Consultation on resource consent applications

Iwi consultation and matters

• General

  The Resource Management Act (RMA) requires consent authorities to consider various matters relating to iwi interests and values, when considering and deciding on resource consent applications.

  For example:

  • s6 requires councils to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga
  • s7 requires councils to have particular regard to kaitiakitanga (the exercise of guardianship over natural resources)
  • s8 requires councils to take account of the principles of the Treaty.

  Section 104 of the RMA also requires the Council, when granting an application for consent, to consider any actual or potential effects of the activity on the environment and, if it grants consent, to ensure that any adverse effects from the activity are appropriately avoided, remedied or mitigated.

  It will generally therefore be necessary, when lodging a consent application, to consider the potential effects of the activity on the interests of iwi. Many iwi groups, including tangata whenua, have expressed to the Council their interests in the appropriate management of land and water, and the flora, fauna, ecosystems and habitat associated with those resources in their rohe (areas of interest).

  It may be appropriate for you, as applicant, to approach local iwi or representative bodies, to discuss your application and identify whether it is likely to raise any concerns, and if so, how those concerns may be alleviated.

  Council may be able to assist you in identifying local iwi contacts for this purpose.
• The Vision and Strategy (for applications that affect Waikato/Waipā River catchment)

  If your application is located within Waikato/Waipā River catchments and may potentially affect water quality, then you will need to consider the Vision and Strategy for the Waikato River. 

  The Vision and Strategy was introduced and given statutory effect by river settlement legislation enacted between 2010 and 2012. A chief purpose of these Acts was to “restore and protect the health and wellbeing of the Waikato River for present and future generations”. The Vision and Strategy was an essential element in achieving that purpose. It applies to the Waikato River and activities within its catchment that affect the Waikato River.

  The same legislation also established the Waikato River Authority, a statutory body whose specific purpose is to set policy to give effect to the Vision and Strategy, to promote an integrated and holistic approach to the implementation of the Vision and Strategy, and to fund initiatives for the Waikato River in its role as trustee for the Waikato River Clean-up Trust.

  What does the Vision and Strategy require?

  The Vision is expressed as follows:

  Our vision is for a future where a healthy Waikato River sustains abundant life and prosperous communities who, in turn, are all responsible for restoring and protecting the health and wellbeing of the Waikato River, and all it embraces, for generations to come.

  It sets out 13 objectives that will be pursued, and 12 strategies that will be followed.

  The scope of these objectives and strategies include:

  • commitment to the restoration and protection of the river in its widest sense (including iwi and community relationships).
  • adoption of a precautionary approach
  • recognition given to cumulative effects
  • application of a holistic, integrated approach to the management of resources
  • recognition and application of two worlds of knowledge – Mātauranga Māori and western science.

  The Vision and Strategy is required by its founding legislation to be incorporated in the Waikato region’s Regional Policy Statement (RPS). To the extent that it may be inconsistent with any aspect of the RPS or any National Policy Statement (NPS), including the New Zealand Coastal Policy Statement, the Vision and Strategy takes precedence. In this regard, it can be considered as the primary, direction-setting policy document for the Waikato River.

  What does the Vision and Strategy mean for consent applications?

  The Vision and Strategy forms part of the operative and proposed Waikato Regional Policy Statements. These are instruments which section 104(1)(b)(v) of the RMA directs that a consent authority must have regard to.

  However, the settlement legislation itself means that in addition, a consent authority must have particular regard to the Vision and Strategy when considering an application that relates to the Waikato River or to an activity within the catchment that affects the Waikato River in addition to any requirements specified in the RMA.

  To “have particular regard to” is the same level of consideration specified for “other matters” in section 7 in Part 2 of the RMA. The wording conveys a greater level of consideration, or weighting, than just “having regard to”.

  The application of the Vision and Strategy to applications for resource consent was considered for the first time by the Environment Court in its interim decision in Puke Coal Ltd v Waikato Regional Council in 2014. The Court refers to the V&S giving rise to a “stepwise change in the approach to consents...” and went on to comment that:

  We consider that looking at the Waikato River Settlement Act and the Regional and District Plans as a whole, the only reasonable conclusion that can be reached is that there is an intention to improve the catchment of the river itself within a reasonable period of time (several decades) to a condition where it is safe for swimming and food gathering over its entire length.

  With regard to the statutory obligation in relation to avoiding, remedying and mitigating adverse effects under s104 the Court said:

  … it is clear that [the Vision and Strategy] intends to go further than avoiding effect. We have concluded protection and restoration includes preservation from future and restoration from past damage. Restoration can only involve recreation of a past state. Thus, some element of betterment is intended.

  Legal advice to WRC has confirmed that for activities within the catchments subject to the Vision and Strategy, it is no longer sufficient for an applicant to demonstrate that adverse effects are avoided, remedied, or mitigated. Instead, an applicant must now demonstrate that the application will result in some positive benefit contributing to the restoration of the Waikato River, proportionate to the activity in question.

  Prospective applicants therefore need to think carefully about what this means for their particular proposal. How will the proposal satisfy the requirement for “betterment” (ie net improvement) not just the avoidance, remediation and mitigation of effects?

  >> CLICK HERE TO READ THE  VISION AND STRATEGY FOR THE WAIKATO RIVER [PDF, 4.4 MB]
• Te Arawa River Iwi Trust (TARIT)

  TARIT (Te Arawa River Iwi Trust) was established in 2009 to represent affiliate Te Arawa iwi during the tribe Treaty settlement negotiations. These negotiations, along with those of other River iwi, culminated in the passing of the Ngāti Tūwharetoa, Raukawa and Te Arawa River Iwi Waikato River Act 2010.

  TARIT represents three Te Arawa River Iwi – Ngāti Tāhū-Ngāti Whaoa, Ngāti Kearoa-Ngati Tuarā and Tūhourangi-Ngāti Wahio - who assert mana whenua, kaitiaki, ahi kā and mana whakahaere over the Waikato River and its tributaries that run through their rohe.

  In 2012, TARIT and WRC entered into a Joint Management Agreement as required by the legislation, for the purpose of setting out how river-related “co-management” would work, ie how the two parties would work together in carrying out planning and regulatory functions under the RMA, in relation to the Waikato River.

  >>> CLICK HERE TO SEE THE AREA SUBJECT TO THE JMA

  It is important to note that TARIT’s purpose and scope of responsibilities is confined to representing Te Arawa iwi in regard to the health and well-being of the Waikato River only. It does not represent iwi more generally, or advocate, beyond that. Furthermore, consultation with TARIT does not replace the need or obligation to consult individually with affiliate iwi who may be specifically affected by a proposal.

  TARIT considers itself an affected party under the RMA for any activity that affects or potentially affects the Waikato River and, in that regard, expects to be consulted at an early stage (pre-lodgement of an application) by prospective applicants.

  Where the activity has the potential to have significant adverse effects on the Waikato River or its tributaries, a cultural impact assessment may be required.

  TARIT Environmental Plan

  TARIT released an Environmental Plan in 2015. The plan’s purpose is to “articulate the strategic direction of TARIT in supporting Te Arawa River Iwi in their role as kaitiaki of the Waikato River, its tributaries and the wider environment and to assert mana awa, mana whenua and man whakahaere.”

  Amongst other things, the plan describes the three affiliate iwi and their respective rohe, expectations for consultation (including on consent applications) and policies in relation to water, land, geothermal and fisheries. A link to the full document is available, below.

  The TARIT Environmental Plan provides high-level guidance regarding the objectives and policies of Te Arawa iwi as they relate to the environment, particularly the land, water, geothermal and fisheries resources within the Te Arawa area of interest.

  When considering whether to grant or decline an application under s104 of the RMA, Waikato Regional Council will have regard to the Environmental Plan where it is relevant to the proposal. For these reasons, persons intending to lodge resource consent applications which may have effects in relation to those matters, are strongly encouraged to familiarise themselves with, and take account of the plan prior to designing their proposal. This may assist in finding ways to undertake the proposal in a way that avoids, or minimises, effects on Te Arawa interests and values.

   

  >> CLICK HERE TO READ TARIT'S ENVIRONMENTAL PLAN [PDF, 7.8 MB]
• Waikato-Tainui

  TBC
• Tūwharetoa

  TBC
• Raukawa

  TBC
• Maniapoto

  TBC
• Hauraki

  TBC