Resource Management Reform Points To Inform Discussions At MFE Hui

Introductory comments

As iwi will know, in 2019, the Government commissioned an expert review of the resource management system led by retired Court of Appeal Judge Hon Tony Randerson QC. The Freshwater ILG was not directly involved in this review.

The Panel’s recommendations were informed by consultation, submissions and a series of regional hui in February 2020. The review led to the Panel’s report New Directions for Resource Management in New Zealand published in July 2020. Following the Panel’s report, Cabinet agreed that “[T]his reform will be based on the recommendations of the Resource Management Review Panel…”[1]

The Freshwater Iwi Leaders Group have been advised that Manatū mō te Taiao, Ministry for the Environment will be conducting hui, led by Hon. Kiritapu Allan, in her capacity as the Associate Minister for the Environment. We have not been involved in organising these hui but we understand that the hui will be focused on the proposed reform of the Resource Management system.

The purpose of this high level paper, with some key points, is to assist those intending to attend the up-coming hui to understand the high level positions of the Freshwater ILG and engage with the materials presented.

Resource Management

The current resource management regime, largely regulated by the Resource Management Act 1991, is broken and in need of urgent and transformational reform.

The Report of the Resource Management Review Panel (June 2020) – New Directions for Resource Management in New Zealand, has shaped Cabinet’s direction for replacing the current Resource Management Act 1991. The Freshwater ILG’s position on the Review Panel’s primary recommendations that affect iwi/hapū are:[2]

• The definition and status of Te Mana o Te Taiao and its related reference in any purpose of the proposed new Natural and Built Environments Act (the NBA), must have integrity and resonate in terms of Te Ao Māori and the innate (whakapapa) relationship (and associated) responsibilities between Iwi and hapū and Te Taiao.
• The obligation to give effect to the principles of Te Tiriti o Waitangi must be retained (noting that this falls short of a more fundamental obligation to give effect to Te Tiriti o Waitangi itself which necessarily should be the baseline for the Crown policy and legislation in Aotearoa in 2021). This important obligation should be mandatory on all persons exercising functions and powers under the NBA and the new Spatial Planning Act (the SPA), and importantly should not be undermined by other provisions in the NBA or the SPA.
• The definition of the “environment” must expressly recognise that the whakapapa relationship and associated responsibilities between Iwi and hapū and Te Taiao are part of the “environment”, and should be recognised discretely from the generic reference to “peoples and community”.
• The definition of sustainability must reflect iwi/hapū concepts of environmental management including the fundamental principle of the environment being able to sustain itself (not simply for the purpose of utilisation by and for the benefit of present and future generations).
• Mātauranga Māori and recognition of the whakapapa relationship between iwi/hapū and the environment must be considered as part of the mandatory process to set “natural environment limits” (noting that iwi/hapū are intrinsically connected with the ‘natural environment’ as a matter of whakapapa and tikanga).
• Hapū/Iwi must be involved, through a partnership approach, in the setting of National Directions under the NBA and SPA.
• The Freshwater ILG does not support National Direction, formulated by the Minister for the Environment, for giving effect to Te Tiriti.
• The Freshwater ILG does not support a National Māori Advisory Board to monitor the performance of central and local government in giving effect to Te Tiriti. This is the role of Iwi and hapū.
• The Freshwater ILG supports enhancing the Mana Whakahono ā Rohe provisions and must be involved in co-developing these enhancements. Nothing in the reform should derogate from any current Mana Whakahono ā Rohe agreements.
• The Freshwater ILG supports having positive obligations on local authorities to use transfer of powers and joint management provisions.
• Iwi/hapū must be funded for undertaking resource management functions.
• The appropriate terminology for use in the NBA for engagement is hapū and iwi.
• The allocation of natural resources is an integral component of the NBA that must sit within the frame of “natural environmental limits”. The NBA will only be certain and durable when Iwi and hapū rights and interests in freshwater are resolved.

Importantly, the Freshwater ILG considers the provisions of the NBA and SPA must not preclude, inhibit or limit the mechanisms required to substantively address and resolve the issue of freshwater rights and interests, and records that a new freshwater statute may be required which establishes a separate regime for freshwater governance, management and allocation or amends the terms of the NBA and SPA to accommodate such a regime.

[1] The Cabinet Paper is available at https://www.mfe.govt.nz/sites/default/files/media/RMA/cabinet-paper-reforming-the-resource-management-system_1.pdf

[2] There are a range of recommendations in the Panel’s Report. These comments are focused on the primary recommendations that will likely affect hapū and iwi.