Gordon Campbell on the challenges that the RMA changes pose for the Maori Party

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The Maori Party and the National Party are strange bedfellows, and this week has offered a few more examples of the tricky footwork required to keep this relationship on track. Plainly, Prime Minister John Key could not go to Waitangi this week and tell Maori that he’d frozen the minimum wage and also scrapped the Treaty rights granted to Maori under section 8 of the Resource Management Act – even though last year, he’d campaigned around the country on a promise to do just that.

Ditching section 8 might have triggered a reaction of seabed and foreshore proportions, and Key ( and his coalition partner Dr Pita Sharples) would have got an extremely lively reception on the Treaty grounds this week if that route had been taken.

Instead, the minimum wage announcement has been postponed for a week, and section 8 has been left untouched for now. The Maori Party shouldn’t brag too loudly though at Waitangi about how they saved these essential rights for Maori under the RMA. Because what the government is really saying is that the protections afforded to Maori under the RMA are becoming so insignificant, they’re really not worth worrying about. The question for Sharples and his colleagues at Waitangi is – do you agree, and what, if anything, are you going to do about this RMA –based erosion of the partnership principles, and of rangitiratanga and kaitiakitanga?

The key sentence in the government’s press package yesterday was that “The Technical Advisory Group has advised that case law on section 8 and the improvement in practice is such, that this is no longer a significant issue.” Case law and improved practice have now made section 8 a less important obstacle for developers, and for the Crown.

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On the surface, non-Maori have reason to feel aggrieved. Because in the context of these new RMA changes that abridge the objection and appeal rights of non-Maori against the actions of developers, the government has chosen ( for now at least) to retain the special rights that the RMA legislation extends to Maori. It doesn’t look like a ‘one waka’ approach.

Greens Co-Leader Russel Norman tends to agree : “Its certainly true that non-Maori have had their ability to participate in decision making – if this proposal goes through – significantly restricted. Whereas, Maori may nor may not find themselves [facing] equal restrictions. Its unclear to me whether they are going to get as caught up in this [extra] cost stuff, and public notification restrictions as everyone else.” The detail of the RMA Bill will spell out the legal fine print on how any differential treatment according to race under the RMA is to be managed.

The RMA changes. The most loudly trumpeted changes to the RMA that were announced yesterday had to do with the provisions for so called projects of national significance. These of course, can already be ‘fast tracked’ under the existing RMA, but the process is to be ‘streamlined’ even further.

Proposals for major projects of ‘ national significance’ will be made to a new agency, the Environmental Protection Agency (EPA), which will send major applications to a board of inquiry chaired by a current or former Environment Court judge, with a decisions to be made within nine months.

However, even projects that merely entail the repair or the improvement of a significant network – such as any project relating to roads, railways, pipelines or electricity transmission – will also qualify for this same fast track treatment, even if in itself it is not nationally significant. Clearly, almost anything could be made to fit under that umbrella.

In a parallel move, developers will be also be able to skip the local council hearings and go straight to the Environment Court, if for whatever reason, the local council agrees to surrender its involvement. “This direct referral process,” the government press package says, ” [provides] an alternative streamlined process for those applications that may not fit the criteria of being nationally significant.”

Some of these changes, as Russel Norman indicates, have an element of window dressing. The full scope of the changes and how they will work will only become evident when the Bill is tabled. As mentioned, the ‘call in’ powers for projects of genuine national significance already exist under the RMA, and have been invoked.

Nor is the nation exactly groaning under the weight of an oppressive system at present. Currently, as Norman points out, the vast bulk of projects are not notified by councils and thus sail through un-noticed and unchallenged – including some quite major ones. “We were looking at one in Taranaki. A large piece of very rare remnant lowland forest – 10 hectares, that was being bowled for dairy conversion. This was not publicly notified.” Under the new changes, the current requirements for public notification will be narrowed even further. ” People won’t know what’s going on.”

The Maori case law. In essence, the RMA changes comprise a ‘heads I win, tails you lose’ message from National to the Maori Party. When the Bill that contains yesterday’s RMA changes gets to select committee, either Maori will lose the section 8 rights altogether, should National revert to its pre-election stance – which is unlikely, since this would be a significant loss of Treaty rights fro Maori, akin to a seabed/foreshore setback.

Or alternatively, as National is saying, the current case law and practice has downgraded those rights to a point where developers don’t really need to worry unduly anymore about section 8 consultation with Maori, and with objections from iwi anymore. As we shall see, some of the ‘case law’ that the Technical Advisory Group were talking about does back up that conclusion.

So what does/did section 8 entail ? The actual wording of section 8 is here. and says: “In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi.”

The Ministry for the Environment website provides an explanation of what this means in practice :

The requirement to take into account the principles of the Treaty of Waitangi means that those with statutory functions under the RMA should be informed of, and actively consider, the concerns and needs of tangata whenua.

Note the language, which does not make it mandatory to consult, or give primacy to any outcome of that consultation. Yet in the past, many developers have interpreted the section 8 requirement to consult with iwi – which was re-inforced by RMA amendments in 2003 – as a cost burden, and a source of undue delays. In a 2002 issue of Unlimited magazine, Richard Nauck expressed the frustration being felt by some developers in these terms :

The process is painfully slow. There’s an enormous amount of uncertainty. You don’t know what you need at the beginning.” … Nauck says an investor can be granted consents, “jump through a lot of hurdles” and still face delays. “All it takes is one Maori saying, ‘This is my land,’ and it will throw projects months or years behind.”

So how come this section is – apparently – now held by the Key government in 2009 to no longer be a ‘significant issue’? Because the case law on section 8 has been eroding the rights of Maori to be consulted about, to object to, or to appeal successfully against resource consents. Perhaps someone should tell Tariana Turia. On the eve of Waitangi Day, how does she feel about hearing that her new political ally in government is describing this example of Treaty rights as no longer posing a ‘ significant issue?’

Much of the case law – and section 8 has to be read in conjunction with the supportive sections 6e, 6f and 7a of the existing RMA – does not support what a commonsense reading of those provisions might suggest. Any requirement to consult is not absolute, and there is some debate on whether it is even a right, or merely an implication of the duty to practice good faith and partnership. What duty there is to consult lies with the Crown, and with local authorities. The developer is not legally compelled to consult at all – much as it might be good practice to do so.

This MfE update on the section 8 case law is a good introduction to the subject. The survival of sections 6e, 6f, 7c and 8 are not merely of concern in themselves. They will also be increasingly incompatible with the changes intended elsewhere to the RMA – such as the changes to consent and appeal rights by local communities and to the role of local authorities with regard to so called projects of national significance. In this new, starker environment, current practice could well change – with Maori communities being driven to invoke their section 8 rights as a last line of defence. In which case, section 8 will become more, not less’ significant.’

For brevity’s sake here are a few aspects of the case law that may be of concern to the Maori Party.

Is consultation compulsory ? Not for applicants, and only (perhaps) for the Crown, the MfE paper says :

“In the Ngati Hokopu case the Court appeared to raise the bar for consultation where an applicant is the Crown. After noting that it was “unlikely that Parliament intended that consultation should be compulsory in applications for resource consent”, the Court noted that the position may be different for an applicant that is an arm of the Crown.

Overall, the trend followed by the courts has been to treat the Crown’s duty to consult with Maori as being merely a subset of its wider obligations.

Are Maori concerns to be taken as paramount ? No. Again from the MfE paper :

In Mason-Riseborough the Court noted that the importance of recognising the views of Maori cannot be denied, but that this does not extend to giving these views paramount status. A balanced, objective consideration of the relevant interests is required based on the circumstances. As this indicates, section 8 is to be balanced against the other principles and purposes of the Act and is subordinate to the purpose of sustainable management contained in section 5.

Are Kaitiakitanga and Rangitiratanga to be treated as subordinate concerns ? Yes. The rights held by Maori and recognized as Treaty principles dear to the RMA, must be interpreted against the balancing intent of the RMA as a whole. Section 7a may recognize kaitiakitanga, but in a case involving effluent discharge the court found for the dairy factory, as the MfE analysis says :

In Mahuta, the Court was faced with balancing the interests of Waikato-Tainui and the wider community over the expansion of a dairy factory, which would discharge wastewater into the Waikato River. In the circumstances of the case, the Court held that the applicant had taken a number of steps to meet the cultural concerns of the Waikato-Tainui which meant that the adverse effect on the relationship Waikato-Tainui had with the river and on kaitiakitanga would be recognised and provided for and mitigated.

The Court held: It is our judgment that because of the community value of the proposed expansion of the dairy factory, and because the cultural interests of the Waikato-Tainui people would be provided for in so many other ways which avoid tangible harm to the river, the perceptions which are not represented by tangible effects do not deserve such weight as to prevail over the proposal and defeat it.

This is not to say that the courts always find against Maori objections in resource consent cases. Indeed, the courts have extended their recognition of the legitimate interests of Maori beyond physical and economic issues, to spiritual and intangible factors. Yet it does indicate that these rights can be – and increasingly are – subordinate to other parts of the RMA. To an extent where the Key government has now concluded that developers and the Crown need no longer treat the Treaty rights held by Maori as a ‘significant’ barrier to projects that they wish to pursue. This should be a wake-up call to the Maori Party.

Why? Well, the problem is not simply that the courts are saying that the rights afforded to Maori under the RMA ( as Treaty partners, and with respect to rangitiratanga and kaitiakitanga) must be read – and balanced – against the intent of the RMA as a whole, though many Maori would object to that subordination in itself.

What it means in addition is that the legal necessity to treat Maori rights within the context of the entire RMA must – logically – serve to dilute Maori rights, over time. Because if everyone’s else’s rights to object and appeal are to be eroded under the new RMA, then Maori rights will correspondingly decline, in proportion. The trend is that the section 8 rights held by Maori are increasingly, to be conditional.

Is the Maori Party happy to be an accomplice to this trend ? Perhaps Dr Pita Sharples could take time out this week is clarify the level of protection he thinks that section 8 of the RMA does, and should, afford to Maori. Interestingly, the Maori Party do not seem to have had a representative on the Technical Advisory Group that advised on the shape of the new RMA legislation. The Act Party had in Penny Webster, a former MP on that panel.

Does Sharples agree with Nick Smith and John Key that section 8 is no longer a ‘ significant issue’ when it comes to issuing resource consents? Is he happy that the veto rights of the Minister of Conservation on coastal development have now been stripped away – a petty response to previous Minister Chris Carter for his veto over the Whangamata marina, but which could have ramifications for coastal Maori in future ? Does Sharples agree with the courts that Maori rights must be read in context with the wider intent of the RMA – and if so, is he at all concerned that the new RMA Bill will serve to erode the rights of Maori and non Maori, in tandem ?

It could be an interesting week for the Maori Party, up at Waitangi.