Vicki Morrison-Shaw, Director at Atkins Holm Majurey, shares an overview of the interplay between Māori and environmental law by looking at Māori values and competing claims, Tāngata whenua lists, the Treaty of Waitangi, and Tikanga. She will be delving further into this topic at the Environmental Law Summit on Tuesday 9 March 2021.
Tāngata whenua and mana whenua are accorded special recognition and rights under the Resource Management Act 1991 (RMA) and other environmental legislation. These rights are hard-won and reflect the culmination of over 150 years of protest and advocacy on behalf of Māori. The importance of such rights have long been recognised, with the Privy Council describing the Māori provisions in the RMA as being “strong directions to be borne in mind at every stage of the decision-making process”.[1] The approach decision makers have taken to recognising, considering, and providing for such rights has continued to evolve, and recent Court decisions on the approach to consideration of Māori values, competing mana whenua claims, tangata whenua lists, and tikanga provide useful guidance for all decision makers (and participants) in this area.
Māori values and competing claims
In particular, there has been recent recognition that there is a need to engage with Māori values and concerns, and where Māori claim that a particular outcome is required to meet those concerns, a decision maker “must meaningfully respond to that claim”.[2] Where it is necessary to do so, this may involve decision makers determining the relevant strengths of hapū/iwi relationships in an area affected by a proposal. As the High Court recently stated, to ignore or refuse to make decisions on competing iwi (or hapū) claims “is the antithesis of recognising and providing for them and an abdication of statutory duty”.[3]
Tangata whenua lists
Under s.35A of the RMA local authorities (and the Crown) are required to keep and maintain records of local iwi and hapū, to enable applicants (and others) with greater certainty as to who to consult about proposals within certain areas.[4] However, the Environment Court has recently clarified that the inclusion of a Māori group within such records, “does not and cannot create iwi authority or mana whenua status where no such status otherwise exists.”[5] The inclusion (or omission) of a representative entity for an iwi (or hapū) from a local authority list, after a consent has been granted, is also not sufficient to amount to a change in circumstances justifying a rehearing.[6]
The Treaty of Waitangi
The importance of the Treaty and the need to consider Treaty principles even where a statute makes no mention of the Treaty has long been recognised.[7] Most environmental statutes now include Treaty provisions. However, the formulation for the Treaty provisions has evolved over time and there are now a number of differences in wording and approach between different environmental statutes. The requirement in s.4 of the Conservation Act 1987 to “give effect to the principles of the Treaty” is stated in “imperative terms” and is a “strong directive, creating a firm obligation on the part of those subject to it”.[8] However, there are different formulations, such as that in s.12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, where the section refers to provisions included in the Act in order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty.[9] Further judicial guidance is expected on these issues later this year.[10]
Tikanga
The recognition of tikanga and its place in the law has also continued to evolve. Two recent issues, for which Supreme Court decisions are currently awaited, are the extent to which tikanga can be viewed as an independent source of law, and the extent to which tikanga applies where the legislation does not explicitly invoke the principles of the Treaty or require the consideration of tikanga.[11]
Conclusion
With further guidance expected as various appeal processes are worked through, 2021 looks set to be an important one for Māori issues in the environmental sector.
[1] McGuire v Hastings District Council [2002] 2 NZLR 577, at [21].
[2] Ngāti Maru Trust v Ngāti Whatua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, at [68].
[3] Ibid, at [73].
[4] Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203, at [351].
[5] Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203, at [350]; and upheld on appeal in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, at [159].
[6] SKP Incorporated v Auckland Council [2020] NZHC at [69]. While leave to appeal to the Court of Appeal was dismissed (SKP Incorporated v Auckland Council [2020] NZCA 610) it is noted that this finding is currently subject to an application for leave to appeal to the Supreme Court.
[7] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC).
[8] Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2019] 1 NZLR 368 (SC), at [48].
[9] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, at [161] and [162].
[10] The Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86 decision was appealed and a decision of the Supreme Court is currently awaited.
[11] These issues arose in the Trans-Tasman Resources and Ellis proceedings respectively.
