Considering the way forward: Māori and the proposed new environment and planning regime

Ko te pae tawhiti whaia kia tata, ko te pae tata whakamaua kia tina.

Seek out distant horizons, while securing those close to hand.

The proposed new environment and planning regime has received criticism that its focus on development will come at the cost of Te Tiriti, mana whenua, community voices, and environmental integrity, with iwi, hapū and mana whenua sidelined in the Government’s thinking.

This article is part of a series unpacking the Bills. It addresses key provisions of the Natural Environment Bill and Planning Bill (Bills) of particular relevance to Māori, namely, the Māori interests goal, the Treaty clause and the requirement to uphold Treaty settlements. It considers the core differences between the proposed regime and the Resource Management Act 1991 (RMA), to help understand what the implications of what is proposed:

Kia whakatōmuri te haere whakamua

I walk backwards into the future with my eyes fixed on my past.

The Māori interests goal

The Bills contain a goal to provide for Māori interests through:

• Māori participation in the development of national instruments, spatial planning, and land use plans/natural environment plans;
• the identification and protection of sites of significance to Māori (including wāhi tapu, water bodies, and sites in or on the coastal marine area); and
• enabling the development and protection of identified Māori land.

Persons exercising or performing functions, duties or powers “must seek to achieve” this goal. National direction would then direct how the Māori interests goal will work alongside the other goals in the Bills.

The new regime would shift Māori participation toward the planning stages of the system – fewer consents and a higher bar for notification would mean less opportunity for Māori participation in individual proposals. Māori interests could potentially be confined to identified sites of significance and the development of Māori land.

Māori involvement in planning instruments

The proposed regime frames Māori involvement in planning processes as “participation”, rather than partnership or consultation.

Iwi authorities would provide advice on draft national instruments prior to notification (within a time frame considered adequate by the Minister) and the Minister would “have regard” to any advice received.  This is the same process as currently occurs under the RMA.

Similarly, iwi authorities would be provided the opportunity by spatial plan committees to provide views on draft regional spatial plans prior to notification (similar to the current Schedule 1 RMA process). There is no decision-making role for Māori in spatial planning and no obligation for councils to adopt Māori views or cultural assessments.

Councils would be required to prepare plans in accordance with any iwi participation legislation and Mana Whakahono ā Rohe (iwi participation agreements with councils) and have regard to advice provided by iwi authorities on draft plans and any relevant planning document recognised by an iwi authority and lodged with the regional council.

Existing Mana Whakahono ā Rohe (and those already initiated) would be preserved under the Bills, but there is no provision for new Mana Whakahono ā Rohe to be initiated.

Identification and protection of sites of significance to Māori

The focus on identification and protection of “sites of significance to Māori” represents a narrowed approach compared to the direction of sections 6(e) and 7(a) of the RMA. In particular, kaitiakitanga (which must be given particular regard under RMA s 7(a)) is only defined in the Natural Environment Bill, and only used in reference to the duty to keep records about iwi and hapū.  Broader recognition of the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga (a matter of national importance under RMA s 6(e)) has not been carried over, with some aspects such as wāhi tapu instead categorised as ‘historic heritage’ matters.

This proposed shift in focus to protecting sites of significance sits alongside the proposal that councils may have to provide ‘regulatory relief‘ to owners of land identified as a site of significance to Māori if this has significant impact on the use of the land.

Treaty clause

The Bills contain a Treaty of Waitangi/Tiriti o Waitangi clause that proposes a notably different approach to section 8 of the RMA.

The proposed new Treaty clause would not require decision-makers to take the Treaty of Waitangi/Tiriti o Waitangi into account when making decisions. Rather, they outline how the legislation addresses the Crown’s responsibilities in relation to the Treaty of Waitangi/Tiriti o Waitangi. We expect this approach would limit how the Treaty is interpreted and implemented within the new framework.

Treaty settlements

Changes to the resource management system may  impact Treaty settlements that were negotiated in the context of the RMA. The new legislation would require the Crown to seek to enter agreements with post-settlement governance entities to uphold Treaty settlements so that the settlements will operate with the same or equivalent effect to the greatest extent possible. This could include entering into a deed to amend the original Treaty settlement deed made under the RMA.

Until then, decision-makers would be required to give Treaty settlements the same or equivalent effect as they have under the RMA, which will be an area of uncertainty that all councils will need to navigate.

Key takeaways

• Māori involvement is proposed to be narrowed towards the planning end of system.
• Māori cultural interests could be limited to physical sites of significance, removing relational and wider spiritual effects.
• The general requirement to take the Treaty of Waitangi/Tiriti o Waitangi into account throughout resource management processes would be removed in the proposed reform.

Want to know more?

If you have any questions about Māori interests and the Treaty of Waitangi in the Natural Environment and Planning Bills, please contact our specialist environment, planning and natural resources team.

Related articles:

From RMA to a New Era: Transitioning to the Planning Act and Natural Environment Act
The Planning Bill: What Infrastructure Providers Need to Know
Resource management reform: what does it mean for the primary sector?
Resource Management Reforms: Push play on projects or sit tight for now?
Growth on the coast – a more enabling consenting pathway for the coastal environment