The new Mana Whakahono a Rohe provisions in the 2nd reading version of the Resource Legislation Amendment Bill could result in iwi decision-making and enforcement powers on resource consent applications.
The provisions (for “Iwi Participation Arrangements” at first reading) previously focused on consultation during plan making. MWRs now include ‘planning’, ‘monitoring’ and potentially ‘resource consenting’.
There were strong submissions in opposition to IPAs at select committee. The public will not get to submit comment on the much wider scope of the MWRs. They are essentially constitutional provisions. They create race qualifications for government/political office in breach of New Zealand’s international treaty obligation to eliminate all forms of racial discrimination. They should not emerge in our law without comprehensive public discussion and understanding.
The Select Committee report explains that the 2nd reading gives MRWs a “broader scope that includes consenting and monitoring”. This is through provisions that appear to have been deliberately drafted to be uncertain and obscure.
a) Section 58L – purpose of MRWs includes:
- “to record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under this Act”
- “to assist local authorities to comply with their statutory duties under this Act, including through the implementation of sections 6(e), 7(a), and 8”
b) Section 58M – Guiding principles includes
- In initiating, developing, and implementing a Mana Whakahono a Rohe, the participating authorities must use their best endeavours—
(a) to achieve the purpose of the Mana Whakahono a Rohe in an enduring manner:
(b) to enhance the opportunities for collaboration amongst the participating authorities, including by promoting—
(i) the use of integrated processes:
(ii) co-ordination of the resources required to undertake the obligations and responsibilities of the parties to the Mana Whakahono a Rohe:
c) Section 58N – Initiation of Mana Whakahono o Rohe
- At any time other than in the period that is 90 days before the date of a triennial election under the Local Electoral Act 2001, 1 or more iwi authorities representing tangata whenua (the initiating iwi authorities) may invite 1 or more
relevant local authorities in writing to enter into a Mana Whakahono a Rohe with the 1 or more iwi authorities
d) Section 58P – Time frame for concluding Mana Whakahono o Rohe – if a local authority is invited by iwi under s 58N, a MWR must be concluded within:
- (a) 18 months after the date on which the invitation is received; or
(b) any other period agreed by all the participating authorities
e) Section 58Q – contents of MWR’s has new clauses on what a MWR must have and may have. These include that a MWR:
- (1)(c)(iii) “must” record the agreement of participating authorities about – “how the participating authorities will work together to develop and agree on methods for monitoring under the Act”
- (4) “may” also specify –
(a) how a local authority is to consult or notify an iwi authority on resource consent matters, where the Act provides for consultation or notification:
(b) the circumstances in which an iwi authority may be given limited notification as an affected party:
(c) any arrangement relating to other functions, duties, or powers under this Act:
f) Section 58Q(5)(a) and (b) only allows a MWR to be altered or terminated with agreement of the “participating authorities”. This means both the iwi and local authority. If the iwi doesn’t agree, then a MWR can’t be changed.
g) Clause 1A of Schedule 1 requires MWR’s to be complied with when preparing a proposed policy statement or plan.
Funding by ratepayers
Section 58Q is extremely vague. MWRs could require local authorities to “co-govern” in monitoring and resource consenting. Councils could be told by courts that an MWR means iwi authorities must actually “participate” in monitoring and resource consent activities as “partners” with a local authority. They could be told they must fund iwi participants with ratepayer money in ways not available to elected representatives and not available to other parties affected by the exercise of the RMA powers.
No integrity assurances
The rights and powers are unconstrained by definitions and criteria. There is no Auditor-General vetting authority for corruption or self-interest. There is no requirement for succession or democracy within iwi. They trash generations of constitutional evolution designed to keep the coercive powers of government under the control of elected representatives who must go if they cannot get the voting respect of those they govern. Instead iwi can effectively offer racially inherited permanent governance seats. In effect the Bill give iwi public powers (political, legislative, administrative and information privileges) without being subject to vital integrity protections.
The changes breach to the fundamental rule of law, that “everybody is equal before the law”.
These changes have no necessary connection to the sustainable management of natural and physical resources.
Forced 18 month “agreement”: perpetual power
Local authorities must try to achieve the purpose of a MWR in an enduring manner (s 58M). A local authority must agree a MWR within 18 months if invited to by iwi. Once agreed to a MWR cannot be changed or terminated without the agreement of both the local authority and iwi.
No competence measures
There is no protection for MWRs being used inappropriately. There is no requirement for them to be audited. A MWR must record a process for identifying and managing conflicts of interests. There is nothing to require that they be effective, or to allow ordinary citizens to ensure they work. There is no protection against, for example, a MWR that allows iwi to interfere with or to delay a resource consent application for purposes that have nothing to do with environmental protection.
Negation of secular governance
The provisions may encourage local government to subject decisions to the influence of taniwha as other “cultural” assertions. The agreements may in practice establish binding legal force for particular ‘spiritual’ beliefs at the expense of the hard-won constitutional conventions supporting secular, objective, fact-based decision-making.
No practical remedies
There is no procedure prescribed for ordinary citizens to get compensation if iwi representations abuse their powers, or coerce a council to cause loss or damage including to a community generally. Although the MWRs may give iwi decision-making roles similar to councils, there is nothing to suggest they would be subject to the liability provisions of the Local Government Act 2002 or judicial review by courts.
Inquiries:
Stephen Franks
Principal Franks Ogilvie
04 815 8033
027 492 1983
www.franksogilvie.co.nz