when ancestral Māori land has the status of general land owned by Māori. In this situation the land may (but not necessarily) fall within the jurisdiction of the MLC, and is likely to have a 22 P a g e

small number of owners or shareholders. The degree to which the owner is familiar with, or subscribes to Mātauranga Māori and issues of tikanga is likely to be very individualised and personal to the whanau. To achieve integrated sustainable management, and more importantly to reaffirm and facilitate papakāinga on the land, the relationship of the land to the surrounding papakāinga within the rohe needs to be fully considered. Such proposals may not have any oversight by MLC, iwi or hapū, and in the absence of this, the Council would need to assume its responsibilities under the Act and consider each application on its merits. In this context the proposal would remain a fully discretionary activity (as is now the case) with applications needing to navigate the resource consent process. Because the MLC has not necessarily been directly involved in any decision making affecting the land, so has not had the opportunity to consider the proposals in terms of impact on third parties, the RMA notification and affected party provisions would apply by default. This process would introduce a greater degree of uncertainty and potential costs for the landowners, but these owners do retain the ability to use the MLC process in place of the resource consent process by making application to establish a trust or incorporation to administer the land. The result of this potential incentive would be to return previously alienated land back with the MLC of record, and encourage the establishment of a trust or other administrative regime that will better serve the future generations of owners. MĀORI LAND IN WHANGAREI DISTRICT The total land area of Whangarei District is 284,814.85 hectares 5, of which 14343.55 hectares (5% of the District) falls within the jurisdiction of the Māori Land Court under Te Ture Whenua Māori Act 1993. The land is held in 868 individual parcels, at an average size of 16.76 hectares (with a median of 1.56 hectares). Virtually all of this land is situated outside of urban areas, with concentrations in the western fringes of the district, and along the eastern coastline of the district. (Refer Figure 1 for the Distribution of Māori land parcels in Whangarei District). While figures are not available at District level, of the 5,463 Māori land blocks in Taitokerau, only 21% are held with a trust or other management structure 6. Applying this percentage uniform throughout the region, it can be expected that there would be around 180 land parcels administered by a trust or incorporation. 5 Whangarei District Land Use Report, Sustainable Futures 30 50, June 2009 6 http://www.oag.govt.nz/2011/housing-on-maori-land/docs/housing-on-maori-land.pdf 23 P a g e

Figure 1 - Distribution of Māori Land Parcels in Whangarei District The parcels shown in Figure 1 above are those that are presently identified in Māori Land Online 7 ( MLO ). This is primarily Māori Customary and Māori Freehold Land, but also includes, General Land Owned by Māori, Crown Land Reserved for Māori and some treaty settlement reserves, mahingā kai and fishing rights areas. The Primary Land Parcel records 8 held by Land Information New Zealand (LINZ) include other parcels that have an ML ( Māori Land ) appellation description, but are not identified on MLO. For the purposes of this evaluation, it is assumed that these parcels have been alienated from Māori ownership. However, these parcels would still continue to fall within the definition of ancestral land if a current or subsequent owner could establish their whakapapa to the land. As such parcels are not presently administered under TTWMA, papakāinga on these parcels would be non-complying until such time as the MLC makes a status order 9 in respect of the land. SPECIFIC CHANGES PROPOSED Chapter Title changed from Papakainga Housing to Papakāinga. Appropriateness The traditional meaning of papakāinga is a nurturing place to return to. It is best described as a village, or land used as housing by a hapu or whanau group, And settlements were traditionally designed to house and support communities. The existing objectives provide for the establishment & maintenance of traditional settlement patterns and activities, while the policies make specific provision for the inclusion of non-residential activities that are compatible with the papakāinga. 7 http://www.maorilandonline.govt.nz/gis/home.htm 8 https://data.linz.govt.nz/layer/772-nz-primary-parcels/ 9 http://www.legislation.co.nz/act/public/1993/0004/latest/dlm291294.html 24 P a g e