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Mana Whakahono-a-Rohe: Iwi Participation Arrangements

21 Apr 2017 Environment and planning, Māori business

“The commitment to Mana Whakahono-a-Rohe agreements is ground-breaking as we at last have a universal vehicle through which iwi and Councils can develop a deeper understanding and agree collaborative arrangements that protect our natural ecosystems and enable sustainable development consistent with our kaitiakitanga values.”- Sir Mark Soloman (Deputy Chair of the Freshwater Iwi Leaders Group)

In March 2016, we released a newsflash on the provision that the Resource Management Amendment Bill made for iwi participation in decisions made for resource management in Aotearoa, including the much-debated Iwi Participation Arrangements (‘IPA’).
 
The Resource Legislation Amendment Act 2017 (‘Act’) has now been enacted with some amendments made to the original Bill. As part of these amendments, IPAs have adopted a new ingoa Māori (Māori name). They are now also referred to as Mana Whakahono-a-Rohe (‘MWR’).

Mana Whakahono-a-Rohe - Iwi Participation Arrangements
 
Mana Whakahono-a-Rohe (MWR) are mechanisms for iwi participation in local government decisions. They are written agreements between local government and iwi authorities to record how iwi authorities will participate in the preparation, change or review of a policy statement or plan.
 
MWR are not limited to one iwi authority and one council, there can be more than one party to each side of the agreement.
 
Purpose
The purpose of MWR in the Act is similar to what was provided for in the original Bill. MWR are for councils and iwi authorities to agree and record how tāngata whenua will participate in the preparation, change or review of a policy statement or plan. An additional purpose included in the Act, is that MWR will assist councils to comply with their statutory duties under the Resource Management Act 1991 (‘RMA’), including the implementation of sections 6(e), 7(a) and 8.
 
Guiding Principles
The Act provides several guiding principles for the participating authorities that wish to initiate a MWR. Amongst other things, parties must use their best endeavours:
  • to enhance the opportunities for collaboration amongst all participating authorities;
  • to work together in good faith and in the spirit of co-operation;
  • to communicate with each other in an open, transparent and honest manner;
  • to commit to meeting statutory time frames and minimise delays and costs for the process; and
  • to recognise that MWR do not limit iwi participation legislation (a new defined term, which is discussed further below). 

Initiation
The Act has altered the methods available to parties for initiating a MWR. In the drafting of the original Bill, councils were required to engage with iwi authorities within 30 working days of their triennial general election to enter into an IPA. In the Act, a MWR can be initiated by either an iwi authority or a council.
 
Contents
As recorded in the original Bill, all MWR must be in writing and must record the participating authorities to the agreement. Furthermore, MWR must record an agreement made on:
  1. how an iwi will participate in the preparation or change of a policy statement or plan, including use of pre-notification, collaborative, or streamlined planning processes under Schedule 1 of the RMA;
  2. how the participating authorities will undertake consultation requirements under the RMA;
  3. how the participating authorities will work together to develop and agree on methods for monitoring the MWR ;
  4. how the parties will give effect to relevant iwi participation legislation;
  5. a process for conflict of interest; and
  6. a process for dispute resolution.

The dispute resolution process must require both participating authorities to bear their own costs for any dispute resolution process that is undertaken. It cannot require a local authority to suspend any process under the RMA while the dispute resolution process is being contemplated or is in progress.
 
If a dispute remains unresolved then either party may approach the Minister for the Environment who may appoint and meet the costs of a Crown facilitator or direct the participating authorities to use an alternative dispute resolution process to resolve the dispute.
 
A local authority must review all its policies and processes to ensure that they are consistent with any MWR that it enters. Furthermore, every 6 years from the signing of the agreement, or at any other time that the parties agree, the participating authorities must jointly review its effectiveness, having regard to the purpose of the MWR and the guiding principles set out above.
 
’Iwi participation legislation’
A notable change from the original Bill is that provision has been made for ‘iwi participation legislation’. This is a new defined term under the Act, which is defined as: “any legislation listed in Schedule 3 of the Treaty of Waitangi Act 1975 [a list of settlement legislation] which provides a role for iwi and hapū in the processes regulated by the RMA.
 
The inclusion of this definition and its mention throughout the Act contemplates the place of MWR amongst other relationships for iwi participation, which have been established through settlement with the Crown for past historic breaches of the Treaty of Waitangi. For example, participating authorities must take account of the extent that resource management issues are covered in iwi participation legislation.
 
Comment
Our March 2016 Newsflash commented that the iwi participation arrangements would provide certainty over the role of iwi in the plan making process, and incentivize early engagement. MWR will continue to ensure this is so. This is consistent with existing requirements of the RMA and with the current practice of many councils.
 
In our view the amendments will not shift decision-making power to iwi authorities in the way some media commentators are suggesting. Rather, MWR will provide greater certainty over areas of iwi interest, and that certainty will benefit councils, iwi authorities and resource consent applicants alike.
 
If you have any questions in relation to these changes, or the proposed place of MWR in the resource management landscape for Aotearoa, please let us know.
 
Our thanks to Adam Tapsell for preparing this newsflash.

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© 2017 KENSINGTON SWAN The contents of this newsletter are for general information purposes only, and should not be acted upon without specific advice. Kensington Swan does not accept any liability other than to its clients, and then only in relation to specific requests for advice.

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