NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Bill of Rights Act Reports

You are here:  NZLII >> Databases >> New Zealand Bill of Rights Act Reports >> 2009 >> [2009] NZBORARp 65

Database Search | Name Search | Recent Documents | Noteup | LawCite | Download | Help

Resource Management (Enhancement of Iwi Management Plans) Amendment Bill (Consistent) (Section 19(1)) [2009] NZBORARp 65 (15 October 2009)

[AustLII] New Zealand Bill of Rights Act Reports

[Index] [Search] [Download] [Help]

Resource Management (Enhancement of Iwi Management Plans) Amendment Bill (Consistent) (Section 19(1)) [2009] NZBORARp 65 (15 October 2009)

Last Updated: 28 April 2020

Resource Management (Enhancement of Iwi Management

Plans) Amendment Bill


15 October 2009

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

RESOURCE MANAGEMENT (ENHANCEMENT OF IWI MANAGEMENT PLANS) AMENDMENT BILL


1. We have considered whether the Resource Management (Enhancement of Iwi Management Plans) Amendment Bill (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). The Bill, a Member’s Bill in the name of Hon Nanaia Mahuta, was introduced into the House of Representatives on 24

September 2009 and is currently awaiting its first reading. We understand that the

next Members’ Day is scheduled for 21 October 2009.

2. The Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have paid particular attention to the consistency of the Bill with the freedom from discrimination affirmed in section 19(1) of the Bill of Rights Act. Our analysis is set out below.


PURPOSE OF THE BILL


3. The purpose of the Bill is to increase the influence of Iwi Management Plans (IMPs) in regional and district plans and policies, and elevate their status in the planning hierarchy. According to the explanatory note to the Bill, this will see more weight given to Iwi concerns, and encourage front-end participation in planning and the consent process as a whole rather than the current focus on objections to particular consents. The Bill also reinforces agreements reached through various treaty settlements to provide for Iwi resource management priorities in territorial authority planning documents and policies.

4. The Resource Management Act 1991 (‘the Act’) does not define an IMP however, the

term is commonly applied to a resource management plan prepared by an Iwi, Iwi Authority, Rūnanga or Hapū. IMPs are generally prepared as an expression of rangatiratanga to help Iwi and Hapū exercise their kaitiaki roles and responsibilities through local government planning processes. An IMP is a written statement identifying important issues regarding the use of natural and physical resources in a particular area.[1]

5. Clause 5 of the Bill amends sections 61(2A)(a) and 74(2A)(a) of the Act to require regional councils and territorial authorities to “recognise and provide for” the contents of Iwi management plans, rather than simply take them into account. Clause 6 of the Bill amends section 75(2) of the Act to allow territorial authorities to state resource management issues of particular interest to local Iwi in their district plans.

CONSISTENCY WITH THE FREEDOM FROM DISCRIMINATION


6. Section 19(1) of the Bill of Rights Act affirms the right of everyone to the freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Those grounds include race.

7. The key questions in assessing whether a provision gives rise to discrimination under section 19 are:

8. If these questions are answered in the affirmative, we consider the provision gives rise to a prima facie issue of ‘discrimination’ under section 19(1) of the Bill of Rights Act.

9. Arguably, in placing greater weight on IMPs, clause 5 of the Bill draws a distinction

indirectly on the basis of race. This is because it distinguishes between planning documents generated by groups that are predominately Māori and those that include non-Māori. Nevertheless, in our view, the provision does not give rise to discrimination because it does not create any substantive disadvantage.

10. In reaching this view, we have noted that section 6(e) of the Act already requires all persons exercising functions and powers under the Act to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga. This provision needs to be read with sections 7(a) and 8 of the Act. Section 7(a) requires decision-makers to pay particular regard to Kaitiakitanga (Māori stewardship). Section 8 requires decision- makers to take into account the principles of the Treaty of Waitangi.

11. The Courts have placed considerable emphasis on the proper consideration of

matters of importance to Māori in decision making under these three sections:


The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues. By s 6, in achieving the purpose of the Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for various matters of national importance, including "(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]". By s 7 particular regard is to be had to a

list of environmental factors, beginning with "(a) Kaitiakitanga [a defined term which may be summarised as guardianship of resources by the Maori people of the area]". By s 8 the principles of the Treaty of Waitangi are to be taken into account. These are strong directions, to be borne in mind at every stage of the planning process.[2]

12. Nevertheless, the Courts have made it clear that the interests of Māori are not the

only interests to consider:


While the Maori dimension, whether arising under s 6(e) or otherwise, calls for close and careful consideration, other matters may in the end be found to be more cogent when the Court, as the representative of New Zealand society as a whole, decides whether the subject-matter is offensive or

objectionable under s 314. In the end a balanced judgment has to be made.[3]


13. The term ‘recognise and provide for’ appears to require greater weight to be given to IMPs than the current directive to take IMPs into account. Nevertheless, it is apparent that the Bill does not require decision-makers to comply with IMPs above all other considerations. Other matters may still take priority in any particular case.

14. It is inherent in the purpose of the Act that the interests of some groups will take priority over others in individual cases. This priority, however, does not equate to a disadvantage for any particular group. The Bill therefore appears to be consistent with the freedom from discrimination affirmed in section 19(1) of the Bill of Rights Act.


CONCLUSION


15. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.


Jeff Orr

Chief Legal Counsel

Office of Legal Counsel


Footnotes:


1. http://www.qualityplanning.org.nz/plan-topics/faq-iwi-management.php (last accessed 15 October 2009)

2. McGuire v Hastings Council [2001] UKPC 43; [2002] 2 NZLR 577, 594 (per Lord Cooke of Thorndon)

3. Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294, 305 (Tipping J)


In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Resource Management (Enhancement of Iwi Management Plans)

Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in

the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2009/65.html