On May 29, the Government proposed a host of changes to the suite of National Direction that applies under the RMA (see our previous article here). This collection of national policy statements (NPS), national environmental standards (NES), and additional regulations sit at the top of the planning hierarchy under the RMA and provide policy direction that will eventually be given effect to by local authorities in regional policy statements, regional and district plans, and must be had regard to in resource consent applications.

In this article, we summarise the proposed changes that we expect to have the greatest impact on Māori in terms of opportunities for engagement/consultation and how Te Tiriti and tikanga Māori principles are reflected.

National Direction influences a wide range of resource management matters. The proposed changes have been grouped into four packages for consultation: “Infrastructure and development”; “Primary sector”; “Freshwater”; and “Going for Housing Growth”. Several of these changes are likely to impact the rights and interests of iwi and hapū, and the Government has called for consultation with Māori on these potential impacts.

Expansion of permitted activities

A general theme across the proposed changes is that the Government intends to expand the pool of permitted activities. Permitted activities do not require resource consents, meaning that the engagement with iwi and hapū expected under the consenting process is skipped. With more permitted activities, there will be more projects that iwi and hapū are not notified about and therefore are not able to provide feedback on, contribute to the development of conditions of consent, or oppose if they have significant concerns.

Examples of new permitted activities include:

• research and trial activities relating to aquaculture under the National Environmental Standards for Marine Aquaculture (NES-MA);
• new telecommunications poles in a wider range of areas under the National Environmental Standards for Telecommunication Facilities (NES-TF); and
• certain slash removal methods and low-intensity harvesting under the National Environmental Standards for Commercial Forestry (NES-CF).

Additionally, some of the proposals seek to adjust the scope of existing permitted activities. Examples of these include:

• amendments to make it easier to comply with permitted activity conditions for the construction of in-stream structures for fish passage under the National Policy Statement for Freshwater Management (NPS-FM); and
• amendments to be more permissive of routine electricity transmission and distribution activities (eg relocation and replacement of structures) under the National Environmental Standards for Electricity Transmission Activities (NESETA).

It may be that an increase in permitted activities provides more opportunity to develop whenua Māori, but iwi and hapū also may wish to have their say on these proposals because of concerns about the reduced engagement opportunities.

Aquaculture

There are several proposed changes to aquaculture policies, which will be of particular interest to Māori who have interests in aquaculture settlement areas. These are zones (existing and still be identified) in the coastal marine area under the Māori Commercial Aquaculture Claims Settlement Act 2004 for coastal iwi to use for aquaculture. Incompatible activities cannot occur within these areas, and other parties are prevented from making their own aquaculture proposals.

Firstly, amendments to the New Zealand Coastal Policy Statement (NZCPS) look to better enable priority activities in the coastal marine area, including infrastructure, renewable energy generation, infrastructure, electricity distribution, and aquaculture. In particular, the Government aims to make it easier to secure resource consents for aquaculture activities within aquaculture settlement areas. Despite the specific reservation of these areas for Māori aquaculture, iwi still need to obtain resource consent to carry out any activities - the granting of which is not guaranteed. Proposed amendments direct decision-makers to “provide for aquaculture activities within aquaculture settlement areas”. Proposed amendments also direct decision-makers to consider the “cultural and environmental benefits of aquaculture” alongside the existing requirement to consider social and economic benefits. These changes are ultimately aimed at providing a stronger impetus for the granting of resource consents. We also note that the enabling of aquaculture activities may conflict with the enabling of certain infrastructure that is located within the coastal environment, depending on location. 

Additionally, suggested amendments to the NES-MA aim to make the reconsenting process easier. Current regulations include three restrictions to the reconsenting process that the Government considers “unnecessary”. As mentioned, further amendments to the NES-MA seek to enable new regulatory pathways for research and trial activities on both existing aquaculture farms and in new spaces. These changes enable iwi and hapū with interests in aquaculture to do more, but they may also be of interest to iwi and hapū who have not yet concluded Treaty settlements and therefore have potential aquaculture interests.

Freshwater 

The government has described the proposed changes to the freshwater management regime as revolving around “rebalancing objectives”. 

As it currently stands, the NPS-FM has a single objective based on the hierarchy of obligations in Te Mana o Te Wai, which is the “fundamental concept” underpinning the NPS-FM. That objective seeks to ensure that natural and physical resources are managed in a way that prioritises:

1. first, the health and well-being of water bodies and freshwater ecosystems;
2. second, the health needs of people (such as drinking water); and
3. third, the ability of people and communities to provide for their social, economic, and cultural well-being, now and in the future.

The Government is proposing to split this objective into multiple new objectives. Among these objectives is a proposal that replaces the clear hierarchy present in the current NPS-FM with an objective that requires councils to consider the life-supporting capacity of freshwater and the health of people against social, cultural, and economic well-being (including productive economic opportunities) equally. Iwi and hapū may wish to submit on this proposal to ensure that this balancing exercise adequately weights their interests in freshwater management and its care in accordance with Te Tiriti and tikanga Māori, without inappropriately pitting them against economic opportunity.

Closely linked with the above change is a proposal to recast (and arguably weaken) how Te Mana o Te Wai applies within the NPS-FM. Te Mana o Te Wai encompasses six key principles relevant to freshwater management, as well as the hierarchy of obligations that is reflected in the NPS-FM objective. The Government has proposed three options to “rebalance” Te Mana o Te Wai:

1. remove the hierarchy of obligations and clarify that Te Mana o te Wai does not apply to consenting decisions; or
2. reinstate previous Te Mana o te Wai provisions from 2017; or
3. remove the concept from the NPS-FM completely.

For reference, the 2017 provisions lacked a hierarchy of obligations, and required freshwater objectives and limits to be informed by values identified through engagement and discussion with the community, including tangata whenua. They were criticised by the Waitangi Tribunal as not being Treaty-compliant, including in terms of not adequately recognising Māori rights and interests in freshwater [Freshwater and Geothermal Report (Stage 2) at 543]. Given the current iteration of Te Mana o te Wai requires the NPS-FM to be informed by principles that safeguard the rights and obligations of tangata whenua towards fresh water (including mana whakahaere, kaitiakitanga, and manaakitanga), iwi and hapū may wish to submit on this proposal to ensure the importance of these concepts is preserved.

Unlike the infrastructure, development, and primary sector changes, these freshwater changes are being consulted on in a two-stage process. The Government is currently seeking feedback on high level proposals rather than detailed amendments, with a more detailed exposure draft to be released later this year for the public to submit on. The Government has also released an Interim Treaty Impact Analysis for the freshwater changes, giving a more comprehensive look at the potential impacts of the proposals on the rights and interests of Māori and the implementation of Te Tiriti in freshwater management. 

Wetlands

There are also a host of changes being made to the NPS-FM and the National Environmental Standards for Freshwater (NES-F) that impact wetlands. Firstly, proposed amendments seek to make it easier for mining and quarrying projects in wetlands to access consenting pathways. Both the NPS-FM and NES-F currently provide for consent pathways for quarrying and mining activities that adversely affect wetlands. The Government intends to make terminology and legal tests across these instruments consistent with other instruments, which will make consenting pathways both easier to access and more enabling, with the likely effect of allowing more mining and quarrying projects to obtain consent.

Other proposals aim to adjust the definition of ‘natural inland wetland’ while excluding ‘induced’ or ‘constructed wetlands’, with the aim of simplifying the consenting process for projects in wetlands. Current protections restrict and prohibit a host of activities from occurring in and around natural inland wetlands - therefore, adjusting its scope may impact on these protections. 

Additionally, the Government is proposing to make farming activities in wetlands a permitted activity, so long as that activity is unlikely to have an adverse effect (eg fencing or irrigation). Alternatively, the Government is looking at creating a new consenting pathway for such farming activities. Under either option, the scope for farming activities in wetlands will be expanded. Iwi and hapū may wish to submit on the scope of what an adverse effect may include, as in practice, it is difficult to see how a farming activity in a wetland would have no adverse effect.

The impacts that increased mining, quarrying, and farming activities could have on the surrounding environment and taonga species may be something iwi and hapū wish to submit on. 

Infrastructure and papakāinga

Alongside a new National Policy Statement for Infrastructure (NPS-I), targeted changes have been proposed to the National Policy Statement for Renewable Electricity Generation (NPS-REG) and the National Policy Statement for Electricity Transmission (NPS-ET), which is to be expanded to also cover distribution. The Government aims to make policies across these three instruments more consistent around engagement with iwi and hapū, using policies from the National Policy Statement on Urban Development (NPS-UD) as a baseline. The current NPS-UD requires local authorities to take into account the principles of Te Tiriti in relation to urban environments by:

1. involving hapū and iwi in the preparation of planning documents;
2. taking into account values and aspirations of hapū and iwi;
3. providing opportunities in appropriate circumstances for Māori involvement in decision-making; and
4. operating in a way that is consistent with iwi participation legislation.

Ultimately, this is a net increase in policies that involve engagement with Māori around infrastructure decisions, especially since the NPS-REG and the NPS-ET previously made no provision for engagement with iwi and hapū. This is a positive proposed change that iwi and hapū may wish to submit in support of.

New National Environmental Standards for Papakāinga (NES-P) have also been proposed. The NES-P is intended to provide a nationally consistent framework for papakāinga development. It would make certain developments of up to 10 homes a permitted activity, other small developments and developments of between 11 and 30 homes a restricted discretionary activity, and larger developments of more than 30 homes a discretionary activity. While the NES-P is certainly more enabling of papakāinga development, and does include certain ancillary activities, there are several trade-offs including the overriding of existing local papakāinga provisions that may be more suited to the needs of local iwi and hapū, and a lower likelihood that iwi will be informed about small papakāinga developments.

Contact us

To learn more about the changes that have been proposed, or for assistance with preparing a submission, please contact one of our experts listed below.

Special thanks to Ashe Wainui-Mackle for his assistance in preparing this article.

See our article on the the nuts and bolts of the new National Policy Statement for Natural Hazards.

Read our latest article on the Government's stop to Council's plan-making in preparation for the new RMA system here.