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Janet Stephenson

Title: “A Dual Approach to Resource Management”

23 Pitt St, Dunedin

Email: stephenson-williams@xtra.co.nz

 

Talk

Discussion

 

Janet has worked as a resource management planner for the past 12 years, mainly in Northland. She has recently completed her masters degree with a thesis entitled "The Planning Framework for Maori Land", which formed the basis for this talk.  She currently works for NZ Historic Places Trust and teaches a paper in planning practice at Otago University.

 

Abstract

Mäori land is possibly the only resource over which Mäori have retained unquestioned rights of ownership and use, compared to other resources (e.g. water bodies, fisheries, radio spectra etc) over which Mäori have had to claim rights of access or use.

 

Mäori land is therefore a good example to use in order to examine the implications of the Treaty of Waitangi in relation to a statutory resource management regime. 

 

My recent thesis examined the relationship between Mäori land and the resource management planning system within New Zealand, within an analytical framework of the Treaty of Waitangi and contemporary indigenous collaborative management regimes.  I found that the resource management planning system is flawed in its lack of incorporation of the principles of the Treaty and its failure to give any real effect to Article II.  This is particularly so in relation to Mäori land where it might be assumed that the concept of rangatiratanga should be most clearly expressed. The Waitangi Tribunal has also identified some fundamental shortcomings with the current resource management framework.  These findings, together with current trends such as the development of iwi/hapü management plans; the growth of parallel services for Mäori in education and health; and the increasing international recognition of indigenous land and resource management rights, challenge the current planning regime as it relates to Mäori land. 

 

Contemporary planning needs to recognise its basis in a dual heritage by reshaping its institutions and laws so as to accommodate the co-existence of an indigenous planning system.  It is suggested that this be by way of collaborative management agreements whereby resource management planning responsibilities for Mäori land are largely devolved to iwi within a framework delineating national requirements for sustainable management.

 

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Talk

Most of the discussion at this hui has been focusing on the management of specific resources such as wildlife and plants, and on methods of management of areas which are managed by the Crown for conservation purposes.  In most of these cases, there still unresolved issues of ‘ownership’ of these resources in addition to the issues of ‘management’.  As our earlier speakers have shown, seeking to define the most appropriate management options in terms of Treaty analysis and contemporary realities is particularly complicated where the issue of ownership of the resource is still under challenge. 

 

To date, resources which have been the source of debate and legal argument between iwi and the Crown and/or before the Waitangi Tribunal have been those over which Mäori have lost rights of ownership and use, such as wildlife, water bodies, coastal waters, fisheries, raupatu lands, etc. This has led to a variety of ‘solutions’ and ongoing debates as to how the Treaty promises, and in particular Article 2 of the Treaty, should be interpreted where resources are not ‘owned’ by iwi Mäori.

 

What I want to talk about today is a resource which is possibly unique because Mäori have retained unquestioned rights of ownership from pre-Treaty times to today.  The form of ownership has been completely altered by the Crown, the resource has been reduced to approximately 6% of its original quantity, and Mäori management of the resource has been modified by successive waves of legislation and institutions.  Despite this, it is a resource over which Mäori have unchallenged ownership.  It is therefore a very useful resource to use to examine just what the Treaty might mean for a resource management regime where the issue of ownership does not cloud the issue of management.

 

That resource is Mäori land.

 

My talk today is from the point of view of a planner – that is, someone whose work is primarily directed by the Resource Management Act.  My background is as a planner in Hokianga, Northland, where I was frequently involved in issues relating to Mäori land.  That experience shaped the way I think as a planner, and raised questions in my mind as to the appropriateness of the current (and historical) resource management regime for Mäori land.  These questions gave birth eventually to my thesis which examined the resource management planning framework for Mäori land in terms of the Treaty.  Some of my conclusions will be presented to you here today.

 

Ownership and management

In making this presentation I want first to make a distinction between “ownership” – that is the right to use, trade and benefit from the use of the resource, and that of “resource management” which incorporates concepts of controlling the use of the resource in order to achieve outcomes which are perceived to achieve conservation or sustainable management goals in the interests of the wider society.  In one sense, ownership and resource management can all be seen as part of a continuum of property rights relating to that resource, but in New Zealand and indeed internationally a ‘planning’ or ‘resource management’  role has been assumed by the state and/or local authorities.  This means that for any given resource we can differentiate between its ‘owner’ and its ‘resource manager’ – that is, the institution or authority (and there may be more than one) which has the vested power to make decisions as to the nature and extent of the use of that resource.    For general land, for example, an individual may own the land but the district council is the resource management authority which can control how that land is used; for the sea bed, the Crown has assumed ownership and the resource management authority is shared between the regional council and the Crown; for Mäori land, both the district council and the Mäori Land Court have a role in resource management decisions.

 

Mäori land

Today, Mäori land comprises 6.1 % of New Zealand’s land area (Table 1).  Sale, raupatu and other losses of Mäori land have led to an uneven distribution throughout New Zealand. Losses were most extreme in the South Island where only 0.47% of the land area is Mäori land, whereas in some North Island districts over 25% of the land area is still Mäori land.

 

 

Total land area per Mäori Land District (ha)

Mäori land area (ha)

Percentage of Mäori land by Mäori Land District

Tai Tokerau

1,592,842

139,873

8.76  %

Waikato-Maniapoto

2,019,874

143,388

7.10  %

Waiariki

1,780,502

426,595

23.96  %

Tairawhiti

1,075,041

310,631

28.89  %

Takitimu

1,780,706

88,608

4.98  %

Aotea

1,180,967

334,207

28.30  %

Te Wai Pounamu

15,370,489

71,769

0.47  %

TOTAL

24,800,421

1,515,071

6.1  %

 

Table 1: Area of Mäori Land by Mäori Land District 1996

(Source: Te Puni Kokiri Land Information Database)

‘Mäori land’ is not land which just happens to be owned by Mäori people.  Mäori do of course own much land which is in general title, but the term ‘Mäori land’ refers to a particular status of land which comes under the jurisdiction of Te Ture Whenua Mäori (Mäori Land) Act 1993.  It is distinctly different from all other land in New Zealand due to its form of tenure and the legislation which controls it.

 

Mäori land has existed as a unique class of land since the Native Land Act 1865, which was set up by the Crown to bring Mäori land from customary ownership into a form of tenure which had defined owners, in order to simplify its subsequent sale to the Crown or others.  In doing so the Crown introduced concepts of ‘ownership’ which were not previously held by Mäori, and made a clean sweep of two essential aspects of customary land rights – it vested ownership in individual members of a hapü or iwi, who could then sell their interests; and it also meant that use-rights to land and resources no longer depended on residence and contributions to the community, but instead automatically were transferred with ownership and descended bilaterally to subsequent generations(1)  The Crown therefore set up a tenure system which was neither traditional and nor equivalent to the tenure system for general title land.  This form of tenure has continued to this day, and amongst other things has given rise to fragmented Mäori landholdings, multiple ownership (with in some cases up to thousands of owners for a single title), and and and all the attendant land management difficulties.

 

Over and above all of this, Mäori land has immense spiritual importance as the whenua in which whänau and hapü have their roots, and this connection continues even where shareholders and beneficiaries have moved far away and no longer rely on the land for their sustenance(2). Shareholders will nearly always be able to trace their genealogical connection to their whenua back through to pre-European times.

 

Resource management

Traditional Mäori society was profoundly and intimately connected with the land.  Complex codes of behaviour were associated with the management of land under tribal control and in ensuring that food and other resources would be in ready supply(3). Over time, and probably arising from trial and error, Mäori developed intricate systems of resource management to try and ensure the sustainability of resources for the benefit of people.  The system was integrally linked with the system of land tenure, which allocated use and occupation rights but at the same time manipulated those rights in the interests of the group as a whole(4).

 

Following European settlement, the new system of land tenure radically changed the relationship between people and the land, and between members of the hapü who owned the land.  Once land was partitioned and owned as a commodity, the complex systems allocating use-rights to specific resources controls could no longer operate effectively.  Additionally, as European commodities became available, there was less reliance on traditional food sources, and traditional systems of managing native food resources in a sustainable manner became increasingly irrelevant. 

 

At no point was there a formal recognition within the Crown system of laws of Mäori traditional resource management techniques, except perhaps recognition of customary rights to fishing(5).  In a brief period after the Treaty was signed, it appeared possible that Mäori would be able to continue to exercise control within their own territories, apparently in direct recognition of the Treaty (Article 2) agreement to protect Mäori in the unqualified exercise of tino rangatiratanga over their lands. In 1842 Attorney-General William Swainson suggested the establishment of Native Districts where Mäori could live under traditional custom, subject only to the moral influence of missionaries and Protectors, but this never came to fruition(6).  In 1852 the Constitution Act provided for the 'setting apart of districts in which the laws, customs and usages’ of the Mäori should be ‘maintained for the government of themselves’ (s 71).  But there is no evidence that this provision was ever implemented. 

 

As settler pressure grew, laws which assisted with the orderly acquisition of land for townships, services and other public works were introduced, in practice frequently targeting Mäori land(7).  From 1926 town planning legislation was introduced, the forerunner of the Resource Management Act.  Initially, town planning legislation did not impact directly on Mäori land as it was confined to municipalities and their needs, and the use of Mäori land was supervised and controlled in any case by the Mäori Land Court.  By 1953, planning law applied to all land, but did not differentiate Mäori land and in doing so failed to recognise that the needs of Mäori landowners might be different to those of the agricultural sector.  This was compounded by the massive migration of Mäori to towns and cities occurring in the 1950s and 1960s (a trend reversed in the 1980s-90s), which meant that Mäori presence on their land and within the local authority consciousness was diminished(8). 

 

A small change began with the 1977 Town and Country Planning Act which introduced the relationship of Mäori with their ancestral lands as a matter of national importance, and thus heralded recognition that there might be Mäori needs not being provided for within district schemes.  This however was only a small step in the direction that Mäori felt it was necessary to move.  Providing for specifically Mäori requirements on their land, such as marae and papakainga housing, was one thing, but the larger picture of self-management was still being ignored(9). The initiation of the Resource Management Law Reform process in the mid 1980s occurred at a time when Mäori concerns about the planning process were being expressed in a number of forums.  Mäori had expressed grievance at planning constraints which had given priority to agricultural development and had made little or no provision for Mäori needs.  Some considered that local authorities were inappropriate bodies for making decisions relating to Mäori land, which was so much more complex than general land.  Partitions and some land uses required the consent of both the Mäori Land Court and the local authority, placing Mäori under a greater bureaucratic load than others in attempting to use their land.  Planning processes had effectively alienated Mäori land through esplanade and reserves contribution requirements, and through designating Mäori land for public purposes. Additionally, Mäori felt alienated by the planning system itself, and its lack of cognisance of fundamental cultural and spiritual matters of importance to Mäori.  Underlying all of this was the question of whether the planning system was in fact consistent with the promise of the Treaty of Waitangi that Mäori would continue to retain the unqualified exercise of rangatiratanga over their lands, villages and taonga(10).

 

Treaty of Waitangi – Article 2

Before looking at the Resource Management Act which emerged in 1991 from this background of Mäori concern, I want to briefly discuss what the Treaty clause on rangatiratanga might mean in relation to Mäori land.  Article 2 guaranteed to Mäori the “full exclusive and undisturbed possession of their lands and estates … which they may collectively or individually possess” (English version) and “the unqualified exercise of their chieftainship (rangatiratanga) over their lands, villages and all their treasures” (Mäori version, translation Sir Hugh Kawharu).

 

To date, neither the Waitangi Tribunal nor other courts have had the opportunity to examine what rangatiratanga might mean in relation to the use and management of Mäori land. However the Tribunal has examined rangatiratanga in relation to other resources, and over time has become increasingly clear about what rangatiratanga might mean in relation to the management of resources in which Mäori have an interest. In the Motonui-Waitara report in 1983, examining the effect of discharges on fishing grounds, the Tribunal found that

 

“… the Mäori text of the Treaty would have conveyed to Mäori people that amongst other things they were to be protected not only in possession of their fishing grounds, but in the mana to control them, and then in accordance with their own customs and having regard to their own cultural preferences”(11).

The Orakei report of 1987 found that rangatiratanga “conveyed an intention that Mäori would retain full authority over their lands, homes and things important to them”(12).

 

Similarly, the Muriwhenua land report in 1997 found that the Treaty undertook that Mäori custom and law would be respected, and that the recognition of rangatiratanga included the right to have acknowledged and respected the hapü’s system of land tenure, and also the hapü’s customary preferences in the administration of their affairs and the management of natural resources(13). And last year, in relation to the Whanganui river, the Tribunal found that “the full, exclusive and undisturbed possession of properties connotes all rights of authority, management and control”(14).

The Tribunal differentiates in these findings between possession and control of resources, and suggests that the Mäori text of the Treaty conveyed that these were both implied by the concept of rangatiratanga. It includes both ownership of any resource retained by Mäori, and the authority to control all aspects of the use of that resource.  Furthermore, the Tribunal findings clearly suggest that where Mäori has ownership of a resource, rangatiratanga rights include the right of authority, management and control of that resource.

The Treaty as a whole

In the context of the Treaty as a whole, the exercise of rangatiratanga is qualified by the sovereignty of the Crown guaranteed by Article 1, just as the Crown’s sovereignty (‘kawanatanga’ in the Mäori version) is restrained by Article 2.  An analysis by the Department of Justice in 1989 stated:

“In the Crown’s view, the First and Second articles of the Treaty are both strong statements which necessarily qualify one another … Clearly, “te tino rangatiratanga” (or “full chieftainship”) will generally take precedence in matters concerning material and cultural resources and taonga which have been retained.  Equally, however, where there can be clearly demonstrated a danger to all, or a general need which can be managed at the level of national action, the Crown must exercise its powers on behalf of all New Zealand citizens” (p11)15.

 

The Waitangi Tribunal has reached similar conclusions16 and suggests that the degree of constraint on the absolute power of Parliament varies according to the resource in question, the constraint being at its least where the Crown is addressing issues of health, safety and the general needs of the state, and at its most where it is dealing with resources owned by Mäori.

Current Resource Management framework for Mäori land

During the Resource Management Law Reform process in the late 1980s, the message coming from Mäori was that they sought a legislative and structural recognition of the Treaty and particularly recognition of tino rangatiratanga over Mäori resources.  Hirini Matunga17 summarised the main issues emerging from Mäori input into RMLR as

1.      the need to recognise Mäori ownership of certain resources for which the Crown had simply presumed ownership (i.e. water, seabed, coastal habitat etc)

2.      restoration of tino rangatiratanga over other natural resources which had been confiscated through various means by the Crown

3.      protection of and access to resources, sites, waters, waahi tapu and other taonga important to hapü and iwi irrespective of ownership

4.      provision for iwi/hapü involvement in resource decision-making processes at all levels of government as a Treaty right rather than a privilege

5.      recognition of iwi/hapü rights of self-government over resources under Mäori title

 

The Resource Management Act 1991 largely failed to address these issues. The first two have continued to be strongly pursued through Treaty claims, with some success in settlements that include the recognition of ownership or more limited rights over certain resources, and/or compensation, apology and deeds of recognition.  Issues 3 and 4 are given a small degree of  recognition in the RMA and there is now a considerable body of case law that outlines consultation requirements where Mäori resources or interests may be affected, but goes no further in providing for Mäori involvement in decision-making. 

 

The final issue of recognition of iwi/hapü rights of self-government over resources under Mäori ownership has received little prominence, either within the RMA process or (apparently) in the wider forum. It may have been that concerns about the assumed ownership by the Crown of many natural resources, and the expressed desire of Mäori to have a role in all resource decision-making blinkered a closer examination of the implications of the Treaty on those resources which had never left Mäori ownership.  Had discussions not focused so closely on the management of resources under claim, the RMLR process might have given rise to a resource management regime that gave some practical recognition of tino rangatiratanga in relation to Mäori land.

 

Be that as it may, the new resource management framework which emerged from the RMLR process placed two forms of control over Mäori land.  Unlike any other land in New Zealand, the use and subdivision of Mäori land is under the control of two different authorities working under two different statutes - local authorities under the Resource Management Act 1991 (RMA), and the Mäori Land Court under Te Ture Whenua Mäori (Mäori Land) Act 1993 (TTWMA). 

 

The powers of the Mäori Land Court are very broad but include the approval of partitions, roadways, house sites and reserves, in addition to its role in facilitating the occupation, use and development of land.  In some aspects (approval of hapü partitions, roadways and reserves) its powers mirror those of local authorities for general land.  In other aspects it has a dual role with local authorities in approving land development (non-hapü partitions and occupation orders). This creates a complex system for Mäori land whereby certain decisions are made by the Mäori Land Court, some are solely under the jurisdiction of the local authority, and some require the separate approvals of both agencies.

 

In comparison to TTWMA, the Resource Management Act has a much broader resource management focus and has the potential to restrict the use of Mäori land to a greater extent in the interests of sustainable management.  The RMA, in its Purpose and Principles, introduced a wider recognition of issues of importance to Mäori than previous planning legislation.  One of the five ‘matters of national importance’ is the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga (s6(e));  kaitiakitanga must be given particular regard (s7(a)); and all persons exercising functions and powers under the Act shall take into account the Principles of the Treaty of Waitangi (s8).  This last provision has been strongly criticised by the Waitangi Tribunal because the Crown, in devolving its powers to local authorities through the RMA, has not also devolved its Treaty responsibilities but has merely required local authorities to take them into account.

 

A handful of other provisions relate specifically to Mäori.  Alienation of Mäori land through esplanade reserves and other reserves contributions has been prevented through the RMA’s specific exemptions for most Mäori land partitions and financial contributions.  New provisions requiring local authorities to ‘have regard to’ iwi planning documents have proved to be of limited effect. Few such documents have been produced, probably because the Act does not give them any legal standing, and because there is no dedicated funding source for their development.  The provision in the Act for a transfer of powers from local authorities to iwi has never been exercised to date.  The concept may be one which is too threatening to local authorities, or it may be that iwi groups do not feel ready to take on the challenge.  Nevertheless, the provision does hold out interesting possibilities for a greater degree of management by iwi of their own resources.

District plans

The real impact of the resource management regime for Mäori land does not arise from the RMA itself so much as the policies, methods and rules contained in district plans developed under the Act by local authorities.  It is at this level where rules may or may not allow for particular activities on Mäori land, and where local authorities can determine to what extent they will involve Mäori in resource management processes. 

 

My research assessed a number of district plans to see how they provided for Mäori aspirations in a practical sense.  Firstly, I assessed how difficult it would be for Mäori owners to establish papakainga (multiple housing) in rural areas. I found that while almost all of the plans contained policies which directly referred to Mäori land and/or papakainga housing, and usually stating an intent to ‘allow’ or ‘provide for’ such housing, this did not necessarily follow through into the rules, and in at least half of the plans owners would need to gain resource consent even for very low density housing (3 houses on 10 ha). 

 

I also assessed the methods proposed to be used to involve Mäori in resource management processes.  The most common method referred to was ‘consultation’; other methods included holding hearings on marae where appropriate, appointment of Mäori experts to hearings panels where appropriate, and taking into account iwi planning documents.  Interestingly, transfers of power to iwi was not referred to, despite this being specifically provided for in the RMA.

Levels of involvement in resource management

I then sought to compare these findings with the level of involvement in resource management desired by Mäori for their own land.  My source of information was the submissions made by Mäori individuals, hapü, land trusts and tribal organisations on a proposed district plan for an district with a 41% Mäori population and significant areas of Mäori land.  These submissions sought greater involvement by Mäori in planning and decision-making for Mäori land; a formal role for iwi management plans; for environmental standards for Mäori land to be developed by Mäori; to allow Mäori to use or redevelop traditions of environmental management; and most fundamentally a formal recognition of rangatiratanga.

 

To compare the level of involvement offered through the district plans with that sought by Mäori, I used a table developed by an American researcher and academic, Fikret Berkes to define levels of collaborative management (Table 2).  I found that district plans offered involvement at levels 2 to 4 (consultation, communication); whereas Mäori sought involvement at levels 5-7 (advisory committees to partnership/community control).

 

7

Partnership / Community Control

Partnership of equals; joint decision making institutionalised; power delegated to community where feasible

6

Management Boards

Community is given opportunity to participate in developing and implementing management plans

5

Advisory Committees

Partnership in decision-making starts: joint action or common objectives

4

Communication

Start of two-way information exchange: local concerns begin to enter management plans

3

Co-operation

Community starts to have an input into management; eg use of local knowledge, research assistants

2

Consultation

Start face to face contact; community input heard but not necessarily heeded

1

Informing

Community is informed about decisions already made.

 

Table 2:   Levels of Collaborative Management  (Berkes 1981)

 

These findings raised the question of who was right – the local authorities or Mäori submitters?  In terms of the Treaty, should Mäori only be involved in resource management for Mäori land at a lower consultative level or should they be more actively involved in decision-making? 

Is the RMA consistent with the Treaty?

I looked first at what direction the RMA gives about Mäori involvement in decision-making.  Rather than look at the words of the RMA, it was more productive to review the decisions of the Environment Court and higher courts which have examined the ‘Mäori’ provisions of Part II of the Act in relation to resources in which Mäori have an interest.  Where the Court has agreed that there are issues of importance to Mäori, it has most commonly found that Part II of the RMA denotes a requirement on local authorities to consult with tangata whenua(18).  In a couple of cases relating to sand extraction, the Court has found that rangatiratanga can be recognised by giving Mäori a role in monitoring(19).  Apart from this, the Environment Court has not yet made any extensive consideration of the Treaty principles as they might apply under the RMA, and has not suggested any other ways to recognise rangatiratanga.

 

Current interpretations of the RMA, then, do not suggest that it requires any greater level of involvement for Mäori than that already offered through district plans; i.e. at around levels 2-4.

 

But is the RMA itself consistent with the Treaty?  This question has been explored by the Waitangi Tribunal in two significant reports.  One was the Ngawha geothermal report in 1993 regarding (amongst other things) whether the resource management regime imposed over geothermal waters by the RMA ensured that a hapü’s Treaty rights were protected in relation to that resource.  The Tribunal found that the Crown, in delegating extensive powers to local and regional authorities through the RMA, had failed to ensure that its duty of protection of Mäori interests would be implemented, and also that

…it appears that in promoting [the RMA] the Crown has been at pains to ensure the decision makers are not required to act in conformity with and apply Treaty principles… For this reason we believe the 1991 Act to be fatally flawed.(p154)(20).

 

The Tribunal further found that the claimants were prejudicially affected by the absence of any provision in the RMA giving priority to the protection of their taonga (the geothermal resource) or confirming their Treaty rights to exercise rangatiratanga and kaitiakitanga in managing and controlling the resource as they wished.

 

The Whanganui River report(21) was also strongly critical of the RMA.  It investigated claims by the Atihaunui tribe primarily regarding ownership and management of the river, one of the central issues being the role of the RMA in vesting control of the use of the river in the hands of regional and territorial authorities.  The Tribunal found that

“To the extent that the Resource Management Act vests authority or control in respect of the river in other than Atihaunui, without Atihaunui consent, that Act too is inconsistent with Treaty principles…  ‘Management’ is the word used for the powers exercised in relation to the Act, but on our analysis of the statute, the powers given to regional authorities in respect of rivers are more akin to ownership.  However viewed, and no matter how often it is said that the Resource Management Act concerns management and not ownership, in reality the authority or rangatiratanga that was granted to Atihaunui has been taken away” (p339)

 

The Tribunal found that the RMA should require local authorities to act in a manner that is consistent with, and gives effect to Treaty principles.  It noted that while it is desirable to have a single Act with a coherent national strategy for resource management, uniformity cannot prevail over the need to do justice.  In this instance it suggested a collaborative management regime for the Whanganui river, to be exercised by Atihaunui and the local authorities. It proposed that Atihaunui’s rangatiratanga over the river would be most appropriately recognised by either vesting the river in Atihaunui, with resource consent applications being approved by the Whanganui River Mäori Trust Board, or alternatively requiring the approval of both the Mäori Trust Board and the local authority.

 

These proposals are at level 7 (partnership/community control) of Berkes’ Table of Collaborative Management (Table 1).  This is consistent with the level of involvement sought by Mäori in submissions to the district plan.

 

In both of its reports, the Tribunal’s application of Treaty principles led to the conclusion that Mäori should have a direct role in resource management decision-making for resources in which they had a legitimate interest (although in these cases not formally ‘owned’).  There have been no similar claims considered by the Tribunal for Mäori land, but the findings are clearly directly applicable to Mäori land, a resource undoubtedly owned by Mäori.  

 

My conclusion from these findings is that Mäori land requires a different planning approach to other land – an approach which is better able to give effect to the Treaty principle of rangatiratanga by giving Mäori a direct role in resource management over Mäori land.

A different resource management framework for a different class of land?

At first glance, the concept of a different resource management framework for a particular class of land seems to be flying in the face of the RMA, which after all was set up to give a common direction in place of a previous plethora of multi-directed legislation. Currently, the Resource Management Act purports to offer a single regime with a single purpose – sustainable management - for all land.  This is not in fact the case.  For the class of Crown land which is managed as Conservation estate (28.8% of New Zealand)(22) most land use activities are exempt from control under district plans as long as they are in accordance with the relevant Conservation Management Strategy or Plan and there is no significant adverse effect beyond the boundary of the area of land. These Strategies and Plans are not approved under the RMA regime but by the NZ Conservation Authority. There is no requirement for Conservation Management Strategies and Plans to meet the ‘sustainable management’ test of the RMA, although the Conservation Act 1993 has a strong protection mandate and as such is not inconsistent with the RMA’s purpose and principles.  In respect of the Crown conservation estate, therefore, the RMA sets an interesting precedent by creating an alternative resource management regime which applies to a specific class of land.

 

Also relevant, as described earlier, Mäori land already has a somewhat different resource management regime to other land, due to it falling under both the RMA and TTWMA.  Table 3 attempts to summarise the current resource management framework for the three classes of land: Mäori land, Crown conservation land and all other land.

 

 

Principles underlying resource management regime

Resource management decision-makers for land use

Mechanisms for planning and regulation

Mäori land

Sustainable management of natural and physical resources (RMA)

and Promotion of the effective use, management and development of land (TTWMA)

Territorial authorities and  Mäori Land Court

District plans – zones, standards, rules

and

Orders of the Mäori Land Court

Crown conservation land

Integrated management of natural and historic resources for conservation purposes (CA 89)

Conservation authority / Department of Conservation

Conservation Management Strategies and Plans

All other land

Sustainable management of natural and physical resources (RMA)

Territorial authorities

District plans – zones, standards, rules

Table 3:  Current land management framework for different classes of land

 

Problems with the current resource management framework for Mäori land include the complex regime with no single overriding principle, the requirement for Mäori owners to deal with different consent agencies depending on what they want to do, and the fact that where certain land use decisions are made by the Mäori Land Court outside of the ‘sustainable management’ principles of the RMA.  Above all, the framework does not provide adequately for Mäori aspirations and is not consistent with the principles of the Treaty, and in particular does not give recognition to rangatiratanga.

How should rangatiratanga be recognised?

The current RMA regime does give some leeway for developing better approaches to Mäori land management.  District plans could better reflect Mäori aspirations for their land.  Section 33 of the Act could be used to transfer powers to iwi/hapü. Local authorities or the Crown could assist pilot projects to enable Mäori to explore both traditional and contemporary methods of resource management on their land.  Protocols and deeds of recognition could be developed between Mäori owners and local authorities.  However none of these approaches resolves the fundamental problems with the RMA pointed out by the Waitangi Tribunal – namely the fact that it is inconsistent with the Treaty principles and does not give appropriate recognition to rangatiratanga.

 

The concept of rangatiratanga, as I have discussed, is not confined to ownership but also includes rights of authority, management and control of resources.  However, these rights are part of a hierarchy of interests in which the Crown has the prime obligation to control and manage resources where this is in the wider public interest. The Court of Appeal in Ngäi Tahu(23) noted

 

Clearly whatever version or rendering [of the Treaty] is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources.  The rights and interests of everyone in New Zealand, Mäori and Pakeha and all others alike, must be subject to that overriding authority. (p558)

 

At the same time, contemporary analysis of the Treaty through the judicial process is concluding that the Treaty agreement that Mäori should retain tino rangatiratanga does give Mäori a special role within the sovereign state. The Radio Frequencies report of the Waitangi Tribunal(24) found that the Treaty creates a hierarchy of interests in natural resources:

 

Based on the twin concepts of kawanatanga and tino rangatiratanga, first in the hierarchy comes the Crown’s obligation or duty to control and manage those resources in the interests of conservation and the wider public interest. Secondly comes the tribal interest in the resource. Then follows those who have commercial or recreational interests in the resource. (p 42).

 

These interpretations have much in common with contemporary international environmental law.  Despite the increasing emphasis on indigenous rights in environmental law as well as human rights law, these rights do not include a privilege of unsustainable resource use.  Indigenous rights to self-determination do not come unrestricted, but with an obligation to accept a common responsibility for environmentally sustainable development(25).  This is clearly stated in Article 10(c) of the Biodiversity Convention:

The protection and encouragement of customary use of biological resources is provided only in so far as it is compatible with sustainable use requirements. Working out how sustainable use is to be achieved can only be done with the effective participation of indigenous peoples(26).

 

Internationally, governments are increasingly moving into collaborative agreements with indigenous groups for the management of indigenous lands and resources. These agreements, which generally involve the exercise of at least some traditional management methods, are consistent with contemporary international environment law and international human rights instruments.  In almost all cases, groups do not have complete autonomy but practice it within limits set by government(27).

 

A framework for the appropriate recognition of rangatiratanga for Mäori land should therefore

(a)  take into account the Crown’s role in ensuring the interests of sustainable management, conservation and other aspects of the ‘wider public interest’ are adequately met, and

(b)  must be consistent with the principles of the Treaty of Waitangi, and

(c)  must recognise Mäori authority over Mäori resources and provide practical mechanisms by which this can be expressed.

Ideally, the framework would provide a unified regime for Mäori land rather than the current two-authority regime. This would require amendments to the Resource Management Act and also to Te Ture Whenua Mäori Act.  Table 4 shows how this might operate.

 

 

Principles underlying resource management regime

Resource management decision-makers for land use

Mechanisms for planning and regulation

Mäori land

Sustainable management of natural and physical resources  (RMA)

 

Iwi or hapü-level authorities

Planning documents developed by iwi or hapü within a sustainable management framework

Table 4: Possible future land management framework for Mäori land

 

In the solution I am suggesting, Mäori land would continue to operate under a sustainable management regime but with planning documents developed by iwi/hapü within that framework, in much the same way as district plans are developed.  There are many different approaches to achieving sustainable management, and Mäori may choose to explore a variety of culturally appropriate ways to achieve this.  Once such plans were approved (and this may be a role of the Crown rather than local authorities) they could be administered by iwi or hapü-level authorities.

 

These suggestions are made not because they are seen as an ultimate solution but because, in comparison with the current regime, they seem to come closer to the concept of exercising rangatiratanga through collaborative management as articulated by the Waitangi Tribunal.  There may be many other ways of achieving such an outcome. Some critical matters for consideration might include

·         Are there changes needed to the concept of sustainable management as articulated in the RMA so as to make it more consistent with the expression of rangatiratanga over Mäori resources?

·         What are the conservation interests and wider public interests in Mäori land? Is it possible (and appropriate) for these Crown-level interests to be codified?

·         Which Mäori authorities should be responsible for developing and administering plans (i.e. at which level should this form of rangatiratanga be expressed)?

·         How would the development and administration of such plans be funded?

 

Conclusion

The planning framework for Mäori land is currently unsatisfactory for Mäori.  Historically, planning-related legislation has either ignored the existence of Mäori land and traditional resource management practices, or focused on Mäori land as a wasted resource which should be better utilised for the common good.  The current RMA framework has only partially addressed the concerns Mäori expressed during the resource management law reform.  District plan provisions do not provide Mäori the level of self-determination they seek for their own land. Furthermore, the Waitangi Tribunal continues to criticise the Resource Management Act’s failures with regard to the Treaty principles.

 

Contemporary resource management practice needs to recognise its basis in a dual heritage by reshaping institutions and laws so as to accommodate the co-existence of an indigenous system.  This could occur by way of collaborative management agreements whereby resource management planning responsibilities for Mäori land are largely devolved to iwi/hapü within a framework delineating the Crown’s kawanatanga requirements.

 

There are a number of advantages of adopting a new regime for Mäori land planning.  Land is at the heart of Mäori society, and giving practical recognition to rangatiratanga on Mäori land would enhance mana and traditional relationships between Mäori and their land and resources. A major priority for many Mäori is the development of under-utilised Mäori land to enhance their social, cultural and economic well-being. Increased participation of iwi members at all levels of resource management decision-making will help towards removing barriers, increase involvement in their own land, and provide a greater degree of self-determination.  Active participation in the management and protection of Mäori land and its resources would also enhance national approaches to resource management by retaining and enhancing traditional Mäori knowledge and management techniques.  Experience gained through planning for Mäori land and its resources could be extended to the management of other resources as appropriate.

 

The challenge for Mäori in such a regime will be in redeveloping traditional forms of resource management and conservation while at the same time adopting, adapting and inventing new concepts, techniques and institutions.   The challenge for the Crown will be to accept the real involvement of Mäori in resource management planning and decision-making, and to enter into agreements that formalise this expression of rangatiratanga.

 

Reference Notes:

 

1 McHugh, AG 1994: Grievance Resolution in New Zealand - an address to the Native Title and TransTasman Experience Conference 24/25 Feb 1994

2 Jarman L, M Moeau-Punga and P Moeau 1996: Ko Papatuanuku te Matua o Te Takata: Managing Papatuanuku; essential differences between Mäori and western ways of viewing resource management in Resource Management: Issues, Visions, Practice - proceedings of a symposium July 1996. Centre for Resource Management , Lincoln University, Canterbury;

  Roberts, M et al. 1995 : Kaitiakitanga: Mäori perspectives on conservation. Pacific Conservation Biology Vol 2: 7-20;

  Tomas, N 1994:  Implementing Kaitiakitanga.   Environmental Law Reporter. July 1994. p39-42;

  Marsden, M., D. Palmer and A. Goodall 1989:  Resource Management Law Reform: Part A, The Natural World and Natural Resource: Mäori Value Systems and Perspectives.  Ministry for the Environment ;

  Waitangi Tribunal 1997:  Muriwhenua Land Report (Wai 45).  GP Publications, Wellington.

3 Ibid.;

  Best, E 1924: The Mäori as he was. AR Shearer, Government Printer;

  King, M (Ed) 1975: Te Ao Hurihuri - The World Moves On. Hicks Smith & Sons Ltd;

  Waitangi Tribunal 1992:  Te Roroa Report (Wai 38).  Brooker and Friend, Wellington;

  Pond, W 1997: The Land as a Tradeable Commodity New Zealand Books Dec 1997 32;

  Rei, T and R Young 1991: Customary Mäori Land and Sea Tenure. Manatu Mäori (Ministry of Mäori Affairs)

4 Kawharu, I.H. in Grocombe, RG (Ed) 1971: Land Tenure in the Pacific. Oxford University Press;

  Waitangi Tribunal 1997:  Muriwhenua Land Report (Wai 45).  GP Publications, Wellington.

5 Tamihere, J. 1984: Te Take Mäori: A Mäori Perspective of Legislation and its Interpretation with an Emphasis on Planning Law. Auckland University Law Review 5

6 Ward, A 1974: A Show of Justice - Racial ‘Amalgamation in Nineteenth Century New Zealand.  Auckland University Press / Oxford University Press.

7 Marr, C 1997: Public Works Takings of Mäori Land, 1840-1981- Rangahaua Whanui National Theme G. Waitangi Tribunal

8 Russell, Judge R.M. 1982 : Subdivision and Partition of Mäori Land. Unpublished paper.

9 Stokes, E 1980:  Recreation and Preservation of Sacred Mountains.  Paper presented to Land Use Seminar - Recreation and Preservation, February 1980 Dunedin.;

  Asher, G 1982: Mäori Land and Planning Law. Paper given at Tapeka Marae, Tokaanu, October 1982

10 Gray, M.M, JA Hayward, BDM de Ronde, DJ Shearer 1988 : The Treaty of Waitangi and its Significance for the Resource Management Law Reform.  Ministry for the Environment;

  Hughes, H 1988: Environmental Management and the Principles of the Treaty of Waitangi Parliamentary Commissioner for the Environment;

  Kelsey, J 1989: The Treaty of Waitangi, Local Government Reform and Resource Management Law Reform.  Paper presented to NZ Institute of Planning Conference May 1989;

  National Mäori Congress/New Zealand Mäori Council/New Zealand Mäori Women’s Welfare League 1991: A collective submission on supplementary order paper No 22 Resource Management Bill

11 Waitangi Tribunal 1983: Motonui-Waitara Report (Wai 6) Department of Justice Wellington

12 Waitangi Tribunal 1987: Orakei Report (Wai 9) Brooker and Friend Wellington

13 Waitangi Tribunal 1997:  Muriwhenua Land Report (Wai 45).  GP Publications, Wellington.

14 Waitangi Tribunal 1999:  Whanganui River Report (Wai 167) GP Publications, Wellington

15 Justice, Department of 1989:  Principles for Crown Action on the Treaty of Waitangi.  Department of Justice, Wellington

16 Waitangi Tribunal 1994:  Mäori Electoral Option Report (Wai 413) Brooker and Friend, Wellington;

   Waitangi Tribunal 1995:  Turangi Township Report (Wai 84).  Brooker and Friend, Wellington.

17 Matunga H 1997: The Dual Heritage University of Auckland News Sept 1997

18 Gill v Rotorua District Council (1993) 2 NZRMA 604;

    Quarantine Waste (NZ) Ltd v Waste Resources Ltd (1994) NZRMA 529 (HC);

    Ngatiwai Trust Board v Whangarei District Council (1994) NZRMA 269);

    Worldwide Leisure Ltd v Symphony Group Ltd (1995) NZAR 177 (HC)

19 Seatow Ltd v Auckland Regional Council  (1994) 3 NZPTD 123;

    Haddon v Auckland Regional Council (1994) NZRMA 49

20 Waitangi Tribunal 1993:  Ngawha Geothermal Report.  Brooker and Friend, Wellington.

21 Waitangi Tribunal 1999:  Whanganui River Report (Wai 167) GP Publications, Wellington

22 Department of Conservation and Ministry for the Environment 1998b: New Zealand’s Biodiversity Strategy: Our Chance to Turn the Tide. DoC/MfE

23 Ngäi Tahu Mäori Trust Board v Director-General of Conservation (1995) 3 NZLR 553

24 Waitangi Tribunal  1990: Report of the Waitangi Tribunal on claims concerning the allocation of Radio Frequencies (Wai 26 and Wai 150) Brooker and Friend, Wellington

25 Bosselmann, K 1997: The Right to Self-determination and International Environmental Law: An Integrated Approach. NZ Journal of Environmental Law Vol 1

26 United Nations Conference on Environment and Development 1992:  The Outcomes of the Conference.  Ministry of External Relations and Trade; Ministry for the Environment, Wellington.

27 Bosselmann, K 1997: The Right to Self-determination and International Environmental Law: An Integrated Approach. NZ Journal of Environmental Law Vol 1;

    Coates, K and McHugh PG 1998: Living Relationships – Kokiri Ngatahi – The Treaty of Waitangi in the New Millennium

 

 

 

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Discussion

 

Question/Comment (Tiny Metzger, Awarua Runaka and the Waitutu Land Incorporation)

Kia ora.  Have you done any study of the South Island Landless Natives Act land?  That land was given to the natives for their uninhibited use and I’d just like to know how the Resource Management Act impacts on that.  To my mind the Act is shifting the goal posts after the game has started.

 

JS - When I did this study, I was looking purely at Mäori land, and being in Hokianga I wasn’t actually aware of SILNA as a particular class of land.  SILNA lands are freehold title, right?  Well currently the Resource Management Act sets up a regime whereby sustainable management is the overriding principle and any proposal has to be assessed in terms of those principles and a decision made according to whether adverse effects are going to occur on the environment or not.

 

 

Question/Comment (Tiny Metzger)

How can that Act override the original Act that gave us uninhibited use?

 

JS - There is a lot of perceived unfairness that has arisen as a result of the Resource Management Act, so you’re not the only person feeling aggrieved.  There are plenty of people in Northland who I know well who feel their rights have been taken away from them as well. It was a major issue both amongst Mäori land owners and amongst Pakeha farmers that the Act brought in, as a matter of national importance, the protection of areas of indigenous forest.  Like you, they are saying “…but we’ve kept these forests here all our lives, we’ve protected them, we’ve thought they were a retirement fund.”  Or "we love them but we might want to use them in the future, we don’t feel our rights should be taken away.”  I think that issue of rights is something that we actually need to debate as a nation.  In fact it seems to me that as part of the “Bio-what” round of discussions that issue has been quite well thrashed out and I am hoping that there will be some policy decisions from Government as to how that issue should be dealt with.

 

TM - We usually take a line of least resistance anyway. Like I applied for a consent to take gravel off the beach to build our lives in there and I was told it would be at least a year before I could get it. Well that’s fine. They have got 10 years of extraction to catch up on anyway.

 

 

Question/Comment (Kevin Prime)

Hi Janet.  Thanks for that.  My question covers Section 11, the hapü partitions.  Were there any obligations for rating, like say if you had more than two houses or three houses on the one section?

 

JS - Neither the Resource Management Act nor Te Ture Whenua Mäori Act say anything at all about rating.  They come purely and simply under the Rating Act, so it’s a separate issue as far as my analysis was concerned.  I haven’t actually looked into whether rating is fair or not.  That's a whole other issue.

 

KP - I was asking how the District Council has recognised those differences, not how you have seen it.

 

JS - No, I don’t know, I’m sorry Kevin.

 

 

[Kaiwhakahaere asks Janet to continue describing her research].

 

 

Well one other thing that I did as part of my research is that I traced legislation from 1840 onwards to see how legislation provided for Mäori resource management or planning (or whatever it was called in those days because the words have changed) on their own land.  It was very interesting actually.  Immediately after the Treaty there was obviously still a bit of a realisation that the Treaty was alive and real and there was some feeling from those in power that there was a reality to rangatiratanga.  It was in 1842 I think that Governor William Swainson suggested that there should be independent native districts where Mäori lived under their own rule, subject I think to what they said was the ‘moral suasion’ of the missionaries [laughter].  But as far as I know nothing ever occurred of that sort.  Also in 1852 the Constitution Act provided for the setting aside of native areas where, as they called them, natives could basically run their own affairs.  But again that never got off the ground as far as I know in any areas.  Subsequently with the developing freeholding of land, obviously Europeans tended to take the best of the land and Mäori land tended to be pushed more and more and more into the back blocks.  There's a very significant difference between the quality of Mäori and European land two in terms of its potential for agricultural use.  There’s also a much higher proportion of Mäori land that is under indigenous forest than general European land.  It’s something like 5% of general land and about 30% of Mäori land that is in some sort of indigenous cover.

 

Planning instruments really didn’t come in till about 1926 but prior to that there were a whole range of ways that the Crown or Local Authorities would take land for public purposes.  They very typically would tend to focus on Mäori land because it was available and probably relatively cheap for things like railways, rubbish dumps, post offices, whatever.  In 1926, a Town Planning Act first came in and that only applied initially to towns and so Mäori land wasn’t really impacted on.  In any case Mäori land was, at that stage, controlled fairly heavily by various Mäori Affairs Acts.  In 1953 we had the Town and Country Planning Act which really gave no recognition whatsoever to Mäori land although it did cover all land in the district.  It was very much, in the rural areas, focused on the needs of the agricultural industry.  It really wasn’t until the 1977 Town and Country Planning Act that there was a minor recognition of Mäori values by the inclusion of a matter of national importance that said that the relationship of Mäori and their culture and traditions with their ancestral land was a matter of national importance.  But what was happening about that time is that there’d been a whole migration of Mäori leaving their land and going to the cities from about the 1950s onwards.  For Local Authorities who were developing their district plans (district schemes in those days) there were so few Mäori around that they felt that they were declining and they didn’t really take much account of Mäori needs on their land.  It wasn’t really until the 1970s and 1980s when Mäori started coming back that recognition started to come into district plans.

 

 

Question/Comment (Ken McAnergney, SILNA owner)

Thank you Janet for a very thought provoking presentation.  You’ve made some very interesting suggestions about possible changes to the Resource Management Act (RMA).  Have you been commissioned to do this?

 

JS - No, not at all.

 

KMcA - I’m wondering how Mäori can take advantage of your work.  Perhaps your thoughts should be communicated to the Federation of Mäori Authorities in Wellington who could take up part of this as a challenge.  Have you given any consideration to that?

 

JS - No I’ve not.  I’ve not published anything to date in relation to the research.  I gave a small talk at the Planning Conference slightly similar to this and this is really the first major forum that I’ve presented it at.  I haven’t made any decisions about what to do with the information from here on.

 

KMcA - What was the response at the Planning Conference to your paper?

 

JS - Well it was interesting.  It was just a small workshop of self-selected people who were interested in hearing about Mäori land issues.  There were really only about 15 people there and it was a mixture of planners who were interested in Mäori issues and interestingly enough local councillors. It actually had a surprisingly good reception.  People understood what I was saying and didn’t feel horribly challenged by it.  I think because they were already working in the field they could see that the issues I was talking about were very real for Mäori.

 

 

Question/Comment (Tungia Baker)

Kia ora Janet.  I want to make three comments.

 

First of all, we all need to say thank you to Ngäi Tahu for this outcome here.  If it hadn’t been for Sir Tipene in the years when he was at Training College, actually getting into Mäori land research and the necessity to pull the legal community into recognising the difference between the way in which Mäori land was treated and the way in which Pakeha land was treated, this sort of research would never have emerged.  If there’s one thing that puts Ngäi Tahu on the record it will be the work that Tipene did in requiring the legal community to recognise the particular tools that were needed in conveyancing of Mäori land title.  Mäori land was never considered as anything more than an asset for acquisition by Pakeha.  The work that Tipene did in those years I think will be his historical hallmark.  I say thank you Ngäi Tahu i to ratou whakahaere o tau kaupapa i nga wha o muri o tënä.  Believe me this research would not have been possible had it not been Tipene’s consistent application to untying the method of conveyancing Mäori land title into Pakeha. I absolutely applaud the quality of your outcome.

 

Secondly, I am also Taranaki.  I just want to say that we are in the middle of our West Coast Reserve settlement.  One of the things that the farmers are threatening to do up there in Taranaki is to empty every chemical they have on their farm into the land so that if it in fact comes back to us, it will be in no condition to be used ever again.  I ask for you to think about the implication of that.

 

Thirdly, I had a sister who worked in the Post Office and every month they went through that Land Gazette with a fine tooth comb identifying Mäori land title that they could have access to.  They put in for it and they acquired it and little places like Okato - you have a look at all the little places that had Post Offices - Post Offices that are now closed down - with those parcels of land that this government agency picked up.

 

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