Simpson Grierson - Environment Committee report on Planning and Natural Environment Bills

Environment Committee report on Planning and Natural Environment Bills - implications for Māori

The release of the Select Committee’s reports on the Planning Bill and Natural Environment Bill (together, the Bills), and the Bills’ second reading, are significant steps towards the reform of New Zealand’s resource management framework (see our previous article here). The Treaty of Waitangi/Te Tiriti o Waitangi, alongside other express recognition of iwi and hapū interests, are integrated into the current system under the Resource Management Act 1991 (RMA).

The Bills propose several significant changes that reduce the extent to which these interests are expressly recognised in the legislation. While the Select Committee acknowledged submitter concerns about this approach, it did not recommend major changes to the overall framework, instead opting for minor adjustments and clarifications. We summarise some of these changes below.

Key points

The Bills continue to focus on upholding existing Treaty settlement redress and specified Māori interests, rather than including a general obligation to take into account the principles of the Treaty.
Consultation procedures for Regional Spatial Plans (RSPs) are to be aligned with more detailed requirements for Land Use Plans (LUPs), and the Minister for the Environment (Minister) must provide iwi authorities with draft national instruments and have regard to their advice before these instruments are notified.
Iwi authorities remain excluded from the list of “public authorities” with whom future transfers of power or joint management agreements can be made.
Although the Select Committee left unchanged the position under which existing and initiated Mana Whakahono ā Rohe (MWAR) agreements would transfer into the new system, Cabinet has since decided that these agreements will not transfer into the new planning system under the Bills.
Local authorities must identify permitted activities that may adversely affect customary marine title (CMT) groups, and people proposing to undertake such an activity must generally obtain prior permission from the relevant group.

Narrowed focus on Treaty settlement remains, with key clarifications

As introduced, the Bills demonstrated a major shift in the way obligations under Te Tiriti are incorporated into New Zealand’s resource management system. Under the RMA, decision-makers are required to take into account the principles of the Treaty of Waitangi. The Bills replace the general consideration of Treaty principles with a narrower provision for specific Māori interests - largely revolving around giving effect to Treaty settlements and limited requirements for consulting with iwi authorities. In particular, the Bills introduced clauses that would require decision-makers to give existing settlements the same or equivalent effect to the greatest extent possible.

Many submitters opposed this narrowed focus on existing Treaty settlement redress and obligations. It was argued that an emphasis on giving Treaty settlements “the same or equivalent effect” “to the greatest extent practicable” sets a standard that is too vague to offer meaningful protection for existing settlements, given the inherent differences in how Treaty obligations are provided for under the RMA and the Bills respectively. Moreover, submitters raised a concern that these provisions would essentially force a renegotiation of settlement redress that has already been established under Treaty settlements. Additionally, absent a renegotiation, some local authorities argued that it is not their place to decide how an existing agreement between the Crown and iwi Māori should be given effect to. Further, some iwi and hapū are yet to settle with the Crown.

The Select Committee did not propose amendments to address these broader concerns. It largely retained the Bills’ focus on existing settlements, and instead recommended several targeted amendments and clarifications.

In our view, the requirement to give Treaty settlements the “same or equivalent effect” “to the greatest extent practicable” will be challenging to implement, particularly in circumstances where Treaty Settlement redress has been drafted by reference to, or is otherwise dependent upon, provision and processes under the RMA. More fundamentally, it is highly questionable whether Treaty settlements capture and codify (in a given area, let alone on a consistent basis nationwide) Treaty principles relevant to environmental decision-making.

Upgraded representation and consultation rights

The Bills initially required limited consultation between spatial plan committees and iwi/CMT groups during the plan preparation process. To supplement this, many submitters - including both local councils and post-settlement governance entities - argued for greater provision for Māori representation within the committees themselves. The Select Committee recommended that spatial plan committees must have at least one member with “knowledge, skill, and experience relating to te ao Māori and Māori development”. While consistent with the membership requirements for expert panels under the Fast-track Approvals Act 2024, we note that this addition does not explicitly require iwi-Māori presence on spatial plan committees.

Other proposed changes include a requirement for the Minister to provide iwi authorities with draft national instruments or a summary of them and have regard to their advice before notifying a national instrument.

Like those discussed earlier, these proposed amendments largely consist of incremental changes to procedural and participatory elements of the Bills rather than a reconsideration of the Bills’ overall approach to Māori interests and Treaty settlement redress. While the amendments enhance representation and consultation opportunities, the Select Committee did not recommend major changes to the underlying framework for recognising the Treaty and Māori interests in the new system.

Key participation mechanisms weakened under new system

In addition to the consultation procedures outlined above, the Bills narrow some of the mechanisms through which Māori can participate directly in resource management decision making. Notably, the Bills depart from the RMA by:

removing the express ability available under the RMA for local authorities to transfer functions, powers or duties to iwi authorities;
removing the express ability for local authorities to enter into joint management agreements with iwi authorities or groups representing hapū. Other relationship or participation arrangements may remain available, including under the Local Government Act 2002, but may not have the same legal status or effect; and
limiting the continuation of MWAR agreements (which record how iwi/hapū work with local authorities in relation to resource management processes affecting certain areas/resources) to those only which were initiated and concluded under the RMA (although this has now been overtaken by the Cabinet decision addressed below).

The Bills allowed local authorities to both transfer power to, and negotiate joint management agreements with, defined “public authorities”. However, iwi authorities and other representative Māori groups are not included in that definition. The Select Committee did not recommend changing this aspect of the Bills.

The Select Committee recommended refinements to the MWAR provisions while maintaining the transitional approach under which existing MWAR, and processes initiated before enactment, would carry into the new system.

Following those recommendations, the Government issued a press release which indicated that several dozen MWAR have been initiated or entered into since the Bills were introduced in December last year, and that Cabinet has decided that “existing and initiated MWAR agreements will not transfer into the new planning system”. The Government has indicated that further amendments will be made to give effect to Cabinet’s decision. If enacted, the new approach would differ materially from both the Bills that were the subject of submissions and the Select Committee’s recommendations.

Customary marine title holders’ rights adjusted

The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) provides certain protections and participatory rights for CMT groups under the RMA. As introduced, the Bills contained restrictions on plans permitting activities that would have more than minor adverse effects on protected customary rights recognised under MACA.

The Select Committee has recommended re-framing this protection: local authorities will be required to identify, in their plans, which permitted activities will, or are likely to, have more than a minor adverse effect on a CMT group’s CMT area, and an applicant for such an activity would only be able to proceed if the relevant CMT group grants permission under MACA.

In effect, the Select Committee's recommendation appears to preserve the use of permitted activity rules for those activities, while making their exercise conditional on obtaining a permission right from the relevant CMT group. Whether this affords greater protection than a blanket prohibition on such activities being treated as permitted activities is less clear, but it does provide the CMT group with a direct approval role before the activity may proceed.

Under MACA, CMT groups hold a "permission right": a statutory right to grant, decline, or (if they do not respond within the applicable timeframe) be treated as having granted, permission for a specific activity affecting their CMT area. This sits alongside, and is separate from, any resource consent or planning/natural resource permit required for that activity. Under the current law, permission rights generally apply only to activities that require resource consents, excluding permitted activities. The Bills extend this protection to permitted activities, as outlined above.

Additional Whakaaro

There are several other aspects of the Bills that are particularly relevant to the recognition of, and provision for, Māori interests. Importantly, the new “regulatory relief” scheme that the Bills introduce - through which landowners affected by plan rules can claim monetary compensation - applies to identified sites and areas of significance for Māori. The Select Committee did not recommend significant amendments to these aspects, meaning that even where the location of a wāhi tapu or urupā is well-established, local authorities may need to pay compensation for its inclusion in a plan nonetheless - including to non-Maori landowners.

If you would like to discuss the implications of these reforms, or the Committee’s Report in more detail, please contact one of our experts listed below.

Special thanks to Oscar Wilson and Ashe Wainui-Mackle for their assistance in preparing this article.