In 2020, the High Court in Ngāti Maru Trust observed that the RMA was “replete with references to kupu Māori” (Māori terms and concepts) including “Māori, iwi, hapū, kaitiakitanga, tangata whenua, mana whenua, tāonga, taiapure, mahinga mataitai and tikanga Māori”.  The Court noted that:^[5]

Parliament plainly anticipated that resource management decision-makers will be able to grasp these concepts and where necessary, apply them in accordance with tikanga Māori. In this regard, local authorities and the Environment Court regularly deal with these concepts and their application, and have done so for nearly 30 years. What can be seen from even a cursory review of that case law over that time span is an evolving understanding and application of mātauranga Māori and tikanga Māori. While tikanga Māori is defined in the RMA as “customary values and practices” it has come to be understood as a body of principles, values and law that is cognisable by the Courts.

In the context of the Acts, an important issue for decision-makers will be the relevance of mātauranga Māori and tikanga Māori.  As indicated in the summary table above, the new legislation has not replicated many of the relevant RMA provisions. However, there are provisions that will require decision-makers to engage with and apply mātauranga Māori and tikanga Māori. Moreover, while the legislation does not expressly make it a mandatory consideration for every decision, given its status as law,^[6] we expect tikanga Māori will remain an important aspect of decision-making generally. For example, tikanga Māori may be relevant when considering the statutory purpose of providing for the “enjoyment of land” or what consultation might require in some cases.

We anticipate arguments about the general relevance of the Treaty and the Treaty principles under the Acts. Neither the PA nor NEA refer to the Treaty principles at all - either to apply or exclude them.  Instead, the Acts’ Treaty clauses list which provisions recognise the Crown’s Treaty responsibilities and require the effect of Treaty settlements to be continued.

In general, a “broad unquibbling, and practical interpretation” of Treaty clauses is required.^[7] And, in terms of the statutes that specify how the Treaty is given effect to, the Supreme Court in Trans-Tasman Resources noted the “constitutional significance of the Treaty to the modern New Zealand state” and said that:^[8]

The courts will not easily read statutory language as excluding consideration of Treaty principles if a statute is silent on the question. It ought to follow therefore that Treaty clauses should not be narrowly construed.  Rather, they must be given a broad and generous construction.  An intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear.

In light of this case law and the lack of a provision excluding relevance of the Treaty principles, we anticipate arguments that Treaty principles may be a relevant matter under the new legislation when, for example, determining what consultation may be required, assessing the effects of an activity or whether a site is deserving of protection.

The new legislation has continued the RMA’s focus on “effects”.^[9] While given a broad definition in the Acts, the PA sets out what effects cannot be considered.^[10] Notably, cultural or “mana whenua”^[11] effects are not excluded. In this regard, adverse effects may include effects on ‘Māori culture’, which often stem from the tikanga-based relationships that iwi, hapū and whānau have with particular places and resources - and the responsibilities (including as kaitiaki) and entitlements inherent in the relationships.  Moreover, in some cases, it may be appropriate to consider Treaty principles when assessing such adverse effects.^[12]

Section 13 of the Acts includes a goal to provide for Māori interests through “the identification and protection of sites of significance to Māori (including wāhi tapu, water bodies, or sites in or on the coastal marine area)”.  The term “sites of significance” is not defined, although “wāhi tapu” has the meaning given in section 6 of the Heritage New Zealand Pouhere Taonga Act 2014,^[13] being “a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense”.

We anticipate arguments about what a “site of significance” is.  For example, must it be a relatively small and discrete area, or can it include larger areas such as rivers, islands or harbours? 

We also anticipate arguments about the significance of a site and how it should be protected.  Mātauranga and tikanga Māori is likely to be highly relevant when identifying the sites, including their physical extent and significance, and determining what is required to protect them.

Identifying and protecting sites of significance on private land may trigger the “regulatory relief” provisions of the new legislation, by which landowners can claim compensation for any “significant adverse impact on the reasonable use of land” from plan rules including, for example, a rule protecting a site of significance.^[14] Notably, when assessing the significance of such impacts on land owners, the values of what is being protected or the historical context for the site (eg whether the site was part of a raupatu)^[15] are not listed as matters to be considered.^[16]

The legislation includes several provisions that require some level of consultation with Māori, primarily through iwi authorities.  For example, the Minister must “seek comment” from them before deciding to publicly notify a national instrument.^[17] And, before notifying a proposed regional spatial plan, proposed land use plan, or proposed natural environment plan, the relevant body must “consult” tangata whenua (through iwi authorities) and any relevant customary marine title holders, provide a draft of the plan to these groups and “have regard to any advice they provide”.^[18]

Given that these provisions are intended to “recognise” the Crown’s Treaty-related responsibilities, they will need to be interpreted and applied in that context.  Moreover, as noted above, tikanga may be relevant when deciding how to comply with these provisions.

When preparing draft regional spatial plans and draft land use plans, the relevant body must “have regard to” any relevant “planning document lodged by an iwi authority” and “statutory acknowledgement”.  The former are not defined although appear to be the “planning documents recognised by an iwi authority and lodged with 1 or more local authorities in the region authority” that must be recorded by each territorial authority.^[19] Given that current iwi planning documents were prepared in the context of the RMA, iwi may want to consider if any modifications are necessary to better engage with the new legislation.

“Statutory acknowledgements” are the Crown acknowledgments recognising the values of particular areas and places set out in Treaty settlement legislation.

As we explained in a previous article, despite the Select Committee recommending otherwise, Cabinet decided to remove provision for existing Mana Whakahono a Rohe agreements (MWaR) from the new legislation.  MWaR were included in the RMA in 2017 in response to Waitangi Tribunal findings that the RMA was inconsistent with the Treaty because, in part, local authorities had not used existing mechanisms to enable Māori to participate in decision-making.^[20] In a similar vein, the ability for iwi and local authorities to enter into Joint Management Agreements (JMA) under the RMA has been removed, as iwi (or any other type of Māori representative group) are not included in the list of “public authorities” with which these agreements can now be made under the PA.^[21] 0We note that existing JMAs that were required by Treaty settlements will need to be considered as part of the duty to give effect to Treaty settlements (discussed below).

MWaR and JMAs have been replaced with “Iwi participation agreements” (IPA) in the new legislation.  These are agreements between iwi authorities and local authorities that may include hapū as “parties” to the agreement.  They “may specify” how the iwi authorities (and hapū, if any) will participate in processes for iwi authority participation provided for in the Acts (including processes relating to consultation on regional spatial plans, land use plans, and natural environment plans).  They can also specify how the parties will “engage on any other relevant matters” under the Acts “necessary to implement Treaty settlement redress.”

Compared to MWaR, an IPA is limited in scope, focusing only on administrative or procedural matters, and detailing how the statutory provisions relating to consultation and Treaty settlement implementation will be complied with.  MWaR, on the other hand, could address a wider range of matters relating to decision-making. 

However, we note that IPAs might not be the only way for local authorities and iwi to formalise their relationships in the absence of MWaR or JMAs. Local authorities remain able to enter into arrangements, relationship agreements, and memoranda of understanding independently of the Acts (eg. under the Local Government Act 2002), which may still provide a useful means for local authorities to foster cooperation with iwi, hapū, and other Māori representative groups.

As indicated earlier, the RMA provisions that have not been carried over to the new legislation were intended, at least in part, to address issues arising under the Te Tiriti o Waitangi/Treaty of Waitangi, including matters relating to the ownership and management of resources (eg. freshwater), as guaranteed under Article 2 to the Treaty.  Treaty settlements have also been negotiated, agreed, and implemented in the context of those provisions including the recognition and provision for tikanga-based relationships under section 6(e) of the RMA.  More specifically, many Treaty settlements incorporate mechanisms that directly engage with RMA processes as part of the redress package, such as requirements for joint management agreements, statutory acknowledgements, or notification obligations in relation to resource consent applications.

The new legislation requires decision-makers to:^[22]

In relation to any particular Treaty settlement redress or arrangement… to the greatest extent possible under this Act…, give an effect that is the same as, or equivalent to, the effect that the redress or arrangement had under the Resource Management Act 1991.

There is an associated requirement for the Crown to discuss and seek agreement with post-settlement governance entities as to how their “Treaty settlement redress or arrangement could operate with the same or equivalent effect, to the greatest extent possible” under the new legislation that it had, to the effect that the redress or arrangement had under the RMA.^[23]

As discussed in our previous article, this requirement raises several potential issues.  For example, what does “to the greatest extent possible” mean, given the constitutional significance of the Treaty?  And, given the significant differences between the RMA and the new legislation in terms of recognising Māori interests, what does giving effect to an existing Treaty settlement require?  The legislation endeavours to provide for the on-going effect of Te Ture Whaimana, the vision and strategy for the Waikato and Waipā Rivers, although it leaves open the potential need for further measures to give full effect of the Treaty settlements relating to these rivers.^[24]