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Vince, Jenny --- "Maori consultation under the Resource Management Act and the 2005 Amendments" [2006] NZJlEnvLaw 9; (2006) 10 NZJEL 295

Last Updated: 13 February 2023

295

Maori Consultation Under the Resource Management Act and the 2005 Amendments

Jenny Vince*

This essay considers how consultation practices with Maori have devel- oped through case law since the RMA was adopted in 1991, focusing primarily on consultation in relation to resource consent applications. Consideration is given to the implications of the 2005 amendments, particularly section 36A, and how this may affect current consultative practices. The duties and responsibilities for those working under the RMA are also discussed, along with implications that may occur when no or limited consultation with Maori is undertaken, as has been demonstrated in case law. Some case studies from the author’s own experiences are also provided.

1. INTRODUCTION

The recent amendments to the Resource Management Act (“RMA”) in 20051 include a number of new sections aimed at improving consultation with Maori. The need for the amendments has arisen, in part, as a result of a lack of clarity on when consultation is required with Maori on resource consent applications. A new section, section 36A, now clarifies this point, stating that consul­ tation is not required by either an applicant or consent authority in relation to a resource consent application, although there may be a duty to consult under other legislation. Of course, this does not preclude consultation with Maori (or other parties for that matter) if an applicant or consent authority chooses to consult on a particular resource consent matter, and does not affect the need for

*BSc MSc (Hons), Three Waters Planner, Watercare. The paper was written for the postgraduate Resource Management Law course at the School of Law, University of Auckland, October 2006.

1 Which came into force on 10 August 2005.

consent authorities to consult if Maori are an affected party in order to deter­ mine any effects of an application.2

The Ministry for the Environment describes the new amendments as a means of “providing greater legal certainty for councils, applicants, and iwi and hapu about consultation”.3 Yet over the last 15 years since the RMA was adopted, significant case law has developed in relation to consultation with Maori, and it has already been determined in the courts that there is no duty to consult in relation to resource consent applications. Indeed the principles of consultation have been clearly established.4

This raises the question as to whether s 36A is needed to improve clarity with respect to consultation with Maori,5 or whether it provides a convenient mechanism for consent applicants to avoid consultation altogether.

Yet consultation is one of the key mechanisms for identifying and pro­ tecting Maori interests under the RMA. How can one determine, for example, if a proposed development will have an effect on a particular waahi tapu site unless consultation is undertaken with the appropriate iwi group? Indeed there have been a number of examples in case law that have shown that no or poor consultation can lead to delays, extra costs, and in some cases the overturning of resource consent decisions.6

Of course it needs to be acknowledged that consultation itself is not a means to an end, such that consultation may not by itself protect Maori interests. This has been strongly tested in the courts which have determined that “A right to be consulted does not amount to a power of veto”.7

In addition to s 36A, there are a number of other new sections in the 2005 amendments that aim to strengthen relationships between Maori and local authorities.8 It would appear that the intention of these amendments is to improve consultation processes with Maori at the policy and plan development stage, so as to minimise the need for consultation in relation to resource consent

  1. Ministry for the Environment, Resource Management Amendment Act 2005 — Improving certainty for consultation and iwi resource planning (Wellington, August 2005).
  2. Ibid.
  3. A good summary of the principles of consultation is provided in Land Air Water Association vs Waikato Regional Council, Environment Court Decision No 110/01. Refer Part 6 of this article.
  4. Note that s 36A states that there is no duty to consult with any person in respect to consent applications, and does not specifically refer to consultation with Maori.
  5. See, for example, Gill v Rotorua District Council [1993] NZPT 124; [1993] 2 NZRMA 604.
  6. Minhinnick v The Minister of Corrections, Environment Court Decision No A043/04, 6 April 2004, at para 282.
  7. This includes s 35A, requiring councils to maintain records of local iwi groups; ss 36B–E, which provides for joint management agreements to be developed between local authorities and iwi authorities, and cl 3A of the First Schedule, which sets out the procedure which local authorities need to follow for consultation with iwi in relation to the preparation of policy statements and plans.

applications. This emphasises the importance for Maori to be involved in decision­making, in order to ensure that sites important to Maori are known by local authorities and included where possible within local plans and policy statements. In most cases reference to these documents is the first stage for resource consent applicants in determining if their development would affect sites or Maori interests.

2. WHY CONSIDER MAORI INTERESTS IN RESOURCE MANAGEMENT?

The need to consider Maori in resource management arises through the recognition and inclusion of Maori values and interests in the RMA. Prior to the implementation of the RMA there were few statutory requirements to have regard for Maori interests in resource management decisions.9 The adoption of the RMA in 1991, however, brought Maori interests to the forefront of resource management decisions.

There are numerous references throughout the RMA to Maori, but the most significant in terms of protecting Maori interests are considered to be those set out in Part II of the Act. Part II establishes the purposes and principles of the Act, and has both implicit and explicit references to protecting Maori interests under ss 5, 6, 7 and 8.

Section 5 defines the purpose of the Act, which is stated as being to “pro­ mote the sustainable management of natural and physical resources”. Section 5 then goes on to define sustainable management in the context of the Act as “managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing ...”.

Whilst Section 5 does not explicitly mention Maori, as New Zealand’s indig­ enous people they are implicitly included in “people and communities”, and therefore there is a need to provide for not only their cultural wellbeing, but also their social and economic wellbeing. The interests of Maori also form part of the wider definition of “environment”10 as defined in s 2 of the RMA.

Maori interests are further provided for in ss 6, 7 and 8 of the RMA. Under s 6, all persons exercising their functions and powers under the Act shall

  1. Richard Boast, “Treaty of Waitangi and Environmental Law” in C D A Milne (ed), Handbook of Environmental Law (Royal Forest and Bird Protection Society of New Zealand, 1992), Ch 13.
  2. Environment is defined in the RMA, s 2, as including “(a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) amenity values; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters”.

recognise and provide for, as “matters of national importance”, the relationship of Maori to their ancestral lands, water, sites, waahi tapu and other taonga (s 6(e)); the protection of historic heritage, which includes site of significance to Maori, including waahi tapu (s 6(f )); and the protection of recognised customary activities (s 6(g)). There is a requirement to have particular regard to kaitiakitanga under s 7(a), and also a need to take into account the principles of the Treaty of Waitangi under s 8.

There has been much discussion in the courts as to the weighting to be given to these sections, with the terminology suggesting a hierarchy of importance from s 6 (“shall recognise and provide for”), to s 7 (“have particular regard to”), and finally s 8 (“to take into account”). Judge Jackson, for the Environment Court, in Ngati Hokopu Ki Hokowhitu v Whakatane District Council 11 defined this as “diminishing notional multipliers (of costs and benefits, or of weights depending on the evaluative metaphor the Court is using) in those sections”. He goes on to note that there was a

decreasing general order of importance of application ... In respect of section 7 and 8 matters the Court has a discretion as to whether to provide for the relevant principles in any given situation. Only in respect of the section 6(e) matter is there a duty to provide for it.

However, in later case law the courts appear to have taken a more holistic approach to their interpretation, indicating that they should be balanced against the other interests set out in Part II in achieving sustainable management. Judge Whiting, for the Environment Court, in Land Air Water Association v Waikato Regional Council,12 stated:

... those sections should not be read in isolation but should be considered as being integral to achieving the single purpose of sustainable management, as expressed in section 5, and consistent with the remaining provisions of Part II which are subordinate and accessory to section 5.

A point reiterated by Hammond J in TV3 Network Services Ltd v Waikato District Council,13 who stated:

[T]he importance of these sections should not be under­estimated or read down. For, they contain the spirit of the new legislation.

11 [2002] 9 ELRNZ at 111 para 36.

12 Environment Court Decision No A110/01, 23 October 2001. 13 [1997] NZRMA 539.

3. THE IMPLICATIONS OF SECTION 8 AND THE TREATY OF WAITANGI

It is clear from the discussion in the previous section that the RMA has specif­ ically incorporated Maori interests and values into Part II of the Act. Yet, as Beverley points out,14 it is s 8 that has been cited more than any other in considering the protection of Maori interests under the RMA, and in particular the principle of consultation under the Treaty of Waitangi cited more than any as a means of objecting to an application on the grounds of insufficient consultation. Indeed, as Judge Whiting points out in Land Air Water Association v Waikato Regional Council,15 “a ‘failure to consult’ has almost become a catch phrase which is consistently advanced as a ground on which to base an appeal”.

3.1 Section 8 and the Principles of the Treaty of Waitangi

Section 8 states:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

In understanding what this means, it is important to understand what is meant by the principles of the Treaty of Waitangi. Te Puni Kokiri16 has developed a useful discussion document on the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal.17 It is interesting to note that it is the principles of the Treaty of Waitangi, rather than the text, that is referred to in legislation. This is because the Treaty was prepared in two different languages (English and Maori); therefore there have been different interpretations as to what the Treaty of Waitangi says. The principles of the Treaty of Waitangi, however, are generally considered to “interpret the Treaty as a whole, its intention and its spirit”.18

Yet there is no definitive list of principles arising from the Treaty of

  1. Paul Beverley, “The Mechanisms for the Protection of Maori Interests under Part II of the Resource Management Act 1991” (1998) 2 NZJEL 121.
  2. Environment Court Decision No A110/01, 23 October 2001.
  3. Te Puni Kokiri is the Ministry for Maori Development, which was established in 1992 under the Ministry of Maori Development Act 1991.
  4. Te Puni Kokiri, He Tirohanga o Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi (Wellington, 2001).
  5. Ibid.

Waitangi for decision­makers to consider.19 Rather, the principles have been defined in the courts and the Waitangi Tribunal and are “constantly evolving as the Treaty is applied to particular issues and new situations”.20 Of the principles that have been defined, the principles of partnership and active protection are considered to be two core principles of the Treaty of Waitangi, and it is from the principle of partnership that the obligation to consult between the two Treaty parties arises.21

3.2 The Principle of Partnership and the Duty to Consult

The principle of partnership is generally accepted to include the obligation on both parties to act reasonably, honourably, and in good faith, and the courts have determined an aspect of the obligation to act in good faith is a duty to make informed decisions through consultation. Consultation, therefore, is not a principle of the Treaty of Waitangi as it is often referred, but rather arises through the duty to make informed decisions by both partners to the Treaty.

However, as noted in the Te Puni Kokiri document, consultation is not an absolute duty under the Treaty principle of partnership.22 Rather, it appears that the intent is to ensure that consultation is undertaken with Maori on significant issues.23

The obligation to take into account the principles of the Treaty of Waitangi extends both to Ministers of the Crown as well as local authorities exercising functions and powers under the RMA.24 However, it has been clearly determined in the courts that there is no duty for applicants to consult under s 8. As Heath J notes in Carter Holt Harvey Limited v Te Runanga o Tuwharetoa Ki Kawerau:25

The duty to consult is one which has been formulated as part of the obligation for Treaty partners to work in good faith in their dealings with each other. It would be wrong in principle to impose an obligation on individual or corporate citizens to consult with tangata whenua interests where there is no other obligation to do so.

  1. Carter Holt Harvey Limited v Te Runanga o Tuwharetoa Ki Kawerau [2003] 2 NZLR 349, at para 27.
  2. Te Puni Kokiri, supra note 17.
  3. Ibid.
  4. Ibid.
  5. K Palmer, pers comm, 2006.
  6. K Palmer, “Resource Management Act 1991” in D Nolan (ed), Environmental and Resource Management Law, 3rd ed (LexisNexis, 2005) Ch 3.

25 [2003] 2 NZLR 349, at para 55.

In order to meet the obligation of consulting in good faith, the question has been raised in the court as to what this means in practice to ensure that this duty is fulfilled. This was in part addressed by Judge Newhook in Horahora Marae v Minister of Corrections,26 who, in considering this issue, cited a passage from Beadle v Minister of Corrections, which states:

Those consulting need to impart enough about the proposal that those consulted are able to respond with appropriate and accurate information on the potential effects on affected Maori, so that it may be considered by the decision­maker. The consulting party, while entitled to have a working plan in mind, has to keep its mind open and be ready to change or even start afresh. However, although consultation involves meaningful discussion, it does not require agreement, and does not necessarily involve negotiation towards an agreement. As counsel for the Minister submitted, the principle does not give a right to veto any proposal.

This quote encapsulates the essence of consultation, as it has been defined in the courts, and emphasises the fact that although there may be a requirement to consult with Maori under s 8, this does not mean that if no agreement is reached that Maori have the power to stop a project from occurring.

It is therefore clear that, whilst there is a particular requirement to take into account the principles of the Treaty of Waitangi under s 8, there is a need to balance this with the other requirements set out in Part II of the Act. This is emphasised by Heath J in Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa Ki Kawerau,27 who states:

The obligation, set out in s 8 of the Act, to take into account the principles of the Treaty of Waitangi does not elevate that factor above other factors which those responsible for exercising functions and powers under the Act are required to consider ... There is a consistent line of authority in the Environment Court which has emphasised the need for s 8 to be read and understood in the context of the whole Act ... .

4. IF THERE IS NO STATUTORY DUTY TO CONSULT — WHEN IS CONSULTATION REQUIRED?

Section 36A of the 2005 RMA amendments specifically states that there is no duty to consult in relation to resource consent applications, unless required by

26 Environment Court Decision No A085/2004, citing Beadle v Minister of Corrections, Decision No A074/2002.

27 [2003] 2 NZLR 349, at para 25.

another enactment. Yet in fulfilling the requirements of the RMA, consultation may still be required either by an applicant or a consent authority, in order to assess whether a proposed activity will have an effect on the environment, or whether a proposed activity will meet the purpose and principles of the Act as set out in Part II.

As discussed previously, the RMA specifically provides for the protection of Maori interests and values in Part II. This means that all persons exercising their duties and functions under the Act must take these into consideration. This implies a specific requirement by both consent applicants and consent authorities to take account of Maori interests and values. It is questionable as to whether this can be undertaken without some form of consultation with the local iwi who may be affected.

This section considers the implications of s 36A, and the duties and responsibilities that the resource consent applicant, the local authority, and the Crown may have in relation to consultation with Maori under the RMA.

4.1 The Implications of Section 36A

Prior to the 2005 amendments, there appears to have been some uncertainty as to whether or not consultation is required. This has arisen through two differing interpretations to the requirements for consultation under the RMA — one being that applicants or council officers should consult, where relevant, to provide a full assessment of environmental effects as required with an application, the other that there is no specific duty to consult with Maori or anybody else for that matter.28

Section 36A now clarifies that there is no duty to consult on a resource consent application by either the applicant or the consent authority, unless required under another enactment.29 Section 36A reads:

No duty under this Act to consult about resource consent applications and notices of requirement —

  1. K Palmer, supra note 24, at para 3.49.
  2. This is an important inclusion, as it preserves, for example, the requirements for local authorities to consult with Maori in accordance with the Local Government Act 2002.

The need for this section in the RMA is questionable, given that the courts have already established that there is no statutory duty to consult in relation to a resource consent application. Indeed, it may be that applicants now use s 36A as a reason for not consulting with Maori (or other parties for that matter) on a particular application. This remains to be seen, but from the author’s own experience30 there is already reluctance by many to consult with Maori on particular applications — after all, if an application is to be notified, why undertake expensive consultation?31 Indeed, s 36A may provide a convenient means of avoiding consultation altogether.

It is likely that one of the main reasons that the government chose not to make consultation with Maori (or other parties) mandatory in relation to resource consent applications is the issue of how much consultation would be required to meet such an obligation, and in what form would that consultation take.

This was a matter raised by Heath J in Carter Holt Harvey Limited v Te Runanga o Tuwharetoa Ki Kawerau.32 In this particular case, the issue was in relation to whether there was a requirement to consult with tangata whenua prior to making an application under s 127 to change or delete a condition of resource consent. Heath J pointed out:

Responsible holders of resource consents will, undoubtedly consult regularly with tangata whenua interests to ensure efficient dispatch of such applications. While this is good practice, there are difficulties in elevating the obligation to consult to the status of a legal obligation for the reasons which Mr Muir advances: that is, once it is elevated to a legal obligation disputes can arise as to whether the obligation to consult has been adequately discharged.

4.2 The Responsibilities of the Resource Consent Applicant

Whilst s 36A now states that there is no statutory duty to consult in relation to a resource consent application, there may still be a need for an applicant to consult with Maori in order to determine the effects of a proposed development, in accordance with the Fourth Schedule. Indeed, s 36A(1)(c) specifically provides that an applicant (or consent authority) may consult with any person about the application.

When applying for a resource consent application, applicants are required to include an assessment of environmental effects (“AEE”) under s 88 of the RMA. The AEE must be prepared in accordance with the matters set out in

  1. The author works as an environmental consultant.
  2. This argument arises from the fact that a notified application already provides the opportunity for affected or interested parties to put in submissions on an application.

32 [2003] 2 NZLR 349, at para 55.

the Fourth Schedule. This includes, under cl 1(h), “an identification of those persons interested in or affected by the proposal, the consultation undertaken, if any, and any response to the views of those consulted”.

The interpretation of this section of the RMA in the courts has been fairly consistent, in that this does not necessarily imply consultation is required, but where it is undertaken this needs to be reported on in the AEE. For example, Judge Jackson in Ngati Hokopu Ki Howowhitu v Whakatane District Council,33 stated:

Turning to the words of clause 1(h) of the Fourth Schedule: we consider that it is important to note that Part VI of the RMA imposes no invariable obligation on a potential applicant to consult with anyone. The only obligation imposed by the words of the Fourth Schedule, is to report on consultation. While that suggests consultation should occur it is silent as to the consequences if it does not.

Section 36A in the RMA now confirms this interpretation.

While the duty to consult has been clarified by s 36A, a resource consent applicant may still be required to consult with Maori by the consent authority, if there is a rule in a regional or district plan requiring consultation be undertaken in relation to a proposed activity.

The purpose of an AEE is to determine whether or not a proposed develop­ ment will have a significant adverse effect on the environment. In this respect, consultation can be seen as assisting in this process, and can be a valuable tool in assessing the potential effects of a proposed activity. Again, Judge Jackson provides useful commentary on this point, stating:34

The requirements of an AEE in respect of consultation are to show that the applicant has considered the possibility that, for cultural, social, or perhaps scientific or other reasons, it cannot itself identify some potential adverse effects that other persons might.

Indeed, as consultation can provide a better understanding of the potential effects of a particular activity, it also provides the opportunity for an activity to be modified to take into account Maori interests if undertaken early enough in the process.

While consultation may assist with the AEE process, it is important to note that, in accordance with s 88(2)(b) of the RMA, the AEE only needs to be “in

33 [2002] NZEnvC 421; [2002] 9 ELRNZ 111, at para 66.

34 Ngati Hokopu Ki Howowhitu v Whakatane District Council [2002] NZEnvC 421; [2002] 9 ELRNZ 111, at para 68.

such detail as corresponds with the scale and significance of the effects that the activity may have on the environment”. In this respect, it may be that other information is available to determine whether there is potential for an adverse effect as a result of a proposed activity, such that consultation is not required. For example, the regional policy statement, regional or district plan may identify areas of potential value or interest for local iwi.

This approach, however, assumes that the relevant information about Maori interests is available and incorporated into local planning documents, either through reference to iwi management plans that may have been prepared for the area or through the process of consultation with local iwi during the development of plans and policy statements.

However, this has not always been the case and has in some instances resulted in development on land which has importance to local iwi. In the case of Helmbright v Environment Court (No 1),35 for example, where the Whakatane District Council had not recognised the importance of a site on Ohope Spit for proposed subdivision development as a former battleground area,36 and had made no provision to set aside the land. As the proposed subdivision was a controlled activity in the District Plan, the High Court found that they had no power to intervene with the proposed subdivision of the land.

Whilst reference to such planning documents can provide a first indication as to whether a site may have potential interest to Maori, they may not be sufficient to provide a full understanding of potential effects. This may mean that an AEE falls short of meeting the requirements of the Fourth Schedule, and be considered inadequate by the local planning authority. The planning authority then has the power to request further information under s 92(1) if it is considered that there is a lack of information to determine whether the proposed activity will have a significant adverse effect. This can (and often does) include a requirement to consult with Maori. Therefore, where an applicant may be reluctant to consult with local iwi prior to lodging a resource consent application, this can in turn result in delays to processing the application and associated costs.

The value of consultation proactively being undertaken by a resource consent applicant is that it can assist in establishing the effects of a proposed activity, and save time and money by avoiding the need to respond to s 92 responses, or appeals and hearings. Consultation also provides opportunities to modify a proposed activity to accommodate concerns, and in this respect can provide for greater certainty in outcome.37 Indeed, the courts have established

35 [2005] NZRMA 118.

  1. The spit was the site of a famous battle called Ihukaatia at which in 1828 warriors of Whakatohea and Tuhoe were defeated by Ngati Awa.
  2. T Richmond and M Leggett, Consultation with tangata whenua (October 2004). Government guidance note available at: www.qp.govt.nz.

that it is good practice to consult with Maori on resource consent applications, such that “the lack of consultation remains a factor to be considered, under s 8 of the Act, and applicants proceed at a disadvantage without it”.38

However, whilst consultation with Maori may seem prudent in theory, in practice, with perceived time delays and associated costs for consultation, not all applicants will be open to undertaking consultation unless there is a clear direction from local planning authorities to do so.

4.3 The Responsibilities of the Local Authority

The local authority’s responsibilities for consulting with Maori may arise in a number of ways: firstly, in relation to the preparation of policy statements or plans; secondly, in relation to processing resource consent applications; and thirdly, when the council itself is applying for a resource consent. In addition, local authorities, when acting as a consent authority, need to assess whether an iwi or hapu are an affected party under s 94 of the RMA, and require notification and consultation by the applicant. This later point will be discussed in Part 5 of this article.

Whilst the article focuses on consultation with Maori in relation to resource consent applications, as discussed above policy statements and dis­ trict or regional plans are often the first step for resource consent applicants in determining whether their proposed activity will have an effect on the en­ vironment. Therefore, input during the policy statement or plan preparation stage by local iwi is critical to ensure that sites of Maori interest and value are incorporated into local planning documents.

It is a requirement under the RMA for local authorities to consult with Maori on policy statements and plans, and most local authorities have procedures in place for this to occur. The 2005 amendments to the RMA strengthen these requirements, with clear direction now given in cl 3B of the First Schedule as to what consultation with iwi authorities must entail in order to fulfil this duty. The Ministry for the Environment states that the purpose of this new requirement is to facilitate Maori participation in decision­making,39 with the provisions having similar requirements to involve Maori in decision­making as is required by s 81 of the Local Government Act 2002. Indeed, these new requirements may help to standardise procedures between different councils, and provide greater certainty for iwi participating in this process.

However, the duty of local authorities, when acting as a consent authority, to consult Maori in relation to considering resource consent applications has been

  1. Marlborough Seafood Limited v Marlborough District Council, Environment Court Decision No W12/98.
  2. Ministry for the Environment, supra note 2.

less clear­cut.40 Whilst s 36A states that local authorities do not have to consult any party on resource consent applications, there may still be a need to consult Maori in order to fulfil the requirements of Part II of the RMA and make an informed decision. Case law indicates that this has always been the stance, and the uncertainty arises through whether or not and to what extent consultation is required to meet this duty.

This uncertainty is discussed in Beverley,41 who points out that it is not just the Treaty principle of consultation42 that may invite the need for council officers to consult with Maori, but that there are other Treaty principles (such as active protection) or other parts of the RMA (such as ss 6(e) or 7(a)) that may require a council officer to consult. Indeed, Beverley goes on to note that this is quite distinct from the duty to consult under s 8 and the Treaty principle of consultation. He then cites Judge Kenderdine, who in Director General of Conservation v Marlborough District Council and Marlborough Mussel Company Limited,43 stated:

We fail to see how under s 6 of the Act consent authorities are able to recognise and provide for the matters listed in s 6(e) if they do not consult with iwi because they would not have adequate knowledge of the issues on which to make an informed decision.

Beverley makes an important point in this respect. There are a number of other references in the RMA, aside from s 8, which refer to Maori interests and values, and whilst the duty to consult may arise through the principles of the Treaty of Waitangi, this may not always be the case. Indeed, the need to consult Maori may be triggered by other sections under the RMA.

However, it is clear that the main uncertainty for local authorities is whether or not they have a duty to consult under s 8, given that they are public bodies and therefore could be considered Treaty of Waitangi partners. This issue has been clarified in the courts, who have established that this duty is considered to be one of the Crown and not directly the consent authorities. Indeed, this viewpoint was developed in early case law. Judge Sheppard, for example, in Hanton v Auckland City Council 44 stated that:

  1. Ministry for the Environment, Guidelines for Consulting with Tangata Whenua under the RMA: An update on Case Law (Wellington, December 2003).
  2. Paul Beverley, supra note 14.
  3. As noted earlier in this essay, the obligation to consult arises through the Treaty principle of partnership, and to act reasonably, honorably and in good faith.
  4. Environment Court Decision No W89/97, 22 September 1997, at 19.
  5. [1994] NZRMA 289 (Planning Tribunal), at 301.

Although s 8 requires consent authorities to take into account the principles of the Treaty, we do not find in its language any imposition on consent authorities of the obligations of the Crown under the Treaty or its principles.

While this may be the case, there is still a need for local authorities, when considering resource consent applications under s 104, to do so subject to the purposes and principles set out in Part II of the Act. Therefore, as discussed previously, whilst there may not be a duty to consult under the Treaty principle of participation, consultation may still be required by a local authority in order to ensure that a consent application meets the requirements of Part II and make an informed decision. Local authorities may meet this requirement in two ways: rely on the consultation undertaken by the resource consent applicant, or undertake consultation themselves.

In early case law, there was much scepticism over whether local authorities should rely on the consultation reported to them by resource consent applicants when assessing Part II requirements for fear that this information may be biased. This potential distortion of views was raised in Quarantine Waste NZ v Water Resources Ltd,45 where the council had relied on consultation undertaken indirectly with iwi to make their decision about not notifying a land­use consent. Blanchard J, in summing up the issue of consultation, noted that:

In other circumstances I would have very real qualms about a second hand consultation, with a local authority leaving it to an applicant to consult with local Maori interests. The potential for distortion by an applicant of their views is obvious.

However, based on the evidence provided, the Court determined that whilst the council had failed to undertake direct consultation, they had taken into account the potential effects on Maori interests, of which they considered to be at most minor.

In later case law, the view of the court seems to have changed, such that it does not matter who undertakes the consultation as long as it is undertaken in a fair and open manner. For example, Judge Whiting in Land Air Water Association v Waikato Regional Council 46 stated:

In our view it matters little who facilitates or carries out the consultation. In some cases it may be the applicant. In other cases officers of the consent authority or a combination of both. The essential ingredient is that it is fair and enables the Court to make an informed decision. The underlying element

45 [1994] NZRMA 529.

46 Environment Court Decision No A110/01, 23 October 2001, at para 448.

of fairness applies equally to the person required to consult and the person or body that is consulted.

In the author’s view, this provides little guidance for the local authorities on where their responsibilities lie in relation to consultation with Maori.

What has, however, been clearly established in the courts is that the local authority, when acting in its quasi­judicial role as consent authority, must not in the latter capacity consult Maori directly, as this would be seen as unfairly consulting one party and not others, and could compromise the consent authority’s position. Rather, it has been determined that if there is to be a consultative process, this should be undertaken by a council officer or con­ sultant for the purpose of obtaining information, who can then report back to the council to consider along with other evidence.47

Local authorities may also have a duty to consult when they are themselves acting as resource consent applicants. In this respect, their duties and responsi­ bilities are essentially those discussed in the previous section. However, as Palmer points out,48 there may be a greater obligation for local authorities to consult with Maori when they are acting as resource consent applicants. This is because s 36A specifically states that while there is no duty to consult under the RMA, it does not preclude any consultation obligations that may be required under other legislation. In the Local Government Act 2002, for example, local authorities have specific responsibilities to promote involvement of Maori in decision­making, and this may strengthen their obligation to consult Maori when applying for resource consents.

4.4 The Responsibilities of the Crown

The consultative duty of the Crown arises specifically in relation to s 8 of the Act, and the need to take into account the principles of the Treaty of Waitangi, as discussed earlier in this article. As a Treaty partner, in cases where the government is either acting as decision­maker or seeking resource consent to undertake a significant activity, there is a specific obligation to consult with Maori. This has been clearly established in the courts.

There are a number of situations under the RMA where the Crown may act as decision­maker. The Minister for the Environment, for example, has specific decision­making responsibilities under s 24 of the RMA. These duties arise when:

  1. See, for example, Ngati Kahu v Tauranga District Council [1994] NZRMA 481.
  2. K Palmer, supra note 24, at para 3.49.

The Minister for the Environment also has the power, under s 141B, to call in an application of national significance.

The Minister of Conservation also has specific decision­making duties under the RMA. These are set out in s 28 and include preparing and recommending the New Zealand coastal policy statements (in accordance with s 57), approv­ ing regional coastal plans (in accordance with the requirements of the First Schedule), and making decisions in relation to applications for restricted coastal activities.

The RMA requires all persons exercising their functions or powers to take into account the provisions of Part II. Accordingly, the Crown when acting as decision­maker must also consider the specific requirements of Part II (ie ss 5, 6, 7 and 8). In this respect, it appears that the Crown has a requirement to consult with Maori, in accordance with s 8, given that the Crown is a Treaty of Waitangi partner.

Consultation with Maori is also required when the Crown is applying for a resource consent. The duty to consult does not appear to have been disputed by the Crown, which has generally accepted the obligation to consult in accord­ ance with s 8 and the Treaty of Waitangi.49 The main sticking point in these cases seems to be the need to show that the consultation has been undertaken in good faith, and with an open mind, in accordance with the Treaty principle of partnership.

In addition, it is generally accepted that this consultation duty, which arises under the Treaty of Waitangi, is distinct and more definitive than the consul­ tation obligations of consent authorities. This view was taken by Judge Jackson in Ngati Hokopu Ki Howowhitu v Whakatane District Council,50 who stated:

It is therefore unlikely that Parliament intended that consultation should be compulsory in applications for resource consent. Where the applicant for resource consent is a Minister of the Crown the position may be different

  1. See, for example, Beadle v Minister of Corrections, Environment Court Decision No A074/2002 and Minhinnick v Minister of Corrections, Environment Court Decision No A043/2004, 6 April 2004.

50 [2002] NZEnvC 421; [2002] 9 ELRNZ 111, at para 62.

because then the applicant (as a Treaty partner) must consult because this may be a duty in certain circumstances which arises out of the Treaty principles of partnership and good faith.

4.5 The Responsibilities of Maori

The previous sections have considered the consultative responsibilities under the RMA for the resource consent applicant, the local authority, and the Crown. However, it is important to recognise that Maori also play a role in ensuring that consultation is undertaken adequately in relation to resource consent applications that may affect their interests.

Many local authorities, for example, rely on Maori to alert them to whether they are affected by a resource consent application, and in this respect unless Maori have developed relationships with the local authorities and actively partic­ ipate, it may be that a local authority is not aware of specific areas of Maori interest or values. As discussed, this can result in sites of significance to Maori not being recognised, and subsequently developed on or destroyed.51

However, the amendments to the RMA over the last few years, including the recent changes in 2005, appear to be aimed at strengthening relation­ ships between local authorities and Maori, particularly at the policy and plan preparation stage. The 2003 amendments, for example, provided greater recognition of iwi management plans,52 and the 2005 amendments now provide for greater certainty for consultation during the preparation of plans and policy statements under cl 3B of the First Schedule.

It would appear that the main barriers to Maori effectively participating in the resource management process relate to lack of resources and limited understanding of the resource management process. Indeed, lack of resources is a huge impediment to participating and there appears to be an expectation amongst both local authorities and consent applicants that iwi will consult about an application, yet limited recognition that this can incur significant costs.

In a survey by the Ministry for the Environment of local authorities over the 2003/2004 period,53 only 56 per cent of local authorities indicated that they had made budgetary commitment to Maori/iwi participation in RMA processes. This is surprisingly low, and further recognition and support will need to be given to iwi by local authorities to enable participation in the resource management process. This will become increasingly important if local authorities are seeking

  1. See, for example, Helmbright v Environment Court (No 1) [2005] NZRMA 118.
  2. The 2003 amendments changed the wording such that councils must now “take into account” any relevant planning document recognised by an iwi authority. Prior to this change, councils were just required to “have regard to” such documents.
  3. Ministry for the Environment, Resource Management Act: Two-yearly survey of local authorities 2003/2004 (Wellington, April 2005).

to meet their consultative obligations under cl 3B of the First Schedule, or indeed under the Local Government Act 2002.

Limited resources can mean that Maori have difficulty in responding to all consent applications that are sent to them by the local authority, and this can result in either slow or no response, unless the consent authority has high­ lighted the significance of the proposed activity to the group. An example is discussed in Marlborough Seafoods Ltd v Marlborough District Council.54 In this particular case the iwi concerned were servicing 11 local bodies, and in 1995 received 1,330 resource consents to process, for no remuneration.

Yet there is also a lack of understanding in relation to the resource manage­ ment process, particularly in relation to the time frames that the consenting authority must run to under the RMA. Therefore, it is desirable for Maori groups to become familiar with the process and actively participate.

It is important to note that there is no guarantee that consultation will result in outright protection; however, active participation in the plan and policy development stage will provide greater certainty that Maori interests and values will be incorporated into district or regional planning documents.

5. DETERMINING WHEN MAORI ARE A POTENTIALLY AFFECTED PARTY

When a decision is made to consult with Maori in relation to a resource consent application, either through requirement (for example, if directed to by a rule in the regional or district plan) or as a necessity to determine whether there may be an effect on Maori interests, the question is then raised as to with whom should one consult? In general, direction is sought from the consent authority, who have ultimate responsibility for determining who may be affected by a resource consent application under s 94B of the RMA.

However, there have been some situations where iwi have been consulted only to have other local iwi groups objecting to a proposed activity on the grounds of lack of consultation.55 In other situations, the consent authority has been questioned as to whether an iwi that has been identified as requiring consultation is actually affected by a proposed activity. After all, consultation can have significant costs associated with it, and there is a general reluctance to consult unless it is clear that there is a potential effect on Maori interests. Yet how can one determine whether a proposed activity will affect Maori interests without some form of consultation?

54 [1998] NZEnvC 36; [1998] NZRMA 241.

55 See, for example, Beadle v Minister of Corrections, Environment Court Decision No A074/2002, where part of the grounds of appeal related to inadequate consultation, as it was inferred that consultation was only undertaken with Ngati Rangi hapu, and that other iwi groups should have been consulted.

This section discusses the issue of determining when Maori are an affected party, and provides some case studies from the author’s experience in relation to consultation with Maori in relation to non­notified consent applications.

5.1 Direction from the Consent Authority

As discussed, the consent authority is responsible for determining who may be affected by a resource consent application under s 94B. In this respect, direction can be sought from the consent authority prior to lodging a consent application, as to who may be considered an affected party in order to initiate consultation. This provides an opportunity for the applicant to work with the affected parties, in order to determine what the potential effects of the pro­ posed activity may be, and how the concerns of the affected parties may be alleviated such that the residual environmental effects are less than minor. This also provides an opportunity for resource consent applicants to obtain written approval from potentially affected parties, such that the consent application may be considered as a non­notified consent, or at the least have limited notification. Accordingly, consultation prior to lodging a resource consent application can have considerable benefits to an applicant.

However, this can pose a difficult task for the consent authority, which is unlikely to have enough information prior to the consent application being lodged to make a definitive determination on who the affected parties (if any) may be. This is a particular issue in relation to identifying whether Maori are an affected party, and, if so, which iwi or hapu group should then be consulted. In most cases the consent authority will err on the side of caution and suggest that the applicant consults with several iwi groups.

Given the special regard that the RMA provides for Maori interests and values, it is surprising to note that over the period 2003/2004, only 65 per cent of local authorities in New Zealand had in place criteria or provided guidance for their staff on how to determine when an iwi or hapu group is likely to be an affected party.56 Whilst this is an improvement on the earlier period (61 per cent in 2001/2003), it is still unexpectedly low given that the RMA has been in place for more than 15 years, and the special regard that the RMA has for Maori interests and values.

Recent changes to the RMA in 2005 now include a requirement, under s 35A, for local authorities to keep and maintain a record of each iwi authority, and in some cases groups that represent hapu, that are located within their district or region. It is envisaged that this register will be the starting point for local councils when considering which iwi groups may be affected by a proposed

56 Ministry for the Environment, Resource Management Act: Two-yearly Survey of Local Authorities 2003/2004 (Wellington, April 2005).

activity. In addition, when meeting their requirements in relation to consultation on the preparation of plans and policy statements, local authorities are required to consult, as a minimum, with the iwi groups held on this register.57

Section 35B requires local authorities to keep records of not only the iwi groups’ contact details, but also any planning documents recognised by each iwi authority and lodged with the council under ss 61, 65 and 74 of the RMA. They must also maintain records of any area within their region or district over which one or more iwi or hapu exercise kaitiakitanga.58 Most local authorities already maintain this information to a certain degree; however, this mandatory requirement should mean that there is a more consistent approach from councils which will provide more certainty for both iwi and resource consent applicants.

The Crown also has a duty under s 35A to provide information to local authorities to help with the council’s obligations to identify relevant iwi groups and maintain records. In this respect Te Puni Kokiri has developed Te Kahui Mangai, a directory of iwi and Maori organisations,59 which will form the basis for meeting this requirement.

5.2 Direction from Iwi

Whilst it is the local authorities who determine who an affected party may be in relation to a proposed activity, in relation to effects on Maori the local authorities appear to be reluctant to make this decision. Rather, it appears that they may defer to local iwi to decide as to whether they consider themselves to be affected or not. This approach is taken in the Auckland Region, for example, where it is the Auckland Regional Council’s standard practice to send a list of all applications for resource consents received on that day to iwi groups in the Auckland Region.60 The iwi groups then make the determination as to whether the application will have an effect on their interests, and can request further information and consultation. It is understood that the response is based on little information, generally the application type and the address of the proposed activity.

The question is raised as to how effective this approach is in protecting Maori interests. Is it enough information for iwi to make an informed decision about whether the application will affect their interests? Indeed, with this

  1. As required by First Schedule clause 3B.
  2. Kaitiakitanga is defined in the RMA, s 2, as meaning “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship”.
  3. This register is available on the Internet at: http://www.tkm.govt.nz.
  4. Note that this practice is likely to occur in other regional councils; however, the author is only familiar with the practices in the Auckland Region.

approach it is questionable as to whether all iwi groups would respond in the same way given limited time and resources — with some iwi groups potentially being more proactive than others. Does this really satisfy the requirements of the RMA?

To illustrate the point, the following describes two case studies that have recently occurred in the Auckland Region.61 In both cases the applicants were applying to the Auckland Regional Council for resource consent to discharge contaminants to ground, and both were seeking the consents to be non­notified. Whilst the proposed activities differ, the results on the environment are similar (considered to be less than minor), yet the requirements for consultation as directed by the Auckland Regional Council were different.

The first case study involved a small cleanfill operation in South Auckland. The cleanfill operation is located at the head of a gully, and has a small ephemeral stream running along its boundary. The stream is a tributary of the Hingaia Stream, which eventually discharges into the Manukau Harbour some distance from the site.

Due to the size of the operation and under the terms of the permitted activity rules, the cleanfill operators were able to operate the cleanfill without needing consent from the Auckland Regional Council (“ARC”). However, in late 2004 the cleanfill received fill material with elevated levels of heavy metals above that which is considered cleanfill by the ARC. The ARC discovered where the material was sourced from, and following an investigation decided to prosecute the site users for breaching the permitted activity rules. However, further environmental investigations were undertaken, which showed that the material was unlikely to have a significant adverse effect on the environment. It was determined that the material could stay on the site if the applicants obtained resource consents for the discharge of contaminants to ground and groundwater from the ARC.

As a result of this event, the ARC instructed the cleanfill operators to under­ take an environmental investigation of the whole site to determine whether the fill material on the rest of the site met the requirements for a cleanfill. During the process it was determined that the material on the rest of the site had slightly elevated heavy metal levels above background, which also did not meet the ARC’s definition of cleanfill. The cleanfill operators were subsequently required to obtain discharge consents for the discharge of contaminants to ground and groundwater for the operation of the whole site.

  1. Two projects that the author has been involved in.

The issue, in respect to Maori concerns and values, arises through the potential discharge of contaminants to water. However, the environmental investigations undertaken to support the resource consent application were able to show that the discharge would have a less than minor effect on the environment.

The site operators were seeking non­notified consents for the existing and future discharge associated with the cleanfill operation. They obtained written authorisation from some, but not all,62 of their neighbours. Consultation was not undertaken with iwi, as at no point prior to lodging the consent application were there any concerns raised by the local authority as to potential effects on Maori interests or values.

Following lodging of the application, the applicants were notified by the ARC that an iwi group had requested further information about the application. A copy of the AEE and environmental investigations undertaken were sub­ sequently provided to the iwi group. The iwi group then requested a site visit. At the same time, another iwi group submitted to the ARC an objection to the application due to “lack of consultation”. Information was subsequently provided by the applicants and the iwi group invited to participate in a site visit.

It should be pointed out that at this stage the ARC encouraged the applicant to undertake the consultation with iwi, rather than themselves, as it was noted that this would save the applicant time and money. The ARC then issued a s 92 notice requesting “evidence of consultation with potentially affected parties. In particular, neighbours to the proposed development and local iwi.”

Following the site meetings, and subsequent correspondence, one of the iwi groups informed the site operators that they required a cultural assessment 63 to be undertaken to fully assess the potential effects of the discharge. The other iwi group did not respond to any further correspondence. The applicant decided not to undertake a cultural assessment, given that the environmental investigations had shown that the effects of the activity were less than minor, and given the distance (approximately 2 km) to the upper reaches of the Manukau Harbour. This was reported to the ARC, who subsequently issued the non­notified resource consent.

The question remains — was consultation with iwi necessary in this case?

The facts of the case were as follows:

  1. The ARC determined that the concerns raised by those parties who did not provide written authorisation were not related to the discharge consent application, but rather were issues to be taken up with the district authority in respect to the land­use consent.
  2. Which the iwi group indicated that they could do at a certain cost.

Yet time and money was spent by both the applicant and the local iwi groups on pursuing the consultation process. A case, perhaps, of the ARC undertaking a “tick box” exercise to demonstrate their compliance with the RMA?

The second case study involved a former horticultural site, where the applicant was seeking to subdivide into two lifestyle blocks. The site is located in West Auckland directly adjacent to a small tidal estuary which discharges into the Upper Waitemata Harbour. The estuary is part of a larger area in the Upper Waitemata Harbour that is classified as a Conservation Protection Area 2 in the Auckland Regional Plan: Coastal. A Coastal Protection Area 2 is classified for its regional, national, or international significance, but is more robust than areas classified as Coastal Protection Area 1. In this case the area, of which the tidal estuary formed a part, was considered ecologically important because of the mangrove inlets, and the diversity and productivity of flora and fauna, including shellfish, birds and fish.

For the proposed development to occur, consent was required from Waitakere City Council (“WCC”) for the subdivision. Because the site was a former horticultural site, an environmental site investigation was required by WCC to determine whether there were any potential health risks for the future residential site use. During the investigation work it was determined that a small horticultural waste dump was located on the site, which is now planted with pine trees. Concern was then raised as to the nature of the discharge from the former waste dump, and the ARC indicated that remediation works would be required unless it could be shown that the effects of leaving the material in situ would be less than minor. In either case, discharge consent would be required from the ARC to authorise the discharge of contaminants to ground and groundwater.

Further environmental investigation was undertaken, focusing on the potential effects of contaminants in the discharge migrating via groundwater to

the estuary. It was subsequently able to be shown that although contaminants were discharging to groundwater at elevated levels, the resulting discharge to the estuary was having a less than minor effect on the estuary water quality.64 It was concluded that leaving the material in situ, with appropriate management measures, would be an acceptable solution.

The applicant subsequently lodged a resource consent application to the ARC, requesting that the consent application be processed as non­notified. No parties were considered to be affected by the discharge, as there were no other landowners downstream of the discharge, and the effects on the estuary had been shown to be less than minor and therefore not considered to have an effect on Maori values.

Following lodgement of the application, the ARC raised the issue of whether or not iwi were an affected party and required consulting. The applicant responded that as the discharge was to land and not directly to the estuary, and that the environmental studies had shown that the discharge would have a less than minor effect on the estuary, that they did not consider iwi to be an affected party. The ARC accepted this argument, and as no iwi groups had requested further information, subsequently issued the consent.

The question remains — should consultation with iwi have been undertaken?

The facts of the case were as follows:

It seems inconsistent, in the author’s view, that consultation with iwi was required in Case Study 1 but not in Case Study 2. The nature of the discharge in both cases was similar, and indeed both were shown through environmental investigations to have a less than minor effect on the environment. In Case Study 2 the indirect receiving environment was more sensitive (given its conservation status), but consultation was not required with iwi. This reflects some of the issues that can arise where there is no clear direction for local authorities or resource consent applicants in relation to consultation on applications. It appears

  1. That is, within the 95% trigger levels for marine water quality as specified in the 2000 ANZEEC guidelines.

that the decision on whether to consult with Maori, where there is no clear effect on Maori interests or values, has been left to the local iwi to determine. With limited time and resources, and different iwi groups potentially affected in the two cases — is it any wonder that there has been an inconsistent outcome in this respect?

6. WHAT CONSTITUTES CONSULTATION — AND WHAT ARE THE IMPLICATIONS OF GETTING IT WRONG?

As discussed earlier in the article, “lack of consultation” is often used by Maori as grounds to object to a proposed activity. Without a definition in the RMA, the courts have had to grapple with the issue of what constitutes consultation, in order to enable an assessment to be made on the adequacy (or not) of consultation undertaken in fulfilling the requirements of the RMA.

The purpose and principles of consultation with Maori have now been established through case law. This section therefore provides a brief overview of what constitutes consultation with Maori, and also considers the implications of inadequate consultation.

6.1 The Purpose of Consultation

The purpose of consultation is described by Judge Whiting in Land Air Water Association v Waikato Regional Council 65 in the following way:

The essence of consultation is such that, at the end of the day, we can make an informed decision. That is, one that is sufficiently informed as to the relevant facts and law, so that we can say we have had proper regard to the provisions of sections 6(e), 7(a) and section 8 of the Act.

Beverley also considers the purpose of consultation to be an informative one, but includes a recognition element.66 This dual purpose of consultation is described by Beverley as the “recognition limb” and the “information limb”, and essentially suggests that consultation should be undertaken in order to recognise the rights of Maori under the Treaty of Waitangi as a party which has a right to be consulted (the recognition limb), and in order to obtain accurate and appropriate information on the potential effects on affected Maori (the information limb). This dual purpose of consultation with respect to Maori has been used in case law on a number of occasions to test whether consultation has been adequately undertaken.

  1. Environment Court Decision No A110/01, 23 October 2001, at para 447.
  2. Paul Beverley, supra note 14.

In Winstone Aggregates Ltd v Franklin District Council,67 for example, the recognition limb and information limb was used by the court to test whether consultation had been appropriate. In this particular case Winstone Aggregates Ltd were proposing to develop a quarry in Pokeno. The Court was satisfied that Winstone Aggregates Ltd had made every reasonable effort to identify affected Maori interests (recognition limb), and was satisfied that the degree of consultation undertaken was more than adequate to ensure that they were fully informed on Maori cultural issues (information limb). As a result of the consultation process, the resource consent conditions reflected the importance of the proposed quarry site to Ngati Naho, requiring ongoing consultation including twice­yearly meetings.

Whilst the dual purpose of consultation is a useful one from which to provide guidance on how consultation should be approached and conducted,68 the recognition limb may not always be relevant as this implies that Maori should be consulted as of right, given that they are a partner to the Treaty of Waitangi. As discussed previously in this article, s 8 will not always apply to all resource consent applications. This was acknowledged by Judge Sheppard in Beadle v Minister of Corrections,69 who, in discussing the use of the recog­ nition limb, stated:

In its decision in the Land Air Water case, the Environment Court identified the information purpose. That does not mean that it rejected the purpose identified by Mr Beverley as the recognition purpose. Rather, it does not appear that any party submitted that this was a possible purpose of consultation as a principle of the Treaty.

6.2 The Guiding Principles of Consultation with Maori

Significant case law has been established on consultation with Maori since the RMA was adopted. This has enabled some key guiding principles of what constitutes consultation with Maori to have been developed. These have been usefully summarised in Land Air Water Association v Waikato Regional Council,70 and are restated here as follows:

(i) The nature and object of consultation must be related to the cir­ cumstances.

(ii) Adequate information of a proposal is to be given in a timely manner so that those consulted know what is proposed.

  1. Environment Court Decision No 80/02, 17 April 2002.
  2. Ministry for the Environment, supra note 40.
  3. Environment Court Decision No A074/2002, 8 April 2002.
  4. Environment Court Decision No A110/01, 23 October 2001, at para 453.

(iii) Those consulted must be given a reasonable opportunity to state their views.

(iv) While those consulted cannot be forced to state their views they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.
(v) Consultation is never to be treated perfunctorily or as a mere formality.

(vi) The parties are to approach consultation with an open mind.

(vii) Consultation is an intermediate situation involving meaningful dis­ cussions and does not necessarily involve resolution by agreement.

(viii) Neither party is entitled to make demands.

(ix) There is no universal requirement as to form or duration.
(x) The whole process is to be underlain by fairness.

Whilst the above principles provide a useful basis for undertaking consultation, Judge Whiting also notes in Land Air Water Association v Waikato Regional Council 71 that “the method and degree of consultation will depend on the facts of each particular case”. Therefore the merits of each particular resource consent application need to be considered in order to determine the extent and nature of consultation, if it is deemed necessary that consultation with Maori is required.

6.3 Implications of Inadequate Consultation

The above guiding principles of consultation have been derived from the lessons that have been learned in the courts since the RMA was adopted in 1991. Indeed, limited, inadequate, or no consultation with Maori can have significant implications, not only for the applicant or the local authority, but also for Maori and the specific sites of interest or values that they hold important.

The following considers some of the implications of inadequate consultation, and provides examples of the consequences, as illustrated through case law.

In the author’s view, failure to consult with Maori, or indeed inadequate con­ sultation, can ultimately lead to the damage or destruction of an area or site that holds significant value for Maori. Whilst consultation does not guarantee protection (nor confer a right of veto), it provides an opportunity for a proposed activity to be adapted or modified to take into account Maori interests or values.

  1. Ibid, at para 448.

As discussed, in Helmbright v Environment Court (No 1) 72 a lack of consultation with local iwi by the council at the plan development phase led to an historic Maori battleground not being set aside by the council in the plan, and the site being subsequently approved for subdivision. In this case, the High Court had no power to intervene, as the proposed subdivision was a controlled activity in the district plan and was on privately owned land.

Another example is Ngati Maru ki Hauraki Inc v Kruithof.73 This particular case involved an application for judicial review by tangata whenua in relation to non­notified resource consent to develop private property alleged to be on a historic pa site. The High Court was critical of the local authority’s failure to recognise the historic connections in policy and plan rules. Baragwanath J stated:74

It is the responsibility of successors to the Crown, which in the context of local government includes the council, to accept responsibility for delivery of the second article promise. Nowadays the Crown is a metaphor for the Government of New Zealand, here delegated by Parliament to the council, which is answerable to the whole community for giving effect to the Treaty vision in the manner emphasised in the RMA.

Again it was found that the development could not be prevented by the High Court.

Both of these situations could potentially have been prevented had the councils involved local iwi during the plan and policy development stage. It may be that the 2005 amendments to the RMA, with the requirements under cl 3B of the First Schedule, help to ensure that this type of situation does not arise, or provide a mechanism through which Maori can highlight areas of importance to the local authorities so that they are at least considered in the decision­making process.

Probably the most significant implication for a resource consent applicant, in terms of inadequate consultation with Maori, is that a resource consent decision

72 [2004] NZRMA 119.

  1. [2004] NZRMA 1, Baragwanath J. The case is discussed in T Daya­Winterbottom (ed) Resource Management Theory & Practice 2005 (Resource Management Association of NZ Inc, 2005), by K Palmer, “An analysis of recent case law developments”. See also D Nolan (ed), Environmental and Resource Management Law, 3rd ed (LexisNexis, 2005), Ch 3, at para 3.47; Ch 14, P Majurey and C Whata, “Maori and Environmental Law”, at para 14.31.
  2. [2004] NZRMA 1, at para 57. The case is referred to by Palmer, and Majurey and Whata, in Nolan, ibid.

can be overturned. One of the first cases to test this issue was Gill v Rotorua District Council.75 In this case, the appeal was to the Planning Tribunal against a consent that had been granted for a significant subdivision development at a site (Kariri Point) on the shores of Lake Tarawera in Rotorua. Kariri Point was noted to be ancestral land to the local iwi, and the site of the proposed development was directly adjacent to a Maori Reserve. In this case the Court was critical of the council for failing to actively consult Maori in relation to the proposed development, noting that:

The council’s actions appear to have been merely passive. The test which the council has to meet under all provisions of s 7 is a high one. It is required to have particular regard to the issues listed. We have no evidence that the council gave especial regard to the Maori issues in its investigations into the proposal. The section imposes a duty to be on enquiry. The evidence disclosed the people of the area had supported the Scenic Reserve designation in 1979. The council had, until this point, supported the Scenic Reserve designation also. It should have investigated further why the Maori people supported it originally and to have been on the alert as a consequence.

The Planning Tribunal cancelled the consent, and as part of its findings noted that “the council did not actively consult with the Maori Trustees of Kariri Point Reserve in terms of s 8 of the Act”.

Similarly in Mason-Riseborough v Matamata-Piako District Council 76 the Environment Court overturned consents that had been issued for the estab­ lishment of a cellular radio base station on the lower slope of Mt Te Aroha. In this case, the mountain was recognised in the district plan as being a “Maori Historic Sacred Mountain”, and thus a recognised waahi tapu site. As such the Court found that the council was obliged, under s 8, to “initiate, facilitate and monitor the consultation process as part of the duty to take into account the principles of active protection and rangatiratanga”, yet the Court found that “in our view the respondent in this case fell well short of its obligations”.

Where consultation has not been undertaken in relation to a proposed resource consent application, it can lead to significant costs for both the applicant and Maori should they choose to appeal a decision. In the case of the applicant, the lack of consultation can result in costly delays and, as discussed above, the declining of an application. For Maori, the costs to appeal a decision can be

75 [1993] NZPT 124; [1993] 2 NZRMA 604.

76 [1997] NZEnvC 378; [1997] 4 ELRNZ 31.

considerable. In addition, where an appeal against a resource consent decision is successful, an applicant may also be required to pay all or part of the costs accrued by those that have appealed.

An example of this can be found in Marlborough Seafood Limited v Marlborough District Council,77 where an appeal was made against the Marlborough District Council decision to establish a marine farm in Kanae Bay, Port Underwood. Despite the fact that the proposed marine farm was to be located within an area which had ancestral value to the local iwi, who were also using the area for fishing, no consultation was undertaken by either the applicant or the council beyond formal notification. The local iwi were not involved in the consent process until the appeal hearing. The Court was critical of the council for failing to consult, particularly as it had acknowledged that it understood the historical relationship of Maori with the local area. The Court noted that: “In this case the Iwi have raised important concerns which should have been addressed at the council level.” However, the Court went on to say that as the council had declined the application, “... this lack of consultation is not fatal to the decision — but has meant expensive intervention by the Iwi during these proceedings”.

When consultation is not undertaken in relation to a proposed activity that affects a particular site of significance to Maori, then this has the potential to lead to entrenched views, with Maori being less forthcoming, and subsequently this may lead to less certainty of an outcome of the resource consent application.

This was demonstrated in TV3 Network Services Ltd v Waikato District Council,78 which involved an appeal to the High Court against a decision by the Environment Court to overturn a resource consent decision allowing a television translator to be located on a site alleged to be waahi tapu. In concluding the case, in which the grounds of appeal were found to fail, Hammond J noted that:

It has to be said that Tainui have not been entirely forthcoming with the appellant, apparently for fear of unduly revealing particulars of areas of cultural sensitivity. The legitimacy of that kind of concern is recognised by s 42 of the RMA. But it would be unfortunate if some greater co­operation were not forthcoming in an endeavour to avoid the distinct clash of values which faced the Environment Court. Indeed, the situation arising strikes me, with respect, as a classic case for an environmental mediation, prior to a further RMA

77 Environment Court Decision No W12/98. 78 [1998] 1 NZLR 360, [1997] NZRMA 539.

application. Otherwise the parties could well face another round of extended litigation.

As discussed, the local authority must consider an application against the provisions of Part II, in order to assess whether there may or may not be an effect on the environment as a result of an activity, and whether a potential effect is significant. If an application fails to provide sufficient information for the local authority to make this decision, they can, under s 92 of the RMA, seek further information. When this occurs (such as through a lack of consultation with Maori) delays may follow in the processing of an application and associated costs arise.

In Aqua King Ltd v Fleetwing Farms Ltd,79 a lack of consultation with Maori in relation to an application for a mussel farm led to the council delaying processing the application under s 92. This step allowed a potential competitor to put in a resource consent application for a mussel farm, and to be considered by the council ahead of the first application. In the end both consent applica­ tions were declined by the council. This example shows the potential for delays to an application where inadequate consultation with Maori has taken place, resulting in potential loss of priority in assessing the applications and thus being costly to an applicant.

Where consultation has been inadequate, it has on occasions resulted in the court adjourning a hearing, until consultation with Maori has been undertaken. Beverley discusses two cases where this has occurred.80 The first was Isobel Berkett v Minister of Local Government,81 where the hearing was adjourned to allow for consultation with a wider range of interested Maori groups as, although consultation had occurred with Maori living in the area, a number of other interested Maori groups had not been consulted. The second case was Purnell v Waikato Regional Council,82 where the Environment Court issued a minute requiring a council officer to consult with tangata whenua prior to the hearing of an appeal, despite the fact that the tangata whenua had lodged a submission.

79 [1995] NZRMA 314.

80 Paul Beverley, supra note 14, at 133. 81 A103/95, A6/97.

82 A85/96.

Under the RMA an application may be processed as non­notified if it can be shown that any effects are less than minor and written authorisation has been obtained from those parties that may be affected. For written authorisation to be obtained, consultation is required with those parties in order to demonstrate how the proposed activity may or may not affect them.

As the Ministry for the Environment points out,83 an applicant can run the risk of having a non­notified consent appealed where the adequacy of con­ sultation is at issue. In such cases, there may be allegations that the decision not to notify the application was flawed because not all of the effects were considered, and a dissatisfied party may apply to the High Court for judicial review of the decision not to notify the application.

As discussed earlier, a resource consent application is required to be accom­ panied by an AEE, which needs to be prepared in accordance with s 88 and the Fourth Schedule. In this respect an AEE needs to consider the potential effects of a proposed activity. It is also required to report on the consultation that has been undertaken in preparing the AEE.

The AEE is an important supporting document, and is used to assist the consent authority to determine whether consent should be granted. Where an AEE is considered to be deficient, the consent authority can request further information under s 92, as discussed above, or indeed commission its own reports. This process can cause delays to an application.

An AEE can be considered deficient or invalid if consultation is not under­ taken, or an AEE misrepresents the applicant’s efforts at consultation. This issue was contemplated in Ngati Hokopu Ki Hokowhitu v Whakatane District Council,84 where Judge Jackson stated:

We hold that if the AEE does not refer to consultation when it should have or if it identifies consultation as having occurred and, on the facts that is incorrect then the same general principle applies and an application for resource consent may in theory be invalid.

However, Judge Jackson went on to qualify this view, noting that in practice there are unlikely to be cases where an AEE is so deficient that it would invalidate an application.85

83 Ministry for the Environment, supra note 40. 84 [2002] NZEnvC 421; [2002] 9 ELRNZ 111, at para 73.

85 Ibid, at para 77.

We hold that at least for applications for land use consents, only in truly exceptional cases (and we cannot think of an example) would a total failure to refer to consultation mean that an AEE was so defective as to entail that an applicant should start again because the Council or Court had no jurisdiction to consider the application. The more likely consequences of a failure to report on consultation under the RMA will be justified delays under section 92 — and a possible loss of priority as in Aqua King Ltd v Marlborough District Council

— or, on appeal, an order for costs.

7. SUMMARY AND CONCLUSION

Consultation with Maori is an important part of the resource consent process, as it provides a mechanism by which sites of importance to Maori can be ident­ ified. This allows a proposed activity to be modified or adapted in order to minimise potential effects. Consultation can also assist the consent authority, when considering an application, to better understand the nature and extent of any potential effects of Maori values and interests, as part of their duties under the RMA.

However, whilst there are clear benefits in undertaking consultation with Maori, there are still some uncertainties as to where the responsibilities lie. The government in the 2005 amendments has attempted to resolve these uncer­ tainties with a new section in the RMA, s 36A, now clarifying that consultation is not a statutory obligation in relation to resource consent applications. However, this had already been established in case law and, in the author’s view, provides little further guidance for those working under the RMA. Indeed, this new section in the Act may provide a means by which applicants choose not to consult at all.

The main thrust of the 2005 amendments appears to be in strengthening relationships between local authorities and Maori groups. Changes to the First Schedule, for example, with the inclusion of cl 3A, will help to provide a more consistent approach to consultation with Maori during the policy and plan development stage. The participation of Maori during this process is fundamental for ensuring that sites of particular importance are identified and incorporated into regional or district planning documents. Reference to these documents is often the first stage in the resource consent process for applicants considering the effects of a proposed activity.


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