Waikato-Tainui say they weren't consulted before the Resource Management Amendment Bill was brought before parliament. Photo: Lynn Grieveson

Plans to overhaul the Resource Management may breach the terms of a historic Treaty settlement, according to the iwi prepared for a legal battle to argue its case. Dileepa Fonseka reports.

Waikato-Tainui say the Crown is breaching its historic settlement promising “co-governance” of the Waikato River by bringing forward Resource Management Act (RMA) reforms without consultation.

The iwi said it had an agreement with the Crown to work together on any legislation that could have an impact on the river.

They alleged the Crown did not consult the Iwi before bringing the RMA reform bill to Parliament for its first reading, legislation that included freshwater reforms.

Waikato-Tainui strategy manager Manaaki Nepia told Newsroom that under the settlement’s terms the iwi could, as a “last resort”, take the issue to court if the Crown did not act in the spirit of “co-governance”. 

“I guess that’s always a backstop or a last resort if we don’t get any action or transaction in terms of how the Crown engage us,
 Nepia said.

“The Crown set the tone [by introducing legislation] when actually under co-governance and co-management we should be agreeing on what the terms should be.

“As far as we’re concerned at the moment it doesn’t seem to be happening.”

In a written submission to Parliament’s environment select committee, Waikato-Tainui’s chief executive Donna Flavell noted her iwi had “repeatedly” written to the Crown and government ministers over the legislation with little success.

“It is particularly discouraging and concerning that we did not even receive a reply to much of this correspondence. Those responses we have received have been cursory and wholly insufficient.”

The situation was not “co-governance” but a return to a time before the settlement was signed, when governments put up policies and iwi had the ability to “submit” on them at select committee, Flavell wrote. 

Treaty ‘guarantee’ of co-governance

Signed in 2009, the deed of settlement over the Waikato River said co-management was “more than consultation” and included “the highest level of good faith engagement” along with “consensus decision-making as a general rule”. 

That included engagement on the development, amendment and implementation of strategies, policy, legislation and regulations that will or could impact on the health and wellbeing of the Waikato River.

Other iwi who have submitted on the bill have accused the Government of failing to take note of the Waitangi Tribunal’s proposals for managing freshwater, as well as the broader concerns the tribunal has had with the RMA.  

The Waitangi Tribunal released a report on freshwater and geothermal claims a few weeks before the government introduced the RMA legislation to Parliament. 

In it, the tribunal recommended a national body be set up to manage freshwater with 50 percent of its membership being representatives of the Crown, and the other 50 percent representing Māori.

“Clearly, there is no objection to co-governance in principle since such arrangements have been provided for freshwater bodies in some Treaty settlements,” the report noted.

“Fairness and the Treaty guarantee of tino rangatiratanga require that they be made available more generally.”

A political compromise

The same Waitangi Tribunal report also said the Treaty clause in the existing RMA was based on a historical political compromise that went against a recommendation of the Planning Tribunal in 1989 that Treaty obligations could only be honoured by clearly delegating them to those with RMA powers. 

The Treasury, spooked by the interpretation of the Treaty clause in the State Owned Enterprises Act by the Court of Appeal in the famous “Lands” case, wanted that wording watered down to “a duty to consider”. 

In 1990, a change of government from Labour to National resulted in a further watering down of its wording to one that meant people exercising powers under the RMA only had to “take into account the principles of the Treaty of Waitangi”. 

The Waitangi Tribunal report on freshwater claims said this placed Treaty obligations at the “bottom of the hierarchy” of issues that people exercising powers under the RMA should consider. 

In a written submission to the select committee, Toni Love of Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) highlighted the lack of consultation with Māori, and said any amendment to the RMA should also fix the current law’s noted non-compliance with Treaty obligations. 

“The bill’s reforms identify the importance of Māori participation and engagement yet that engagement and participation is absent from the formation of the bill itself.

“If we are to move beyond grievance then true partnership is required.”

When the reforms were announced National MP Judith Collins said managing the coalition’s concerns around it would be a ‘nightmare. Photo: Lynn Grieveson

Newsroom reported last year that intra-coalition disagreements on how Māori concerns should be dealt with had arisen within five hours of the bill being announced.

While the Green Party wanted a greater place for Māori decision-making within the bill, New Zealand First leader and Deputy Prime Minister Winston Peters said he couldn’t agree with their “race-based approach”.   

National’s RMA spokeswoman Judith Collins said then that the situation had exposed major disagreements within the coalition over the law, and the Government should have tried to work better with opposition parties on the reforms.

“You’ve got New Zealand First going around the provinces saying, ‘We’re going to sort out the RMA and stop all these impediments to development’, you’ve got the Greens saying, ‘We’re gonna stop all these developments.’.

“It just must be a nightmare for Labour.”

Environment Minister David Parker, who is overseeing the RMA amendment legislation, has been contacted regarding Waikato-Tainui’s claims, but he was unable to respond at the time of publication.

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