Innovations in iwi involvement: Mana Whakahono a Rohe

After several years of drafting, consulting and redrafting, the Resource Legislation Amendment Act 2017 (RLAA) came into force, for the most part[1], in April. The RLAA makes a number of significant amendments to the Resource Management Act 1991 (RMA), including changes to iwi participation arrangements.

One of the key changes is the introduction of a new Subpart 2 to Part 5 of the RMA. This subpart allows broad scope for iwi involvement in resource management matters. Sections 58L to 58U deal with iwi participation arrangements under a new name – Mana Whakahono a Rohe (MWR).

The new arrangements were not part of the original proposals for the Resource Legislation Amendment Bill (the Bill) but were included at a later stage to secure the Maori Party’s support for the Bill.

Two key provisions to note are sections 58M and 58N. The purpose of MWR is set out in section 58M and is two-fold:

  1. To provide a mechanism for iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may participate in resource management and decision-making processes under the RMA; and
  2. To assist local authorities to comply with their obligations under the RMA.

This is accompanied by a collection of guiding principles set out in section 58N. These guiding principles are rooted in collaboration and cooperation, honesty and openness, and effectiveness and efficiency.

Initiating Mana Whakahono a Rohe

A key feature of the changes is the ability for iwi authorities to initiate MWR. One or more iwi authorities can invite one or more relevant local authorities in writing to enter into a MWR at any time other than in the period that is 90 days before a local body election. Iwi authorities are encouraged to work collaboratively with the local authorities and other iwi authorities: an iwi authority seeking to initiate MWR negotiations must first consider whether there is an existing MWR and, if there is, whether to join it. If an iwi authority decides to withdraw from MWR negotiations before an agreement is reached, the iwi authority may initiate a MWR at any later time.

Where an MWR is initiated by iwi, the relevant local authority must convene a hui to discuss the process for negotiating the arrangement as soon as reasonably practicable, but no later than 60 working days after the invitation is received. This is an opportunity for the parties to agree on a process for negotiation of the MWR arrangement, which parties will be involved in the negotiation, and the deadlines by which specified states of the negotiations must be concluded. In forming a MWR, the parties must take into account any relevant iwi participation legislation and seek to minimise any duplication between their functions under that legislation and those arising under the MWR. The MWR arrangement must be concluded within 18 months after the date on which the invitation is received (or any other period agreed by the parties).

Local authorities can also initiate MWR with iwi or hapu. The parties must agree on the process to be adopted, the time period within which the negotiations are to be concluded and how the MWR is to be implemented after negotiations are concluded.

To the extent it relates to resource management matters, an existing relationship agreement can, by written agreement, be treated as MWR.

Contents and form

Aside from the requirement of all MWR to be in writing and identify the participating authorities, arrangements will differ from case to case. Once established, MWR can only be altered or terminated with the agreement of all parties.

The MWR must record the agreement of the participating authorities about matters set out in section 58R(1)(c), although the section gives no further direction as to how those matters ought to be dealt with.  These matters include:

  1. how the iwi authority will participate in the preparation or change of policy statements and plans;
  2. how the parties will undertake consultation, develop methods for monitoring under the RMA, and give effect to requirements of any relevant iwi participation legislation; and
  3. processes for identifying and managing conflicts of interest and disputes.

The substantive content of MWR arrangements will differ between agreements and can cover planning processes, iwi consultation and notification (for both plan processes and resource consent applications), and may also specify any arrangement relating to other functions, duties or powers under the RMA.  

Dispute resolution and review

The new provisions set out a process for resolving disputes that occur during MWR negotiations, i.e. before an agreement has been made. The participating authorities may enter into a dispute resolution process. If no agreement is reached, the parties may jointly or individually seek the assistance of the Minister. The Minister can either appoint a Crown facilitator, or direct the parties to use a particular alternative dispute resolution process.

Dispute resolution processes are also a mandatory requirement of a MWR and must set out the extent to which the outcome of a dispute resolution process may constitute an agreement to alter, conclude, or complete a MWR or to jointly review the effectiveness of a MWR at a later date. Notably, the agreement cannot require a local authority to suspend commencing, continuing or completing any process under the RMA while the dispute resolution process is in contemplation or progress.

There are two elements to the review provisions for MWRs. Firstly, there is a requirement for the local authority within 6 months of entering the MWR to review its policies and processes to ensure they are consistent with the MWR. Secondly, there is a requirement to review the effectiveness of the MWR every six years having regard to the purpose of a MWR and guiding principles.

Implications in practice

The practical implications of these provisions are likely to extend beyond iwi authorities and local authorities to potentially any parties involved in consenting or decision-making processes under the RMA.

The full extent of the implications of these agreements will ultimately depend on the specific contents of each agreement. However, given the statutory provisions are very broad, MWRs could extend to notification and consultation requirements, iwi role in decision-making on resource consents, plan and policy development, and/or input to monitoring (and potentially enforcement) by councils. Iwi could have a role in the decision to grant or decline resource consents. It is also possible for iwi authorities to require that they be represented on decision making panel for all resource management process including plan reviews and plan changes.

These changes represent shift towards a more inclusive focus on iwi input to planning and policy development and Treaty principles. This has the potential to require additional/ increased focus for applicants, particularly where cultural issues are at play and will require committees and panels to ensure that principles of natural justice are observed for all participants.  

 

 

[1] Section 2 provides for certain parts of the new legislation that will commence at later dates.

Posted on July 24, 2017 .