The now accepted principles of Te Tiriti o Waitangi/the Treaty of Waitangi were first recognised and prescribed by the New Zealand courts in the landmark 1987 Court of Appeal decision known as the Lands Case. The Court of Appeal in the Lands Case recognised that the guiding principle of the Treaty was one of partnership; partnership between the Crown and Māori and the duty to act reasonably and in good faith. Other key principles included the principle of active protection of Māori interests and the principle of informed decision making by the Crown when dealing with matters of relevance to Māori.

These principles have been at the fore of recent Treaty settlements between the Crown and Māori, and have resulted in improvements in Crown and Māori engagement. Particular improvement has been made with respect to managing the environment which has resulted in various levels of partnership being achieved between the local government and Māori concerning resource management matters. However, there is still some way to go to ensure that there is effective participation by Māori in resource management matters. This discussion piece explores how the Treaty principles, specifically the principles of partnership, active protection and informed decision making, are influencing the management of the environment.

Lack of Māori participation in resource management a key concern of the Waitangi Tribunal

The level of effective Māori participation in resource management matters is a significant concern of the Waitangi Tribunal. The question of the effectiveness of Māori participation in resource management was at the fore of the Waitangi Tribunal’s WAI 262 Report: “Ko Aoteoroa Tenei” (Report). This Report recognised the relationship between Māori and the environment and considered whether that relationship was being adequately reflected in environmental management. The Tribunal’s particular focus was on matauranga Māori and whether this was being recognised and provided for. The essential challenge identified by the Tribunal was “How can the voice ofMatauranga Māori, etched as it is in the land, still speak in our changed circumstances?”.

In considering this issue, the Tribunal considered two core Māori values: whanaungatanga, and kaitiakitanga. These values confirm that the relationship of people with the environment and its natural resources is one of kinship and guardianship and recognise what the Tribunal described as an “intergenerational obligation” on Māori as kaitiaki of the natural environment. These values represent what the Tribunal considers to be the starting point, and in effect, the desired end position of Māori with regard to their involvement in resource management.

The Tribunal investigated the effect that the Treaty has had to date on environmental management. It noted that under the Treaty, the environment as a whole is not recognised as a “taonga”, but rather particular elements of it are, such as iconic mountains and rivers, and flora and fauna which have significance in matauranga Māori. It also noted the well settled principle that the Crown could not divest itself of its Treaty obligations with respect to the environment, by dividing functions between central and local government. The Tribunal considered that to meet Treaty obligations, there are three levels of influence which should be available to Māori to enable effective management of the environment. These are:

• Control by Māori of environmental management of taonga where it is found that the kaitiaki interests should be accorded priority.
• Partnership models with Māori for environmental management of taonga where it is found that kaitiaki should have a say in decision making but other voices should also be heard.
• Effective influence by Māori to ensure appropriate priority is given to the kaitiaki interests in all areas of environmental management where decisions are made by others.

Current environmental laws failing to engage Māori

Having identified the desired level of Māori engagement in environmental management, the Tribunal undertook a review of the state of Māori engagement in light of current environmental laws, particularly the Resource Management Act 1991 (RMA). The Tribunal found the RMA was severely lacking and was clear in its condemnation of the current system of environmental management. It expressed disappointment that:

“…the RMA has almost completely failed to deliver partnership outcomes in the ordinary course of business, and that Māori are being made to expend the potential of their Treaty settlement packages to achieve results the resource management reform promised, two decades ago, would be delivered”.

A number of factors influenced the Tribunal’s finding including most notably, the almost universal failure of local authorities to transfer decision making powers to Māori either in totality, or jointly. This is despite such powers being available for many years. Instead, the Tribunal found that iwi and hapu have been having to leverage their Treaty claims to achieve some levels of influence in environmental management.

Reforms recommended

In light of the identified failings of current environmental laws, the Tribunal considers that significant reforms are required particularly in the RMA context. It made a number of recommendations including the following:

• Enhanced iwi management plans. The Tribunal considered that iwi management plans should be prepared by iwi in consultation with local authorities and should set out the iwi’s general resource management priorities in respect of its taonga and other resources within the rohe. Most significantly, the Tribunal recommended that these iwi management plans should have the same status as local authority planning instruments.
• Simplify, clarify and incentivise joint decision making roles.
• Fund iwi to effectively participate in environmental management including engaging expert consultants.
• Make greater use of national policy statements on the issue of Māori participation in environmental management.

Crown and local government to change their approach to Māori participation

To date, there have been no relevant amendments to the RMA since the Tribunal released its Report. However, the Government is proposing to address the issue of Māori participation in the much anticipated upcoming RMA reforms. Whether such reforms will go as far as the Tribunal recommends is unknown. Suffice to say, however, that the Tribunal’s recommendations if implemented would be a game changer for Māori involvement in environmental management.

At a more local level, and in the Auckland context, the provision for Cultural Impact Assessments (CIA) under the proposed Auckland Unitary Plan has been a very topical issue recently. The proposed Auckland Unitary Plan creates an obligation on resource consent applicants to engage with specific Māori groups in order to obtain a CIA for their proposed development, in certain circumstances. The issue of which circumstances trigger a CIA, and which iwi and hapu should be involved, have been hotly debated in the Unitary Plan hearings, with the Hearings Panel having to deal with somewhat polarised positions on this issue. The Panel’s recommendations on this matter are due to be released mid 2016, following which the Auckland Council will make its decisions on the recommendations.

The Auckland Council’s support for CIAs can be seen as progress for Māori participation, in the Auckland context. The fate of these CIA processes, as an example of effective Māori participation in environmental management, will be watched closely by other regions. Other local authorities are likely to consider this approach to CIAs when next reviewing their relevant plans.

While the issue of effective Māori participation continues to be debated in the context of environmental policy and laws, similar matters remain relevant to outstanding Treaty claim negotiations. However, as the Tribunal noted in its Report, Māori should not have to rely on Treaty settlements to ensure effective participation in environmental management. Proposed changes to planning instruments and environmental legislation should be judged on their own merits, rather than being seen as some sort of top up for Treaty settlement redress relevant to the issue.