Wednesday, August 17, 2011

Wai 262 - Relationship with the Environment

The third chapter of the Waitangi Tribunal’s report on the Wai 262 inquiry addresses the relationships between Maori communities and the natural environment.  This chapter is the first of two chapters that deal with this subject matter.  Chapter 3 essentially considers how those relationships ought to be given expression in the context of private land within the framework of resource management law and environmental policy.  Chapter 4 is focused on the operation of the Department of Conservation and how Maori communities’ relationships with the natural environment ought to be given expression in the context of the conservation estate.  I will post some comments on Chapter 4 another time.

Some of the key concerns that the Tribunal heard from claimants related to the fact that Maori interests rarely seemed to be determinative or be given an appropriate weighting in decisions affecting the environment.  Chapter 3 begins with the saying ‘Kei raro I nga tarutaru, ko nga tuhinga a nga tupuna’ (beneath the herbs and plants are the writings of the ancestors) and the Tribunal goes on to ask “how can the voice of matauranga Maori, etched as it is in the land, still speak in our changed circumstances?”  In order to address this question, the Tribunal considers the nature of that voice in terms of an environmental philosophy.  Referring to the writings of the late Maori Marsden, the Tribunal identifies whanaungatanga and kaitiakitanga as the two central values that underlie Maori environmental law and policy, before turning to the issue of how those values ought now to be given expression in New Zealand’s modern environmental law and policy that revolves around local authorities, the Ministry for the Environment, and a legislative framework including the Resource Management Act 1991.

One of the central themes of this chapter is that, although the Resource Management Act contains a number of provisions designed to provide opportunities for Maori to participate in environmental decision-making, many of those provisions have rarely been used and overall the Act has failed to deliver on its potential in this regard.

As earlier chapters have illustrated, the Tribunal is careful not to impose blanket solutions for the entire range of issues that kaitiaki and other environmental decision-makers may need to contend with.  Once again, the Tribunal proposes mechanisms designed to give appropriate expression to kaitiaki interests to be determined by reference to matters such as the nature of the kaitiaki relationship and other interests that ought to be recognized and provided for.  The Tribunal suggests that a Treaty consistent system of environmental management should be able to deliver the following:
  •         control by Maori of environmental management in respect of taonga, where it is found that the kaitiaki interest should be accorded priority;
  •             partnership models for environmental management in respect of taonga, where it is found that kaitiaki should have a say in decision-making but other voices should also be heard; and
  •             effective influence and appropriate priority to the kaitiaki interests in all areas of environmental management when decisions are made by others.

The Tribunal suggests that one of the key reforms necessary to implement such a system is the enhancement of iwi resource-management plans.  There is already provision within the Resource Management Act for the development of iwi management plans, but the Tribunal proposes radically changing the status of these plans and giving them real teeth.  The Tribunal takes the view that iwi should be supported to set out their own vision for the way in which they wish to give expression to the values of whanaungatanga and kaitiakitanga in the management of the natural environment and in relation to their particular taonga.  Crucially, the Tribunal recommends that confirmed aspects of an iwi resource management plan be complied with in the same way that district and regional plans must be.  A transparent process is recommended for the way in which an iwi resource management plan may be confirmed.  Any aspects that the local authority agrees with can automatically be confirmed, but where there is disagreement between the iwi and the local authority a statutory negotiation process may be entered into, and ultimately the Environment Court may decide the matter.  This means that, at the least, local authorities must genuinely engage with iwi resource management plans, provide reasons for any disagreement with such plans, and be accountable to the Environment Court for its decisions.  But, in most cases, it ought to provide much more than that, such as giving kaitiaki the ability to exercise real decision-making authority in relation to their taonga and consolidating important partnership relationships in the management of the natural environment.